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Exhibit 10.17.2
AMENDMENT #1 TO LEASE
(200 MINUTEMAN)
1. Parties.
This Amendment, dated as of June 4, 1998, is between 200 Minuteman
Limited Partnership ("Landlord") and PictureTel Corporation ("Tenant").
2. Recitals.
2.1 Landlord and Tenant have entered into a Lease, dated 3/19/97,
for improved property located at 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx.
This Lease, together with all amendments thereto, collectively are called the
"Lease." Unless otherwise defined, terms used herein have the same meanings as
those used in the Lease.
2.2 Landlord and Tenant wish to amend the Lease. To accomplish
this, for good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the parties agree and the Lease is amended as follows:
3. Amendments.
3.1 Section 1.1(aa) is deleted and is replaced by the following:
"(aa) "Commencement Date": The later of: September
15, 1998; or thirty (30) days after the Occupancy Date."
3.2 Addendum #4 and Addendum #5 are deleted, and Addendum #5
attached to and incorporated into this Amendment is substituted for Addendum #5
attached to the Lease. All references in this Lease to Addendum #4 and/or to any
Purchase Options are deleted.
4. No Other Changes.
The Lease remains in full force and effect, and except as set forth
above it remains unchanged.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Amendment under seal as of the date in Article 1 above.
200 MINUTEMAN LIMITED PARTNERSHIP, PICTURETEL CORPORATION, a Delaware
a Delaware limited partnership corporation
By: /s/ Authorized Signatory
By: NIUNA-200 MINUTEMAN, INC., ______________________________
its general partner Name:
Title:
Authorized Signature
By: /s/ Authorized Signatory
_________________________
Name:
Title:
Authorized Signature By: /s/ Authorized Signatory
______________________________
Name:
Title:
Authorized Signature
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ADDENDUM #5
RIGHT OF FIRST OFFER TO PURCHASE
1. Grant of Rights.
(a) Subject to the terms of this Addendum, before Landlord sells
or conveys the Premises during the initial Lease term (other than pursuant to a
sale or conveyance to any of Landlord's Control Affiliates) Landlord shall
notify Tenant in writing (the "Offer Notice") of the purchase price and the
terms of payment thereof (e.g., all cash, or cash and purchase money financing
or assumption of debt) that Landlord intends to accept for the Premises (the
"Offer Price").
(b) Within sixty (60) days after delivery of the Offer Notice,
Tenant shall notify Landlord in writing that it unconditionally elects one of
the two (2) following alternatives:
(i) To purchase the Premises for the applicable Offer
Price and otherwise on the terms of this Addendum. (Tenant's election of the
alternative described in this Subsection (i) is referred to as the "Purchase
Election.")
(ii) [INTENTIONALLY OMITTED]
(iii) To permit Landlord to sell or convey the Premises in
accordance with this Addendum and to continue to lease the Premises on the terms
of this Lease. (Tenant's election of the alternative described in this
Subsection (iii) is called the "Existing Lease Election.")
(c) TIME IS ABSOLUTELY OF THE ESSENCE. If for any reason Landlord
does not actually receive Tenant's unconditional written notice of election as
and when required, Tenant shall be deemed to have elected the Existing Lease
Election. At Landlord's election, all of Tenant's rights and Landlord's
obligations under or in connection with this Addendum shall lapse and become
null and void if Tenant defaults hereunder or under the rest of this Lease at
any time prior to any closing hereunder, or if Tenant defaults in connection
with any closing hereunder or fails to close as required after its election of
the Purchase Election (an "Offer Default"). Any amounts payable under this
Addendum in connection with the Purchase Election are deemed to be amounts
payable under the Lease, and any default hereunder will be deemed to be a
default under the Lease and in such case Landlord shall be entitled to all
rights and remedies hereunder and under the rest of the Lease, including,
without limitation, the right to require specific performance from Tenant. If
Tenant commits an Offer Default, Tenant also shall indemnify and hold Landlord
harmless from and against all Liabilities incurred by Landlord that arise from
or in connection with the Offer Default.
