SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the fiscal year ended: December 31, 1996.
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from ___________ to
___________.
Commission File Number: 0-24578
CASCADE COMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
Delaware 04-3099677
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
5 Carlisle Road 01886
Westford, Massachusetts (Zip code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (508) 692-2600
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Exchange on Which Registered
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
(Title of class)
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 past 90 days. Yes x No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. |_|
Aggregate market value, as of March 12, 1997, of Common Stock held by
non-affiliates of the registrant: $2,578,444,329 based on the last reported sale
price on the Nasdaq National Market.
Number of shares of Common Stock outstanding at March 12, 1997: 94,283,269
DOCUMENTS INCORPORATED BY REFERENCE
The registrant intends to file a definitive proxy statement pursuant to
Regulation 14A within 120 days of the end of the fiscal year ended
December 31, 1996. Portions of such proxy statement are
incorporated by reference in Part III of this Form 10-K.
================================================================================
<PAGE>
PART I
ITEM 1. BUSINESS
Cascade Communications Corp. ("Cascade or the Company") develops,
manufactures, markets and supports a family of high performance, multi-service
wide area network switches that enable public service providers and private
network managers to provide cost-effective, high-speed data, video and voice
communications services to end users. Wide area networks built on the Company's
switches are designed to support one or more of the major broadband packet
communications protocols and services, including Frame Relay, Internet Protocol
("IP"), Switched Multi-Megabit Data Service ("SMDS") and Asynchronous Transfer
Mode ("ATM"). Users or other networking devices access the Company's products
over a variety of media, including twisted pair, coaxial and fiber optic leased
line facilities, analog modem and Integrated Services Digital Network ("ISDN")
dial facilities and wireless facilities.
Recent Developments
On January 28, 1997, Cascade completed its acquisition of Sahara, a
privately held developer of scalable, high-speed broadband access products
located in Wallingford, Connecticut, by means of a merger of a wholly-owned
subsidiary of Cascade with and into Sahara. As a result of the Merger, Sahara
became a wholly-owned subsidiary of Cascade. Cascade issued approximately 3.4
million shares of Cascade Common Stock in exchange for all the outstanding
shares of Sahara. In addition, Cascade assumed all outstanding Sahara stock
options to purchase approximately 400,000 shares of Cascade Common Stock. The
combination will be accounted for as a purchase.
Sahara is in the process of designing, manufacturing and marketing
integrated broadband access products for communications services based on ATM
technology. The Company expects to integrate Sahara's products into Cascade's
carrier-class network management, Quality of Service and IP capabilities across
the Companies' combined product lines, enabling Cascade's service provider
customers to extend their high-speed network infrastructure to the customer
premise. These products are intended to serve multiple markets focusing on Local
Exchange Carriers, Interexchange Carriers, Competitive Access Providers, Foreign
Post and Telecommunications Authorities and large information intensive end
users.
Wide Area Network Industry
Corporations have traditionally built their wide area networks ("WANs") by
purchasing time division multiplexers ("TDM") from equipment vendors and
interconnecting them with long distance lines leased from network service
providers. While TDM products can accommodate many forms of information,
including voice, video and data, they were designed and optimized for fixed
path, fixed bandwidth applications, especially voice.
The rapid growth in the number of personal computers, workstations and
end-user applications has led to the extensive deployment of local area networks
("LANs") in corporate environments. As these LAN-based users need to communicate
with users at other sites, corporations installed bridges and multiprotocol
routers to interconnect them across wide area networks.
Most wide area router-based networks were installed on the TDM networks
already put in place. However, these TDM networks are not well suited for the
dynamic, high bandwidth communications of LAN-based data coming from PCs and
workstations. Although vendors of TDM products have provided upgrade modules to
support the newer data and video traffic, these older architectures have been
unable to scale to accommodate the tremendous growth in the data traffic as well
as support the dynamic nature of this communication. As such, a new generation
of wide area network technologies has been developed to address these needs,
including Frame Relay, SMDS and ATM.
Frame Relay, the most widely deployed of the three current broadband
packet technologies, was designed to provide cost-effective dynamic WAN
connectivity for data applications. Frame Relay is used by public network
service providers for provisioning of WAN data services as well as large end
users for private network applications. Although originally specified to operate
at speeds from 56 and 64 Kbps (thousands of bits per second) to T1 and E1 speeds
(1.5 Mbps, millions of bits per second and 2.048 Mbps, respectively), due to its
popularity, Frame Relay has been extended to support lower speed applications,
such as 9.6 Kbps and 19.2 Kbps to very high speed backbone applications at DS3
(45 Mbps) and E3 (European equivalent at 34 Mbps). Also, while popularized for
router-based networks, Frame Relay has also become a cost-effective solution for
hierarchical IBM-based System Network Architecture ("SNA") data networks as well
as packet-based voice and video applications.
<PAGE>
SMDS was designed by Bellcore as the basis of a very high speed public
data service offering to be provisioned by the Regional Bell Operating Companies
("RBOCs"). SMDS only became accepted once lower speed support at 56/64 Kbps and
T1/E1 speeds were provided. While still popular among many end users due to its
simplicity, SMDS has not become as popular as Frame Relay.
ATM was designed with the very broad goal of supporting all forms of
communications, including voice, video and data, in both the LAN and the WAN.
Within the wide area network, ATM has been developed to provide two levels of
service offerings: 1) as a high bandwidth backbone technology for other packet
data services, such as Frame Relay, SMDS and IP based router networks, and 2) as
the basis of a new high speed information service, simultaneously supporting all
forms of communications, including voice, video and data applications.
The Internet
The Internet has become very popular with businesses as well as home users
for access to a wide variety of information located on computing resources
around the world. While many refer to the Internet as if it were a single
network, it is actually a network of networks. Originally designed out of IP
based routers for providing access by governments and universities to the
world's research information, the Internet has become highly popularized by
Web-based applications and extends to business and home users for accessing a
very broad range and types of information.
New Internet service providers have emerged to provide access to these
computing and information storage resources available over the Internet. They
provide dedicated access via leased lines for business users as well as analog
modem and ISDN dial-in access, both for business as well as home use. These
Internet access networks are predominately based on three types of networking
equipment: a) IP routers; b) remote access servers; and c) Frame Relay and ATM
switches.
The Cascade Solution
Cascade pioneered the concept of utilizing a single, powerful switching
platform to simultaneously support the major broadband packet communications
services, including Frame Relay, SMDS and ATM. Cascade's multi-service,
standards-based products enable public service providers and private network
managers to select the transmission services with the cost and performance
attributes that best fit the end user's requirements, without requiring them to
build multiple separate specialized networks. In addition to addressing the
requirements for provisioning services for internal communications needs,
Cascade's Frame Relay and ATM product offerings are widely deployed in numerous
Internet access provider networks, including many of the world's largest
Internet service providers.
With the acquisition of Arris Networks, Inc. ("Arris") in May 1996,
Cascade now offers a wide range of options to access its broadband network
switches, including twisted pair, coaxial and fiber optic leased line
facilities; analog modem and ISDN dial facilities; and wireless facilities.
Cascade together with Arris also now offers comprehensive and cost-effective
deployment for all major broadband packet technologies, including Frame Relay,
ATM, SMDS and IP, for both Intranet as well as Internet applications.
Products
With the introduction of the AX 800 and AX 1600 High Capacity Access
Switches in September 1996, Cascade now offers four product families of wide
area network switches which address a broad range of service provisioning
options. These include the STDX 6000, the B-STDX 8000 and 9000, the CBX 500 and
the AX 800 and 1600. All Cascade switches are modular in design, and can be
configured with many types of network interface modules to support a wide
variety of end user access devices and network connections. The Company's
product architecture emphasizes software-based solutions in order to permit the
implementation of new services and standards in a cost-effective manner. The
Company's products have been designed for use as WAN switches primarily for
public service networks for internal as well as Internet access applications and
for use in large private networks.
STDX 6000. The STDX 6000 is designed to aggregate low speed data traffic
from remote sites onto larger networks and to serve as a backbone for small
networks. A popular platform for medium and even large service providers in the
early deployment of Frame Relay, STDX 6000 networks have yielded to the
distributed packet processing capabilities and complete redundancy offered by
the B-STDX 8000 and 9000 platforms now widely deployed in large Frame Relay,
SMDS and ATM networks worldwide. The STDX 6000 is still attractive in regions of
the world outside the United States where cost, especially at low speeds,
is of highest concern and where traffic and redundancy requirements are
significantly lower than in the U.S. and in other deregulated economies.
<PAGE>
B-STDX 8000 and B-STDX 9000. The B-STDX 8000 and 9000 multi-service WAN
switches offer a level of speed and capacity representing a hundred-fold
increase in total system throughput over the STDX 6000 and up to ten times the
port density for the B-STDX 9000 and five times the port density for the B-STDX
8000. The B-STDX 8000 and 9000 can function as multi-service access switches for
carriers to aggregate multiple end-user services onto an ATM backbone. They can
also serve as the backbone of a stand-alone multi-service network for private
network users and public service providers seeking an inexpensive distributed
network solution.
Cascade's customers generally deploy the B-STDX 9000 for the backbone of
medium to large-size public service providers and end users, and the B-STDX 8000
is being deployed as a platform for these same service providers and end users
to expand their coverage to less dense geographical regions. Both the B-STDX
8000 and 9000 are used in public service provider and end user networks for the
provisioning of services for internal communications (intranet applications) as
well as in public service provider networks designed for Internet applications.
The B-STDX 8000 and 9000 are designed for high levels of redundancy required in
mission critical applications. These switches utilize a symmetrical Reduce
Introduction Set Computing ("RISC") multiprocessing architecture, employing a
Control Processor ("CP") interacting with up to fourteen network interface
modules in the B-STDX 9000 and six interface modules in the B-STDX 8000.
Separate RISC micro processors are used on the CP and on each network interface
module providing for scaleable performance.
CBX 500. The CBX 500 (formerly the Cascade 500 ATM Switch) is a high
capacity ATM switch which was first commercially deployed in the first quarter
of 1996. The CBX 500 features a quad plane architecture and significant
scalability features. Unlike competitive architectures that share ATM switching
resources among different user applications, the quad plane architecture
dedicates switching resources to each of the ATM Forum's four user classes of
service. Dedicating resources in this manner assures that no user traffic of one
class of service will interfere with other communications taking place
simultaneously assigned to a different service class. The initial release of the
CBX 500 supported 2.5 Gbps and 5 Gbps (billions of bits per second) of switching
capacity and DS3/E3 (defined earlier) and OC3c/STM1 (155 Mbps) interfaces for
user and network trunk connections. In December 1996 Cascade announced support
for OC12c/STM4 (622 Mbps) and T1/E1 support in order to broaden the range of
access speeds and network trunking capacities available for the CBX 500. Like
the B-STDX 8000 and 9000, the CBX 500 offers complete redundancy options.
AX 800 and AX 1600 High Capacity Access Switches. The AX product family
resulted from the acquisition of Arris and was introduced in the third quarter
of 1996. While earlier generations of remote access servers were developed for
commercial telecommuting applications, the AX product family was designed
exclusively for the carrier access market segment. Specifically, the AX High
Capacity Access Switches are designed for performance, scalability and
availability requirements of public service providers with similar features to
those found in Cascade's B-STDX and CBX product families, such as hardware
redundant server modules and power supplies. The AX family of switches integrate
leased line and dial-in traffic from modem and ISDN-based users and support a
wide array of multiservice capabilities, such as IP routing. A multiprocessor
architecture scales as the system expands to deliver high performance, high
availability, and multiple quality of service levels.
The AX High Capacity Access Switch family includes two models: the AX 1600
and the AX 800. The AX 1600 provides scalable capacity for hundreds of users,
making it appealing to Internet and network service providers. The AX 800, for
applications that require mid-range capacity, has the same features and
performance of the AX 1600. The models share common hardware and software
architecture, so users benefit from investment protection as their networks
evolve. Both the AX 800 and the AX 1600 support 10 and 100 Mbps Ethernet
connections for high speed connection to co-located devices, such as a Point of
Presence ("POP") router or web servers, as well as high speed leased line Frame
Relay connections to the B-STDX product family. The AX product family is
manageable by the same network management platform, CascadeView/UX, which
manages Cascade's B-STDX and CBX product families. In addition, the AX family
features a web-based monitoring and management tool.
<PAGE>
Network Management. Extremely important to the design, operations and
maintenance of a public service provider network is the network management
platform. Cascade provides CascadeView/DOS and CascadeView/UX software for the
management and control of all of its WAN products. These products offer easy
integration with existing network management systems due to their use of the
industry standard Simple Network Management Protocol ("SNMP"). CascadeView is
built on Hewlett-Packard OpenView running on an IBM compatible personal computer
(DOS version) or a diagnosis and fault management RISC-based workstation (UNIX
version). CascadeView's network management capabilities include a graphical user
interface, rate monitoring, congestion management, usage statistics generation,
configuration management, remote diagnosis and fault management.
In addition to the integrated network management application, in 1996 the
Company began shipping Provisioning Server, Bulk Stats Server, Accounting Server
and modules for CascadeView, which are a series of management servers that allow
network service providers to continue to scale the management of their networks
just as they scale the connectivity to these networks. Each server module
provides an enhanced functional version of the software that is part of the
integrated CascadeView application.
Markets and Customers
The Company markets its products and services directly to public service
providers, including Interexchange Carriers ("IXCs"), Local Exchange Carriers
("LECs"), RBOCs and Competitive Access Providers ("CAPs") in the U.S., Postal
Telephone and Telegraph ("PTTs") and Other Licensed Operators ("OLOs")
internationally, and Internet Service Providers ("ISPs") and Value Added Network
providers ("VANs") worldwide. The Company's products and services are also sold
to private network managers on a worldwide basis either directly or via partners
of the Company, including Original Equipment Manufacturers ("OEMs"), system
integrators and international distributors. At December 31, 1996, Cascade's
direct sales organization maintained eighteen offices throughout the United
States and ten offices internationally. Direct and indirect sales to
international customers accounted for 19%, 16%, and 20% of the Company's total
sales for the years ended December 31, 1996, 1995 and 1994, respectively. See
note J of the notes to the consolidated financial statements. During the year
ended December 31, 1996, sales to no one single customer exceeded 10% of
revenue. In 1995, sales to Bell Atlantic and U.S. West, Inc. accounted for 12%
and 17% of revenue, respectively. In 1994, sales to BellSouth Corporation and
U.S. West, Inc. accounted for approximately 12% and 11% of revenue,
respectively.
Competition
The market for WAN communications products is intensely competitive and is
subject to rapid technological change. Although to date the Company has
experienced significant success against competitive product offerings, the
Company expects competition to increase significantly in the future. To date,
the Company has faced significant competition in the Frame Relay market from
StrataCom, Newbridge Networks, and Nortel. However, in early 1996, Cisco Systems
Inc. ("Cisco") acquired StrataCom, and as such, represents even greater
competition to the Company. With the Company's entrance in the ATM WAN backbone
market in 1996, the Company has begun to compete with additional industry
participants, including Bay Networks, Fore Systems and General Datacom. With the
introduction of the AX product family in 1996, Cascade now also competes in the
remote access concentrator portion of the wide area network marketplace.
Competitors in this segment of the market include Cisco, Ascend Communications,
U.S. Robotics, Shiva and Nortel.
The principal competitive factors in the market for switching products are
breadth of network services supported, conformance to industry standards, price
per port, performance, product features, network management capabilities,
reliability and customer support. The Company believes it presently competes
favorably in all of these areas. However, many of the Company's current and
potential competitors have substantially greater financial, marketing and
technical resources than the Company. As such, significant success by any one of
them in the Company's markets could have an adverse effect upon the Company's
business.
<PAGE>
Backlog
Because of the generally lengthy and unpredictable sales cycle involved in
selling to public service providers, the generally short time period between
order and shipment and occasional customer changes in delivery schedules or
cancellation of orders (which can be made without significant penalty), the
Company does not believe that its backlog as of any particular date is
necessarily indicative of actual revenue for any future period.
Research and Product Development
The market for the Company's products is characterized by rapidly changing
technology, evolving industry standards and frequent new product introductions.
Management believes that the Company's future success depends in large part upon
its ability to continue to enhance existing products and develop new products
that maintain technological competitiveness. The Company intends to make
substantial investments in product and technology development and continues to
participate in the development of industry standards. Extensive product
development input is obtained through the comments and suggestions of customers
and prospective customers and through the Company's participation in industry
organizations and standards-development bodies, such as the ATM Forum, the Frame
Relay Forum and the SMDS Interest Group. In 1996, the Company announced several
new products, including remote access and ATM as well as enhancements to the
B-STDX and STDX product families.
The Company is focusing development efforts on expanding the protocol
capabilities of its products, expanding its network management capabilities,
providing additional interface capabilities, supporting additional industry
standards and adding higher capacity platforms to the product family. During the
years ended December 31, 1996, 1995 and 1994, research and development
expenditures were approximately $53.4 million, $20.7 million and $7.4 million,
respectively.
Customer Support and Service
Cascade installs, maintains and supports products sold directly in the
United States with the Company's service and support personnel. The Company's
resellers generally provide installation, maintenance and support to their
customers. The Company also has agreements with several third party vendors to
provide worldwide service and support for all of the Company's products. The
Company's Technical Assistance Center ("TAC") will continue to be the first
point of contact for all customer problem resolution. If TAC determines that a
customer has a hardware problem, a third party representative will be dispatched
to the customer site. The vendors also carry Cascade products locally at
selected supply centers. All software problems will continue to be resolved by
TAC.
The Company generally warrants its software products for 90 days upon
shipment. During this 90 day warranty period, the Company will investigate all
reported problems and will endeavor to provide a solution. The Company generally
warrants its hardware products for 12 months. During such warranty period, the
Company endeavors to take action to repair or replace failed components within
24 hours of notification. The Company has experienced no significant customer
returns and has accrued for expected warranty costs.
Manufacturing
Cascade's manufacturing activities are conducted in its Boxborough,
Massachusetts facility. These activities consist primarily of material planning
and procurement, testing, burn-in, final assembly and quality assurance. The
Company uses several third-party contract manufacturers to perform printed
circuit board assembly, in-circuit testing and product repair. In January 1995,
the Company received ISO 9001 certification. The Company significantly increased
manufacturing capacity in 1996 through expansion of its outsourcing
relationships and the expansion of its own facilities.
The Company generally uses components available from multiple suppliers.
Certain components are, however, available only from single or limited sources.
Cascade has no supply commitments from its vendors and generally procures
products on a purchase order basis as opposed to entering into long term
procurement agreements. The inability of the Company or its third-party contract
manufacturers to obtain certain components could cause a delay in the shipment
of certain products. This could have a material, adverse affect on the Company's
operating results. The Company believes that its inventory levels of these
components are adequate for current forecasted demand.
<PAGE>
Proprietary Rights
The Company has a number of patent applications that are currently pending
for certain of its existing products and currently relies on a combination of
contractual rights, trade secrets and copyrights to protect its proprietary
rights. Although the Company intends to apply for additional patents in the
future, there can be no assurance that the Company's intellectual property
protection will be sufficient to prevent competitors from developing similar
technology. Moreover, in the absence of patent protection, the Company's
business may be adversely affected by competitors that independently develop
functionally equivalent technology.
The Company currently licenses certain hardware and software technology
from third parties and plans to continue to do so in the future. While it may be
necessary in the future to seek or renew licenses with third parties, the
Company believes based upon past experience and standard industry practice that
such licenses could be obtained on commercially reasonable terms.
Employees
As of December 31, 1996, the Company employed a total of 833 persons. None
of the Company's employees are represented by a collective bargaining agreement
and the Company's believes that its relations with employees are good.
ITEM 2. FACILITIES
The Company's corporate headquarters are located in an 80,000 square foot
facility in Westford, Massachusetts. This facility accommodates corporate
administration, marketing, sales and customer support. The Company occupies this
space under a five and one-half year lease which expires in March 1999 with an
option to extend the term of the lease for an additional three years at a rate
equivalent to 95% of the then current market rate for similar space in the area.
The Company's development activities are located in a 97,500 square foot
facility in Westford, Massachusetts. The Company occupies this space under a two
and one-half year sub-lease which expires in November 1997. The Company's
manufacturing activities are located in a 103,000 square foot facility in
Boxborough, Massachusetts. The lease expires in March 1999 and the Company has a
option to renew the lease for an additional three years.
The Company entered into a lease for a 279,000 square foot facility in
Westford, Massachusetts to expand its development activities. The Company
expects to begin occupying this space in early 1997. The lease expires in March
2009 with an option to extend the lease for up to three successive five year
periods at the current market rate for similar space in the area, as defined in
the lease which is filed herein as Exhibit 10.25.
The Company also leases on a short-term basis various sales office space,
including space in the metropolitan areas of: Atlanta, Chicago, Dallas,
Minneapolis, New York, Philadelphia, San Francisco and Washington D.C. as well
as international sales offices in Brazil, Canada, China, Germany, France, Great
Britain, Japan, Singapore and Spain. The Company expects that it will continue
to acquire additional office space in 1997 to meet expected growth in its
domestic and international customer base.
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of business, various lawsuits and claims are
filed against the Company. While the outcome of these matters is not currently
determinable, management believes that the ultimate outcome will not have a
material adverse effect on the Company's results of operations or its
financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the last
quarter of the fiscal year ended December 31, 1996.
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is quoted on the Nasdaq National Market under
the symbol "CSCC". The following table sets forth the high and low bid
information as reported on the Nasdaq National Market for the last two fiscal
years. All share prices have been restated to reflect the following stock splits
in the form of stock dividends: a two-for-one in June 1995, a three-for-two in
February 1996 and a two-for-one in May 1996. Such information reflects
inter-dealer prices, without retail mark-up, markdown or commission and may not
necessarily represent actual transactions:
<TABLE>
- ---------------- ---------- ---------- --------------- ---------- ----------
1995 High Low 1996 High Low
- ---------------- ---------- ---------- --------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
First Quarter $ 12.54 $ 9.54 First Quarter $ 46.38 $ 20.42
Second Quarter 15.42 10.13 Second Quarter 68.50 39.75
Third Quarter 17.42 13.00 Third Quarter 83.38 46.25
Fourth Quarter 30.83 13.75 Fourth Quarter 91.25 54.88
</TABLE>
As of December 31, 1996, the Company had approximately 625 stockholders of
record. This number does not include stockholders for whom shares were held in a
"nominee" or "street name". The Company has not paid cash dividends on its
Common Stock. The Company anticipates it will continue to reinvest earnings to
finance future operations and therefore does not intend to pay cash dividends in
the foreseeable future.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial information presented below is derived
from the consolidated financial statements of the Company for the years ended
December 31, 1996, 1995, 1994, 1993 and 1992. The information set forth below
should be read in conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included as Item 7 and the
consolidated financial statements and related footnotes included as Item 8 in
this Form 10-K.
<TABLE>
Selected Consolidated Financial Data
(in thousands, except per share data)
- --------------------------------------------------------------------------------
Year Ended December 31,
1996 1995 1994 1993 1992
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Consolidated Statement of
Operations Data:
Revenue $ 340,976 $ 134,834 $ 50,060 $ 6,960 $ 816
Income (loss) from operations 110,282 38,078 10,317 (2,720) (3,224)
Net income (loss) $ 70,779 $ 25,410 $ 9,266 $(2,613) $(3,145)
- --------------------------------------------------------------------------------
Earnings per share:
Net income (loss) per
common share $ 0.72 $ 0.28 $ 0.11 $ (0.12) $ (0.14)
Net income (loss) per
common share -
supplementary basis (1) $ 0.72 $ 0.28 $ 0.11 $ (0.04) $ (0.06)
- --------------------------------------------------------------------------------
Consolidated Balance Sheet
Data:
Working capital $ 184,564 $ 69,187 $ 46,308 $ 10,266 $ 5,703
Total assets 270,261 111,859 65,763 16,070 6,709
Long term obligations,
excluding current portion - - - 256 113
Redeemable convertible
preferred stock - - - 18,269 10,408
Total stockholders' equity
(deficit) $ 219,783 $ 86,306 $ 52,479 $ (6,841)$(4,235)
- --------------------------------------------------------------------------------
(1) Net income (loss) on a supplementary basis assumes the conversion of all
previously outstanding preferred stock at the time of original issuance.
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Business Environment and Risk Factors.
The following discussion should be read in conjunction with the
consolidated financial statements and related notes included elsewhere herein as
well as the section below under the heading "Risk Factors That May Affect Future
Results". The Company's future operating results may be affected by various
trends and factors which are beyond the Company's control. These include, among
other factors, changes in general economic conditions, rapid or unexpected
changes in technologies, activities of competitors, timing of product shipments
and uncertain business conditions that affect the data networking industry.
Accordingly, past results and trends should not be used by investors to
anticipate future results or trends.
With the exception of historical information, the matters discussed below
under the headings "Results of Operations" and "Liquidity and Capital Resources"
may include forward-looking statements that involve risks and uncertainties. The
Company wishes to caution readers that a number of important factors, including
those identified in the section entitled "Risk Factors That May Affect Future
Results," as well as factors discussed elsewhere in this report and in the
Company's other reports filed with the Securities and Exchange Commission, could
affect the Company's actual results and cause actual results to differ
materially from those in the forward-looking statements.
Results of Operations
In 1996, the Company continued to increase profitability with net income
of $70.8 million on revenue of $341.0 million. This compares with a net income
and revenue of $25.4 million and $134.8 million, respectively, in 1995. The
Company reported net income of $9.3 million on revenue of $50.1 million in 1994.
The following table sets forth for the periods indicated the percentage of
revenue represented by certain items reflected in the Company's consolidated
statements of income:
<TABLE>
- -------------------------------------------------------- ----------------------
Year Ended December 31,
1996 1995 1994
- --------------------------------------------------- ---------------------------
<S> <C> <C> <C>
Revenue 100.0% 100.0% 100.0%
Cost of revenue 35.1 36.0 38.2
- -------------------------------------------------------------------------------
Gross profit 64.9 64.0 61.8
- -------------------------------------------------------------------------------
Operating expenses:
Research and development 15.7 15.3 14.7
Sales and marketing 13.1 15.3 21.1
General and administrative 3.8 5.1 5.4
- -------------------------------------------------------------------------------
Total operating expenses 32.6 35.7 41.2
- -------------------------------------------------------------------------------
Income from operations 32.3 28.3 20.6
Interest income 1.6 2.4 1.6
- -------------------------------------------------------------------------------
Income before income taxes 33.9 30.7 22.2
Provision for income taxes 13.1 11.8 3.7
- -------------------------------------------------------------------------------
Net income 20.8% 18.9% 18.5%
- -------------------------------------------------------------------------------
</TABLE>
Revenue
The Company's revenue increased 153% to $341.0 million in 1996, as
compared with 1995 revenue of $134.8 million. Revenue in 1994 was $50.1 million.
The Company believes that the increase in revenue is primarily attributable to
the growth in the broadband packet equipment market, market acceptance of the
Company's products and new product introductions by the Company. Revenue from
the Company's Frame Relay products represented a substantial portion of revenue
over each period presented. Additionally, in 1996 the Company introduced the CBX
500, an ATM product, which accounted for approximately 11% of revenue. To date,
most of the Company's customers have been public carriers and internet service
providers which have been migrating to higher speed network access products such
as Frame Relay and ATM.
<PAGE>
Direct and indirect international sales accounted for approximately 19%,
16% and 20% of revenue for 1996, 1995 and 1994, respectively. The dollar
increase in international sales is primarily attributable to continued sales
growth in the Americas, Pacific Rim and European markets as well as the
expansion of the Company's international presence. In 1996, the Company
established sales offices in Brazil, China, France, Singapore and Spain and
increased its sales and marketing personnel in existing sales offices. The
Company intends to increase its presence internationally and expects that
international sales will continue to be a significant portion of the Company's
business, but may fluctuate as a percentage of revenue. To date, the Company's
international sales have been denominated in U.S. currency; however, if this
were to change, the Company would be subject to exchange rate fluctuations.
Gross Profit
Gross profit increased to 64.9% of revenue or $221.5 million in 1996
compared to 64.0% of revenue in 1995 and 61.8% of revenue in 1994. The continued
improvement in gross profit as a percentage of revenue was due to manufacturing
efficiencies from high volume production of the Frame Relay products, somewhat
offset by the initial manufacturing costs associated with new products. In
future periods, gross profit will vary depending upon a number of factors,
including the channels of distribution, the mix of products as well as
manufacturing and component costs. As the Company introduces new products, it is
possible that such products may have a lower gross profit than other established
products in high volume production. Accordingly, gross profit as a percentage of
revenue may vary.
Research and Development
In 1996, research and development expenses were $53.4 million or 15.7% of
revenue, compared to $20.7 million and $7.4 million or 15.3% and 14.7% of
revenue for 1995 and 1994, respectively. The expense increase was due
principally to the addition of personnel, depreciation of capital expenditures
and prototype development, design and testing. Expenses were incurred for the
following research and development projects including: the expansion into the
remote access market, completion of the Company's CBX 500 ATM product and
enhancements to the Company's Frame Relay products. The Company considers
product development expenditures to be critical to future revenue and expects to
increase spending in absolute dollars while such expenditures as a percentage of
revenue may vary. There can be no assurance that the Company's research and
development efforts will result in commercially successful new technology and
products in the future, and those efforts may be affected by other factors as
noted below.
Sales and Marketing
The Company's sales and marketing expenses increased to $44.7 million in
1996 from $20.6 million in 1995 and $10.5 million in 1994. These expenses
decreased as a percentage of revenue to 13.1% in 1996 from 15.3% in 1995 and
21.1% in 1994. The increase in dollars spent was due to the addition of
personnel, commissions associated with revenue growth, expansion of domestic and
international sales offices and product promotional expenses. The Company
expects to increase spending in 1997 as part of its effort to increase
international revenue and expand the markets for its products. These expenses
may vary as a percentage of revenue.
General and Administrative
General and administrative expenses increased to $13.1 million in 1996
from $7.0 million in 1995 and $2.7 million in 1994. These expenses decreased as
a percentage of revenue to 3.8% in 1996 from 5.1% in 1995 and 5.4% in 1994. The
increase in dollars spent reflects increased administrative, legal and
information technology costs incurred to support the Company's expanded
operations. The Company expects that administrative expenses will increase in
absolute dollars, but may vary as a percentage of revenue in the future.
Interest Income
Interest income increased to $5.3 million or 1.6% of revenue in 1996 from
$3.2 million or 2.4% of revenue for 1995 and $781,000 or 1.6% of revenue in
1994. The increase in 1996 and 1995 was attributable to interest income earned
on cash generated from operations and notes receivable.
<PAGE>
Provision for Income Taxes
The Company's effective tax rate was 38.8%, 38.5% and 16.5% in 1996, 1995
and 1994, respectively. The differences between the statutory federal income tax
rate and the Company's effective tax rate are principally due to state income
taxes, available research and experimentation credits and the benefit of the
Company's foreign sales corporation. The 1996 provision reflects certain merger
costs that are nondeductible for tax purposes. In the absence of such expenses,
the effective tax rate for 1996 would have been 38.5%. The 1994 provision
reflected the Company's utilization of all available net operating loss
carryforwards and tax credits.
Liquidity and Capital Resources
At December 31, 1996, the Company had cash, cash equivalents and
marketable securities of $112.3 million, an increase of $51.7 million from the
prior year. The Company has continued to fund its operations primarily through
cash flows generated from operations and the proceeds from the sale of its
Common Stock through its employee stock purchase and option plans.
Cash generated from operations was $62.0 million in 1996. This was
primarily generated from net income, the tax benefits related to disqualifying
dispositions of shares upon exercise of stock options and increased current
liabilities, offset by increased accounts receivable and inventory balances.
Accounts receivable increased by $62.0 million primarily due to the increase in
revenue and the timing of orders. Inventory balances increased by $11.7 million
to meet the demand for the Company's existing products and the desired lead
times as well as anticipated demand for new product introductions, including the
CBX 500 and remote access products. The Company believes that inventory balances
are likely to increase in future periods to support customer demands and new
product introductions. The increase of $24.9 million in current liabilities was
due primarily to increases in accounts payable, deferred revenue, warranty costs
and the general increase in business activity.
Investment activities in 1996 included capital expenditures of $32.3
million. Capital investments include improvements to the Company's facilities,
the purchase of engineering development equipment and the information technology
necessary to support the rapid growth of the Company's business. Net purchases
of marketable securities were $8.8 million. The purchases of marketable
securities were placed in U.S. Government obligations and highly rated
commercial paper. In 1996, the Company received proceeds of $11.2 million from
the sale of its Common Stock through its employee stock purchase and option
plans. The remaining proceeds received by the Company relate primarily to
proceeds received by Arris for the sale of its preferred stock prior to the
Company's acquisition of Arris.
The Company believes that its existing cash, cash equivalents and
marketable securities, along with anticipated funds from operations, will
satisfy the Company's working capital and capital expenditure needs at least
through 1997.
Acquisitions
In May 1996, the Company expanded its product plans to include the remote
access market with the acquisition of Arris, a developer of high performance
remote access technology for carrier class networks, for approximately 3.2
million shares of its Common Stock. The Company also assumed all outstanding
Arris options to purchase approximately 242,000 shares of the Company's Common
Stock. The combination was accounted for as a pooling of interests. The
operating expenses of Arris from December 31, 1995 to the acquisition date are
immaterial to the combined operations. The accompanying financial statements for
periods prior to December 31, 1995 do not include the amounts for this
acquisition as they were deemed to be immaterial.
On January 28, 1997, Cascade completed its acquisition of Sahara, a
privately held developer of scalable, high-speed broadband access products
located in Wallingford, Connecticut, by means of a merger of a wholly-owned
subsidiary of Cascade with and into Sahara. As a result of the Merger, Sahara
became a wholly-owned subsidiary of Cascade. Cascade issued approximately 3.4
million shares of Cascade Common Stock in exchange for all the outstanding
shares of Sahara. In addition, Cascade assumed all outstanding Sahara stock
options to purchase approximately 400,000 shares of Cascade Common Stock.
The acquisition will be accounted for under the purchase method of
accounting. Accordingly, the purchase price of $219 million was allocated to the
net assets acquired based upon their estimated fair market values. The estimated
fair value of the tangible assets acquired was $4 million. In addition, $215
million of the purchase price was allocated to in-process research and
development that has not reached technological feasibility and that has no
alternative future use. No completed technology was purchased as Sahara has
brought no products to market and no development project has reached
technological feasibility. The estimated costs to complete the technology are
approximately $4 million.
<PAGE>
Risk Factors That May Effect Future Results
As noted above, the foregoing discussion may include forward-looking
statements that involve risks and uncertainties. The Company makes
forward-looking statements under the provisions of the "safe harbor" section of
the Private Securities Litigation Reform Act of 1995. Thus, some of the
statements, including without limitation statements relating to new product
development, expansion of operations, international expansion and growth in the
market for WAN data communication services, are forward looking, and involve a
number of risks and uncertainties. In addition, Cascade identifies the following
risk factors which could affect the Company's actual results and could cause
actual results to differ materially from forward-looking statements. The
Company's future results remain difficult to predict and may be affected by a
number of factors including business conditions within the telecommunication
industry; timing of orders from, and shipments to, customers; the timing of new
product introductions; and the market acceptance of those products; factors
associated with international operations; increased competition; changes in
manufacturing costs; changes in world economic conditions; changes in the mix of
product sales; the rate of end user adoption and carrier and private network
development of WAN data communications services and the risks identified in the
following risk factors. Because of these and other factors, past financial
performance should not be considered an indicator of future performance.
Difficulty of Integrating Acquired Businesses
The Company acquired Arris in May 1996 and Sahara in January 1997. There
can be no assurance that products, technologies, distribution channels, key
personnel and businesses of acquired companies will be successfully integrated
into the Company's business or product offerings, or that such integration will
not adversely affect the Company's business, financial condition or results of
operations. There can be no assurance that any acquired products, technologies
or businesses will contribute significantly to the Company's sales or earnings,
that the sales and earnings from acquired businesses will not be adversely
affected by the integration process or other factors. If the Company is not
successful in the integration of such acquired businesses, there could be an
adverse impact on the financial results of the Company. The historical growth of
the computer networking industry, coupled with critical time-to-market factors,
has caused increased competition and consolidation. As a result, there has been
a significant increase in the acquisition value of computer networking
companies. Therefore, acquisitions are more likely to result in values that are
material to the Company's operations. There can be no assurance that the Company
will continue to be able to identify and consummate suitable acquisition
transactions in the future.
Fluctuations in Revenue and Operating Results
The growth rates recently experienced by the Company are not necessarily
indicative of the operating results for any future periods. The Company's
operating results may fluctuate as a result of a number of factors, including
the timing of orders from, and shipments to, customers; the timing of new
product introductions and the market acceptance of those products; increased
competition; changes in manufacturing costs; changes in the mix of product
sales; the rate of end user adoption and carrier and private network development
of WAN data communications services; factors associated with international
operations; and changes in world economic conditions.
Evolving Market
The Company's success will depend in part on the growth in the broadband
packet equipment market. The market for these services continues to evolve, and
there are a number of competing technologies providing these services.
Regulatory policies affecting the telecommunications industry in the United
States and internationally are likely to continue to have a significant impact
on pricing and demand for both voice and data communications products and
services. There can be no assurance whether, and at what rate, end user demand
will develop for these services or that public carriers or private networks will
continue to adopt the Company's products and technology to implement these
services.
Management of Growth
The Company is currently experiencing a period of rapid growth which has
placed, and could continue to place, a significant strain on the resources. In
order to support the growth of its business, the Company plans to significantly
expand its level of operations during 1997. If the Company's management is
unable to manage growth effectively, the Company's operating results could be
adversely affected.
<PAGE>
Timing of Product Orders and Shipments
One of the risks which may affect the Company's operating results is the
fact that a substantial portion of the Company's revenue in any period may
result from shipments during the latter part of a period. Because revenue in any
quarter may be substantially dependent on orders booked and shipped in that
quarter, particularly in the latter part of that quarter, revenue for any future
quarter may be difficult to predict. Since the Company's operating expense
levels are based on its operational goals, if orders and shipments in any period
do not meet such goals the Company's operating results are likely to be
adversely affected. As a result, the Company believes that period-to-period
comparisons of the Company's results of operations are not and will not
necessarily be meaningful and should not be relied upon as any indication of
future performance.
Dependence on Key Employees
The Company's success depends to a significant degree upon the continuing
contributions of its key management, sales, marketing, research and development
and manufacturing personnel, many of whom would be difficult to replace. The
Company does not have employment contracts with its key personnel. The Company
believes that its future success will depend in large part upon its ability to
attract and retain highly-skilled hardware and software engineers, management
and sales and marketing personnel. Competition for such personnel is intense,
and there can be no assurance that the Company will be successful in attracting
and retaining such personnel. Failure to attract and retain key personnel could
have a material adverse effect on the Company's business, operating results and
financial condition.
Competition
The market for wide area network and remote access communications products
is intensely competitive and is subject to rapid technological change. The
Company expects competition to increase significantly in the future from
existing competitors and a number of companies which may enter the Company's
existing or future markets. In addition to competition from other switch and
remote access providers, the Company expects to face competition from other
vendors in the networking market such as network router vendors, who may
incorporate switching functionality into their products or provide alternative
network solutions. Increased competition could adversely affect the Company's
revenue and profitability through price reductions and loss of market share. The
principal competitive factors in the market for switching products are breadth
of network services supported, conformance to industry standards, price per
port, performance, product features, network management capabilities,
reliability and customer support. Many of the Company's current and potential
competitors have longer operating histories and substantially greater financial,
technical, sales and marketing resources than the Company. There can be no
assurance that the Company will be able to continue to compete successfully with
its existing competitors or will be able to compete successfully with new
competitors.
Third Party Manufacturing
The Company relies on a variety of independent third party assembly
companies to perform printed circuit board assembly, in circuit test and product
repair. There can be no assurance that in the future the Company's independent
contractors will be able to meet the Company's demand for manufacturing capacity
in a cost-effective manner. In the event that the Company's subcontractors were
to experience financial, operational, production or quality assurance
difficulties that resulted in a reduction or interruption in supply to the
Company, the Company's operating results would be adversely affected until the
Company established sufficient manufacturing supply from alternative sources.
Dependence on Sole Source Suppliers
Some key components of the Company's products are currently available only
from single sources. There can be no assurance that in the future the Company's
suppliers will be able to meet the Company's demand for components in a timely
and cost-effective manner. The Company generally purchases these single or
limited source components pursuant to purchase orders and has no guaranteed
supply arrangements with the suppliers. In addition, the availability of many of
these components to the Company is dependent in part on the ability of the
Company or its subcontractors to provide the suppliers with accurate forecasts
of future requirements. The Company has generally been able to obtain adequate
supplies of parts and components in a timely manner from existing sources. The
Company's operating results and customer relationships could be adversely
affected by either an increase in prices for, or an interruption or reduction in
supply of, any key components.
<PAGE>
Technological Change
The market for the Company's products is characterized by rapidly changing
technology, evolving industry standards, emerging network architectures, and
frequent new product introductions. Current competitors or new market entrants
may develop new products with features that could adversely affect the
competitive position of the Company's products. There can be no assurance that
the Company will be successful in selecting, developing, manufacturing and
marketing new products or enhancing its existing products or that the Company
will be able to respond effectively to technological changes, new standards or
product announcements by competitors. The timely availability of new products
and enhancements, and their acceptance by customers are important to the future
success of the Company. Delays in such availability or a lack of market
acceptance could have an adverse affect on the Company.
Customer Concentration
The Company's customer base includes public carrier providers and ISPs,
many of whom generally require product vendors to comply with rigorous industry
standards. Any failure to comply with such standards may result in a significant
loss or reduction of sales. The Company has diversified its customer base over
time; however, in recent periods, certain customers have accounted for over 10%
of the Company's revenue. In 1995, sales to two customers accounted for
approximately 17% and 12% of revenue. In 1994, sales to two customers accounted
for approximately 12% and 11% of revenue. No other customer accounted for more
than 10% of revenue in 1996, 1995 or 1994. There can be no assurance that these
customers will place additional orders, or that the Company will obtain orders
of similar magnitude from other customers. A decline in demand from public
network carriers would have an adverse effect on the Company's operating
results.
International Operations
Direct and indirect international sales accounted for approximately 19%,
16% and 20% of revenue for 1996, 1995 and 1994, respectively. The Company
anticipates that international sales will continue to account for a significant
portion of revenue. The Company's international sales are subject to risks
inherent in foreign operations including unexpected changes in regulatory
requirements, tariffs or other barriers and potentially negative tax
consequences. In addition, sales of the Company's products in international
markets are heavily dependent on third-party distribution channels. To date, the
Company's international sales have been denominated in U.S. currency; however,
if this were to change, the Company would be subject to exchange rate
fluctuations.
Uncertainties Regarding Patents and Protection of Proprietary Technology
The Company's success will depend, to a large extent, on its ability to
protect its proprietary technology. The Company has a number of patent
applications that are currently pending for certain of its existing products and
currently relies on a combination of contractual rights, trade secrets and
copyrights to protect its proprietary rights. Although the Company intends to
apply for additional patents in the future, there can be no assurance that the
Company's intellectual property protection will be sufficient to prevent
competitors from developing similar technology. Moreover, in the absence of
patent protection, the Company's business may be adversely affected by
competitors that independently develop functionally equivalent technology. The
Company currently licenses certain hardware and software technology from third
parties and plans to continue to do so in the future. The Company attempts to
ensure that its products and processes do not infringe patents and other
proprietary rights, but there can be no assurance that such infringement may not
be alleged by third parties in the future. If infringement is alleged, there can
be no assurance that the necessary licenses would be available on acceptable
terms, if at all, or that the Company would prevail in any such challenge.
Possible Volatility of Stock Price
The market price of the Company's Common Stock has increased significantly
since the Company's initial public offering in July 1994, and has experienced
fluctuations during this period. The market price of the Company's Common Stock
has been, and may continue to be, extremely volatile. The trading price of the
Company's Common Stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, changes in earnings
estimates by analysts, announcements of technological innovations or new
products by the Company or its competitors, challenges associated with
integration of businesses and other events or factors. In addition, the stock
market has from time to time experienced extreme price and volume fluctuations
which have particularly affected the market price for many high technology
companies and which often have been unrelated to the operating performance of
these companies. These broad market fluctuations may adversely affect the market
price of the Company's Common Stock.
<PAGE>
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS
The following consolidated financial statements are filed as part of this
report:
Consolidated Financial Statements
Consolidated Balance Sheets as of December 31, 1996 and 1995
Consolidated Statements of Income for the years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Stockholders' Equity (Deficit) for the
years ended December 31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements
Report of Independent Accountants
<PAGE>
<TABLE>
Cascade Communications Corp.
Consolidated Balance Sheets
(in thousands, except share data)
==============================================================================
December 31,
1996 1995
- ------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 98,399 $ 55,474
Marketable securities 13,920 5,120
Accounts receivable, net of allowance
for doubtful accounts of $632 in 1996
and $302 in 1995 81,949 19,910
Notes receivable 1,750 1,548
Inventories 19,303 7,645
Deferred income taxes 8,300 4,262
Prepaid expenses 11,421 781
- ------------------------------------------------------------------------------
Total current assets 235,042 94,740
Property and equipment, net 33,012 13,980
Other assets 2,207 3,139
- ------------------------------------------------------------------------------
Total assets $ 270,261 $ 111,859
- ------------------------------------------------------------------------------
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 17,555 $ 6,771
Deferred revenue 9,038 1,585
Accrued expenses 23,885 12,197
Accrued income taxes - 5,000
- ------------------------------------------------------------------------------
Total current liabilities 50,478 25,553
Commitments and contingencies (Notes F and K)
Stockholders' equity:
Preferred stock, $.01 par value;
authorized 2,000,000 shares;
no shares issued or outstanding - -
Common stock, $.001 par value;
authorized 225,000,000 shares;
90,154,507 and 83,781,082 shares
issued and outstanding in
1996 and 1995, respectively 90 84
Additional paid-in capital 121,809 58,397
Retained earnings 97,884 27,825
- ------------------------------------------------------------------------------
Total stockholders' equity 219,783 86,306
- ------------------------------------------------------------------------------
Total liabilities and stockholders' equity $ 270,261 $ 111,859
- ------------------------------------------------------------------------------
The accompanying notes are an integral part of the consolidated financial
statements.
</TABLE>
<PAGE>
<TABLE>
Cascade Communications Corp.
Consolidated Statements of Income
(in thousands, except per share data)
- ------------------------------------------------------------------------------
Year Ended December 31,
1996 1995 1994
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenue $ 340,976 $ 134,834 $ 50,060
Cost of revenue 119,519 48,563 19,113
- ------------------------------------------------------------------------------
Gross profit 221,457 86,271 30,947
Operating expenses:
Research and development 53,378 20,651 7,384
Sales and marketing 44,687 20,587 10,547
General and administrative 13,110 6,955 2,699
- ------------------------------------------------------------------------------
Total operating expenses 111,175 48,193 20,630
- ------------------------------------------------------------------------------
Income from operations 110,282 38,078 10,317
Interest income 5,307 3,238 781
- ------------------------------------------------------------------------------
Income before income taxes 115,589 41,316 11,098
Provision for income taxes 44,810 15,906 1,832
- ------------------------------------------------------------------------------
Net income $ 70,779 $ 25,410 $ 9,266
- ------------------------------------------------------------------------------
Net income per common share $ 0.72 $ 0.28 $ 0.11
- ------------------------------------------------------------------------------
Weighted average number of
common and common equivalent
shares outstanding 97,767 91,220 81,074
- ------------------------------------------------------------------------------
The accompanying notes are an integral part of the consolidated financial
statements.
</TABLE>
<PAGE>
<TABLE>
Cascade Communications Corp.
Consolidated Statements of Cash Flows
(in thousands)
- ------------------------------------------------------------------------------
Year Ended December 31,
1996 1995 1994
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 70,779 $ 25,410 $ 9,266
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 13,662 5,503 1,651
Deferred income taxes (4,875) (3,051) (1,447)
Issuance of Common Stock in exchange
for consulting services - - 40
Tax benefits related to stock options
exercised 40,272 6,143 700
Changes in operating assets and liabilities:
Accounts receivable (62,039) (11,683) (5,901)
Notes receivable 1,556 (3,967) (238)
Inventories (11,658) 292 (3,177)
Prepaid expenses (10,640) (441) (264)
Accounts payable 10,784 2,027 1,367
Accrued income taxes (5,000) 2,986 2,014
Accrued expenses and deferred revenue 19,141 7,256 5,787
- -------------------------------------------------------------------------------
Net cash provided by operating activities 61,982 30,475 9,798
- -------------------------------------------------------------------------------
Cash flows from investing activities:
Purchases of property and equipment (32,334) (13,529) (6,282)
Purchases of marketable securities (27,200) (36,029) (19,598)
Proceeds from maturities of marketable
securities 18,400 45,630 4,876
Cash acquired from Arris pooling 4,538 - -
Decrease (increase) in other assets 11 (206) (71)
- -------------------------------------------------------------------------------
Net cash used in investing activities (36,585) (4,134) (21,075)
- -------------------------------------------------------------------------------
Cash flows from financing activities:
Issuance of Common Stock, net 17,528 2,274 31,046
Payments of notes payable, net - - (526)
- -------------------------------------------------------------------------------
Net cash provided by financing activities 17,528 2,274 30,520
- -------------------------------------------------------------------------------
Net increase in cash and cash equivalents 42,925 28,615 19,243
Cash and cash equivalents, beginning of year 55,474 26,859 7,616
- -------------------------------------------------------------------------------
Cash and cash equivalents, end of year $ 98,399 $ 55,474 $ 26,859
- -------------------------------------------------------------------------------
Supplemental cash flow information:
Income taxes paid $ 20,175 $ 9,828 $ 564
Interest paid - - $ 62
- -------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
<TABLE>
Cascade Communications Corp.
Consolidated Statements of Stockholders' Equity (Deficit)
(in thousands, except share data)
Common Stock Additional Retained Total
Number of $ .001 Paid- in Earnings Stockholders'
Shares Par Value Capital (Deficit) Equity (Deficit)
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance, December 31,
1993 8,828,850 $ 9 $ 2 $ (6,851) $ (6,840)
Issuance of Common
Stock, net 13,830,000 14 31,056 - 31,070
Exercise of stock
options and warrants 739,350 1 14 - 15
Conversion of redeemable
preferred stock 58,089,540 58 18,210 - 18,268
Tax benefits relating
to stock options
exercised - - 700 - 700
Net income - - - 9,266 9,266
- -------------------------------------------------------------------------------
Balance, December 31,
1994 81,487,740 82 49,982 2,415 52,479
Exercise of stock
options and warrants 2,293,342 2 2,272 - 2,274
Tax benefits relating
to stock options
exercised - - 6,143 - 6,143
Net income - - - 25,410 25,410
- -------------------------------------------------------------------------------
Balance, December 31,
1995 83,781,082 84 58,397 27,825 86,306
Pooling of interests
with Arris 2,542,639 2 5,616 (720) 4,898
- -------------------------------------------------------------------------------
Balance, as restated 86,323,721 86 64,013 27,105 91,204
- -------------------------------------------------------------------------------
Issuance of Common
Stock, net 633,927 1 6,309 - 6,310
Exercise of stock
options 3,196,859 3 11,215 - 11,218
Tax benefits relating
to stock options
exercised - - 40,272 - 40,272
Net income - - - 70,779 70,779
- -------------------------------------------------------------------------------
Balance, December 31,
1996 90,154,507 $ 90 $ 121,809 $ 97,884 $ 219,783
- -------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
A. Nature of Business
Cascade Communications Corp. (the "Company") was incorporated in Delaware
on October 16, 1990. The Company designs, develops, manufactures, markets and
supports a family of high performance multi-service wide area network switches.
B. Summary of Significant Accounting Policies
Basis of Presentation
Certain prior year amounts have been reclassified to be consistent with
current year presentation.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All intercompany transactions have been
eliminated in consolidation. Transaction and translation gains and losses are
immaterial for all years presented.
Acquisition
On May 3, 1996, the Company acquired Arris Networks, Inc. ("Arris"), a
developer of high performance remote access technology for carrier class
networks, for approximately 3.2 million shares of its Common Stock. The Company
also assumed all outstanding Arris options to purchase approximately 242,000
shares of the Company's Common Stock. The combination was accounted for as a
pooling of interests. The operating expenses of Arris from December 31, 1995 to
the acquisition date are immaterial to the combined operations. The accompanying
financial statements for periods prior to December 31, 1995 do not include the
amounts for this acquisition as they were deemed to be immaterial.
Cash, Cash Equivalents and Investments
The Company considers all highly liquid debt instruments purchased with an
original maturity of three months or less to be cash equivalents. Investments
include high grade commercial paper and short-term U.S. Government securities.
Investments are classified as available-for-sale to support current operations
or to take advantage of other investment opportunities. These securities are
stated at cost plus accrued interest which approximates fair market value and
mature within one year. The following table summarizes cash equivalents and
investments held at December 31, 1996 and 1995:
<TABLE>
- --------------------------------- ------------------- -------------------
(in thousands) 1996 1995
- --------------------------------- ------------------- -------------------
<S> <C> <C>
Commercial paper $ 91,863 $ 35,537
U.S. Government securities 8,926 20,261
- --------------------------------- ------------------- -------------------
$ 100,789 $ 55,798
- --------------------------------- ------------------- -------------------
</TABLE>
Revenue Recognition
Revenue from product sales is generally recognized at the time of shipment
or, for certain initial shipments of new products, upon customer acceptance,
when collectibility is reasonably assured. The Company records reserves for
anticipated product returns and warranty costs at the time of product shipment.
Revenue from service agreements, consisting primarily of one-year equipment
maintenance contracts, is recognized ratably over the term of the agreements.
Revenue from customer funded contracts is generally recognized on the percentage
of completion method of accounting.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
Concentrations of Credit Risk
Financial instruments, which potentially subject the Company to
concentrations of credit risk, are principally cash investments and accounts
receivable. The Company places its investments in highly rated commercial paper
and high credit quality financial institutions. Concentration of credit risk
with respect to accounts receivable is limited due to the large number of
customers comprising the Company's customer base and their dispersion across
different geographic regions. To reduce risk, the Company routinely assesses the
financial strength of its customers and, as a consequence, believes that its
trade accounts receivable credit risk exposure is limited. The Company generally
does not require collateral and historically has not experienced significant
losses on trade receivables.