2. Purchase Election. If Tenant validly exercises the Purchase Election,
then Landlord shall sell and Tenant shall purchase the Premises on the following
terms and conditions:
(a) The Offer Price for the Premises shall be as specified in the
Offer Notice, and the cash portion of the purchase price for the Premises shall
be payable by cashier's check or wire transfer of immediately available funds to
or at the direction of Landlord and will be payable in full on or before the
scheduled closing date. In addition to the cash portion of the purchase price,
as of the closing Tenant shall, as and to the extent set forth in the Offer
Notice, either repay in full all mortgage loan(s) secured by the Premises, and
any other loan secured by the Letter of Credit (if separate from such mortgage
loan(s)), other than those that are Unpermitted Financing (the "Existing Loans")
(including, without limitation, any prepayment or "breakage" fees or similar
charges) or assume the Existing Loans, and in any case Tenant will cause the
lender(s) to release Landlord and its Affiliates as of the closing from all
Liabilities in connection with the Existing Loans and Tenant shall indemnify and
hold Landlord and its Affiliates harmless from all further Liabilities in
connection
ADDENDUM #5
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with the Existing Loans. In addition to the purchase price, Tenant shall pay all
closing costs of any type (other than Landlord's attorneys' fees and costs),
including, without limitation, commissions (if any) and the costs of deed stamps
and documentary and transfer taxes and fees, surveys, title insurance, escrows,
recording and other similar fees and costs. Base rent will be prorated between
the parties as of the closing date, but there will be no other prorations or
adjustments.
(b) The closing will occur at a location in Massachusetts and on a
date specified by Landlord pursuant to written notice to Tenant, which date will
be at least three (3) months but no more than six (6) months after the Purchase
Election. At the closing, Landlord will execute and deliver to Tenant a
Massachusetts Quitclaim Deed (which will be subject to all matters of record and
all title and survey exceptions), an affidavit of Landlord stating Landlord's
U.S. taxpayer identification number and that Landlord is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended or Landlord shall provide the necessary forms if Landlord is a
"foreign person"), and a blanket assignment to Tenant of all third party
guaranties, warranties, permits, certificates, consents and approvals pertaining
to the Premises that are assignable by Landlord, to the extent assignable at no
cost or Liabilities to Landlord (unless Tenant advances such costs and
discharges such Liabilities, in which case they shall be assigned to the extent
assignable by Landlord).
(c) Tenant specifically acknowledges and agrees that Landlord will
sell and Tenant will purchase the Premises on an "as is with all faults" basis,
subject to all exceptions to and defects of title, whether or not of record (but
subject also to Tenant's rights and Landlord's obligations as set forth below),
and that Tenant will not rely on nor will Landlord or any of its Affiliates be
deemed to have made, any representations or warranties of any kind, express or
implied including, without limitation, those in connection with the physical
condition of the Premises (including, without limitation, any matters involving
Hazardous Substances or compliance with any Laws), or the nature of title to the
Premises, or the advisability of Tenant's purchase of the Premises). However,
until and unless Tenant otherwise agrees in writing or defaults Landlord will
not voluntarily execute any documents affecting title that materially adversely
affect Tenant's operations or that render title to the Premises unmarketable
(but easements, dedications or other documents for access, drainage, utilities
or services (including cabling), curb cuts, or as otherwise may be needed to
comply with applicable Laws or to enable Landlord to meet its obligations under
this Lease or in connection with the construction of any new building(s) or the
enlargement of the Building per this Lease, will not be deemed to be violations
of this restriction). If this restriction is violated after the exercise of the
Purchase Election, Tenant shall have the right to terminate that Purchase
Election without liability and receive any deposit back. Notwithstanding the
foregoing, even if Tenant has validly exercised a Purchase Election, Tenant