Inventories
Inventories are stated at the lower of cost or market, with cost
determined under the first-in, first-out method.
Property and Equipment
Property and equipment are stated at cost. The Company provides for
depreciation by using the straight-line method over the estimated useful lives
of the assets as follows:
<TABLE>
- ------------------------------------------------------------------------------
Asset Classification Estimated Useful Life
- ------------------------------------------------------------------------------
<S> <C>
Computer equipment 2-3 years
Office equipment 5 years
Furniture and fixtures 5 years
Leasehold improvements Shorter of lease term
or estimated useful life.
- ------------------------------------------------------------------------------
</TABLE>
Maintenance and repairs are charged to expense as incurred. Upon
retirement or sale, the cost of the asset disposed of and the related
accumulated depreciation are removed from the accounts and any resulting gain or
loss is credited or charged to income.
Research and Development
Research and development costs are charged to expense as incurred.
Capitalization of computer software costs begins upon the establishment of
technological feasibility. The Company has not capitalized any such costs as
eligible amounts were immaterial for all years presented.
Income Taxes
Deferred tax liabilities and assets are recognized based on temporary
differences between the financial statement and tax bases of assets and
liabilities using current statutory rates. A valuation allowance is recorded
against net deferred tax assets if, based on the weighted available evidence, it
is more likely than not that some or all of the deferred tax assets will not be
realized.
Use of Accounting Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
Manufacturing Risks
The Company purchases certain components from suppliers who the Company
believes are currently the only suppliers of such components that meets the
Company's requirements. A failure by any such supplier to meet the Company's
requirements for an extended period of time could adversely affect the Company's
operating results until the Company established sufficient manufacturing
supplies from alternative sources.
Net Income Per Common Share
Net income per common share is computed based upon the weighted average
number of common shares and common equivalent shares (using the treasury stock
method) outstanding. Fully diluted net income per common share is not presented
as the dilutive effect is immaterial.
C. Inventories
<TABLE>
Inventories consist of:
December 31,
---------------- -----------------
(in thousands) 1996 1995
---------------- -----------------
<S> <C> <C>
Raw materials $ 14,827 $ 5,095
Work-in-process 552 890
Finished goods 3,924 1,660
---------------- -----------------
$ 19,303 $ 7,645
---------------- -----------------
</TABLE>
D. Property and Equipment
<TABLE>
Property and equipment consist of:
December 31,
---------------- -----------------
(in thousands) 1996 1995
---------------- -----------------
<S> <C> <C>
Computer equipment $ 45,242 $ 17,969
Furniture and fixtures 1,818 1,093
Office equipment 1,015 662
Leasehold improvements 4,134 1,480
---------------- -----------------
52,209 21,204
Less accumulated depreciation and
amortization 19,197 7,224
---------------- -----------------
$ 33,012 $ 13,980
---------------- -----------------
</TABLE>
E. Accrued Expenses
<TABLE>
Accrued expenses consist of:
December 31,
---------------- -----------------
(in thousands) 1996 1995
---------------- -----------------
<S> <C> <C>
Accrued compensation $ 5,442 $ 2,276
Warranty costs 3,384 2,372
Other 15,059 7,549
---------------- -----------------
$ 23,885 $ 12,197
---------------- -----------------
</TABLE>
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
F. Commitments
The Company rents its facilities and various sales offices under operating
leases, some of which contain escalation clauses, through March 2009. The
agreements generally require the payment of utilities, real estate taxes,
insurance and repairs. In most cases management expects, in the normal course of
business, leases that expire will be renewed or replaced by other leases.
The approximate future minimum lease commitments under these leases at
December 31, 1996 are as follows:
1997 $ 3,962,000
1998 3,526,000
1999 2,523,000
2000 2,066,000
2001 2,066,000
Thereafter 14,804,000
----------
$ 28,947,000
----------
Rental expense charged to operations was approximately $2,398,000,
$1,187,000 and $338,000 for the years ended December 31, 1996, 1995 and 1994,
respectively. At December 31, 1996, the Company had a letter of credit
outstanding of $4,000,000 used as a deposit for commitments to construct certain
leasehold improvements. The fair value of this letter of credit is estimated to
be the same as the contract value based upon the nature of the arrangement with
the issuing bank.
G. Stockholders' Equity
Initial Public Offering
On August 4, 1994, the Company completed its Initial Public Offering
("IPO") and sold an aggregate of 13,800,000 shares of Common Stock at $2.50 per
share, resulting in net proceeds, after deducting underwriting discounts and
expenses, of $31,030,000. In addition, upon the closing of the IPO all issued
and outstanding shares of Series 1, 2, 3 and 4 Redeemable Convertible Preferred
Stock were automatically converted into 58,089,540 shares of Common Stock in
accordance with the underlying agreements.
Common Stock
At the stockholder meetings of the Company in 1995 and 1996, the
stockholders approved amendments to the Company's Articles of Organization to
increase its authorized number of shares of Common Stock to 50,000,000 and
225,000,000 shares, respectively. The Company effected the following stock
splits in the form of stock dividends: two-for-one in June 1995, three-for-two
in February 1996 and two-for-one in May 1996. All share and per share data have
been restated in these consolidated financial statements for all periods to
reflect the stock splits. Prior to the merger, Arris issued redeemable
convertible preferred stock for $6,310,000 that was converted into 633,927
shares of Cascade Common Stock.
Preferred Stock
The Company is authorized to issue up to an aggregate of 2,000,000 shares
of Preferred Stock, $.01 par value per share. Each such series of Preferred
Stock shall have such rights, preferences, privileges and restrictions,
including voting rights, dividend rights, conversion rights, redemption
privileges and liquidation preferences as determined by the Board of Directors.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
H. Employee Benefit Plans
Retirement Savings Plan
During 1992, the Company adopted a Retirement Savings Plan for its
employees, which has been qualified under Section 401(k) of the Internal Revenue
Code. Eligible employees are permitted to contribute to the 401(k) Plan through
payroll deductions within statutory limitations and subject to any limitations
included in the 401(k) Plan. To date, the Company has made no contributions to
the Plan.
Stock-Based Compensation Plans
The Company has several stock-based compensation plans which are described
below. The Company applies Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees", and related interpretations in
accounting for its stock-based compensation plans. Accordingly, no compensation
expense has been recognized for its stock-based compensation plans for any
options as none have been granted below fair value of the common stock. Had
compensation cost for the stock-based compensation plans been determined based
upon the fair value at the grant date for awards consistent with the method of
Statement of Financial Accounting Standards No. 123 ("SFAS 123") "Accounting for
Stock-Based Compensation", the Company's net income and earnings per share would
have been reduced to the pro forma amounts indicated below:
<TABLE>
---------------- -----------------
1996 1995
---------------- -----------------
<S> <C> <C> <C>
Net income As reported $ 70,779 $ 25,410
Pro forma 49,870 22,198
Earnings per share As reported $ 0.72 $ 0.28
Pro forma 0.52 0.25
</TABLE>
The fair value of each option grant is estimated on the date of the grant
using the Black-Scholes option-pricing model. In computing these pro forma
amounts, the Company has assumed a risk-free interest rate equal to
approximately 6.46% and 5.44%, expected volatility 64% and 66%, zero dividend
yields and expected lives of six years for 1996 and 1995 respectively. The
average fair value of the options granted during 1996 and 1995 is estimated as
$34.36 and $12.39, respectively on the date of the grant.
1991 Stock Option Plan
The 1991 Stock Option Plan (the "Plan") provides for the issuance of
incentive stock options and nonqualified stock options to purchase the Company's
Common Stock. The Company may issue up to a maximum of 24,000,000 shares of its
Common Stock pursuant to the exercise of options which may be granted under the
Plan. All options granted under the plan will have an exercise price equal to
the fair market value of the Common Stock on the date of grant. Options issued
generally vest ratably over five years. The term of each option will be for a
period of ten years from the date of grant.
Director Stock Option Plan
The 1994 Non-Employee Director Stock Option Plan (the "Director Option
Plan") provides for the grant of options to purchase a maximum of 720,000 shares
of Common Stock of the Company to non-employee directors of the Company. Under
the Director Option Plan, each director who is not also an employee of the
Company received an option to purchase 90,000 shares of Common Stock, vesting in
three equal annual installments commencing on the first anniversary of the date
of grant.
In addition, on the date of each annual meeting of stockholders, each
director will receive an option to purchase 12,000 shares of Common Stock. All
options granted under the plan will have an exercise price equal to the fair
market value of the Common Stock on the date of grant. The term of each option
will be for a period of ten years from the date of grant.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
Arris Stock Plan
In conjunction with the Arris merger, the Company assumed 242,000
outstanding options on May 3, 1996. These assumed options were granted at prices
equal to the fair market value at the date of grant, become exercisable in
installments (generally ratably over five years), and expire ten years from the
date of grant. The Company does not intend to issue any additional options under
the Arris stock option plan.
The following table summarizes stock option activity for the above
mentioned stock option plans:
<TABLE>
- ------------------------------------------------- ---------------- ------------
Number of Weighted Average Number
Options Exercise Price Exercisable
- ------------------------------------------------- ---------------- ------------
<S> <C> <C> <C>
Outstanding at December 31, 1993 7,550,976 $ 0.03 1,439,029
- ------------------------------------------------- ---------------- ------------
Granted 3,595,260 3.90
Exercised (561,360) 0.03
Canceled (62,880) 0.47
- ------------------------------------------------- ---------------- ------------
Outstanding at December 31, 1994 10,521,996 1.35 2,643,924
- ------------------------------------------------- ---------------- ------------
Granted 5,165,274 18.31
Exercised (2,050,350) 0.66
Canceled (370,866) 3.55
- ------------------------------------------------- ---------------- ------------
Outstanding at December 31, 1995 13,266,054 7.99 3,501,660
- ------------------------------------------------- ---------------- ------------
Granted 2,903,885 53.27
Exercised (3,083,721) 2.84
Canceled (319,360) 22.61
- ------------------------------------------------- ---------------- ------------
Outstanding at December 31, 1996 12,766,858 $ 19.17 969,604
- ------------------------------------------------- ---------------- -----------
Options available for future grants 5,908,883
</TABLE>
The following table summarizes information concerning currently outstanding and
exercisable options:
<TABLE>
- -------------------------------------------------------------------------------
Weighted
Average Weighted Weighted
Remaining Average Number Average
Range of Exercise Prices Number Contractual Exercise Exerci- Exercise
Outstanding Life Price sable Price
- -------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
$ 0.01 - $ 0.03 2,974,228 5.85 $ 0.02 245,300 $ 0.02
0.13 - 9.29 2,628,643 7.45 3.39 329,982 3.27
10.69 - 25.58 3,364,799 8.59 17.51 280,478 12.27
27.00 - 58.50 2,631,029 9.14 37.10 113,844 29.72
$ 60.63 - $ 79.13 1,168,159 9.71 $ 67.84 - $ -
- -------------------------------------------------------------------------------
12,766,858 969,604
- -------------------------------------------------------------------------------
</TABLE>
1994 Employee Stock Purchase Plan
The 1994 Employee Stock Purchase Plan (the "Plan") provides for the
issuance of a maximum of 1,440,000 shares of Common Stock pursuant to the
exercise of nontransferable options granted to participating employees. Each
eligible employee may authorize payroll deductions up to 10% of their
compensation (as defined) not to exceed a maximum of $25,000 per year. The
purchase price under the Plan is 85% of the fair market value per share on the
first or last day of the offering period (as defined), whichever is lower.
During 1996 and 1995, 113,240 and 132,532 shares were issued under this Plan and
1,194,316 shares are reserved for future issuance.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
I. Income Taxes
The provisions for income taxes for the years ended December 31, 1996,
1995 and 1994 are as follows:
<TABLE>
---------------- ------------------- --------------------
(in thousands) 1996 1995 1994
----------------- ------------------- --------------------
<S> <C> <C> <C>
Current:
Federal $ 41,580 $ 16,741 $ 2,280
State 8,105 2,216 999
----------------- ------------------- --------------------
49,685 18,957 3,279
Deferred benefit:
Federal (4,388) (2,694) (1,266)
State (487) (357) (181)
----------------- ------------------- --------------------
(4,875) (3,051) (1,447)
----------------- ------------------- --------------------
Provision for
income taxes $ 44,810 $ 15,906 $ 1,832
----------------- ------------------- --------------------
</TABLE>
The following is a summary of the significant components of the
Company's deferred tax assets as of December 31, 1996 and 1995:
<TABLE>
----------------- ------------------
(in thousands) 1996 1995
----------------- ------------------
<S> <C> <C>
Inventory reserves $ 5,151 $ 2,765
Warranty reserves 1,303 949
Net operating loss carryforwards 765 -
Compensation and vacation accruals 781 402
Accounts receivable reserve 243 121
Other 822 25
Depreciation 1,073 236
----------------- ------------------
Total deferred tax assets 10,138 4,498
Valuation allowance (765) -
----------------- ------------------
Net deferred tax assets $ 9,373 $ 4,498
----------------- ------------------
</TABLE>
The Company assumed a net operating loss carryforward of $1,986,000, as a
result of the merger with Arris which expires in 2010. The amount of the
deferred tax asset was offset by a full valuation allowance due the limitations
imposed by the Internal Revenue Code affecting the realization of the deferred
tax asset. Management believes that it is more likely than not that the deferred
tax asset will not be realized.
A reconciliation between the statutory federal income tax rate and the
Company's effective tax rate for the years ended December 31, 1996,1995 and 1994
is as follows:
<TABLE>
------------------------------------------
1996 1995 1994
------------------------------------------
<S> <C> <C> <C>
Statutory federal income tax rate 35.0% 35.0% 35.0%
State taxes, net of federal tax benefit 4.2 4.5 5.9
Utilization of net operating loss
and credit carryforwards - - (21.9)
Foreign sales corporation benefit (0.4) (0.6) (0.3)
Research and development tax credits (0.6) (0.7) (2.6)
Other 0.6 0.3 0.4
------------------------------------------
Effective tax rate 38.8% 38.5% 16.5%
------------------------------------------
</TABLE>
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
J. Significant Customers and Export Sales
The Company is active in one business segment: designing, developing,
manufacturing, marketing and supporting a family of high performance
multi-service wide area network switches. In 1995, sales to the Company's two
largest customers represented approximately 17% and 12% of revenue. In 1994,
sales to the Company's two largest customers represented approximately 12% and
11% of total revenue. Export sales for the years ended December 31, 1996, 1995
and 1994 can be grouped in the following geographic areas.
<TABLE>
--------------------------------------
(in thousands) 1996 1995 1994
--------------------------------------
<S> <C> <C> <C>
Europe/Africa $ 27,401 $ 11,713 $ 6,297
North and South America (other than U.S.) 11,057 1,426 620
Pacific Rim/Asia 18,541 8,375 2,896
-------------------------------------
Total $ 56,999 $ 21,514 $ 9,813
-------------------------------------
</TABLE>
K. Legal Matters
In the ordinary course of business, various lawsuits and claims are filed
against the Company. While the outcome of these matters is not currently
determinable, management believes that the ultimate resolution of these matters
will not have a material adverse effect on the Company's results of operations
or its financial position.
L. Quarterly Results of Income (Unaudited)
(in thousands, except per share amounts)
<TABLE>
- --------------------------------------------------------------------------------
Quarters ended Dec. 31 Sept. 28 June 29 March 30
1996 1996 1996 1996
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue $ 110,300 $ 94,207 $ 80,432 $ 56,037
Gross profit 71,678 61,242 52,282 36,255
Income from operations 36,470 31,526 25,914 16,372
Net income $ 23,395 $ 20,263 $ 16,686 $ 10,435
- --------------------------------------------------------------------------------
Net income per common share $ 0.24 $ 0.21 $ 0.17 $ 0.11
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Quarters ended Dec. 31 Sept. 30 July 1 April 1
1995 1995 1995 1995
- --------------------------------------------------------------------------------
Revenue $ 46,204 $ 36,015 $ 29,109 $ 23,506
Gross profit 29,799 23,049 18,506 14,917
Income from operations 13,899 10,072 7,866 6,241
Net income $ 9,132 $ 6,787 $ 5,267 4,224
- --------------------------------------------------------------------------------
Net income per common share $ 0.10 $ 0.07 $ 0.06 $ 0.05
- --------------------------------------------------------------------------------
</TABLE>
M. Subsequent Event
On January 28, 1997, Cascade completed its acquisition of Sahara, a
privately held developer of scalable, high-speed broadband access products
located in Wallingford, Connecticut, by means of a merger of a wholly-owned
subsidiary of Cascade with and into Sahara. As a result of the Merger, Sahara
became a wholly-owned subsidiary of Cascade. Cascade issued approximately 3.4
million shares of Cascade Common Stock in exchange for all the outstanding
shares of Sahara. In addition, Cascade assumed all outstanding Sahara stock
options to purchase approximately 400,000 shares of Cascade Common Stock.
<PAGE>
Cascade Communications Corp.
Notes to Consolidated Financial Statements
The acquisition will be accounted for under the purchase method of
accounting. Accordingly, the purchase price of $219 million was allocated to the
net assets acquired based upon their estimated fair market values. The estimated
fair value of the tangible net assets acquired was $4 million. In addition, $215
million of the purchase price was allocated to in-process research and
development that has not reached technological feasibility and that has no
alternative future use. No completed technology was purchased as Sahara has
brought no products to market and no development project has reached
technological feasibility. The estimated costs to complete the technology are
approximately $4 million.
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Cascade Communications Corp.:
We have audited the accompanying consolidated balance sheets of Cascade
Communications Corp. as of December 31, 1996 and 1995 and the related
consolidated statements of income, cash flows and stockholders' equity (deficit)
for each of the three years in the period ended December 31, 1996. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Cascade
Communications Corp. as of December 31, 1996 and 1995 and the consolidated
results of its operations and its cash flows for each of the three years in the
period ended December 31, 1996, in conformity with generally accepted accounting
principles.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
January 22, 1997,
except for Note M as to which
the date is January 28, 1997
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors
The information concerning directors of the Company required under this
item is incorporated herein by reference to the Company's definitive proxy
statement pursuant to Regulation 14A, to be filed with the Commission not later
than 120 days after the close of the Company's fiscal year ended December 31,
1996 under the headings "Election of Directors" and "Occupations of Directors
and Executive Officers."
Executive Officers
The information concerning executive officers of the Company required
under this item is incorporated herein by reference to the Company's definitive
proxy statement pursuant to Regulation 14A, to be filed with the Commission not
later than 120 days after the close of the Company's fiscal year ended December
31, 1996 under the heading "Occupations of Directors and Executive Officers."
Compliance with Section 16(a) of the Exchange Act
The information concerning compliance with Section 16(a) of the Exchange
Act required under this is incorporated herein by reference to the Company's
definitive proxy statement pursuant to Regulation 14A, to be filed with the
Commission not later than 120 days after the close of the Company's fiscal year
ended December 31, 1996, under the heading "Section 16(a) Beneficial Ownership
Reporting Compliance."
ITEM 11. EXECUTIVE COMPENSATION
The information required under this item is incorporated herein by
reference to the Company's definitive proxy statement pursuant to Regulation
14A, to be filed with the Commission not later than 120 days after the close of
the Company's fiscal year ended December 31, 1996, under the heading
"Compensation and Other Information Concerning Directors and Officers."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required under this item is incorporated herein by
reference to the Company's definitive proxy statement pursuant to Regulation
14A, to be filed with the Commission not later than 120 days after the close of
the Company's fiscal year ended December 31, 1996, under the headings "Stock
Ownership of Certain Beneficial Owners and Management" and "Election of
Directors."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required under this item is incorporated herein by
reference to the Company's definitive proxy statement pursuant to Regulation
14A, to be filed with the Commission within 120 days after the close of the
Company's fiscal year ended December 31, 1996 under the headings "Stock
Ownership of Certain Beneficial Owners and Management" and "Certain
Relationships and Related Transactions."
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULE AND REPORTS ON FORM 8-K
(a) (1) Consolidated Financial Statements.
The following consolidated financial statements and supplementary data are
included in Part II Item 8 filed as part of this report:
Consolidated Balance Sheets as of December 31, 1996 and 1995
Consolidated Statements of Income for the years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Stockholders' Equity (Deficit) for the
years ended December 31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements
Report of Independent Accountants
(a) (2) Financial Statement Schedule.
Report of Independent Accountants
Schedule II - Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable, not
required or because the required information is shown in the
consolidated financial statements or the notes to the consolidated
financial statements.
<PAGE>
(a) (3) List of Exhibits
Exhibit
Number Exhibit Description
2.1 (h) Agreement and Plan of Merger and Reorganization dated as of
January 2, 1997 by and among the Company, Camel Acquisition
Corporation and Sahara Networks, Inc.
3.1 (a) Amended and Restated Certificate of Incorporation of the Company.
3.2 (g) Certificate of Amendment of Amended and Restated Certificate of
Incorporation of the Company.
3.3 (a) Amended and Restated By-Laws of the Company.
4.1 (a) Specimen certificate representing the Common Stock.
10.1 (b),(c)Amended and Restated 1991 Stock Plan, as amended.
10.2 (a),(c)1994 Employee Stock Purchase Plan.
10.3 (a),(c)1994 Non-Employee Director Stock Option Plan.
10.8 (a),(c)Amended and Restated Registration Rights Agreement dated
as of August 19, 1992 by and among the Company and the Investors
named therein, as amended by the Stock Purchase Agreement dated
as of September 17, 1993 and as further amended by the Amendment
thereto dated as of December 21, 1993.
10.9 (a),(c)Letter of Employment dated March 12, 1992 between the Company
and Daniel E. Smith.
10.10 (a) Letter agreement dated August 4, 1993 between the Company
and Fleet Bank of Massachusetts, N.A., as amended by the Loan
Modification Agreement thereto dated as of April 30, 1994.
10.11 (a) Lease dated July 27, 1993 between Westford Office Venture
and the Company, as amended by the First Amendment thereto dated
February 24, 1994.
10.12 (a) Joint Marketing Agreement with Cisco Systems, Inc. dated as of
December 15, 1993.
10.13 (a) Source Code License Agreement with Cisco Systems, Inc. dated as
of December 15, 1993.
10.14 (a) OEM Program license Agreement dated November 24, 1992 between
the Company and Q900 Software (d/b/a Telenetworks).
10.15 (a) Manufacturing Agreement dated as of July 22, 1993 between the
Company and SCI Systems, Inc.
10.16 (a) Software License Agreement dated September 22, 1992 between
Software Components Group and the Company.
10.17 (a) Software License Agreement dated March 8, 1994 by and between
the Company and WANDL, Inc.
10.18 (a) Software License Agreement dated February 10, 1992 between the
Company and Hewlett-Packard Company.
10.19 (a) OSPF License Agreement dated September 9, 1991 between the
Company and the University of Maryland.
10.20 (d) Second amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated July 27, 1994.
10.21 (d) Third amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated November 10, 1994.
<PAGE>
Exhibit
Number Exhibit Description
10.22 (d) Master Lease Agreement with Performance Systems International,
Inc. dated November 3, 1994.
10.23 (e) Sublease agreement dated April 26, 1995 between the Company and
Digital Equipment Corporation.
10.24 (f) Fourth amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated December 1, 1995.
10.25 (i) Lease dated November 14, 1996 between0the Company and Nashoba
View Associates, LLC
11.1 (i) Weighted Shares Used in Computation1of Earnings Per Share.
21.1 (i) Subsidiaries of the Company.
23.1 (i) Consent of Coopers & Lybrand L.L.P.
27 (i) Financial Data Schedule
- -------------------------------------------------------------------------------
(a) Incorporated herein by reference to the Company's Registration Statement
on Form S-1 (File No. 33- 79330) filed with the Securities and Exchange
Commission (the "Commission") on May 26, 1994, as amended, which
Registration Statement became effective on July 28, 1994.
(b) Incorporated herein by reference to the Company's Registration Statement
on Form S-8 (File No. 33- 93152) filed with the Commission on
June 6, 1995.
(c) Indicates a management contract or any compensatory plan, contract or
arrangement.
(d) Incorporated by reference to the corresponding exhibit previously filed as
an Exhibit to Registrant's Form 10-K filed for the fiscal year ended
December 31, 1994 on March 29, 1995.
(e) Incorporated by reference to the Company's Form 10-Q for the fiscal quarter
ended July 1, 1995.
(f) Incorporated by reference to the corresponding exhibit previously filed as
an Exhibit to Registrant's Form 10-K filed for the fiscal year ended
December 31, 1995 on March 1, 1996.
(g) Incorporated by reference to the Company's Registration Statement on
Form S-8 (File No. 333-06417) filed with the Commission on June 20, 1996.
(h) Incorporated by reference to the Company's Current Report on Form 8-K dated
January 28, 1997 and filed with the Commission on February 4, 1997.
(i) Filed herewith.
(b) Reports on Form 8-K
(1) The Company filed a current report on Form 8-K dated
January 16, 1997 reporting the election of Gururaj Deshpande
as the Chairman of the Board.
(2) The Company filed a current report on Form 8-K dated January 28,
1997 reporting the acquisition by the Company of Sahara Networks,
Inc., a Delaware corporation.
(c) Exhibits
The Company hereby files as part of this Form 10-K the Exhibits listed
in Item 14(a)(3) as set forth above.
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of Cascade Communications Corp.:
Our report on the consolidated financial statements of Cascade
Communications Corp. is included in this Annual Report on Form 10-K. In
connection with our audits of such financial statements, we have also audited
the related financial statement schedule listed in item 14(a)(2) in this Annual
Report on Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
January 22, 1997
<PAGE>
CASCADE COMMUNICATIONS CORP.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
Column A Column B Column C Column D Column E
Recoveries Uncollect- Balance
Balance At For Accounts ible At End
Allowance For Beginning Provision For Previously Accounts Of
Doubtful Accounts Of Period Bad Debt Written Off Written Off Period
<S> <C> <C> <C> <C> <C>
Year Ended
December 31, 1996 $ 302,089 $ 335,202 $ - $ (4,809) $632,482
Year Ended
December 31, 1995 75,000 238,500 - (11,411) 302,089
Year Ended
December 31, 1994 35,904 39,391 - (295) 75,000
</TABLE>
<PAGE>
Pursuant to the requirements of Section 13 or 15(d) of 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.
CASCADE COMMUNICATIONS CORP.
Date: March 14, 1997 _/s/_ Gururaj Deshpande
Gururaj Deshpande
Executive Vice President, Business Development
and Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
Date: March 14, 1997 _/s/_ Gururaj Deshpande
Gururaj Deshpande
Executive Vice President, Business Development
and Chairman of the Board
Date: March 14, 1997 _/s/_ Daniel E. Smith
Daniel E. Smith
President, Chief Executive Officer
and Director (Principal Executive Officer)
Date: March 14, 1997 _/s/_ Paul E. Blondin
Paul E. Blondin
Vice President of Finance and Administration,
Chief Financial Officer, Treasurer and Secretary
(Principal Financial and Accounting Officer)
Date: March 14, 1997 _/s/_ Victoria A. Brown
Victoria A. Brown, Director
Date: March 14, 1997 _/s/_ Richard M. Burnes
Richard M. Burnes, Jr., Director
Date: March 14, 1997 _/s/_ Paul J. Ferri
Paul J. Ferri, Director
Date: March 14, 1997 _/s/_ Bruns H. Grayson
Bruns H. Grayson, Director
Date: March 14, 1997 _/s/_ Steven C. Walske
Steven C. Walske, Director
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit Description
2.1 (h) Agreement and Plan of Merger and Reorganization dated as of
January 2, 1997 by and among the Company, Camel Acquisition
Corporation and Sahara Networks, Inc.
3.1 (a) Amended and Restated Certificate of Incorporation of the
Company.
3.2 (g) Certificate of Amendment of Amended and Restated Certificate of
Incorporation of the Company.
3.3 (a) Amended and Restated By-Laws of the Company.
4.1 (a) Specimen certificate representing the Common Stock.
10.1 (b),(c)Amended and Restated 1991 Stock Plan, as amended.
10.2 (a),(c)1994 Employee Stock Purchase Plan.
10.3 (a),(c)1994 Non-Employee Director Stock Option Plan.
10.8 (a),(c)Amended and Restated Registration Rights Agreement dated
as of August 19, 1992 by and among the Company and the Investors
named therein, as amended by the Stock Purchase Agreement dated
as of September 17, 1993 and as further amended by the Amendment
thereto dated as of December 21, 1993.
10.9 (a),(c)Letter of Employment dated March 12, 1992 between the Company
and Daniel E. Smith.
10.10 (a) Letter agreement dated August 4, 1993 between the Company
and Fleet Bank of Massachusetts, N.A., as amended by the Loan
Modification Agreement thereto dated as of April 30, 1994.
10.11 (a) Lease dated July 27, 1993 between Westford Office Venture
and the Company, as amended by the First Amendment thereto dated
February 24, 1994.
10.12 (a) Joint Marketing Agreement with Cisco Systems, Inc. dated as of
December 15, 1993.
10.13 (a) Source Code License Agreement with Cisco Systems, Inc. dated
as of December 15, 1993.
10.14 (a) OEM Program license Agreement dated November 24, 1992 between
the Company and Q900 Software(d/b/a Telenetworks).
10.15 (a) Manufacturing Agreement dated as of July 22, 1993 between the
Company and SCI Systems, Inc.
10.16 (a) Software License Agreement dated September 22, 1992 between
Software Components Group and the Company.
10.17 (a) Software License Agreement dated March 8, 1994 by and between
the Company and WANDL, Inc.
10.18 (a) Software License Agreement dated February 10, 1992 between
the Company and Hewlett-Packard Company.
10.19 (a) OSPF License Agreement dated September 9, 1991 between the
Company and the University of Maryland.
10.20 (d) Second amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated July 27, 1994.
10.21 (d) Third amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated November 10, 1994.
<PAGE>
Exhibit
Number Exhibit Description
10.22 (d) Master Lease Agreement with Performance Systems International,
Inc. dated November 3, 1994.
10.23 (e) Sublease agreement dated April 26, 1995 between the Company and
Digital Equipment Corporation.
10.24 (f) Fourth amendment to the lease dated July 27, 1993 between
Westford Office Ventures and the Company dated December 1, 1995.
10.25 (i) Lease dated November 14, 1996 between the Company and Nashoba
View Associates, LLC.
11.1 (i) Weighted Shares Used in Computation of Earnings Per Share.
21.1 (i) Subsidiaries of the Company.
23.1 (i) Consent of Coopers & Lybrand L.L.P.
27 (i) Financial Data Schedule
- -------------------------------------------------------------------------------
(a) Incorporated herein by reference to the Company's Registration Statement
on Form S-1 (File No. 33- 79330) filed with the Securities and Exchange
Commission (the "Commission") on May 26, 1994, as amended, which
Registration Statement became effective on July 28, 1994.
(b) Incorporated herein by reference to the Company's Registration Statement
on Form S-8 (File No. 33- 93152) filed with the Commission on
June 6, 1995.
(c) Indicates a management contract or any compensatory plan, contract
or arrangement.
(d) Incorporated by reference to the corresponding exhibit previously filed as
an Exhibit to Registrant's Form 10-filed for the fiscal year ended
December 31, 1994 on March 29, 1995.
(e) Incorporated by reference to the Company's Form 10-Q for the fiscal
quarter ended July 1, 1995
(f) Incorporated by reference to the corresponding exhibit previously filed
as an Exhibit to Registrant's Form 10 filed for the fiscal year ended
December 31, 1995 on March 1, 1996.
(g) Incorporated by reference to the Company's Registration Statement on
Form S-8 (File No. 333-06417) filed with the Commission on June 20, 1996.
(h) Incorporated by reference to the Company's Current Report on Form 8-K
dated January 28, 1997 and filed with the Commission on February 4, 1997.
(i) Filed herewith.
<PAGE>
Exhibit 10.25
LEASE dated
November 14, 1996
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO
--------------------
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article.
LANDLORD: Nashoba View Associates, LLC, a
Massachusetts limited liability company
LANDLORD'S ORIGINAL ADDRESS: c/o The Chiofaro Company, Inc.
One International Place
Boston, Massachusetts 02110
TENANT: Cascade Communications Corp., a
Delaware corporation
TENANT'S ORIGINAL ADDRESS: 5 Carlisle Road
Westford, Massachusetts
TENANT AREA B
PLAN DELIVERY DATE: June 27, 1997
CONTINGENCY ALLOWANCE: $200,000, provided by Landlord
CONSTRUCTION BUDGET: $ 4,011,627
TERM: See Section 2.4
TERM COMMENCEMENT DATE: The date hereof
AREA A COMMENCEMENT DATE: See Section 2.4
<PAGE>
ESTIMATED AREA A
COMMENCEMENT DATE: March 2, 1997
AREA B COMMENCEMENT DATE: See Section 2.4
ESTIMATED AREA B
COMMENCEMENT DATE November 1, 1997 or if earlier, the
date 126 days after delivery to Landlord
of the Area B Plans pursuant to Section
3.2
INITIAL TERM: The portion of the Term beginning on
the Term Commencement Date and ending
on the Initial Term Expiration Date.
INITIAL TERM EXPIRATION DATE: The last day of the 144th full calendar
month following the Area A Commencement
Date.
EXTENSION TERMS: See Section 2.4.1
ANNUAL FIXED RENT: Initial Term:
------------
An annual rate equal to the sum of (i)
$7.98 per square foot of Rentable Floor
Area of the Premises from time to time,
plus (ii) only during the period from May
1, 1997 through the Area B Commencement
Date, $5.67 per square foot of rentable
floor area of those portions of Area B not
included in the Premises from time to
time.
Extension Terms:
---------------
Annual Fixed Rent during the Extension
Terms shall be as established under
Section 2.4.1.
RENT COMMENCEMENT DATE: The date Landlord tenders the first
portion of the Premises in accordance
with Section 2.1.1.
LAND: The land described in EXHIBIT B hereto.
BUILDING: The building on the Land containing
approximately 278,775 square feet of
rentable floor area with an address of
One Technology Way, Westford,
Massachusetts. The Building includes
three areas:
<PAGE>
Area A: 166,551 square feet of rentable
floor area in two stories, including a
mezzanine.
Area B: 92,300 square feet of rentable
floor area in three stories, currently
leased to Concurrent Computer
Corporation.
Area C: 19,924 square feet of rentable
floor area in a high bay warehouse.
The parties hereby agree that the foregoing square footage measurements
shall be binding for the purpose of this Lease.
PREMISES: Prior to the Area A Commencement Date,
or the Area B Commencement Date, as the
case may be, those portions of Area A
and/or Area B that Tenant occupies from
time to time for the conduct of its
business (and not for the purposes of
preparing Area A or Area B for Tenant's
use and occupancy); provided, however,
as of the Area A Commencement Date, the
Premises shall be deemed to include all
of Area A, and, as of the Area B
Commencement Date, the Premises shall
be deemed to include all of Area A and
Area B; provided, further, the
Premises are subject to expansion under
Section 2.1.1 of this Lease.
FIRST OFFER SPACE: See Section 2.1.2
RENTABLE FLOOR AREA
OF THE PREMISES: The rentable floor area of the Premises
from time to time.
RENTABLE FLOOR AREA
OF THE BUILDING 278,775 square feet
PERMITTED USES: Administration, sales and other general
office purposes, research and
development (including without
limitation engineering laboratories),
storage and light manufacturing
(including without limitation design,
assembly, reassembly and testing of
electronic products and components),
provided each such use is permitted
<PAGE>
by applicable zoning ordinances and other
applicable laws and regulations.
PUBLIC LIABILITY INSURANCE: $2,000,000 with umbrella of at least
$5,000,000.
LANDLORD'S MANAGING AGENT: The Chiofaro Company, Inc., or a
successor designated from time to time
by Landlord by written notice to Tenant.
ADDRESS OF LANDLORD'S
MANAGING AGENT: One International Place - Suite 4600
Boston, Massachusetts 02110
BROKER: See Section 8.7
TENANT'S AUTHORIZED
REPRESENTATIVE: Paul E. Blondin or a successor
designated by Tenant's President from
time to time
LANDLORD'S FINISH WORK
REPRESENTATIVE: Mark C. Roopenian or a successor
designated by Landlord's Manager from
time to time
The following partial list of additional defined terms is provided for
reference only:
ADDITIONAL LAND: See Article XII
ARCHITECT: See Section 3.2
BUILDING SERVICE AGENTS: See Section 2.6.3
EVENT OF DEFAULT: See Section 7.1
EXCLUSIVE PARKING SPACES: See Article XII
FAIR MARKET NET RENT: See Section 2.4.1
FINANCING PARTY: See Section 9.2
FINISH WORK: See Section 3.2
GENERAL CONTRACTOR: See Section 3.1.1
<PAGE>
LANDLORD'S TAXES: See Section 2.6.3
LANDLORD'S WORK: See Section 3.1.1
LEASE YEAR: See Section 2.5
OPERATING EXPENSES: See Section 2.6.3
PLANS: See Section 3.2
PRELIMINARY PLANS: See Section 3.2
PUNCHLIST ITEMS: See Section 3.2 (e)
SUBSTANTIAL COMPLETION OR
SUBSTANTIALLY COMPLETE: See Section 3.2 (e)
TENANT AFFILIATE: See Section 5.9
TENANT'S PROPORTIONATE
SHARE: See Section 2.6.1
TENANT'S REMOVABLE
PROPERTY: See Section 5.11
1.2 EXHIBITS
--------
The following is a list of Exhibits attached to this Lease.
EXHIBIT A: Landlord's Work
EXHIBIT B: Property Description
EXHIBIT C: Letter of Credit
EXHIBIT D: Ground Lease
EXHIBIT E: Plans of the Premises
EXHIBIT F: Title Exceptions
EXHIBIT G: Area A Plans
<PAGE>
ARTICLE II
PREMISES, TERM, RENT, OPERATING
EXPENSES AND TAXES AND ELECTRICITY
2.1 PREMISES AND EXCLUSIONS
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the Premises, on the terms and subject to the conditions set forth in this
Lease. The Premises exclude the Land and areas and facilities of the Building
(i) outside of the perimeter of the Premises as shown on EXHIBIT E or (ii)
within such perimeter and necessary for use, exclusively or in common, by
Landlord or any other tenant of the Building in connection with the operation
and management of any portion of the Building other than the Premises, including
without limitation exterior faces of exterior walls; any common stairways and
stairwells, Building entrance ways and the ground floor Building lobby,
elevators and elevator wells necessary for access to other portions of the
Building; any fan rooms, electric and telephone closets, janitor closets,
freight elevator vestibules (other than those exclusively serving Area A and/or
Area B), and pipes, ducts, conduits, wires and appurtenant fixtures serving
other parts of the Building (exclusively or in common with the Premises).
This Lease is subject to all easements, restrictions, agreements, and
encumbrances listed on Exhibit F attached to this Lease, to the extent in force
and applicable, provided the same shall not interfere with the Permitted Uses.
2.1.1 DELIVERY OF THE PREMISES. Landlord shall notify Tenant when
such Landlord's Work and Finish Work as is reasonably necessary for the use and
occupancy of Area A or Area B, respectively, are Substantially Complete (as
defined in Section 3.2 below). Landlord shall tender to Tenant possession of
Area A no more than three business days after delivering to Tenant such notice
relating to Area A, but no sooner than the Estimated Area A Commencement Date,
unless otherwise specifically requested by Tenant or otherwise permitted under
this Section 2.1.1 with respect to portions of Area A. Landlord shall tender to
Tenant possession of Area B no more than three business days after delivering to
Tenant such notice relating to Area B, but not sooner than the Estimated Area B
Commencement Date unless otherwise specifically requested by Tenant or otherwise
permitted under this Section 2.1.1 with respect to portions of Area B. If such
Landlord's Work and Finish Work as is reasonably necessary for the use and
occupancy of any portion of Area A or Area B are Substantially Complete, then
(i) prior to the Estimated Area A Commencement Date, with respect to portions of
Area A, and the Estimated Area B Commencement Date, with respect to Area B,
Tenant may, by written notice to Landlord, request that Landlord deliver to
Tenant possession of such portion of Area A or Area B, as the case may be, and
Landlord shall tender possession of such portion to Tenant within three business
days after receiving such notice from Tenant unless Landlord reasonably
determines that delivery of such portion to Tenant would interfere with the
completion of the balance of Landlord's Work or Finish Work; and (ii) after the
Estimated
<PAGE>
Area A Commencement Date, with respect to portions of Area A, and the Estimated
Area B Delivery Date, with respect to portions of Area B, Landlord may, three
business days after notice to Tenant, tender to Tenant possession of any such
portion of Area A or Area B, as the case may be, and Tenant shall accept
possession of such portion of Area A or Area B unless Tenant cannot reasonably
use or occupy such portion without a material interference with its business
operations. Nothing in the foregoing sentence shall be construed to permit
Tenant to delay acceptance of Landlord's tender to Tenant of possession of all
of Area A or Area B, as the case may be, in the condition required hereunder. At
the time of delivery thereof to Tenant, Area A and Area B (or any portion(s)
thereof) shall be free of all tenants and occupants other than Tenant.
2.1.2 RIGHT OF FIRST REFUSAL. During the Term, Tenant shall have a
right of first refusal with respect to Area C, provided that (at Landlord's
election) (i) no Event of Default exists either at the time of Tenant's
acceptance of the offer or at the time the First Offer Space is added to the
Premises, and (ii) Tenant will use the space for the expansion of its business
at the Premises. If Landlord receives an offer to lease or letter of intent (an
"Offer") with respect to Area C from a prospective tenant (the "Offeree"),
before accepting such Offer, Landlord shall offer to lease Area C to Tenant on
the same terms as the Offer by giving written notice to Tenant of the terms of
such Offer and the identity of the Offeree. Tenant shall have 15 business days
from receipt of such notice from Landlord to accept Landlord's offer to lease
Area C by giving written notice to Landlord. If Tenant accepts Landlord's offer
to lease Area C, Area C shall be incorporated into the Premises on the terms and
conditions set forth in the Offer (including, without limitation, any provisions
or conditions with respect to finish work to be completed in Area C) and, to the
extent the Offer does not specify terms different from or conflicting with this
Lease, the terms and conditions of this Lease, provided that in the event that
the term of the lease for the First Offer Space exceeds the Term of this Lease,
(i) Article XII of this Lease shall not be construed to apply to the lease of
the First Offer Space for any period of such lease beyond the Term of this
Lease; (ii) Section 2.4.1 shall not be construed to apply to the lease of the
First Offer Space (unless included in the terms of the Offer); and (iii)
notwithstanding anything to the contrary in Section 2.2, Tenant shall not have
the exclusive right to use the loading platform and the freight elevators within
Areas A and B during such period. If Tenant fails to accept Landlord's Offer to
lease Area C within such 30-day period, Landlord may lease Area C on the terms
and conditions of the Offer to the Offeree or any other party) at any time
during the following 180 days. If Landlord wishes to lease Area C on terms
differing materially from the Offer, or if Landlord fails to lease Area C on the
terms set forth in the Offer within such 180-day period, before executing a
lease with the Offeree or accepting a new Offer, Landlord shall again offer to
lease Area C to Tenant in accordance with this Section 2.1.2. The term for the
First Offer Space shall commence on the date therefor specified in Landlord's
notice of offer and terminate at the end of the Term (as it may be extended
pursuant to the terms contained in this Lease) or the earlier termination of
this Lease or the earlier date specified in Landlord's notice or where less than
three (3) years remains in the Term, then at Landlord's option for as long as
three (3) years from the first day of the term for the First Offer Space.
<PAGE>
2.2 APPURTENANT RIGHTS
------------------
Tenant shall have, as appurtenant to the Premises, rights for Tenant, its
employees and business invitees to use in common with Landlord and other tenants
of the Building (subject to reasonable rules of general applicability to tenants
and other users of the Building from time to time made by Landlord in accordance
with the terms hereof): (a) any common lobbies, entrances, corridors, stairways,
elevators and loading platform of the Building; any pipes, ducts, conduits,
wires, fan rooms, utility closets, janitor closets, and appurtenant meters,
fixtures, and equipment serving the Premises in common with others; (b) common
parking areas, and any driveways and walkways necessary for access to the
Building; (c) if the Premises include less than the entire rentable floor area
of any floor, the common toilets, corridors and elevator lobby on such floor and
serving the Premises; and (d) all other areas or facilities outside the
perimeter of the Premises but in or about the Building or on the Land from time
to time intended for general use by Tenant, other Building tenants, and Landlord
(collectively, the "Common Facilities"). Tenant shall have the exclusive right
to use the loading platform and the freight elevators within Areas A and B.
2.3 RESERVATIONS
------------
Landlord reserves the right from time to time, upon reasonable prior
notice to Tenant (except in an emergency) and without unreasonable (except in an
emergency) interruption of Tenant's use of the Premises: (a) to install, use,
maintain, repair, replace and relocate for service to the Premises and other
parts of the Building, pipes, ducts, conduits, wires and appurtenant fixtures,
wherever located in the Premises or Building; and (b) to alter or relocate any
other Common Facility. Installations, replacements and reallocations referred to
in clause (a) above shall be located as far as practicable in the central core
area of the Building, above ceiling surfaces, below floor surfaces or within
perimeter walls of the Premises.
2.4 TERM
----
The "Term" of this Lease includes the Initial Term, which begins on the
Term Commencement Date established under Section 1.1 and ends on the Initial
Term Expiration Date set forth in Section 1.1, together with all Extension
Terms. Landlord estimates that the Area A Commencement Date will begin on the
Estimated Area A Commencement Date. Landlord shall use diligent efforts, to
cause the Area A Commencement Date to occur on or before the Estimated Area A
Commencement Date. However, in attempting to accomplish the foregoing, Landlord
shall not be obligated to expend any sums in excess of the aggregate of the
Construction Budget and the Contingency Allowance not included in the
Construction Budget. Provided Landlord has exercised such diligent efforts,
Landlord's failure to cause the Area A Commencement Date to occur on or about
the Estimated Area A Commencement Date, for any reason, shall not (except as
provided in the next three sentences) give rise to any liability of Landlord
hereunder, shall not constitute a Landlord's default, shall not affect the
validity of this Lease, and shall have no effect on the beginning or end of the
Term as otherwise determined hereunder or on Tenant's obligations associated
therewith. If Landlord fails to deliver Area A in the condition required hereby
on or before the Estimated Area A Commencement Date (which
<PAGE>
deadline shall be extended by one day for each day of Tenant Delay with respect
to Area A), Landlord shall use reasonable efforts, at its sole expense, to
deliver Area B (or such portions thereof as Tenant may request) in tenantable
condition for Tenant's temporary use and occupancy for the Permitted Uses until
delivery of Area A in accordance herewith. If Landlord fails to deliver Area A
to Tenant in the condition required hereby on or before the later of (i)
September 1, 1997 (if there have been no Tenant Delays) and (ii) September 1,
1997 plus the number of days of Tenant Delays, Tenant shall have the right to
terminate this Lease by notice to Landlord without recourse to any party. If
Landlord fails to deliver Area B to Tenant in the condition required hereby on
or before the later of (i) January 1, 1998 (if there have been no Tenant Delays)
and (ii) January 1, 1998 plus the number of days of Tenant Delays, either party
shall have the right to terminate this Lease by notice to the other without
recourse to any party. If at any time it becomes apparent that the Area A
Commencement Date will not occur on or before the Estimated Area A Commencement
Date (or the Area B Commencement Date will not occur on or before the Estimated
Area B Commencement Date), Landlord will so notify Tenant and both parties will
take reasonable available steps to minimize excess costs and otherwise to avoid
or mitigate losses.
The Initial Term shall begin at 12:01 a.m. on the Term Commencement Date,
and shall end at 12:00 midnight on the Term Expiration Date set forth in Section
1.1.
For the purposes of this Lease, the "Area A Commencement Date" means the
first day that (i) such Landlord's Work and Finish Work as is reasonably
necessary for the use and occupancy of Area A are Substantially Complete, and
Landlord has delivered to Tenant a certificate from Landlord's architect to that
effect, and (ii) Landlord has tendered possession of Area A to Tenant, free of
tenants and occupants; and the "Area B Commencement Date" means the first day
that (i) Landlord's Work and Finish Work with respect to Area A and Area B are
Substantially Complete, and (ii) Landlord has tendered possession of Area B to
Tenant, free of all tenants and occupants; provided, however, that Area A
Commencement Date and the Area B Commencement Date, respectively, shall be
deemed to occur one day sooner for each day of Tenant Delay with respect to
Landlords' Work or Finish Work relating to, respectively, Area A or Area B;
provided, however, no Tenant Delay shall cause the Area A Commencement Date to
occur before the Estimated Area A Commencement Date or the Area B Commencement
Date to occur before the Estimated Area B Commencement Date (unless Tenant has
requested delivery of Area A (or Area B, as applicable) prior to the applicable
Estimated Commencement Date in accordance with Section 2.1.1).
Landlord and Tenant shall, at the request of either after the beginning of
the Term, execute an acknowledgment, in recordable form, specifying the Area A
Commencement Date and/or the Area B Commencement Date(s) and reciting the legal
description of the Land and the Rentable Floor Area of the Premises as of such
date(s).
2.4.1 EXTENSION TERMS. If no Event of Default by Tenant exists at
the time of the exercise of the option and at the commencement of any Extension
Term, Tenant shall have the option, subject to the provisions hereof, to extend
the Initial Term for all of the space then included in the Premises for one or
more of three successive five-year periods (each such period,
<PAGE>
an "Extension Term"), exerciseable as provided below (it being understood that
Tenant shall not have the right to exercise more than one such option at a
time). Annual Fixed Rent per square foot of Rentable Floor Area during each such
Extension Term shall be "Fair Market Net Rent," which shall be the annual fair
market net rent per square foot for comparable premises in first class suburban
office and research and development buildings in the Interstate 495 area in the
condition of the Building as of the commencement of such Extension Term (or in
such better condition in which the Premises are required to be maintained) for a
similar term commencing on the commencement date for such Extension Term under
the terms of this Lease (excluding from such calculation finish work allowances,
rent abatements and the like). Rent for any Extension Term shall also
incorporate such additional financial terms in the nature of rent and rent
adjustments as are customarily then being included in leases for first class
suburban office and research space in such buildings. Such payments shall be
made in accordance with the procedures set forth in Article II of the Lease.
Except as otherwise set forth herein, all terms and conditions of the Lease
shall apply during such Extension Term.
The option to extend the Lease for the first Extension Term shall be
exercised and Fair Market Net Rent shall be determined as follows:
(a) Tenant shall, on or before the date one year before the Initial Term
Expiration Date, time being of the essence, give Landlord notice of its exercise
of the first extension option.
(b) If Tenant has given the notice described in subparagraph (a), Landlord
shall give Tenant notice of its proposed Fair Market Net Rent and description of
any additional financial terms (the "Rent Notice") at any time within sixty days
of the date of Tenant's notice.
(c) Within 30 days of receipt of Landlord's Rent Notice, Tenant shall
notify Landlord of Tenant's agreement to or disagreement with the terms of
Landlord's Rent Notice. If Tenant shall fail to give Landlord the notice of
exercise under subparagraph (a) or if Tenant shall fail timely to respond to
Landlord's Rent Notice given under subparagraph (b), time being of the essence,
Tenant's option to extend the Term shall expire and be of no further effect. At
Tenant's request, contained in its reply to Landlord's Rent Notice, the parties
shall negotiate in good faith with respect to Fair Market Net Rent and any other
financial terms. If Tenant and Landlord, having negotiated in good faith, shall
agree on Fair Market Net Rent and all additional financial terms on or before
the date thirty days after the date of Landlord's Rent Notice, this Lease shall
be extended in accordance with such agreement. If Landlord and Tenant fail to
agree on the Fair Market Net Rent within 30 days after the date of Landlord's
Rent Notice, Tenant shall have the right to terminate its exercise of the first
extension option by notice to Landlord before the end of such 30-day period. If
the parties shall not have agreed by such date, (unless Tenant has, by notice to
Landlord within such time, terminated its exercise of such extension option),
Fair Market Net Rent shall be determined by appraisal as described in
subparagraph (d).
(d) In the absence of agreement, Landlord shall, within 60 days after the
date of Landlord's Rent Notice, give notice to Tenant of an appraiser whom
Landlord designates to ascertain Fair Market Net Rent. If within 10 days of such
notice Tenant objects to such person, then Tenant shall give notice to Landlord
and designate another appraiser (and failure so to
<PAGE>
notify Landlord shall bind Tenant to the appraiser designated by Landlord). If
within 10 days of such notice Landlord objects to such person (and failure so to
notify Tenant shall bind Landlord to the appraiser designated by Tenant), then
both such appraisers shall meet and within 10 days of such objection designate a
third appraiser, who alone shall within 60 days of his or her designation
ascertain such Fair Market Net Rent. (If the two appraisers fail to designate
the third appraiser within such time, then either Landlord or Tenant may apply
to the Boston office of the American Arbitration Association, or, upon the
failure or refusal of the American Arbitration to act, to the then Chief Justice
of the Superior Court Department of the Massachusetts Trial Court for
appointment of the third appraiser.) Any appraiser designated shall have had at
least 10 years experience in ownership, management, leasing and/or appraising of
major suburban office and research facilities similar in character to the
Building and shall be a member of M.A.I. or A.S.R.E.C. (or successor
professional organizations) and otherwise qualify as an expert witness over
objection to give opinion testimony addressed to the issue of Fair Market Net
Rent in such facilities in a court of competent jurisdiction. The written
opinion of Fair Market Net Rent of the appraiser so chosen shall conclusively
establish such Fair Market Net Rent. Both parties shall have the opportunity to
present evidence in accordance with reasonable procedures prescribed by the
appraiser. The fee of the appraiser shall be paid equally by the parties,
provided that each party shall pay the fees of its own counsel and witnesses.