shall have the right to terminate that Purchase Election without liability
(except for Landlord's out-of-pocket costs) and shall not be required to close
the purchase if, after the exercise of the Purchase Election but prior to
closing, there is a casualty that causes damage of the type and to the extent
described in Section 16.2(b)(x) such that Tenant otherwise would have the right
to terminate this Lease, and in the reasonable judgment of a qualified
independent contractor hired by Landlord it will take more than two (2) years
from the date of the damage to restore access or restore or replace the
destroyed parking spaces or substantially complete the repairs that Landlord
would have been required to make, and Tenant notifies Landlord of its intent to
terminate within thirty (30) days after receiving the notice from Landlord's
contractor, which shall be provided as soon as reasonably practicable after the
damage occurs. If these circumstances occur, the closing date shall be extended
as necessary to accommodate this thirty (30)-day period. If Tenant does not so
terminate, or if Tenant is not permitted to so terminate as a result of a
casualty, as of the closing Landlord will assign to Tenant all casualty
insurance proceeds otherwise payable to Landlord on account of the damage and
all rights and claims in connection therewith (other than those which Landlord
was entitled to receive for the period and/or for the work and services
performed prior to the closing). Notwithstanding anything to the contrary, if
Landlord is in the process of repairing or rebuilding casualty damage and Tenant
subsequently validly exercises a Purchase Election: Landlord will continue the
process of repairing or rebuilding as otherwise required in this Lease until
ADDENDUM #5
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the closing date under the Purchase Election; Tenant will be deemed to have
waived its right to terminate this Lease under Article 16, and its right to
terminate the Purchase Election in connection with that casualty or any repairs
or rebuilding in connection therewith; Landlord will assign to Tenant as of the
closing all casualty insurance proceeds otherwise payable to Landlord on account
of the damage and all rights and claims in connection therewith (other than
those which Landlord was entitled to receive for the period and/or for the work
and services performed prior to the closing), and Landlord shall assign to
Tenant and Tenant shall assume all rights and Liabilities of Landlord under the
contracts entered into in connection with the repair or rebuilding to the extent
assignable and Tenant shall indemnify Landlord and its Affiliates for and hold
them harmless from all Liabilities in connection therewith; and Landlord shall
be obligated to continue to repair or rebuild after the closing date only if and
to the extent actually agreed to by Landlord and Tenant in good faith and in
writing at the time.
(d) As of the closing, Tenant and its Affiliates will be deemed to
have released and discharged Landlord and its Affiliates from, and to have
waived, all Liabilities of any type, known or unknown, including, without
limitation, Liabilities under or in connection with this Lease and/or the
Premises (except as set forth in the last sentence of Subsection (e) below). As
a condition to closing, Landlord may require that Landlord's Mortgagees release
Landlord and its Affiliates from Liabilities under or in connection with any
Superior Leases or Mortgages. From and after the closing, Tenant shall
indemnify, defend and hold Landlord free and harmless from all Liabilities under
or in connection with this Lease and/or the Premises and/or the purchase thereof
(except as set forth in the last sentence of Subsection (e) below).
(e) Time is of the essence in this Addendum. If Tenant defaults
hereunder after the closing under a Purchase Election or Tenant or Landlord
defaults under any of the documents delivered by it in connection therewith, in
addition to any rights and remedies available to each of the respective parties,
each party shall have all rights and remedies at law and in equity, all of which
are cumulative and not exclusive, including, without limitation, the right to
require specific performance. The exercise of a Purchase Election or any closing
as a result thereof shall not relieve Tenant or Landlord from any Liabilities
for any defaults under this Lease, nor will they extinguish Liabilities for any
indemnities or other obligations that survive pursuant to the terms of the rest
of this Lease or this Addendum.