Fair Market Net Rent may or may not, in the discretion of the appraiser, be
determined with reference to CPI or other increases, all as such appraiser
decides is customary at the time. If Landlord should fail or delay in giving the
notice which begins the appraisal procedures of this subparagraph, then such
procedures shall nevertheless remain in effect and be applicable when and as
invoked by Landlord with respect to Annual Fixed Rent payable with respect to
any extension term or expansion space, as the case may be; but until such
procedures are completed Tenant shall pay on account of Annual Fixed Rent at the
rate per square foot of Rentable Floor Area established for Annual Fixed Rent
for the year prior to the beginning of the Extension Term in question (or, in
the case of expansion space, for the Premises originally subject to the Lease)
and a retroactive adjustment shall be made effective as of the beginning of the
Extension Term (or term, in the case of expansion space) when the appraiser's
decision is rendered. Any overpayments by Tenant hereunder shall be credited
against the next payments of rent due hereunder. Any underpayments by Tenant
shall be due and payable within thirty (30) days after the appraiser's decision
is rendered.
The option to extend the Lease for the second and third Extension Terms
shall be exercised and Fair Market Net Rent shall be determined as follows:
(e) Tenant shall, on or before the date one year before the expiration of
the first Extension Term (or second Extension Term, as applicable), time being
of the essence, give Landlord notice of its exercise of the second (or third, as
applicable) extension option.
(f) If Tenant has given the notice described in subparagraph (e), Landlord
shall give Tenant notice of its proposed Fair Market Net Rent and description of
any additional financial terms (the "Rent Notice") at any time within sixty days
of the date of Tenant's notice.
(g) Within 30 days of receipt of Landlord's Rent Notice, Tenant shall
notify Landlord of Tenant's agreement to or disagreement with the terms of
Landlord's Rent Notice. At Tenant's
<PAGE>
request, contained in its reply to Landlord's Rent Notice, the parties shall
negotiate in good faith with respect to Fair Market Net Rent and any other
financial terms. If Tenant shall fail to give Landlord the notice of exercise
under subparagraph (e) or if Tenant shall fail timely to respond to Landlord's
Rent Notice given under subparagraph (f), time being of the essence, Tenant's
second or third (as the case may be) option to extend the Term shall expire and
be of no further effect. If Tenant and Landlord, having negotiated in good
faith, shall agree on Fair Market Net Rent and all additional financial terms on
or before the date thirty days after the date of the Landlord's Rent Notice,
this Lease shall be extended in accordance with such agreement. If Landlord and
Tenant fail to agree on the Fair Market Net Rent within 30 days after the date
of Landlord's Rent Notice, Tenant shall have the right to terminate its exercise
of the first extension option by notice to Landlord before the end of such
30-day period. If the parties shall not have agreed by such date, and unless
Tenant has by notice to Landlord within such time, terminated its exercise of
such extension option, Fair Market Net Rent shall be determined by appraisal as
described in subparagraph (d). Any overpayments by Tenant hereunder shall be
credited against the next payments of rent due hereunder. Any underpayments by
Tenant shall be due and payable within thirty (30) days after the appraiser's
decision is rendered.
2.5 ANNUAL FIXED RENT
-----------------
Commencing as of the Rent Commencement Date, Tenant covenants and agrees
to pay rent at an annual rate equal to the Annual Fixed Rent set forth in
Section 1.1 in effect from time to time to Landlord in equal monthly
installments (as adjusted from time to time) in advance on the first day of each
calendar month during the Term. Annual Fixed Rent shall be based on the Rentable
Floor Area of the Premises from time to time. All payments shall be due without
billing or demand and without deduction, set off or counterclaim. For the
purposes of this Lease, the first "Lease Year" shall mean the period of twelve
full calendar months after the Rent Commencement Date, and subsequent "Lease
Years" shall mean the subsequent consecutive periods of twelve full calendar
months in the Term. If the Rent Commencement Date occurs on a date other than
the first day of a calendar month, or if the Term includes at its end any
partial Lease Year, the Annual Fixed Rent payable for any partial calendar month
immediately after the Rent Commencement Date or for any such partial Lease Year
shall be equal to the annual amount of Annual Fixed Rent then in effect prorated
according to the fraction of the number of days in a full Lease Year within such
partial calendar month after the Rent Commencement Date or within such partial
Lease Year, as the case may be. Any prorated payment for the partial calendar
month after the Rent Commencement Date shall be due on the Rent Commencement
Date. If the Term expires on a day other than the last day of a calendar month,
the monthly installment of Annual Fixed Rent for the calendar month in which
such Term expires shall be prorated on a daily basis according to the number of
days in such calendar month within the Term. If the rate of Annual Fixed Rent
changes during any Lease Year due to the delivery of portions of the Premises to
Tenant in accordance with Section 2.1.1 of this Lease or due to any other
provision of this Lease, the total Annual Fixed Rent payable for such Lease Year
shall be equal to the sum of (i) the annual rate of Annual Fixed Rent in effect
at the beginning of such Lease Year prorated according to the fraction of the
number of days in such Lease Year during which such rate is in effect, and (ii)
the annual rate of Annual Fixed Rent in effect after each such change prorated
according to the respective fractions of the number of days in such Lease Year
<PAGE>
during which each such changed rate of Annual Fixed Rent is in effect. If any
such change in the rate of Annual Fixed Rent occurs on a date other than the
first day of a calendar month, the monthly installment of Annual Fixed Rent for
the month in which such change occurs shall be equal to the sum of (x) the
monthly installment of Annual Fixed Rent applicable at the beginning of such
month prorated according to the fraction of the number of days in such calendar
month during which such initial monthly installment is applicable, and (y) the
monthly installment of Annual Fixed Rent applicable after each such change
prorated according to the respective fractions of the number of days in such
calendar month during which each such changed installment is applicable. All
payments shall be payable to landlord at Landlord's Original Address, both as
specified in Section 1.1, or to such other entities at such other places as
Landlord may from time to time designate by written notice to Tenant.
2.6 ADDITIONAL RENT - TAXES AND OPERATING EXPENSES
----------------------------------------------
2.6.1 ADDITIONAL RENT - GENERAL COVENANT. Commencing as of the Rent
Commencement Date, Tenant covenants and agrees to pay to Landlord in accordance
with Section 2.6.2 hereof, as additional rent, an amount with respect to each
calendar year equal to the product of (a) Tenant's Proportionate Share (defined
below) and (b) the total of Landlord's Operating Expenses for such Lease Year.
"Tenant's Proportionate Share" for all of Landlord's Operating Expenses other
than those relating to the Additional Land and the Exclusive Parking Spaces
shall mean the following fractions: (x) from the Rent Commencement Date through
the Area A Commencement Date, the Rentable Floor Area of the Premises from time
to time divided by the Rentable Floor Area of the Building (it being understood
that if Tenant temporarily occupies all or any portion of Area B pursuant to
Section 2.4 for the conduct of its business (and not for the purposes of
preparing Area B for Tenant's use and occupancy) such portion of Area B shall be
included in the Premises for the purposes of this Section 2.6.1); and (y) from
the Area A Commencement Date through the expiration or earlier termination of
the Term, 258,851 square feet divided by the sum of 258,851 and the rentable
floor area of those portions of Area C occupied by any tenant; provided,
however, if Tenant exercises its right of first refusal with respect to Area C,
after the commencement of the term of Tenant's lease of Area C, Tenant's
Proportionate Share shall equal 100%. "Tenant's Proportionate Share" for all of
Landlord's Operating Expenses relating to the Additional Land and the Exclusive
Parking Spaces shall be (A) 0% until the later of (i) the completion of the
Exclusive Parking Spaces under Article XII of this Lease or (ii) the Rent
Commencement Date and (B) 100% thereafter, for the balance of the Term. If the
Rent Commencement Date occurs on a date other than the first day of a calendar
year, or if the Term ends on a date other than the last day of a calendar year,
the additional rent payable under this Section 2.6 for any partial calendar year
immediately after the Rent Commencement Date or before the end of the Term shall
be equal to the annual amount of Tenant's Proportionate Share of Landlord's
Operation Expenses then in effect prorated on a daily basis according to the
fraction of a full calendar year after the Rent Commencement Date or before the
end of the Term, as the case may be. If Tenant's Proportionate Share changes
during any calendar year due to the delivery of portions of the Premises to
Tenant in accordance with Section 2.1.1 of this Lease or due to this Section
2.6.1, the total additional rent payable under this Section 2.6 for such Lease
Year shall be equal to the sum of (i) the annual amount of Tenant's
<PAGE>
Proportionate Share of Landlord's Operating Expenses applicable at the beginning
of such calendar year prorated on a daily basis according to the fraction of a
full calendar year during which such amount is applicable, and (ii) the annual
amount of Tenant's Proportionate Share of Operating Expenses applicable after
each such change prorated on a daily basis according to the respective fractions
of a full calendar year during which each changed amount of Tenant's
Proportionate Share of Landlord's Operating Expenses is applicable.
2.6.2 PAYMENT. On or prior to the Term Commencement Date and
thereafter on or prior to the Rent Commencement Date, and on or prior to the
beginning of each subsequent calendar year, Landlord shall provide Tenant with
Landlord's reasonable written estimate of the Operating Expenses for the next
period or calendar year. Additional rent for Tenant's Proportionate Share of
Landlord's Operating Expenses under this Section 2.6 shall be paid for any
portion of a month commencing as of the Rent Commencement Date and thereafter in
monthly installments on the first day of each calendar month in amounts
reasonably estimated by Landlord for the then current period or calendar year
(it being understood that as of the Rent Commencement Date and at the beginning
of each subsequent calendar year, such installments shall be in amounts equal to
one-twelfth of Tenant's Proportionate Share of the then-current estimate of the
Operating Expenses for the next calendar year). Landlord may from time to time
and, no less frequently than semi-annually, either increase or decrease such
estimates based on better or more current information relating to Landlord's
Operating Expenses, changes in Landlord's Operating Expenses due to occupancy of
previously vacant space, or other information affecting the calculation
hereunder. Any resulting increases or decreases in additional rent due hereunder
for the then current calendar year shall be paid in equal monthly installments
over the balance of the then-current calendar year. If the Rent Commencement
Date occurs on a date other than the first day of a calendar month, or if the
Term expires on a day other than the last day of a calendar month, the monthly
installment of additional rent for Operating Expenses for such calendar month
shall be prorated on a daily basis according to the number of days in such
calendar month after the Rent Commencement Date or before the end of the Term,
as the case may be. If Tenant's Proportionate Share changes during any calendar
month due to the delivery of portions of the Premises to Tenant in accordance
with Section 2.1.1 of this Lease or due to this Section 2.6.1, the monthly
installment of Tenant's Proportionate Share of Landlord's Operating Expenses for
such calendar month shall be equal to the sum of (x) the monthly installment of
Tenant's Proportionate Share of Landlord's Operating Expenses applicable at the
beginning of such month prorated according to the fraction of the full calendar
month during which such initial monthly installment is applicable, and (y) the
monthly installment of Tenant's Proportionate Share of Landlord's Operating
Expenses applicable after each such change prorated according to the respective
fractions of the full calendar month during which each such changed installment
is applicable. Upon issuance thereof, there shall be adjustments between
Landlord and Tenant for the calendar year covered by such accounting to the end
that Landlord shall have received the exact amount of additional rent due under
this Section 2.6. Any overpayments by Tenant hereunder shall be credited against
the next payments of rent due under this Section 2.6, subject to the last
sentence of this Section 2.6.2. Any underpayments by Tenant shall be due and
payable within thirty (30) days after Tenant's receipt of such accounting. With
respect to the calendar year in which the Term ends, the adjustments shall be
pro rated for the portion of the year included in the Term, but shall take place
<PAGE>
nevertheless at the times provided in the preceding sentences (which obligations
shall survive the expiration or earlier termination of this Lease); and any
overpayments by Tenant in such year shall be refunded at the time of the
delivery of such accounting to Tenant, provided there are no outstanding amounts
due Landlord under this Lease at such time.
2.6.3 LANDLORD'S OPERATING EXPENSES" - DEFINITION. "Landlord's
Operating Expenses" means all reasonable costs of Landlord in operating,
managing, maintaining, and repairing the Building, Land, Additional Land and
Exclusive Parking Spaces and (subject to the terms of the following paragraph)
making replacements thereon, and providing services to tenants, including,
without limitation, the costs of the following: (i) supplies, materials and
equipment customarily purchased or rented and total wage and salary costs paid
to and on account of all persons engaged in the operating, maintenance,
security, cleaning and repair of the Building and Land, including Social
Security, old age and unemployment taxes, hospitalization, disability insurance
or benefits and other customary so-called "fringe benefits"; (ii) building
services furnished to Tenant at Landlord's cost (including the types of services
provided to Tenant pursuant to Section 4.1 hereof) and maintenance of and
services provided to or on behalf of the Building performed by Landlord's
employees or by other persons under contract with Landlord or Landlord's
Managing Agent or building service agent ("Building Service Agents"); (iii)
utilities consumed and expenses incurred in the operation and maintenance of the
Building (both common areas and tenant areas) and Land including, without
limitation, oil, gas, electricity (the foregoing shall not include electricity
provided for other tenants in their premises) water and sewer (but excluding
water and sewer charges reimbursed to Landlord by other tenants or Tenant) and
snow removal; (iv) insurance; (v) costs in the nature of common area and
facilities costs of the development owned by Landlord and which includes the
land and the Buildings (to the extent such development includes land other than
the Land) reasonably allocated to the Land and Building including without
limitation, road and grounds maintenance, snow plowing and removal and other
costs of operating, maintaining, repairing and servicing common areas and
facilities; (vi) an allowance for building service fees and management fees, in
an aggregate amount equal to $0.30 per square foot of Rentable Floor Area of the
Building for the Initial Term (it being understood that such allowance may
increase during any Extension Term); (vii) "Landlord's Taxes" as defined below
and (viii) costs incurred by Landlord in connection with the requirements set
forth in that certain letter dated October 10, 1996 from Robert A. Kimball, P.E.
to Rizzo Associates, Inc. (the "DEP Letter"), it being understood that any costs
in the nature of capital expenses shall be amortized in accordance with the
terms of the following paragraph. If Landlord is not obligated to furnish
cleaning and janitorial services, or any other item, the costs of which are
included in Landlord's Operating Expenses, to all rentable areas of the Building
(any such item not furnished to all such rentable areas is referred to as a
"restricted item"), Additional Rent due hereunder with respect to any restricted
item furnished to or benefiting the Premises for any period shall be (i) the
cost of such item for the period multiplied by (ii) the percentage calculated by
dividing the Rentable Floor Area of the Premises (as the Premises may be
expanded from time to time) by the total rentable floor area of all premises so
benefited. No amount shall be included in Landlord's Operating Expenses with
respect to any restricted item not furnished to or benefiting the Premises.
<PAGE>
If Landlord, in its reasonable discretion, installs a new or replacement
capital item for the purpose of reducing or conserving the use of energy in the
Building (provided that such reduction or conservation of energy is required by
applicable law) or otherwise relating to the operation of the Building
(including but not limited to the replacement of the roof, foundation, exterior
walls, and other structural components of the Building, the heating,
ventilating, air conditioning, electrical, plumbing, emergency and other
mechanical equipment and systems, and the on-site subsurface sewage disposal
system and the Exclusive Parking Spaces (as defined in Article XII hereof)), the
cost of such item shall be amortized over its useful life determined in
accordance with generally accepted accounting principles with interest at the
so-called prime rate from time to time published by THE WALL STREET JOURNAL (or
substitute publication reasonably selected by Landlord if THE WALL STREET
JOURNAL shall cease publication of such information and only the annual
amortized portion (together with interest) shall be included in Landlord's
Operating Expenses for any year.
Notwithstanding anything to the contrary herein, Landlord's Operating
Expenses shall not include any of the following costs or expenses incurred by
Landlord: (i) salaries, wages, benefits and other expenses of executives,
principals, and off-site or central office, accounting, and administrative staff
of Landlord or Landlord's Management Agent (except as the same may be reflected
in the management fee for the Building or attributable to actual Building
operations); (ii) payments of principal, interest or other charges on
indebtedness secured by a mortgage or other security interest covering any
portion of the Building or the Land; (iii) rent, additional rent, or other
charges payable under any ground lease or superior lease affecting the Land, the
Building, or the parking areas described in Article XII hereof (it being
understood that the foregoing shall not be construed to include any costs of
Landlord in operating, managing, maintaining, and repairing such parking areas
or making replacements thereon); (iv) costs of leasehold improvements made in
connection with the preparation of any portion of the Building for occupancy by
a new or existing tenant which is not beneficial to all tenants of the Building;
(v) costs of any expansion of the rentable area of the Building or the parking
areas serving the Building; (vi) costs, expenses or charges (including
utilities) properly chargeable or attributable to a particular tenant or tenants
other than Tenant; (vii) efforts to lease portions of the building or to procure
new tenants for the Building, including advertising expenses, leasing
commissions and attorney's fees; (viii) negotiations or disputes with any tenant
of the Building other than Tenant; (ix) Landlord's general overhead (except as
the same may be reflected in the management fee for the Building or attributable
to actual Building operations); (x) depreciation of the Building; (xi) repairs
and replacements arising out of a casualty or condemnation (in excess of a
reasonable deductible under insurance carried by Landlord); (xii) Landlord's or
Landlord's Managing Agent's breach or violation of a law, lease, or other
obligation, including fines, penalties and attorneys' fees; (xiii) compensation
paid to employees or other persons in connection with commercial concessions
operated by Landlord or Landlord's Managing Agent; (xv) fees for licenses,
permits or inspections resulting from the negligence or willful misconduct of
Landlord, Landlord's Managing Agent or any tenant of the Building other than
Tenant; (xvi) compliance by Landlord with laws in effect and applicable as of
the date hereof, including without limitation the Americans with Disabilities
Act and the regulations and standards thereunder, provided that costs of such
compliance with laws becoming effective and applicable after the date hereof may
be included in Landlord's Operating Expenses; (xvii) construction and
<PAGE>
development of the Building, other improvements on the Land or the parking areas
described in Article XII hereof and the cost of repair of defects in the
original construction of the Building or such improvements or parking areas;
(xix) any items to the extent to which Landlord receives reimbursement from
insurance proceeds or from a third party; (xx) any utility or other service to
the extent used or consumed in rentable areas leased to other tenants or
occupants of the Building and provided that Tenant's use or consumption of such
utility or service is separately metered at the Premises; and (xxi)
environmental testing, remediation and compliance (it being understood that any
such costs arising out of Tenant's use or occupancy of the Premises shall be
paid by Tenant to Landlord as additional rent and as a direct reimbursement
hereunder).
"Landlord's Taxes" means all taxes, assessments and similar charges
assessed or imposed by any governmental authority upon the Building and Land
(including personal property owned by Landlord and associated therewith),
reduced by any net amounts received as an abatement or reduction of taxes. The
amount of special taxes or special assessments included in Landlord's Taxes for
any year shall be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during or with respect to the year in question.
Landlord's Taxes include expenses, including reasonable fees of attorneys,
appraisers and other consultants, incurred in connection with any efforts to
obtain abatements or reduction or to assure maintenance of Landlord's Taxes for
any year wholly or partially included in the Term, whether or not successful and
whether or not such efforts involved filing of actual abatement applications or
initiation of formal proceedings. Landlord agrees to file abatement applications
and initiate other appropriate proceedings as reasonably requested by Tenant.
Landlord's Taxes exclude income taxes of general application and all estate,
succession, inheritance and transfer taxes. If at any time during the Term there
shall be assessed on Landlord in addition to or in lieu of the whole or any part
of the ad valorem tax on real or personal property, a capital levy or other tax
on the gross rents or other measures of building operations, or a governmental
income, franchise, excise or similar tax, assessment, levy, charge or fee
(distinct from any such tax now in effect in the jurisdiction in which the
Building is located, measured by or based, in whole or in part, upon building
valuation, gross rents or other measures of building operations or benefits of
governmental services furnished to the Building or Land, then any and all of
such taxes, assessments, levies, charges and fees, to the extent so measured or
based, shall be included within the term Landlord's Taxes, but only to the
extent that the same would be payable if the Building and Land were the only
property of Landlord.
2.6.4 SUPPLEMENTAL RENTAL PAYMENT. Tenant shall pay Landlord, as
additional rent, without offset, deduction or demand, three installments of
$83,333 each for the first three calendar months following the Area A
Commencement Date payable at the time prescribed for monthly installments of
Annual Fixed Rent.
2.6.5 BOOKS AND RECORDS. Landlord shall maintain books and records
relating to Landlord's Operating Expenses in accordance with generally accepted
accounting principles. Tenant shall have the right, at its sole cost, upon
reasonable advance notice to Landlord and during reasonable business hours, to
have its employees, agents, accountants and attorneys review, audit and make
copies of Landlord's books and records relating to Operating Expenses and
additional rent payable by Tenant under this Lease.
<PAGE>
2.7 ELECTRICITY
-----------
Subject to Section 4.2, Landlord shall furnish to Tenant throughout the
Term electricity for the operation of lighting fixtures, and electrical current
for the operation of normal office fixtures and equipment and Tenant's trade
fixtures and equipment described in Tenant's approved Plans. Tenant shall pay
Landlord, as additional rent, for the use of such electricity. Such payments
shall be made in monthly installments at the time prescribed for monthly
installments of Annual Fixed Rent, and shall be in the amount of Tenant's
allocable share of the cost of electricity metered to premises which include the
Premises (as reasonably determined by Landlord) at the rates charged to Landlord
therefor by the applicable public utility. Notwithstanding the foregoing, after
all or any portion of Area A has been added to the Premises, Tenant shall pay
directly to the applicable utility company all charges for electricity metered
to the Premises. Further notwithstanding the foregoing, after all or any portion
of Area B has been added to the Premises, Tenant shall pay directly to the
applicable utility company all charges for electricity metered to Area B.
If Tenant requires electricity in excess of that supplied by Landlord,
Landlord shall, upon request, cooperate with Tenant, at Tenant's expense, in the
installation of any equipment, wiring, conduits, and the like required for such
electricity to the Premises provided that Tenant shall reimburse Landlord for
all additional costs incurred and further provided that Landlord shall not be
required to take any action which is inconsistent with applicable law, insurance
regulation, or that entails excessive or unreasonable alterations or repairs to
the Building or interference with other tenants or occupants of the Building.
2.8 ACCESS
------
Tenant, its employees, agents, contractors and invitees shall have access
at all times to the Premises and the parking areas required under Article XII of
this Lease.
ARTICLE III
CONSTRUCTION
3.1 LANDLORD'S WORK AND FINISH WORK
-------------------------------
3.1.1 DEFINITION. Landlord shall, at its sole expense, diligently
perform the work set forth on EXHIBIT A hereto, together with any additional
work reasonably inferable as being required to complete such work in compliance
with all applicable laws, regulations, and codes ("Landlord's Work"). Landlord
shall complete Landlord's Work at its sole expense, except that if (i) Landlord
encounters conditions at the Premises which were unforeseeable at the time of
the execution of this Lease, and (ii) such unforeseeable conditions cause the
cost of Landlord's Work to exceed the Construction Budget, then Landlord shall
first apply any balance of the Contingency Allowance toward such excess costs,
and Tenant shall be responsible for paying the
<PAGE>
balance of the excess costs of Landlord's Work resulting from such unforeseeable
conditions that remains after Landlord exhausts the Contingency Allowance. If
such excess cost shall be less than or equal to $100,000.00, Tenant shall pay
such amount to Landlord within thirty (30) days after receiving from Landlord a
reasonably detailed written statement of such excess costs, together with a
certificate of Landlord's architect stating that Landlord's Work has been
completed substantially in accordance with the Plans and evidence of payment to
and waivers of lien from, contractors performing any portion of Landlord's Work
for which reimbursement is requested. If such excess cost shall be greater than
$100,000.00, upon Tenant's request and at Tenant's expense, Landlord shall use
reasonable efforts to obtain additional financing to pay such excess costs, and
to the extent funds for such costs are available to Landlord, Tenant may elect
to pay to Landlord, as additional rent, the amount of such excess amortized over
the remainder of the Initial Term with interest at the rate then charged by
Landlord's mortgagee (it being understood that such rate is currently 12%), in
equal monthly installments on the first day of each calendar month commencing
with the first full calendar month which is at least thirty (30) days after
delivery to Tenant of Landlord's written statement, architect's certificate and
evidence of payment relating to such excess costs. Except for Landlord's Work
described above, any improvements required to put or maintain the Building in
condition for Tenant's occupancy, including any modifications of the Building
structure or systems necessitated by Tenant's special requirements, shall be
deemed to constitute Finish Work.
Landlord's Work and all Finish Work shall be done by union labor in a
workmanlike manner in accordance with all applicable codes, laws and regulations
using new materials of good quality, and when completed shall then comply with
all applicable codes, laws, and regulations. Landlord shall employ in connection
with Landlord's Work and Finish Work only contractors and subcontractors
reasonably approved by Tenant. Before employing any contractors or
subcontractors, Landlord shall pursue competitive bidding procedures reasonably
acceptable to Tenant. Notwithstanding anything to the contrary in the foregoing,
Tenant hereby approves John Moriarty & Associates, Inc. as the general
contractor (the "General Contractor") for Landlord's Work and all Finish Work.
Tenant further approves the terms and conditions of construction contracts dated
as of October 31, 1996 between Landlord and the General Contractor with respect
to Landlord's Work and Area A Finish Work, ("Landlord's Work Contract" and
"Finish Work Contract," respectively).
3.1.2 PERMITS. Landlord will use diligent efforts to obtain a
building permit and all other governmental permits, licenses, approvals and the
like required in connection with construction of Landlord's Work, Finish Work,
and the construction of the parking required under Article XII of this Lease.
3.2 CONSTRUCTION FOR TENANT - FINISH WORK
-------------------------------------
(a) Subject to the conditions set forth in this Section 3.2, Landlord
shall also perform the work set forth on the Plans (as defined below) including
without limitation all renovations, replacements and alterations specified in
the Plans and any additional work which is reasonably inferable from the Plans
as being required to complete the specified renovations, replacements
<PAGE>
and alterations in compliance with all applicable laws, regulations, and codes
(the "Finish Work"). Finish Work shall not include Landlord's Work or the
installation of Tenant's furniture, business fixtures and equipment or
decorations. Landlord shall complete Finish Work at Landlord's expense, but
Tenant shall reimburse Landlord for costs of Finish Work as set forth in Section
3.2(c), up to a maximum sum equal to the Cost Proposals for Area A and Area B
(as defined below) accepted by Tenant pursuant to this Section 3.2(a), plus all
additional costs of Finish Work arising out of modifications to the Plans
requested by Tenant after Tenant's acceptance of any Cost Proposal (or necessary
to make the Plans comply with all applicable laws, regulations, and codes), less
that portion of the Contingency Allowance applied toward such costs under
Section 3.2(c).
Tenant, at its sole cost, has provided to Landlord's Finish Work
Representative, and Landlord has approved, complete final construction drawings
and specifications for all Finish Work in Area A, including architectural,
mechanical and electrical drawings and specifications (the "Area A Plans"), a
schedule of which is attached hereto as Exhibit G. Tenant shall, on or before
the Tenant Area B Plan Delivery Date and at its sole cost, provide to Landlord's
Finish Work Representative complete final construction drawings and
specifications for all Finish Work in Area B, including architectural,
mechanical and electrical drawings and specifications (the "Area B Plans"). The
Area A Plans and the Area B Plans are collectively referred to herein as the
"Plans." The Plans shall be prepared by Soep Associates, Inc. or another
architect designated by Tenant and reasonably approved by Landlord (the
"Architect"). The Area B Plans shall not be deemed to have been submitted by
Tenant unless and until they are in a form which is thereafter approved. Within
ten (10) business days after receipt of the Area B Plans, Landlord shall approve
or disapprove such Plans (and provide reasons for any disapproval). If in
reviewing the Plans or other preliminary materials delivered to Landlord under
this Section 3.2, Landlord observes matters which will involve unavailability of
materials, unusual costs or unusual delays, Landlord will so inform Tenant.
Landlord shall not be obliged to make any independent investigations of these
matters. If any Plans are disapproved, they shall be revised by Tenant and
resubmitted to Landlord for approval within ten (10) business days and the same
procedure shall be repeated until Landlord fully approves such Plans. Landlord's
approval of the Plans shall not be deemed a representation or warranty that the
Plans are complete or that there are no inconsistencies between the Plans and
the shell and core construction of the Building and/or Landlord's Work.
Landlord shall cause the General Contractor to submit the Plans relating
to the Finish Work for Area A for competitive bidding by unionized
subcontractors reasonably approved by Tenant. Tenant shall have the right, but
not the obligation, to specify up to two unionized subcontractors reasonably
acceptable to Landlord to participate in such competitive bidding with respect
to all subcontracts. Landlord shall cause the General Contractor to obtain from
each such subcontractor a final bid for its component of Finish Work. If Tenant
is not satisfied with the bids on any component of such Finish Work, 'Tenant
shall have the option (i) to revise the Plans, to submit the revised Plans to
Landlord for its approval, and to submit the revised Plans to any affected
subcontractor for a final bid, all in accordance with this Section 3.2(a), or
(ii) to request that Landlord submit the Plans for a final bid by another
subcontractor reasonably agreed upon by Tenant and Landlord. Any actual delay in
the Substantial Completion of Finish Work relating
<PAGE>
to Area A arising out of any such revisions to the Plans and resubmissions for
Landlords' approval or for final bids shall be a Tenant Delay.
Within twenty days after Landlord's approval of the Plans relating to Area
A, Landlord shall cause the General Contractor to submit to Tenant a guaranteed
maximum price for completing Finish Work shown on such Plans, which shall
consist of the total of the bids from all subcontractors accepted during final
bidding relating to the Finish Work for Area A (the "Final Price for Area A").
If Tenant exercises its option in the previous paragraph to revise the Plans for
Area A or to submit the Plans for Area A for bid by an alternative
subcontractor, Landlord shall cause the General Contractor to submit the Final
Price for Area A to Tenant within such twenty-day period, subject to revision
upon receipt of any bids relating to such revised Plan or from any such
alternative subcontractor. The "Cost Proposal" for the Finish Work relating to
Area A shall be equal to the sum of (i) Final Price of Area A, (ii) a charge for
the General Contractor's general conditions which shall not exceed the amounts
set forth in the Finish Work Contract, (iii) a charge payable to the General
Contractor which shall not exceed five and one-half percent (5.5%) of the sum of
(i) and (ii), and (iv) a charge payable to Landlord for management of the
construction and installation of the Finish Work relating to Area A (the "Area A
Construction Management Fee") which shall not exceed three percent (3%) of the
sum of items (i)-(iii). Notwithstanding anything to the contrary in the
foregoing, within a reasonable period following completion of the Finish Work
relating to Area A, Tenant shall, in its sole discretion, determine whether to
increase the Area A Construction Management Fee to up to five percent (5%) of
the sum of items (i)-(iii) above.
Landlord shall cause the General Contractor to submit the Plans relating
to the Finish Work for Area B for competitive bidding by unionized
subcontractors reasonably approved by Tenant. Tenant shall have the right, but
not the obligation, to specify up to two unionized subcontractors reasonably
acceptable to Landlord to participate in such competitive bidding with respect
to all subcontracts. Within twenty days after Landlords' approval of the plans
for the Finish Work relating to Area B, Landlord shall cause the General
Contractor to obtain from each such subcontractor a bid for its component of
such Finish Work. If Tenant is not satisfied with the bids on any component of
such Finish Work, Tenant shall have the option to revise the plans, to submit
the revised Plans to Landlord for its approval, and to submit the revised Plans
to any affected subcontractor for a revised bid, all in accordance with this
Section 3.2(a). Any actual delay in the Substantial Completion of Finish Work
relating to Area B arising out of any such revisions to the Plans and
resubmissions for Landlord's approval for final bids shall be a Tenant Delay.
Within twenty days after Landlord's approval of the Plans relating to Area
B, Landlord shall cause the General Contractor to submit to Tenant a guaranteed
maximum price for completing Finish Work shown on such Plans, which shall
consist of the total of the bids from all subcontractors accepted during final
bidding relating to the Finish Work for Area B (the "Final Price for Area B").
If Tenant exercises its option in the previous paragraph to revise the Plans for
Area B, Landlord shall cause the General Contractor to submit the Final Price
for Area B to Tenant within such twenty-day period, subject to revision upon
receipt of any bids relating to such revised Plan. The "Cost Proposal" for the
Finish Work relating to Area B shall be equal to
<PAGE>
the sum of (i) Final Price of Area B, (ii) a charge for the General Contractor's
general conditions which shall not exceed the amounts set forth in the Finish
Work Contract, (iii) a charge payable to the General Contractor which shall not
exceed five and one-half percent (5.5%) of the sum of (i) and (ii), and (iv) a
charge payable to Landlord for management of the construction and installation
of the Finish Work relating to Area B (the "Area B Construction Management Fee")
which shall not exceed three percent (3%) of the sum of items (i)-(iii).
Notwithstanding anything to the contrary in the foregoing, within a reasonable
period following completion of the Finish Work relating to Area B, Tenant shall,
in its sole discretion, determine whether to increase the Area B Construction
Management Fee to up to five percent (5%) of the sum of items (i)-(iii) above.
Except as otherwise permitted in this Section 3.2(a), Tenant's Plans may
not be modified in any material respect after the date of this Lease with
respect to the Area A Plans or the Tenant Area B Plan Delivery Date with respect
to the Area B Plans, except with Landlord's approval which shall not be
unreasonably withheld or delayed. Tenant shall be responsible for all costs and
delays associated with any modifications to the Plans including, without
limitation, the cost of Architect. Landlord shall, upon Tenant's request,
provide estimates of costs of all Work which Tenant proposes to include in
change orders issued after the initial approval of Tenant's Plans and any
estimated delay in Substantial Completion of the Finish Work resulting from such
change orders. Landlord shall not unreasonably withhold, delay or condition its
approval of the Plans or any modifications to the Plans, but it shall be
reasonable for Landlord to disapprove Tenant's Plans (or any modification
thereto) which in Landlord's reasonable judgment (i) would materially delay the
completion of Landlord's Work or Finish Work, (ii) are incompatible with the
design, quality, equipment or systems of the Building, or (iii) would require
unusual expense to readapt the Premises to normal office and light assembly use
upon termination of the Term (except to the extent Tenant agrees, prior to
Landlord's approval of the Plans, to readapt the Premises upon termination of
the Term at its own expense). All payments required to be made by Tenant
hereunder, whether to Landlord or third parties, shall be deemed "rent payments"
for purposes of Article VII.
(b) If and as long as Tenant does not materially interfere in any way with
the construction process (by causing disharmony, scheduling or coordination
difficulties, etc.), Tenant may, with prior permission of Landlord (which shall
not be unreasonably withheld, delayed or conditioned), and at Tenant's sole risk
and expense, enter portions of the Premises prior to the delivery of possession
of such portion to Tenant for the purpose of installing Tenant's furnishings and
fixtures and equipment. The determination of whether any such material
interference has occurred or is occurring made by Landlord's Architect in its
reasonable judgment at Landlord's request shall be conclusive.
(c) As Finish Work progresses, Landlord shall pay the cost of Finish Work
from the Contingency Allowance specified in Section 1.1 (to the extent not
applied to the cost of Landlord's Work in accordance with Section 3.1) until
such time as the Contingency Allowance is exhausted. Thereafter, Landlord shall
submit to Tenant monthly requests for payment ("Requests for Payment") as Finish
Work progresses. Each Request for Payment shall relate to the portion of Finish
Work which has been completed during the period covered by such Request
<PAGE>
for Payment, shall be accompanied by a certificate of Landlord's architect
stating that such portion of Finish Work has been completed in accordance with
the Plans, and shall include evidence of payments to and waivers of lien from
contractors performing Finish Work covered by previous Requests for Payment (if
not previously delivered to Tenant). Tenant shall make payment on account of all
Requests for Payment within twenty (20) days after receipt of such Request for
Payment, provided, however, that Tenant shall have the right to withhold until
final completion of Landlord's Work and Finish Work (including all Punchlist
Items) an amount equal to the greater of (i) five percent of the Cost Proposal
accepted by Tenant or (ii) the cost of completing any Punchlist Items, as
reasonably estimated by Landlord's architect. Landlord shall, promptly after
receipt of such payments, furnish to Tenant evidence of payments to and waivers
of lien from contractors performing such Finish Work. The full amount which
Tenant is obligated to pay under this Section 3.2, less such withheld amount set
forth in the foregoing sentence, shall be paid with the Request for Payment
submitted by Landlord after Substantial Completion (as defined in Section 2.4)
of the construction of Landlord's Work and Finish Work. As Tenant makes payments
to Landlord for the cost of all Finish Work in excess of the Contingency
Allowance (to the extent not otherwise applied), Landlord shall pay the
contractor for all Finish Work and deliver the Premises free of all mechanics'
and material men's liens imposed by reason of the Finish Work. Notwithstanding
anything in this Lease to the contrary, Tenant shall not be entitled to
possession of the Premises if any outstanding Requests for Payment then due and
payable (other than amounts disputed by Tenant in good faith) have not been paid
by Tenant at the time Tenant shall otherwise be entitled to possession of the
Premises.
(d) TENANT DELAYS. "Tenant Delays" are any actual delays in the
Substantial Completion of Landlord's Work and/or Finish Work to the extent
caused by action or inaction of Tenant or any of its employees, agents or
contractors, and shall include, but not be limited to:
(i) any such delay caused by any delay in the delivery of the Area B
Plans to Landlord beyond the Tenant Area B Plan Delivery Date or a failure by
Tenant to respond within the period required under Section 3.2 of this Lease, to
the extent such delays are caused by Tenant, the Architect (in the performance
of its duties under contract with Tenant and attributable to Tenant's
instructions) or Tenant's authorized representatives, agents or employees;
(ii) any such delay caused by modifications, revisions and changes
to the Plans due to a change requested by the Tenant or Tenant's authorized
representatives, agents or employees;
(iii) any such delay caused by the delivery, installation or
completion of any work for Tenant performed by a Tenant contractor;
(iv) any such delay of any kind or nature caused by a material
interference by Tenant pursuant to Section 3.2(b) above); or
(v) any such delay resulting from Tenant's failure to pay for any
Finish Work within twenty (20) days of receipt by Tenant of a bill therefor.
<PAGE>
(e) Landlord shall use diligent efforts to Substantially Complete those
portions of Landlord's Work and Finish Work affecting, relating to, or necessary
for the use and occupancy of Area A on or before the Estimated Area A
Commencement Date (as may be extended pursuant to Section 2.4). Landlord shall
use diligent efforts to Substantially Complete those portions of Landlord's Work
and Finish Work affecting, relating to, or necessary for the use and occupancy
of Area B on or before the Estimated Area B Commencement Date (as may be
extended pursuant to Section 2.4)."Substantial Completion" and "Substantially
Complete" shall refer to the state of any portion of the Premises when (i)
Landlord has obtained and delivered to Tenant a certificate of occupancy with
respect to such portion of the Premises and (ii) Landlord's Work and Finish Work
for such portion are complete except for Punchlist Items. "Punchlist Items"
include only (x) those items of Landlord's Work and/or Finish Work which while
incomplete will not materially interfere with Tenant's use and occupancy of the
Premises and the completion of which will not materially interfere with Tenant's
use and occupancy of the Premises and (y) matters such as balancing of heating,
ventilating and air conditioning systems that cannot be completed due to their
seasonal nature. Landlord shall complete the items identified in clause (x)
above within 30 days after the Area A Commencement Date, with respect to any
such items relating only to Area A, and within 30 days after the Area B
Commencement Date, with respect to the remainder of such items. Landlord shall
diligently complete the matters identified under clause (y) above within a
reasonable time after the Area A Commencement Date or Area B Commencement Date,
as the case may be.
3.3 COMPLIANCE: WITH LEASE
----------------------
In exercising its rights under Section 3.2(b) or otherwise entering or
occupying the Premises prior to the Rent Commencement Date, Tenant shall
perform, and shall cause its employees, agents, contractors, subcontractors,
material suppliers and laborers to perform, all Tenant's obligations under this
Lease except the obligations to pay Annual Fixed Rent, and additional rent and
other charges and other obligations the performance of which would be clearly
incompatible with the installation of furnishings, fixtures and equipment
pursuant hereto.
3.4 WARRANTIES
----------
Landlord shall use best efforts to obtain from the contractors and
subcontractors performing Landlord's Work and Finish Work customary contractual
assurances or warranties (the "Warranties") that their work was performed in a
good and workmanlike manner, using first quality materials, in conformity with
this Lease and all applicable laws, plans, specifications and construction
contracts and that such work was free of defects in workmanship and materials.
Landlord shall use best efforts to ensure that the Warranties shall survive for
a period of one year from (i) the Area A Commencement Date with respect to
Landlord's Work and Finish Work in Area A, and (ii) the Area B Commencement Date
with respect to Landlord's Work and Tenant's Work in Area B. Landlord shall
assign the Warranties to Tenant. Landlord shall also use diligent efforts to
obtain and shall assign to Tenant, and shall use diligent efforts to cause all
contractors and subcontractors to obtain and assign to Tenant, all
manufacturers' warranties relating to any components or materials comprising
part of Landlord's Work or Finish Work, including a warranty for at least ten
years on the roof of the Building and warranties on the
<PAGE>
mechanical components of the heating, ventilating and air conditioning system.
Any assignments under this Section 3.4 shall automatically terminate upon
expiration or earlier termination of this Lease and shall thereupon revert to
Landlord or such person as is then the owner of the Building and the Land.
ARTICLE IV
LANDLORD'S COVENANTS
4.1 LANDLORD'S COVENANTS
--------------------
Commencing as of the Area A Commencement Date with respect to Area A and
with the Area B Commencement Date with respect to Area B, Landlord covenants as
follows:
4.1.1 BUILDING SERVICES. Landlord shall furnish services, utilities,
facilities and supplies set forth in this Section 4.1.1. Tenant may obtain
additional services, utilities, facilities and supplies from time to time upon
reasonable advance request and, in either case, the cost of the same (including
related expenses such as costs for meter installation and maintenance) at
reasonable rates from time to time established by Landlord shall constitute a
restricted item allocable to the Premises under Section 2.6.1. Tenant covenants
to pay, as additional rent, any amounts billed for restricted items, payable
within ten business days after receipt of such bill.
4.1.1.1 WATER CHARGES. Landlord shall furnish hot and cold
water for the facilities and equipment described in Tenant's approved Plans. If
Tenant requires, uses or consumes water for any other purpose, Landlord may
either assess on Tenant reasonable charges for additional water, or install a
water meter to measure Tenant's consumption. (The cost of installation and
maintenance of any such meter shall be borne by Tenant.) If Tenant's water
consumption is measured by a separate meter, Tenant shall pay for all water so
consumed together with the sewer charges based on said meter charges within ten
business days after receipt of bills therefor.
4.1.1.2 ELEVATOR, HEAT AND CLEANING. Landlord shall: (i)
provide necessary elevator facilities at all times; (ii) furnish heat to the
Premises during the normal heating season on a schedule reasonably requested by
Tenant (which may be 24 hours per day, seven days per week, 365 days per year)
pursuant to reasonable procedures established by Landlord; and (iii) cause the
Common Facilities to be kept reasonably clean. Cleaning standards shall be in
accordance with standards generally applicable in quality research and
development buildings in the Interstate Route 495 area.
4.1.1.3 AIR-CONDITIONING. Landlord shall, through the Building
air-conditioning system, furnish to and distribute in the Premises
air-conditioning as normal seasonal changes may require on a schedule reasonably
requested by Tenant (which may be 24 hours per day, seven days per week, 365
days per year) may reasonably be required for the comfortable use and occupancy
of the Premises by Tenant for the Permitted Uses. If Tenant requires additional
air-conditioning capacity in excess of that set forth in the Plans or the plans
<PAGE>
for Landlords' Work, any additional air-conditioning units, chillers,
condensers, compressors, ducts, piping and other equipment will be installed and
maintained by Landlord at Tenant's sole cost and expense, but only to the extent
that the same are compatible with the Building and its mechanical systems.
4.1.1.4 ENERGY CONSERVATION. Tenant agrees to cooperate with
Landlord and to abide by all Building regulations which Landlord may, from time
to time, reasonably prescribe in accordance with Section 5.3 of this Lease for
the proper functioning and protection of the heating and air conditioning
systems and in order to maximize the effect thereof and to conserve heat and
air-conditioning. Notwithstanding anything to the contrary in this Section 4.1.1
or otherwise in this Lease, Landlord may institute such policies, programs and
measures as may be in Landlord's judgment necessary to comply with applicable
codes, rules, regulations or legally mandated standards regarding energy
conservation.
4.1.2 REPAIRS. Except as otherwise provided in this Lease, and
except for repairs to items referred to below necessitated by Tenant's act or
failure to act (when Tenant has a duty so to act) (which shall be Tenant's
repair obligation under Section 5.2), Landlord shall maintain (including any
necessary repairs or replacements) the roof, exterior walls, exterior windows,
floor slabs, foundation and other structural components of the Building, the
heating, ventilating, air conditioning, electrical, plumbing, sprinkler,
emergency and other mechanical systems, the on-site sewage disposal system on
the Land, the Common Facilities and any other common areas and facilities in
good condition and working order consistent with a first class office and
research and development building and in compliance with all applicable laws.
Costs incurred hereunder shall be governed by Section 2.6.3 above.
4.1.3 OFFICE IDENTIFICATION. Landlord shall provide and install at
Tenant's expense, if requested, letters or numerals on entry doors to the
Premises to identify Tenant's official name and Building address. Tenant shall,
subject to any applicable governmental approvals and subject to Landlord's
design approval (such approval not to be unreasonably withheld, delayed or
conditioned), be entitled to a sign to be fixed to the exterior of the Building
and additional signs to be placed on the Land, provided that such signs are
consistent with the standards applicable to other comparable developments on
Robbins Road, Westford. Such exterior sign shall be installed and maintained by
Landlord at Tenant's expense. As of the Area A Commencement Date, Tenant shall
have the right to name the Building, subject to Landlord's reasonable approval.
4.1.4 HAZARD INSURANCE. Landlord shall maintain throughout the Term
all-risk type hazard insurance insuring the Building, the Exclusive Parking and
all other improvements on the Land to their full replacement value, with a
commercially reasonable deductible.
4.1.5 HAZARDOUS MATERIALS. Except as may be disclosed in a report
prepared by Dames & Moore dated October 2, 1996 and reports prepared by Rizzo
Associates, Inc. dated October 31, 1996 and November 8, 1996 (copies of which
has been delivered to Tenant) Landlord represents that, to its best knowledge,
there are no hazardous materials on the Land, Building or Premises as of the
date hereof.
<PAGE>
4.1.6 QUIET ENJOYMENT. Landlord covenants that Tenant, on paying the
rent and performing the tenant obligations in this Lease, shall peacefully and
quietly have, hold and enjoy the Premises, free from any claim by Landlord or
persons claiming under Landlord, but subject to all of the terms and provisions
hereof.
4.2 INTERRUPTION
------------
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business arising
from the necessity of Landlord or its agents entering the Premises for any of
the purposes authorized in this Lease or for repairing the Premises or from
repairs by Landlord of any portion of the Building however the necessity may
occur, provided, however, that Landlord shall give reasonable advance notice to
Tenant, except in an emergency, of any such entry or repairs and shall use
reasonable efforts to avoid interference with Tenant's use and occupancy of the
Premises. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any services or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor, except as otherwise provided in Section 6.1, shall Tenant be
entitled to any abatement or reduction of rent by reason thereof, nor shall the
Rent Commencement Date be delayed (once Substantial Completion has occurred),
nor shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the
Premises. In no event shall Landlord be liable for indirect or consequential
damages.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed; provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof and to
restore such services as soon as reasonably practicable. Except in case of
emergency repairs Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
interruption of Tenant's use of the Premises by reason thereof.
4.3 INDEMNITY
---------
Landlord shall indemnify, hold harmless and defend (with counsel
reasonably approved by Tenant) Tenant from and against any claim, loss, damage
or liability arising out of the negligence or willful misconduct of Landlord or
its agents, employees, contractors or invitees or a default by Landlord under
this lease (which default continues beyond any applicable notice and grace
period).
<PAGE>
ARTICLE V
TENANT'S COVENANTS
5.1 MAINTENANCE AND REPAIR
----------------------
Except for damage by fire or casualty, reasonable wear and tear, and
repairs, maintenance and replacements required of Landlord under Section 4.1.2,
Tenant shall at all times keep the Premises clean and in as good repair, order
and condition as the same are at the beginning of the Term or may be put in
thereafter. The foregoing shall include without limitation Tenant's obligation
to clean and maintain floors and floor coverings, to paint and repair walls and
doors, to replace and repair ceiling tiles, lights and light fixtures and the
like. Repairs and replacements shall be equivalents of original work.
5.2 USE, WASTE AND NUISANCE
-----------------------
Throughout the Term, Tenant shall use the Premises for the Permitted Uses
only. Tenant shall not injure, overload, deface or commit waste in the Premises
or any part of the Building, nor permit the occurrence of any nuisance therein
or the emission therefrom of any objectionable noise, odor, vibration, or
lights, nor use or permit any use of the Premises which in Landlord's reasonable
judgment involves moral turpitude, is contrary to law or ordinance or which is
liable to invalidate or increase the premium for any insurance on the Building
or its contents (Landlord hereby representing that the use of the Premises for
the Permitted Uses in accordance herewith does not, as of the date hereof, cause
any such invalidation or increase) or which is liable to render necessary any
alterations or additions in the Building, nor obstruct in any manner any portion
of the Building (outside of the Premises) or the Land. If Tenant's use of the
Premises results in an increase in the premium for any insurance on the Building
or its contents, Landlord shall notify Tenant of such increase and Tenant shall
pay same as additional rent. Except as otherwise provided in Tenant's Plans,
Tenant may not without Landlord's consent install in the Premises any fountains,
sinks or cooking equipment (other than microwave ovens) provided that Landlord's
consent will not be unreasonably withheld with respect to items designed for the
convenience of Tenant's employees which are customary for office employees, and
further provided that Landlord determines that special venting or other matters
are not required in connection therewith.
Tenant shall not (either with or without negligence) cause or (with
respect to matters within Tenant's control) permit any damage to, and shall not
permit its employees, agents, contractors and invitees to cause any damage to,
the Premises, the Building or any component thereof or any land pertaining
thereto, by the escape, disposal or release of any biologically or chemically
active or other hazardous agents, substances, or materials. Nor shall Tenant
allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought onto
the Premises any such materials or substances except to use in the ordinary
course of Tenant's business, and then (with respect to any such substances or
materials other than ordinary office and cleaning supplies) only after written
notice is given to
<PAGE>
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. S9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq., the Massachusetts Hazardous Waste Management
Act, as amended, M.G.L. Chapter 21, and the Massachusetts Oil and Hazardous
Material Release Prevention Act, as amended, M.G.L. Chapter 21E, and the
regulations adopted under these acts. If any lender or governmental agency shall
ever require periodic testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs of such testing
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
rent. In addition, Tenant shall, from time to time upon Landlord's reasonable
request, execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding the
presence of hazardous materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided from any release of
hazardous materials on the Premises occurring while Tenant is in possession if
such release was caused or permitted by Tenant, or elsewhere if caused by Tenant
or persons acting under Tenant.
5.3 RULES AND REGULATIONS
---------------------
Tenant shall conform to all reasonable non-discriminatory rules and
regulations now or hereafter promulgated by Landlord according to this Section
5.3 for the care and use of the Premises, the Building and the Land. Landlord
shall give Tenant reasonable prior notice of any such rules and regulations. All
such rules and regulations shall apply generally to all tenants of the Building.
No such rules and regulations shall conflict with any term of this Lease or
interfere with access by Tenant and its employees and business invitees to the
Premises (and parking areas described in Article XII) in accordance with Section
2.8.
5.4 SAFETY APPLIANCES
-----------------
Tenant shall keep the Premises equipped with all safety appliances and
permits which, as a result of Tenant's particular activities, are required by
law or ordinance or any order or regulation of any public authority, shall keep
the Premises equipped at all times with adequate fire extinguishers and other
such equipment required for the Permitted Uses and shall make all repairs,
alterations, replacements, or additions required as a result of Tenant's
activities. The foregoing shall not include initial installation of sprinklers,
which shall be performed by Landlord.
5.5 INDEMNIFICATION AND INSURANCE
-----------------------------
Tenant shall save Landlord, any mortgagee and any other parties having an
interest in the Premises, the Building, or the Land (other than solely by reason
of a tenancy in the Building or the Land) and reasonably designated by Landlord
by notice to Tenant from time to time (collectively, the "Indemnitees") harmless
and indemnified and shall defend them with counsel reasonably approved by the
Landlord against any claim or loss arising out of any injury, loss or damage to
any person or property while on or in the Premises (or, with respect to any
employees,
<PAGE>
agents, independent contractors or invitees, while on the Land) if not due to
negligence or willful misconduct of Landlord or persons acting through Landlord
or any other designated party and to any person or property anywhere occasioned
by any failures to act (when Tenant has a duty so to act), negligence or default
in Tenant's obligations under this Lease by Tenant or its employees, agents,
independent contractors or invitees. In addition to the foregoing, Landlord may
make all repairs and replacements to the Building and Premises resulting from
acts or failures to act (when Tenant has a duty so to act) of Tenant's
employees, agents, independent contractors or invitees (including damage and
breakage occurring as a result of work performed by or for Tenant and when
Tenant's property is being moved into or out of the Building), but only in cases
of emergency or if Tenant fails to make such repairs within any notice and cure
period provided under Section 7.1 of this Lease, and Landlord may recover all
costs and expenses thereof (to the extent not covered by insurance proceeds)
from Tenant as additional rent. Tenant shall maintain in a responsible company
or companies approved by Landlord, liability insurance in form satisfactory to
Landlord, insuring (as additional named insureds) Landlord, any mortgagee and
any other parties having an interest in the Premises, the Building, or the Land
(other than solely by reason of a tenancy in the Building or the Land) and
reasonably designated by Landlord by notice to Tenant, and Tenant, as their
respective interests may appear, against all claims, demands or actions for
injury, death, and property damage in amounts not less than those specified in
Section 1.1 (as such amounts may, from time to time, be reasonably increased by
Landlord). Such insurance shall provide that it will not be subject to
cancellation, termination, or change except after at least 10 days' prior
written notice to each additional insured. The policy or policies, or a duly
executed certificate or certificates for the same, together with satisfactory
evidence of the payment of the premium thereon, shall be deposited with
Landlord, any mortgagee, and any other parties having an interest in the
Premises, the Building, or the Land and required to be named as an additional
insured from time to time under this Section 5.5 and, upon renewals of such
policies, not less than 15 days prior to the expiration of the term of such
coverage. If Tenant fails to comply with any of the foregoing requirements,
Landlord may obtain such insurance on behalf of Tenant and may keep the same in
effect, and Tenant shall pay Landlord, as additional rent, the premium cost
thereof upon demand. Landlord shall give Tenant at least two (2) days prior
notice of its intention to obtain such insurance on behalf of Tenant, provided
that no such prior notice shall be required within 10 days prior to the
expiration of any such coverage or after the expiration of any such coverage.