3. [INTENTIONALLY OMITTED]
4. Existing Lease Election.
(a) If Tenant validly elects (or is deemed to have elected) the
Existing Lease Election, then for the next twelve (12) months after Tenant's
election, Landlord may not sell or convey the Premises (other than pursuant to a
sale or conveyance to any of Landlord's Control Affiliates) for a purchase price
which is less than ninety-seven percent (97%) of the applicable Offer Price
without first delivering to Tenant a new Offer Notice with an Offer Price equal
to such new, lower purchase price. If Landlord delivers such a new Offer Notice,
then Tenant shall have the right to elect either the Purchase Election or the
Existing Lease Election in accordance with the procedures established in Section
1 above, except that Tenant will have forty-five (45) days, and not sixty (60)
days, within which to respond to Landlord's new Offer Notice. If within twelve
(12) months after Tenant validly elects (or is deemed to have elected) the
Existing Lease Election in accordance with this Section 3 Landlord has not
executed a binding agreement to sell or convey the Premises for a purchase price
which is equal to or greater than ninety-seven percent (97%) of the new, lower
Offer Price, or if Landlord has entered into such a binding agreement within the
twelve (12)-month period but fails to close thereunder, then the terms and
conditions in Section 1 above again will apply.
(b) If Tenant validly elects (or is deemed to have elected) the
Existing Lease Election, then Tenant will have the right, upon written request
to Landlord, to participate reasonably and in
ADDENDUM #5
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good faith with Landlord in the negotiations conducted by Landlord to sell or
convey the Premises, which negotiations will be subject to Landlord's control
and direction. Tenant acknowledges and agrees that the manner and substance of
these negotiations are critical to Landlord, and so Tenant will support
Landlord's negotiating positions (provided that, unless Tenant otherwise agrees,
such negotiating positions do not attempt to change Tenant's rights and
obligations under this Lease) and will not attempt to delay, obstruct or hinder
these negotiations. Landlord will have the right at any time and in its sole
discretion to suspend, terminate or continue such negotiations and, subject to
Subsection (a) above, Articles 6 and 7 of this Addendum and the parenthetical in
the preceding sentence, to accept or reject terms offered by prospective buyers
and to execute documents and agreements, binding or otherwise, in connection
with a sale or conveyance of the Premises. Tenant shall not have the right or
power nor shall it attempt to bind Landlord in connection with a sale or
conveyance of the Premises or to deal directly or negotiate alone with any
prospective buyer or its agents without Landlord's prior written consent.
5. Termination of Rights. Notwithstanding anything to contrary, at
Landlord's election all of Tenant's rights and Landlord's obligations under or
in connection with this Addendum will lapse and become null and void upon:
(a) The termination or expiration of the Lease term in accordance
with its terms, prior to any closing hereunder; or
(b) The bona fide purchase or other acquisition of all or
substantially all of the Premises other than by any of Landlord's Control
Affiliates prior to the valid exercise of the Purchase Election hereunder and
other than any sale or conveyance which is prohibited under this Lease; or
(c) As set forth in Section 9 below; or
(d) At the end of the initial Lease term.
6. No Sale to Direct Competitors. Unless and until Tenant's rights under
this Addendum have lapsed or terminated, Landlord shall not sell or convey the
Premises to: AT&T, Intel, VTEL Corp., and Sony.
7. [INTENTIONALLY OMITTED]
8. Unaffected Parties. Notwithstanding anything to the contrary, Tenant's
rights and Landlord's obligations under or in connection with this Addendum will
not be binding on and will not affect or otherwise apply in any way to
Landlord's Mortgagees or their successors, assigns and purchasers or their
respective Affiliates, whether or not they take title to or acquire all or
substantially all of the Premises.
9. Personal Rights. Notwithstanding anything to contrary, the rights of
Tenant in this Addendum are granted only to and may be exercised only by the
Tenant originally named in this Lease, and they may not be exercised by anyone
else (other than by an assignee to whom such rights have been entirely assigned
pursuant to a valid assignment of this Lease pursuant to which Tenant has become
a Released Assignor, if at the time of such assignment the assignor and the
assignee deliver to Landlord a jointly executed written notice stating
unconditionally that the assignee has the right to exercise such rights) and
Tenant shall not, and shall not have the right or power to, otherwise assign or
otherwise Transfer any of its rights under or in connection this Addendum.
Tenant may assign this Lease without granting to the assignee the rights of
Tenant under this Addendum, but in such event Tenant will retain those rights if
and only if Tenant has not become a Released Assignor in connection with its
valid assignment of this Lease.
ADDENDUM #5
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