5.6 TENANT'S PROPERTY
-----------------
Except for damage caused by the negligence or willful misconduct of
Landlord, its agents, employees or contractors or other persons acting through
Landlord , all furnishings, fixtures, equipment, effects and property of Tenant
and of all persons claiming through Tenant which from time to time may be on the
Premises or elsewhere in the Building or in transit thereto or therefrom shall
be at the sole risk of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other cause,
no part of said loss or damage is to be charged to or be borne by Landlord. The
parties acknowledge that damage or destruction may result from acts of cleaning
personnel and employees of other contractors working in and around
<PAGE>
the building and that Tenant shall bear the risk and cost thereof, except to the
extent arising out of Landlord's gross negligence or willful misconduct.
5.7 ENTRY FOR REPAIRS AND INSPECTIONS
---------------------------------
Tenant shall permit Landlord and its agents, upon reasonable advance
notice (except in an emergency) to enter and examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or replacements
Landlord may deem necessary, to remove at Tenant's expense, any alterations,
additions, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the
like not consented to in writing (but only if such consent was required under
this Lease), to read utility meters installed in the Premises and to show the
Premises to prospective tenants during the eighteen months preceding expiration
of the Term and to prospective purchasers and mortgagees at all reasonable
times.
5.8 EXPENSES AND ATTORNEYS' FEES
----------------------------
Tenant shall pay as additional rent Landlord's expenses, including
reasonable attorneys' fees, incurred in enforcing any obligations of Tenant
under this Lease with which Tenant has failed to comply. Landlord shall pay
Tenant's expenses, including reasonable attorneys' fees incurred by Tenant, in
enforcing any obligations of Landlord under this Lease with which Landlord has
failed to comply.
5.9 ASSIGNMENT, SUBLETTING
----------------------
Tenant shall have the unrestricted right to assign this Lease or to sublet
all or any portion of the Premises except that Tenant shall not assign this
Lease, or sublet or license the Premises or any portion thereof or permit the
occupancy of all or any portion of the Premises by anybody other than Tenant or
a Tenant Affiliate (as defined below)(all or any of the foregoing actions are,
for the purposes of this and the following paragraph, referred to as
"assignments," and all or any of such assignees, subtenants, licensees, and
other parties are referred to as "assignees") without obtaining, on each
occasion, the prior consent of Landlord, provided that Landlord shall not
unreasonably withhold, delay or condition such consent, and Landlord shall be
required to consent to such assignment if the assignee uses the Premises for the
Permitted Uses unless Landlord reasonably determines that (i) the proposed
assignee's use or occupancy of the Premises will materially increase the number
of employees in the Premises or will exceed the capacity of or unduly burden the
Building's structure or heating, ventilating, air-conditioning, sewage,
electrical, or other mechanical systems (and Tenant has not agreed to make such
alterations or improvements to the Building, as its sole cost and in accordance
with Section 5.10, as will increase such capacity or relieve such burden in
Landlord's good faith judgment) or (ii) the proposed assignee's use or occupancy
will, in Landlord's reasonable judgment, involve moral turpitude. A "Tenant
Affiliate" shall mean any person or entity controlling, controlled by, or under
common control with Tenant, any successor of Tenant resulting from a merger or
consolidation with Tenant, or a purchaser in connection with the sale of all or
substantially all of Tenant's assets. Tenant's request for consent to an
assignment to such a third party shall include a copy of the proposed instrument
of assignment, if available, or else a statement of the proposed
<PAGE>
assignment in detail satisfactory to Landlord, together with reasonably detailed
business and other information about the proposed assignee reasonably requested
by Landlord, including a description of the intended use and occupancy of the
Premises and the approximate number of intended employees to be occupying the
Premises (or portion thereof, as applicable). Except for assignments to Tenant
Affiliates, if the proposed assignment is for the balance of the Term and
relates to the entire Premises, Landlord shall have the option (but not the
obligation) to terminate the Lease effective upon the date of the proposed
assignment by giving Tenant notice of such termination within ten business days
after Landlord's receipt of Tenant's request.
Tenant shall pay to Landlord, as additional rent, Landlord's reasonable
legal fees and other expenses incurred in connection with any proposed
assignment requiring Landlord's consent, including fees for review of documents
and investigations of proposed assignees. Notwithstanding any such assignment,
the original Tenant named herein shall remain directly and primarily obligated
under this Lease.
If this Lease is (i) the subject of an assignment, or (ii) if the entire
Premises is otherwise occupied by anybody other than Tenant for the balance of
the Term, Landlord may, at any time and from time to time require that such
assignee agree directly with Landlord to be liable, jointly and severally with
Tenant, to the extent of the obligations undertaken by or attributable to such
assignee, for the performance of all Tenant's agreements under this Lease
(including payment of rent). Landlord may collect rent and other charges from
the assignee and apply the net amount collected to the rent and other charges
hereunder, but no such assignment or collection shall be deemed a waiver of the
provisions of Section 5.9, or the acceptance of the assignee, as a tenant, or a
release of Tenant from direct and primary liability for the further performance
of Tenant's covenants hereunder. The consent by Landlord to a particular
assignment shall not relieve Tenant from any requirement of obtaining the
consent of Landlord to any further assignment.
5.10 ALTERATIONS, ADDITIONS AND HEAVY EQUIPMENT
------------------------------------------
Except as provided in Section 3.2 with respect to initial Finish Work in
the Premises, Tenant shall not make any alterations, additions, installations or
improvements in or to the Premises, without obtaining Landlord's prior consent,
which (i) would cost more than $25,000 in any single instance, (ii) would
materially and adversely affect the Building structure or the heating,
ventilating, air conditioning, plumbing, electrical, emergency or other systems
of the Building, or (iii) would be visible from the exterior of the Building;
provided, however, that Landlord shall not unreasonably withhold, delay or
condition such consent. Promptly upon completion thereof, Tenant shall provide
Landlord with as-built plans and specifications for any alterations, additions,
installations or improvements not requiring Landlord's consent and which alter
the Premises as shown on the then current plans and specifications as furnished
to Landlord. Any plans for alterations, additions, installations or improvements
requiring Landlord's consent and all contractors performing such work shall be
subject to Landlord's reasonable approval. Landlord's approval of any plans for
such alterations, additions, installations or improvements shall not be deemed a
representation or warranty that such plans are complete or that there are no
inconsistencies between such plans and the shell and core construction of the
Building, Landlord's Work, or the Finish Work. Tenant will not bring into or
install in the Premises any
<PAGE>
safes, or bulky or heavy furnishings, equipment, or machines without the prior
approval of Landlord as to methods and scheduling of transportation and
installation (Landlord may prohibit installation if the weight of any such item
will exceed floor load capacities reasonably determined by Landlord, or if
Landlord decides that the same will cause vibration or noise to be transmitted
to the Building structure or to areas outside the Premises).
5.11 SURRENDER AND LIEN FOR RENT
---------------------------
At the expiration of the Term or earlier termination of this Lease, Tenant
shall peaceably surrender the Premises without the requirement of any notice,
including Finish Work and all other permanent improvements performed by Tenant
(such work to be in conformity with the provisions hereof) and all replacements
thereof, including carpeting, any water or electricity meters, and all fixtures,
including but not limited to all work in any way bolted or attached to the
Premises (but excluding any of Tenant's trade fixtures and equipment not
installed at Landlord's expense and any improvements (other than Landlords' Work
or Finish Work) not installed or constructed at Landlord's expense and which
respect to which Landlord has, prior to such installation or construction,
notified Tenant must be removed at the end of the Term or which Tenant has
notified Landlord of Tenant's intention to remove before the installation or
construction thereof (collectively, "Tenant's Removable Property")) and work not
described above (including partitions). At such expiration or earlier
termination, the Premises and improvements shall be in the condition which the
same are required to be under Section 5.1. Tenant shall, at the time of
termination, remove the goods, effects and fixtures which Tenant is directed or
permitted to remove in accordance with the provisions of this Section, making
any repairs to the Premises and other areas necessitated by such removal and
leaving the Premises in broom clean and tenantable condition. Should Tenant fail
to remove any of such goods, effects, and fixtures, they shall be deemed
abandoned and Landlord may have them removed forcibly, if necessary, and may
store any of Tenant's property in a public warehouse at the risk of Tenant. If
such items are not removed from storage within a reasonable period, such items
may be sold by any customary methods in order to pay storage costs and other
expenses of Landlord. The expense of such removal, storage and reasonable
repairs necessitated by such removal shall he borne by Tenant or reimbursed by
Tenant to Landlord, and Landlord shall have no liability as a result of such
removal, storage or sale.
5.12 PAYMENT FOR WORK PERFORMED
--------------------------
Tenant shall obtain all permits or licenses for any work undertaken by
Tenant in the Premises, including the installation of equipment, furnishings and
fixtures. Tenant shall also indemnify and save the Indemnitees (as defined in
Section 5.5) harmless from all injury, loss, claims, liens or damage to any
person or property occasioned by or arising from such work. If any mechanic's
lien (which term shall include all similar liens relating to the furnishing of
labor and materials) is filed against the Premises or the Building or any part
thereof or against the Land which is claimed to be attributable to Tenant, its
agents, employees or contractors, Tenant shall promptly discharge the same by
payment or filing any necessary bond, provided that Tenant shall not be required
to discharge any lien which is the subject of a good faith dispute between
Tenant and a third party if such lien does not jeopardize Landlord's interest in
the Building or the
<PAGE>
Premises or violate the terms of any agreement with any ground lessor or
Financing Party (as defined in Section 9.2).
5.13 PERSONAL PROPERTY TAXES
-----------------------
Tenant shall pay promptly when due all taxes (and charges in lieu thereof)
imposed upon personal property in the Premises, no matter to whom assessed
(including Tenant's Removable Property), provided that Tenant shall not be
required to pay any tax which is the subject of a good faith dispute between
Tenant and a governmental agency if such dispute does not jeopardize Landlord's
interest in the Building or the Premises or violate the terms of any agreement
with any Financing Party.
ARTICLE VI
CASUALTY AND TAKING
6.1 DAMAGE BY FIRE OR CASUALTY
--------------------------
If the Premises or any part thereof shall be damaged by fire or other
insured casualty, then, subject to the last paragraph of this Section 6.1,
Landlord shall proceed with diligence, subject to then applicable statutes,
building codes, zoning ordinances and regulations of any governmental authority,
and at the expense of Landlord (but only to the extent of insurance proceeds
made available to Landlord by any mortgagee of the building) to repair or cause
to be repaired such damage, provided, however, in respect of such alterations,
additions and improvements, originally made or installed by Tenant at Tenant's
expense, as shall have been damaged by such fire or other casualty and which are
insured by insurance policies required to be maintained hereunder, that the
repairs to such Tenant's alterations, additions and improvements shall be
performed by Landlord but at Tenant's expense to the extent such alterations,
additions and improvements were not required under this Lease to be insured by
policies maintained by Landlord. All repairs to and replacements of Tenant's
Removable Property shall be made by and at the expense of Tenant. If the
Premises or any part thereof shall have been rendered unfit for use and
occupation hereunder by reason of such damage, the Fixed Rent or a just and
proportionate part thereof, according to the nature and extent to which the
Premises shall have been so rendered unfit, shall be abated until the Premises
(except as to the property which is to be repaired by or at the expense of
Tenant) shall have been restored as nearly as practicable to the condition in
which they were immediately prior to such fire or other casualty, provided,
however, that if Landlord or any mortgagee of the Building shall be unable to
collect the insurance proceeds (including rent insurance proceeds) applicable to
such damage because of any act or negligence on the part of Tenant or the
employees, licensees or invitees of Tenant, resulting in some violation of
applicable law, the terms of any insurance policy required to be retained
hereunder, or the terms of this Lease, or because of any act or negligence on
the part of Tenant or the employees, licensees or invitees of Tenant, resulting
in a failure to cooperate with Landlord or any mortgagee of the Building in
connection with Landlord's efforts to make its insurance claim, the cost of
repairing such damage shall be paid by Tenant and there shall be no abatement
<PAGE>
of rent. Landlord shall not be liable for delays in the making of any such
repairs which are due to government regulation, casualties and strikes,
unavailability of labor and materials, delays in obtaining insurance proceeds,
and other causes beyond the reasonable control of Landlord, nor shall Landlord
be liable for any inconvenience or annoyance to Tenant or injury to the business
of Tenant resulting from delays in repairing such damage.
If (i) the Premises are so damaged by fire or other casualty (whether or
not insured) at any time during the last thirty months of the Term that the cost
to repair such damage is reasonably estimated to exceed one-third of the total
Annual Fixed Rent payable hereunder for the period from the estimated completion
date of repair until the end of the Term, or (ii) at any time damage to the
Building occurs by fire or other insured casualty and any mortgagee or ground
lessor shall refuse to permit insurance proceeds to be utilized for the repair
or replacement of such property and Landlord determines not to repair such
damage, then and in any of such events, this Lease and the term hereof may be
terminated at the election of Landlord by a notice from Landlord to Tenant
within sixty (60) days, or such longer period as is required to complete
arrangements with any mortgagee or ground lessor regarding such situation,
following such fire or other casualty, the effective termination date which
shall be not less than thirty (30) days after the day on which such termination
notice is received by Tenant. In the event of any termination, the term shall
expire as though such effective termination date were the date originally
stipulated in Section 1.1 for the end of the Term and the Fixed Rent and
additional rent for Operating Expenses shall be apportioned as of such date.
In any case of casualty, Landlord shall notify Tenant within 90 days
whether Landlord intends to repair and whether Landlord anticipates that repairs
to the Premises will exceed one year to bring to completion. If Landlord's
notice states that such repairs are not expected to be completed within one
year, Tenant shall be entitled to terminate this Lease by notice to Landlord
given within 120 days of such casualty, and this Lease shall then terminate as
if such date were the date of the ordinary expiration of the Term. If Landlord
shall not have Substantially Completed its repair obligations hereunder within
one year, Tenant shall be entitled to terminate this Lease by notice to Landlord
given within 13 months of such casualty, and this Lease shall terminate as if
such date were the date of the ordinary expiration of the Term.
6.2 CONDEMNATION - EMINENT DOMAIN
-----------------------------
In case during the Term all of the Premises or the Building are taken,
condemned, requisitioned or sold in or on account of any eminent domain
proceeding or by other action by any authority having the power of eminent
domain (any of the foregoing being hereinafter referred to as a "Taking" and any
portion of the Premises or the Building subjected to a Taking being referred to
as being "Taken") this Lease shall terminate as of the date of the Taking as if
such date were the date of the ordinary expiration of the Term. If at least 20%
of the Premises are Taken, Tenant shall have the right to terminate this Lease
(notwithstanding that Landlord's entire interest may have been divested) by
notice given to Landlord within 90 days after the date of such taking. If the
remainder of the Premises are not in a proper condition for use and occupation,
Landlord shall, as promptly as practicable, notify Tenant of the extent to which
repairs to the Premises can be made based on available proceeds of condemnation
("Landlord's
<PAGE>
Condemnation Notice"). If such a substantial part of the Building or the
Premises are Taken that the remainder of the Building or the Premises cannot,
after any repairs proposed by Landlord, be operated in the ordinary course of
Tenant's or Landlord's business, Landlord and Tenant shall each have the right
to terminate this Lease by notice to the other within 90 days after the delivery
of Landlord's Condemnation Notice. Any notice of termination under this Section
6.2 shall specify the effective date of termination, and this Lease shall
terminate on such date as if such date were the date of the ordinary expiration
of the Term. The effective date of termination specified by Landlord or Tenant
shall not be less than 15 nor more than 30 days after the date of notice of such
termination. Unless terminated pursuant to the foregoing provisions, this Lease
shall remain in full force and effect following any such taking, subject,
however, to the following provisions. If in any such case the Premises are
rendered unfit for use and occupation and this Lease is not terminated, Landlord
shall use due diligence (following the expiration of the period in which
Landlord or Tenant may terminate this Lease pursuant to the foregoing provisions
of this Section), to the extent of the available proceeds of condemnation, to
put the Premises, or what may remain thereof (excluding Tenant's Removable
Property), into proper condition for use and occupation and a just proportion of
the Fixed Rent and additional rent for Operating Expenses according to the
nature and extent of the injury shall be abated until the Premises or such
remainder shall have been put by Landlord in such condition; and in case of a
taking which permanently reduces the area of the Premises, a just proportion of
the Fixed Rent and additional rent for Operating Expenses shall be abated for
the remainder of the Term.
6.3 EMINENT DOMAIN AWARD
--------------------
Except for Tenant's relocation expenses and any awards for damage to
Tenant's Removable Property (specifically so designated) and except for other
awards specifically designated to Tenant which do not reduce Landlord's award,
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, Building and Land and the leasehold hereby created, or
any one or more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other authority.
Tenant hereby releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to deliver such further assignments and assurances thereof
as Landlord may from time to time request.
6.4 TEMPORARY TAKING
----------------
In the event of any taking of the Premises or any part thereof for
temporary use not exceeding 90 days, (i) this Lease shall be and remain
unaffected thereby but rent shall abate, and (ii) Landlord shall be entitled to
receive for itself such portion or portions of any award made for such use with
respect to the period of the taking which is within the Term, provided that if
such taking shall remain in force at the expiration or earlier termination of
this Lease, Tenant shall then pay to Landlord a sum equal to the reasonable cost
of performing Tenant's obligations under Section 5.11 with respect to surrender
of the Premises and upon such payment shall be excused from such obligations.
<PAGE>
ARTICLE VII
DEFAULT
7.1 TERMINATION FOR DEFAULT OR INSOLVENCY
-------------------------------------
This Lease is upon the condition that (1) if Tenant shall fail timely to
provide or replace any security deposit under Article X (including timely
replacements to any Letter of Credit tendered as a security deposit) and such
failure shall continue for twenty (20) days after notice to Tenant (or if
earlier, the date ten (10) business days prior to the expiration of any Letter
of Credit); or (2) if Tenant shall fail to perform or observe any of Tenant's
other covenants, and if such failure shall continue, in the case of rent or
payment of any sum due Landlord hereunder, for more than five (5) days after
notice from Landlord, or in any other case, after notice from Landlord, for more
than thirty (30) days after notice from Landlord (provided that if correction of
any such non-monetary matter reasonably requires longer than 30 days and Tenant
so notifies Landlord within 10 days together with an estimate of time required
for such cure, Tenant shall be allowed such longer period, but only if such cure
is begun within such 30-day period and is thereafter diligently prosecuted to
completion and such delay does not cause increased risk of damage to person or
property); or (3) if three or more notices under clause (2) hereof are given in
any twelve month period (failure to pay rent or any other sum for more than 5
days after the particular due date shall have the same effect under this clause
(2) as such a notice, regardless of whether or not a notice was given with
respect to any such failure); (4) if Tenant shall or abandon all or any portion
of the Premises; or (5) if the leasehold hereby created shall be taken on
execution, or by other process of law, or if any assignment shall be made of
Tenant's property or the property of any guarantor of Tenant's obligations
hereunder ("Guarantor") for the benefit of creditors; or (6) if a receiver,
guardian, conservator, trustee in bankruptcy or similar officer shall be
appointed by a court of competent jurisdiction to take charge of all or any part
of Tenant's or the Guarantor's property and such appointment is not discharged
within 90 days thereafter or if a petition including, without limitation, a
petition for reorganization or arrangement is filed by Tenant or the Guarantor
under any bankruptcy law or is filed against Tenant or the Guarantor and, in the
case of a filing against Tenant only, the same shall not be dismissed within 90
days from the date upon which it is filed (each of the foregoing (1) through 6)
being an "Event of Default"), then, and in any of said cases, Landlord may,
immediately or at any time thereafter, elect to terminate this Lease by notice
to Tenant and to recover possession of the Premises under and by virtue of the
provisions of the laws of The Commonwealth of Massachusetts or such other
proceedings, including notice, re-entry or possession. Thereupon Landlord shall
be entitled to recover possession of the Premises from Tenant and those claiming
through or under the Tenant. Such termination of this Lease and repossession of
the Premises shall be without prejudice to any remedies which Landlord might
otherwise have for arrears of rent or for a prior breach of the provisions of
this Lease. Landlord and Tenant agree that, at Landlord's option, a notice by
Landlord alleging default hereunder shall constitute a statutory notice to quit,
Tenant hereby waiving any further notice to quit and notice of Landlord's
intention to reenter and any grace periods provided for herein shall run
concurrently with any statutory periods.
<PAGE>
7.2 REIMBURSEMENT OF LANDLORD'S EXPENSES
------------------------------------
In the case of termination of this Lease pursuant to Section 7.1, Tenant
shall reimburse Landlord for all reasonable expenses arising out of such
termination, including without limitation, all costs incurred in collecting
amounts due from Tenant under this Lease (including reasonable attorneys' fees,
costs of litigation and the like); all expenses incurred by Landlord in
attempting to relet the Premises or parts thereof (including advertisements,
brokerage commissions, Tenant's allowances, costs of preparing space, and the
like); and all Landlord's other reasonable expenditures necessitated by the
termination. The reimbursement from Tenant shall be due and payable immediately
from time to time upon notice from Landlord that an expense has been incurred,
without regard to whether the expense was incurred before or after the
termination.
7.3 DAMAGES
-------
Landlord may elect by written notice to Tenant within four months
following such termination to be indemnified for loss of rent by a lump sum
payment representing the then present value of the amount of rent which would
have been paid in accordance with this Lease for the remainder of the Term minus
the then present value of the aggregate fair market rent payable for the
Premises for the remainder of the Term (if less than the rent payable
hereunder), estimated as of the date of the termination, and taking into account
reasonable projections of vacancy and time required to re-lease the Premises.
(For the purposes of calculating the rent which would have been paid hereunder
for the lump sum payment calculation described herein, the last full year's
additional rent under Section 2.6 is to be deemed constant for each year
thereafter. The Federal Reserve discount rate (or equivalent) shall be used in
calculating present values.) Should the parties be unable to agree on a fair
market rent, the matter shall be submitted, upon the demand of either party, to
the Boston, Massachusetts office of the American Arbitration Association, with a
request for arbitration in accordance with the rules of the Association by a
single arbitrator who shall be an MAI appraiser with at least ten years
experience as an appraiser of suburban commercial real estate in the Greater
Boston Area. The parties agree that a decision of the arbitrator shall be
conclusive and binding upon them. If, at the end of the Term, the rent which
Landlord has actually received from the Premises is less than the aggregate fair
market rent estimated as aforesaid, Tenant shall thereupon pay Landlord the
amount of such difference. Should Landlord fail to make the election provided
for in this Section 7.3, Tenant shall indemnify Landlord for the loss of rent by
a payment at the end of each month which would have been included in the Term,
representing the difference between the rent which would have been paid in
accordance with this Lease (Annual Fixed Rent under Section 2.5, and additional
rent which would have been payable under Section 2.6 to be ascertained monthly)
and the rent actually derived from the Premises by Landlord for such month (the
amount of rent deemed derived shall be the actual amount less any portion
thereof attributable to Landlord's reletting expenses described in Section 7.2
which have not been reimbursed by Tenant thereunder).
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
7.3, Landlord may by written
<PAGE>
notice to Tenant within 6 months after termination under any of the provisions
contained in Section 7.1 and before such full recovery, elect to recover, and
Tenant shall thereupon pay, as liquidated damages under Section 7.3, an amount
equal to the lesser of (i) the aggregate of the Fixed Rent under Section 2.5 and
additional rent under Section 2.6 for the balance of the Term had it not been
terminated or (ii) the aggregate thereof for the 12 months ending one year after
the termination date, plus in either case the amount of Fixed Rent and
additional rent of any kind accrued and unpaid at the time of termination and
less the amount of any recovery by Landlord under the foregoing provisions of
this Section 7.3 up to the time of payment of such liquidated damages (but
reduced-by any amounts of reimbursement under Section 7.2). Liquidated damages
hereunder shall not be in lieu of any claims for reimbursement under Section
7.2.
7.4 MITIGATION
----------
In the event of a termination of this Lease under Section 7.1, Landlord
shall use reasonable efforts to relet the Premises, it being understood that
"reasonable efforts" for the purposes of this Section 7.4 shall be limited to
placing the Premises with a reputable commercial broker and Landlord's good
faith exploration of reasonable potential tenants presented by such broker, it
being understood that in no event shall Landlord be obligated to rent the
Premises prior to other comparable vacant space in the Building, if any. Any
obligation imposed by this Lease or by applicable law upon Landlord to relet the
Premises shall be subject to the reasonable requirements of Landlord to lease to
high quality tenants and to develop the Building in a harmonious manner with an
appropriate mix of uses, tenants, floor areas and terms of tenancies, and the
like.
7.5 CLAIMS IN BANKRUPTCY
--------------------
Nothing herein shall limit or prejudice the right of Landlord to prove and
obtain in a proceeding for bankruptcy, insolvency, arrangement or
reorganization, by reason of the termination, an amount equal to the maximum
allowed by a statute of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount is
greater to, equal to, or less than the amount of the loss or damage which
Landlord has suffered.
7.6 LATE CHARGE
-----------
If any payment of Annual Fixed Rent, additional rent, or other payment due
from Tenant to Landlord is not paid when due, then Landlord may, at its option,
without notice and in addition to all other remedies hereunder, impose a late
charge on Tenant equal to 1.5% of the amount in question for each month and for
each part thereof during which said delinquency continues provided that no late
charge will be imposed for Annual Fixed Rent payments less than five days late
up to two times in any calendar year. Such late charge shall constitute
additional rent hereunder payable upon demand.
<PAGE>
ARTICLE VIII
MISCELLANEOUS
8.1 MEASUREMENT OF FLOOR AREA
-------------------------
The rentable floor area of the Building, Area A, Area B, and Area C shall
be as set forth in Section 1.1. The rentable floor area of any portions thereof
shall be as determined in good faith by Landlord's architect.
8.2 HOLDOVER
--------
If Tenant remains in the Premises after the termination or expiration of
the Term, such holding over shall be, except as Landlord may elect pursuant to
the next sentence, as a tenant at will or tenant by the month (requiring 30 days
notice of termination by either party to the other) at a monthly fixed rent
equal to one and one-half the Fixed Rent due hereunder for the last month of the
Term, and otherwise subject to all the covenants and conditions (including
obligations to pay additional rent under Section 2.6) of this Lease as though it
had originally been a monthly tenancy. Notwithstanding the foregoing, if
Landlord desires to regain possession of the Premises promptly after the
termination or expiration hereof and prior to acceptance of rent for any period
thereafter, Landlord may, at its option, forthwith re-enter and take possession
of the Premises or any part thereof without process or by any legal process in
force in The Commonwealth of Massachusetts. Tenant shall be liable for damage
caused wholly or partially by Tenant's holding over without Landlord's
agreement, including without limitation damages to (or lost rentals from)
successor tenants and occupants of all or part of the Premises.
8.3 ESTOPPEL CERTIFICATES
---------------------
At Landlord's request, from time to time, Tenant agrees to execute and
deliver to Landlord a certificate which acknowledges the dates on which the Term
begins and ends, tenancy and possession of the Premises and recites such other
facts concerning any provision of the Lease or payments made under the Lease
which Landlord, a mortgagee, or lender, or a purchaser or prospective purchaser
of the Building or any interest therein or any other party may, from time to
time, reasonably request. At Tenant's request, from time to time for any
reasonable purpose, Landlord agrees to execute and deliver to Tenant a
certificate of the type described in the preceding sentence. Tenant acknowledges
that the execution and delivery of such certificates in connection with a
financing or sale in a prompt manner constitute requirements of Landlord's
financing and/or property dispositions and Tenant shall indemnify Landlord
against all damages (including consequential damages in the nature of increased
costs or loss of any such transactions and including attorneys' fees) directly
or indirectly resulting from Tenant's failure to comply herewith
(notwithstanding that the grace or notice period under Section 7.1 may not have
expired).
<PAGE>
8.4 NOTICE
------
Any notice, approval and other like communication hereunder from Landlord
to Tenant or from Tenant to Landlord shall be given in writing and shall be
deemed duly served if and when hand delivered or if and when mailed prepaid
certified mail (in either case, whether or not accepted for delivery).
Communications to Tenant shall be addressed to Tenant's Authorized
Representative at the Original Address of Tenant set forth in Section 1.1 prior
to the Term Commencement Date and thereafter at the Premises. Communications to
Landlord shall be addressed to the Address of Landlord's Managing Agent set
forth in Section 1.1. A copy of any notice to Tenant shall be delivered to
Testa, Hurwitz & Thibeault, 125 High Street, Boston, Massachusetts 02110,
Attention: Real Estate Department. Either party may from time to time designate
other addresses within the continental United States by notice to the other.
8.5 RIGHTS TO CURE
--------------
8.5.1 LANDLORD'S RIGHT TO CURE. At any time and without notice, Landlord
may, but need not, cure any failure by Tenant to perform its obligations under
this Lease which has continued after any applicable notice and grace period.
Whenever Landlord chooses to do so, all reasonable costs and expenses incurred
by Landlord in curing any such failure, including, without limitation,
reasonable attorneys' fees together with interest on the amount of costs and
expenses so incurred at an annual rate equal to the so-called prime rate of
interest published from time to time by The Wall Street Journal (or substitute
publication reasonably selected by Landlord if The Wall Street Journal ceases to
publish such information) plus two percentage points shall be paid by Tenant to
Landlord on demand and shall be recoverable as additional rent.
8.5.2 TENANT'S RIGHT TO CURE. If Landlord fails to perform any obligation
under this Lease which obligation is material to Tenant's use and enjoyment of
the Premises and such failure continues for more than 30 days after written
notice from Tenant (provided that, if correction of such failure reasonably
requires a period longer than 30 days, and if Landlord commences such correction
within 30 days and prosecutes such correction to completion with diligence and
continuity, Landlord shall be allowed such longer period as may be reasonably
necessary to complete such correction), Tenant may, upon 10 business days'
notice to Landlord of its intention so to do (such notice to include the
notation "NOTICE OF INTENT TO CURE" in capital letters prominently displayed),
but shall not be obligated to, cure any such failure, and all reasonable costs
and expenses incurred by Tenant in curing such failure (including without
limitation reasonable attorney's fees and interest on such costs and expenses at
an annual rate equal to the so-called prime rate of interest published from time
to time by THE WALL STREET JOURNAL (or substitute publication reasonably
selected by Landlord if THE WALL STREET JOURNAL ceases to publish such
information) plus two percentage points) shall be reimbursed by Landlord to
Tenant within ten days after Landlord receives a written bill from the Tenant.
If Landlord fails to reimburse Tenant for any such costs and expenses within 30
days after Landlord receives a written demand therefor, Tenant shall have the
right to apply such amounts as a credit against payments of Annual Fixed Rent,
additional rent and other charges due from Tenant to Landlord under this Lease.
<PAGE>
8.6 SUCCESSORS AND ASSIGNS
----------------------
This Lease and the covenants and conditions herein contained shall inure
to the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its successors and assigns, and shall inure to the
benefit of Tenant and only such assignees of Tenant as are permitted hereunder.
The term "Landlord" means the original Landlord named herein, its successors and
assigns. The term "Tenant" means the original Tenant named herein and its
permitted successors and assigns.
8.7 BROKERAGE
---------
Landlord agrees that it shall pay any charge which is determined to be due
Boston Real Estate Partners and Fallon Hines & O'Connor, Inc. in connection with
this Lease. The foregoing agreement is between Landlord and Tenant and shall not
be deemed to be for the benefit of such brokers or any third parties and shall
not be construed as an acknowledgment that any commission is owed to any party
by either Landlord or Tenant in connection with this Lease. Landlord and Tenant
each represent and warrant to the other that it has engaged in no conduct which
may or will render the other liable for a broker's commission or charge in
connection with this Lease to any broker other than Boston Real Estate Partners
and Fallon Hines & O'Connor, Inc., and Landlord and Tenant each agree to
indemnify the other and hold the other harmless from any breach of its
respective representation and warranty.
8.8 WAIVER
------
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon strict performance of, any covenant or condition of this Lease,
or, with respect to such failure of Landlord, any of the rules and regulations
referred to in Section 5.3, whether heretofore or hereafter adopted by Landlord,
shall not be deemed a waiver of such violation nor prevent a subsequent act,
which would have originally constituted a violation, from having all the effect
of an original violation, nor shall the failure of Landlord to enforce any of
said rules and regulations against any other tenant of the Building be deemed a
waiver of any such rules or regulations. The receipt by Landlord of Fixed Rent
or additional rent with knowledge of the breach of any covenant of this Lease
shall not be deemed waiver of such breach. No provision of this Lease shall be
deemed to have been waived by Landlord, or by Tenant, unless such waiver be in
writing signed by the party to be charged. No consent or waiver, express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
8.9 ACCORD AND SATISFACTION
-----------------------
No acceptance by Landlord of a lesser sum than the Fixed Rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
<PAGE>
pursue any other remedy provided in this Lease. The delivery of keys to any
employee of Landlord or to Landlord's Managing Agent or any employee thereof
shall not operate as a termination of this Lease or a surrender of the Premises.
8.10 REMEDIES CUMULATIVE
-------------------
The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
to which it may be lawfully entitled in case of any breach or threatened breach
by Tenant of any provisions of this Lease. In addition to the other remedies
provided in this Lease, Landlord shall be entitled to the restraint by
injunction of the violation or attempted or threatened violation of any of the
covenants or conditions of this Lease or to a decree compelling specific
performance of any such covenants or conditions.
8.11 PARTIAL INVALIDITY
------------------
If any term of this Lease, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
8.12 WAIVERS OF SUBROGATION
----------------------
Any insurance carried by either party with respect to the Building, the
Exclusive Parking, the Premises or property therein or occurrences thereon shall
include a clause or endorsement denying to the insurer rights of subrogation
against the other party to the extent rights have been waived by the insured
hereunder prior to occurrence of injury or loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by such insurance,
whether or not caused by negligence, to the extent of the indemnification
received thereunder.
8.13 ENTIRE AGREEMENT
----------------
This Lease contains all of the agreements between Landlord and Tenant with
respect to the Premises and supersedes all prior writings and dealings between
them with respect thereto.
8.14 NO AGREEMENT UNTIL SIGNED
-------------------------
The submission of this Lease or a summary of some or all of its provisions
for examination does not constitute a reservation of or option for the Premises
or an offer to lease and no legal obligations shall arise with respect to the
Premises or other matters herein until this Lease is executed and delivered by
Landlord and Tenant.
<PAGE>
8.15 TENANT'S AUTHORIZED REPRESENTATIVE
----------------------------------
Tenant designates the person named from time to time as Tenant's Authorized
Representative to take all acts of Tenant hereunder. Landlord may rely on the
acts of such Authorized Representative without further inquiry or evidence of
authority. Tenant's Authorized Representative shall be the person so designated
in Section 1.1 and such successors as may be named from time to time by the then
current Tenant's Authorized Representative or by Tenant's president.
8.16 NOTICE OF LEASE
---------------
Landlord and Tenant agree not to record this Lease. Both parties will
execute, acknowledge and deliver a notice of lease and if appropriate, both
parties will, at the request of either, execute, acknowledge and delivery a
notice of termination of the Term, each in recordable form. Such notices shall
contain only the information required by law for recording. Tenant hereby
irrevocably appoints Landlord as Tenant's attorney-in-fact (which appointment
shall survive termination of the Term) with full power of substitution to
execute, acknowledge and deliver a notice of termination of lease in Tenant's
name if Tenant fails to do so within 10 business days after request therefor.
8.17 TENANT AS BUSINESS ENTITY
-------------------------
If Tenant is a business entity, then Tenant warrants and represents that
(a) Tenant is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which such entity was organized; (b) Tenant has the
authority to own its property and to carry on its business as contemplated under
this Lease; (c) Tenant is in material compliance with all laws and orders of
public authorities applicable to Tenant; (d) Tenant has duly executed and
delivered this lease; (e) the execution, delivery and performance by Tenant of
this Lease (i) are within the powers of Tenant, (ii) have been duly authorized
by all requisite action, (iii) will not violate any provision of law or any
order of any court or agency of government, or any agreement or other instrument
to which Tenant is a party or by which it or any of its property is bound, and
(iv) will not result in the imposition of any lien or charge on any of Tenant's
property, except by the provisions of this Lease; and (f) the Lease is a valid
and binding obligation of Tenant in accordance with its terms. Tenant, if a
business entity, agrees that breach of the foregoing warranty and representation
in any material respect shall at Landlord's election be a default under this
Lease for which there shall be no cure. This warranty and representation shall
survive the termination of the Term.
8.18 DEVELOPMENT OF OTHER PROPERTIES.
-------------------------------
Subject to Section 4.1.6, Landlord shall have the right, in connection
with development of other land adjacent to the Building, to grant easements
affecting the Land and Building (but not the Premises) for access and egress and
for installation, maintenance, repair, replacement or relocation of utilities
and to subject the Land and Building to such other rights, agreements and
covenants for such purposes as Landlord may determine, provided the same shall
not
<PAGE>
(i) unreasonably interrupt or unreasonably interfere with Tenant's use and
enjoyment of the Premises, (ii) reduce the number of the Exclusive Parking
Spaces, or (iii) increase Tenant's obligations hereunder. Tenant hereby agrees
that this Lease shall be subject and subordinate to any such matters which do
not unreasonably interrupt or unreasonably interfere with Tenant's use and
enjoyment of the Premises. The foregoing sentence shall be self-operative.
8.19 MISCELLANEOUS PROVISIONS
------------------------
This Lease may be executed in counterparts and shall constitute the
agreement of Landlord and Tenant whether or not their signatures appear in a
single copy hereof. This Lease shall be construed as a sealed instrument in
accordance with the laws of The Commonwealth of Massachusetts. The titles are
for convenience only and shall not be considered a part of the Lease. The
enumeration of specific examples of or inclusions in a general provision shall
not be construed as a limitation of the general provision. If Tenant is granted
any extension or other option, to be effective the exercise (and notice thereof)
shall be unconditional; and if Tenant purports to condition the exercise of any
option or to vary its terms in any manner, then the purported exercise shall be
ineffective. Nothing herein shall be construed as creating the relationship
between Landlord and Tenant of principal and agent, or of partners or joint
venturers or any relationship other than landlord and tenant. This Lease and all
consents, notices, approvals and all other documents relating hereto may be
reproduced by any party by photographic, microfilm, microfiche or other
reproduction process and the originals thereof may be destroyed; and each party
agrees that any reproductions shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the original
is in existence and whether or not reproduction was made in the regular course
of business) and that any further reproduction of such reproduction shall
likewise be admissible in evidence.
ARTICLE IX
LANDLORD'S LIABILITY AND ASSIGNMENT FOR FINANCING
9.1 LANDLORD'S LIABILITY
--------------------
Tenant agrees from time to time to look only to Landlord's interest in the
Building for satisfaction of any claim against Landlord hereunder and not to any
other property or assets of Landlord. If Landlord from time to time transfers
its interest in the Building (or part thereof which includes the Premises), then
from and after each such transfer and provided Tenant receives notice thereof,
Tenant shall look solely to the interests in the Building and the Land of each
of Landlord's transferees for the performance of all of the obligations of
Landlord hereunder. The obligations of Landlord shall not be binding on any
members or managers (or partners or trustees or beneficiaries) of Landlord or of
any successor, individually, but only upon Landlord's or such successor's assets
described above.
<PAGE>
9.2 ASSIGNMENT OF RENTS
-------------------
If, at any time and from time to time, Landlord assigns this Lease or the
rents payable hereunder to the holder of any mortgage on the Premises or the
Building, or to any other party for the purpose of securing financing (the
holder of any such mortgage and any other such financing party are referred to
herein as the "Financing Party"), whether such assignment is conditional in
nature or otherwise, the following provisions shall apply:
(i) Such assignment to the Financing Party shall not be deemed an
assumption by the Financing Party of any obligations of Landlord hereunder
unless such Financing Party shall, by written notice to Tenant, specifically
otherwise elect;
(ii) Except as provided in (i) above, the Financing Party shall be
treated as having assumed Landlord's obligations hereunder (subject to Section
9.1) only upon foreclosure of its mortgage (or voluntary conveyance by deed in
lieu thereof) or the taking of possession of the Premises;
(iii) Subject to Section 9.1, the Financing Party shall be
responsible for only such breaches under the Lease by Landlord which occur
during the period of ownership by the Financing Party after such foreclosure (or
voluntary conveyance by deed in lieu thereof) or taking of possession, as
aforesaid;
(iv) In the event Tenant alleges that Landlord is in default under
any of Landlord's obligations under this lease, Tenant agrees to give the holder
of any mortgage, by registered mail, a copy of any notice of default which is
served upon the Landlord, provided that prior to such notice, Tenant has been
notified, in writing, (whether by way of notice of an assignment of lease,
request to execute an estoppel letter, or otherwise) of the address of any such
holder. Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided by law or such additional time as may be
provided in such notice to Landlord, such holder shall have thirty (30) days
after the last date on which Landlord could have cured such default within which
such holder will be permitted to cure such default. If such default cannot be
cured within such thirty day period, then such holder shall have such additional
time as may be necessary to cure such default, if within such thirty day period
such holder has commenced and is diligently pursuing the remedies necessary to
effect such cure (including, but not limited to, commencement of foreclosure
proceedings, if necessary, to effect such cure), in which event Tenant shall
have no right with respect to such default while such remedies are being
diligently pursued by such holder.
Tenant hereby agrees to enter into such agreements or instruments as may,
from time to time, be requested in confirmation of the foregoing, provided the
Financing Party has entered into a Non-Disturbance Agreement with Tenant.
<PAGE>
ARTICLE X
SECURITY DEPOSIT
On or before the execution of this Lease, Tenant shall deliver to Landlord
a clean, irrevocable letter of credit in the amount of $4,000,000 (the "Letter
of Credit") in the form of EXHIBIT C. Upon the occurrence of an Event of
Default, Landlord may, but shall not be obligated to, draw upon the Letter of
Credit to the extent necessary to cure the Event of Default, and Tenant shall be
obligated to reinstate such security deposit to the amount then required to be
provided hereunder. Subject to the next paragraph, within 30 days after the
expiration or sooner termination of the Term, Landlord shall return the Letter
of Credit, to the extent not drawn upon, to Tenant.
The Letter of Credit, to the extent not drawn upon, shall be returned to
Tenant prior to the time provided in the preceding paragraph within 30 days
after the delivery to Landlord of evidence that Tenant's credit has achieved a
Moody's Investors Service, Inc. rating of BBB or better. Tenant shall, prior to
applying for a Moody's rating, notify Landlord of its intention to apply for a
so-called "shadow" rating and of the anticipated cost thereof. Provided that no
Event of Default then exists, Landlord shall, upon completion of such
application, credit against the next payment(s) of rent due an amount equal to
one-half of the actual costs reasonably incurred by Tenant in obtaining a
"shadow" rating by Moody's Investors Service, Inc. Notwithstanding anything
herein to the contrary, Landlord's obligations pursuant to the foregoing
sentence shall only apply to one (1) application by Tenant; Landlord shall in no
event be responsible for any costs of any subsequent rating applications. If, at
any time after return of the Letter of Credit, such rating shall cease to be BBB
or better, Tenant shall promptly and in any event within ten business (10) days
following request therefor by Landlord deliver to Landlord a clean irrevocable
letter of credit in the amount of $4,000,000 in the form of EXHIBIT C attached
hereto, to be held by Landlord as a security deposit and returned to Tenant
pursuant to this Article.
The Letter of Credit shall be issued by Fleet Bank or another Boston
clearinghouse bank reasonably satisfactory to Landlord in Landlord's favor (and
Tenant shall provide for replacements thereto to be issued and delivered to
Landlord at least 30 days prior to the expiration of the then effective Letter
of Credit, time being of the essence), securing the performance of Tenant's
obligations hereunder and payable to Landlord on the terms set forth in the form
attached to this Lease as EXHIBIT C. The Letter of Credit in effect at the
expiration of the Term shall expire no earlier than 30 days after the expiration
of the Term. Landlord agrees that it shall present such sight draft only if
Tenant defaults in performance of its obligations hereunder (including a failure
timely to replace an expiring letter of credit) and such default shall have
continued past any applicable notice and grace period. The Letter of Credit
shall provide for partial draws and shall be assignable by Landlord.
<PAGE>
ARTICLE XI
SUBORDINATION
Landlord shall obtain from any Financing Party and any lessor under any
ground lease or superior lease now or hereafter encumbering or affecting
Landlord's interest in the Land, the Building, or the Additional Land an
agreement in recordable form that, if such Financing Party forecloses or
otherwise exercises it rights under its mortgage, or if such lessor terminates
or otherwise exercises its rights under its lease, or either such Financing
Party or such lessor otherwise acquires Landlord's interest in the Land, the
Building or the Additional Land, such Financing Party and/or such lessor shall
recognize Tenant's rights and not disturb Tenant's occupancy of the Premises and
the Exclusive Parking Spaces under the terms and conditions of this Lease
(provided that nothing herein shall be construed to limit such Financing Party's
and/or lessor's rights to exercise the rights of Landlord hereunder) and shall
assume and perform Landlord's obligations under this Lease (each such agreement
being a "Non-Disturbance Agreement"). If Landlord obtains a Non-Disturbance
Agreement from each such Financing Party and/or lessor, this Lease shall be
subject and subordinate to any mortgages or ground leases that may now or
hereafter be placed upon the Building and/or the Land and to any and all
advances to be made under such mortgages or ground leases and to the interest
thereon, and all renewals, extensions and consolidations thereof on the terms
and conditions set forth in the Non-Disturbance Agreement; provided that any
mortgagee or ground lessor may elect to have this Lease a prior lien to its
mortgage or ground lease and in the event of such election and upon notification
by such mortgagee or ground lessor to Tenant to that effect, this Lease shall be
deemed prior in lien to said mortgage or ground lease. This Section shall be
self-operative, but in confirmation thereof, Tenant shall execute and deliver
whatever instruments (such instruments to be in recordable form) may be required
to acknowledge such subordination or priority in accordance with any
Non-Disturbance Agreement. Tenant also agrees this Lease shall survive any
merger of the estates of ground lessor and ground lessee under any ground lease.
ARTICLE XII
PARKING
Throughout the Term, Tenant shall have, as appurtenant to the Premises,
the right without charge to use, in common only with Landlord (as necessary to
perform Landlord's obligations hereunder) and other tenants of the Building and
invitees thereof, 987 parking spaces (the "Exclusive Parking Spaces") on the
Land and the Additional Land for its employees and business invitees. Such use
shall be subject to reasonable rules and regulations from time to time
established by Landlord. If the Building is at any time occupied by other
tenants in addition to Tenant, such rules and regulations shall provide for a
reasonable allocation of such spaces among all tenants of the Building in
proportion to their share of the Rentable Floor Area of the Building.
Landlord represents that it has a leasehold interest in additional land
abutting the Land (the "Additional Land") under a ground lease between Landlord
and Albert L. Nardone and
<PAGE>
Anthony B. Nardone as Trustees of Five Robbins Realty Trust dated of even or
near even date herewith (the "Ground Lease") (a copy of which is attached hereto
as Exhibit D). On or before May 1, 1997, Landlord shall construct 307 parking
spaces on the Additional Land in accordance with a site plan entitled "Site
Plans; Proposed Parking Improvements" dated July 3, 1996 and prepared by Rizzo
Associates, Inc. Tenant shall have, as appurtenant to the Premises, the
exclusive right to use such spaces during the Term. If Landlord elects to
exercise its purchase option under Article VII of the Ground Lease during the
term of this Lease, Landlord shall, promptly following delivery to the ground
lessor of the Option Notice (as defined in the Ground Lease), deliver a copy of
such Option Notice to Tenant. Upon determination of the Purchase Price under the
Ground Lease, Landlord shall promptly notify Tenant of such Purchase Price. If
Landlord exercises such option during the Term of this Lease, Tenant shall, on
or before the date ten (10) business days prior to the closing date set forth in
the Option Notice, pay to Landlord as additional rent an amount equal to 50% of
the amount by which (a) the sum of the Ground Lease Payments (as defined below)
and the Purchase Price exceeds (b) $250,000.00. "Ground Lease Payments" shall
mean all Fixed Rent (as defined under the Ground Lease) and real estate taxes
paid by Nashoba View Associates, LLC under the Ground Lease from the
commencement date thereof through the closing date. Landlord shall provide to
Tenant an accounting of the Ground Lease Payments promptly following delivery of
the Option Notice. If Landlord exercises such option during the Term of this
Lease, the term "Land" as used herein shall, upon acquisition of the Additional
Land, thereafter be construed to include the Additional Land.
Subject to Tenant's payments pursuant to the foregoing paragraph, Landlord
shall pay and perform fully its obligations under the Ground Lease. Landlord
shall promptly provide Tenant with a copy of a notice of a default by Landlord
in its obligations under the Ground Lease. If Landlord defaults in the payment
or performance of any of its obligations under the Ground Lease and such default
continues after any applicable notice and/or the expiration of any applicable
grace period under the Ground Lease, Tenant may, but shall not be obligated to,
pay such sums and/or take such actions as may be reasonably necessary or
appropriate to cure such default of Landlord, any amounts reasonably expended by
Tenant in effecting such cure shall be reimbursed by Landlord to Tenant. If
Landlord fails to reimburse Tenant for any such amounts within thirty (30) days
after Landlord receives a written demand therefor, Tenant shall have the right
to apply such amounts as a credit against payments of Annual Fixed Rent,
additional rent and other charges due from Tenant to Landlord under this Lease,
provided that in no event shall the amount so credited in any calendar month
exceed one-third of the quarterly ground rent due under the Ground Lease.
ARTICLE XIII
SEPTIC SYSTEM
Tenant hereby acknowledges the terms and conditions of the DEP Letter. Without
limiting the generality of any other of Tenant's obligations contained herein,
Tenant shall neither use or permit any use of the Premises which is contrary to
applicable law regarding the Septic System. Notwithstanding the foregoing,
Tenant shall have the right, after giving written notice to
<PAGE>
Landlord and subject to the conditions stated below, to contest in good faith
the validity of any requirement of DEP with respect to the Septic System. During
the pendency of such contest, Tenant shall not be required to comply with any
such requirement provided that Tenant shall indemnify and save Landlord and the
Indemnitees (as defined in Section 5.5) harmless from all injury, loss, claims,
liens or damage resulting from the delay in such compliance and/or Tenant's
contest of such requirement.
<PAGE>
Executed to take effect as a sealed instrument.
LANDLORD
NASHOBA VIEW ASSOCIATES, LLC
By: /s/ Donald J. Chiofaro,
-----------------------------------
Donald J. Chiofaro,
Manager
TENANT
CASCADE COMMUNICATIONS CORP.
By: /s/ Paul E. Blondin
-----------------------------------
Paul E. Blondin
Chief Financial Officer
Exhibit 11.1
<TABLE>
CASCADE COMMUNICATIONS CORP.
Weighted Shares Used in Computation of Earnings per Share
Shares
For the year ended December 31, 1994
<S> <C>
Common stock outstanding, beginning of year 8,828,850
Weighted average common stock equivalents 66,442,860
Weighted average common stock issued during the yea 5,802,654
Weighted average shares of common stock outstanding 81,074,364
For the year ended December 31, 1995
Common stock outstanding, beginning of year 81,487,740
Weighted average common stock equivalents 8,100,778
Weighted average common stock issued during the year 1,631,562
Weighted average shares of common stock outstanding 91,220,080
For the year ended December 31, 1996
Common stock outstanding, beginning of year 83,781,082
Weighted average common stock equivalents 9,329,519
Weighted average common stock issued during the year 4,656,788
Weighted average shares of common stock outstanding 97,767,389
<PAGE>
</TABLE>
Exhibit 21.1
SUBSIDIARIES OF THE COMPANY
Cascade Communications Limited, a United Kingdom Corporation
Cascade Communications Securities Corporation, a Massachusetts Corporation
Cascade Export, Inc., a Barbados Corporation
Cascade Communications Asia Corp., a Delaware Corporation
Cascade Communications H.C. Corp., a Delaware Corporation
Arris Networks, Inc., a Delaware Corporation
Sahara Networks, Inc., a Delaware Corporation
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statements of Cascade Communications Corp. on Form S-8 (File Nos. 33-93152,
333-06417, and 333-20659) of our report dated January 22, 1997, except for note
M as to which the date is January 28, 1997, on our audits of the
consolidated financial statements and our report dated January 22, 1997 on our
audits of the consolidated financial statement schedule of Cascade
Communications Corp. as of December 31, 1996 and 1995, and for the three
years ended December 31, 1996, which reports are included in this Annual
Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 14, 1997
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET, CONSOLIDATED STATEMENT OF INCOME AND CONSOLIDATED
STATEMENT OF CASH FLOWS INCLUDED IN THE COMPANY'S FORM 10-K FOR THE PERIOD
ENDING DECEMBER 31, 1996, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH CONSOLIDATED FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-mos
<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-1-1996
<PERIOD-END> Dec-31-1996
<CASH> 98,399
<SECURITIES> 13,920
<RECEIVABLES> 83,699
<ALLOWANCES> 632
<INVENTORY> 19,303
<CURRENT-ASSETS> 235,042
<PP&E> 52,209
<DEPRECIATION> 19,197
<TOTAL-ASSETS> 270,261
<CURRENT-LIABILITIES> 50,478
<BONDS> 0
0
0
<COMMON> 90
<OTHER-SE> 219,693
<TOTAL-LIABILITY-AND-EQUITY> 270,261
<SALES> 340,976
<TOTAL-REVENUES> 340,976
<CGS> 119,519
<TOTAL-COSTS> 119,519
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 115,589
<INCOME-TAX> 44,810
<INCOME-CONTINUING> 70,779
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 70,779
<EPS-PRIMARY> 0.72
<EPS-DILUTED> 0.72
</TABLE>
