<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM 10-Q
QUARTERLY REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996 Commission File No. 0-27338
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GT INTERACTIVE SOFTWARE CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3689915
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
16 EAST 40TH STREET, NEW YORK, NY 10016
(Address of principal executive offices) (Zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (212) 726-6500
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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______
As of November 1, 1996, there were 66,304,499 shares of the registrant's
Common Stock outstanding.
Page __ of ___
Exhibit index begins on page ____
<PAGE> 2
GT INTERACTIVE SOFTWARE CORP.
1996 QUARTERLY REPORT ON FORM 10-Q
TABLE OF CONTENTS
PART I - FINANCIAL INFORMATION
Page
Item 1. Financial Statements (Unaudited):
Consolidated Balance Sheets as of December 31, 1995 (audited)
and September 30, 1996 3
Consolidated Statements of Income for the three months and
the nine months ended September 30, 1995 and 1996
4
Consolidated Statements of Cash Flows for the nine months ended
September 30, 1995 and 1996
5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
8
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 12
Signatures 13
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
GT INTERACTIVE SOFTWARE CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, September 30,
1995 1996
-------- --------
(audited) (unaudited)
(in thousands)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 84,069 $ 16,016
Short-term investments 9,625 4,895
Receivables, net 84,810 95,594
Inventories, net 49,145 63,057
Royalty advances 29,577 57,357
Deferred income taxes 14,014 13,543
Prepaid expenses and other current assets 1,996 7,079
-------- --------
Total current assets 273,236 257,541
Property and equipment, net 6,087 8,079
Goodwill, net 21,286 20,466
Investments -- 9,521
Other assets 1,032 2,119
-------- --------
Total assets $301,641 $297,726
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 87,518 $ 68,655
Accrued liabilities 45,306 40,179
Royalties payable 23,509 29,354
Deferred income 4,091 5,481
Income taxes payable 4,696 4,673
Current portion of long-term liabilities 1,413 1,324
Due to related party 955 245
-------- --------
Total current liabilities 167,488 149,911
Other long-term liabilities 8,113 5,332
-------- --------
Total liabilities 175,601 155,243
-------- --------
Commitments and contingencies
Stockholders' equity:
Common stock, $.01 par, 150,000,000 shares authorized,
66,304,499 shares issued and outstanding 661 663
Additional paid-in capital 117,919 117,811
Retained earnings 7,460 24,009
-------- --------
Total stockholders' equity 126,040 142,483
-------- --------
Total liabilities and stockholders' equity $301,641 $297,726
======== ========
</TABLE>
The accompanying footnotes are an integral part of these financial statements.
Page 3
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GT INTERACTIVE SOFTWARE CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATION
<TABLE>
<CAPTION>
For the Three Months For The Nine Months
Ended September 30, Ended September 30,
------------------------- -------------------------
1995 1996 1995 1996
-------- -------- -------- --------
(unaudited)
(in thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $ 63,755 $ 86,192 $130,401 $230,475
Cost of goods sold 41,093 47,684 77,832 130,232
Selling and distribution expenses 10,438 17,769 23,542 51,063
General and administrative expenses 5,695 7,432 13,876 21,089
Merger costs -- 1,120 -- 2,694
-------- -------- -------- --------
Operating income 6,529 12,187 15,151 25,397
Interest and other income, net 281 575 535 2,827
-------- -------- -------- --------
Income before income taxes 6,810 12,762 15,686 28,224
Provision for income taxes 3,053 4,032 3,316 11,599
-------- -------- -------- --------
Net income $ 3,757 $ 8,730 $ 12,370 $ 16,625
======== ======== ======== ========
Pro forma adjustment to income tax provision 4,569
-------
Pro forma net income $ 7,801
=======
Net income per share $ 0.13 $ 0.24
Weighted average shares outstanding 69,217 68,903
</TABLE>
The accompanying footnotes are an integral part of these financial statements.
Page 4
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GT INTERACTIVE SOFTWARE CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
----------------------------
1995 1996
-------- --------
(unaudited)
(in thousands)
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 12,370 $ 16,625
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 986 2,089
Deferred income taxes (8,910) 471
Deferred income 1,492 (1,119)
Changes in operating assets and liabilities:
Receivables, net (22,481) (10,784)
Inventories, net (12,549) (13,912)
Royalty advances (12,390) (27,780)
Due to related party, net (1,460) (710)
Prepaid expenses and other current assets (929) (5,083)
Accounts payable 27,700 (18,862)
Accrued liabilities 11,220 (5,126)
Royalties payable 974 5,844
Income taxes payable 4,462 1,173
Other (176) (904)
-------- --------
Net cash provided by (used in) operating activities 309 (58,078)
-------- --------
INVESTING ACTIVITIES:
Purchases of investments -- (9,521)
Purchase of property and equipment (4,334) (3,518)
Purchases of short-term investments, net -- 4,730
Purchases of Slash Corporation, net of cash acquired of approximately
$516,000 218 --
-------- --------
Net cash used in investing activities (4,116) (8,309)
-------- --------
FINANCING ACTIVITIES:
Repurchase of warrants -- (1,935)
Proceeds from exercise of stock options -- 632
Issuance of preferred stock and warrants 15,015 --
Proceeds from issuance of note to a related party 15,056 --
Repayment of notes (10,471) --
Distributions to stockholders (6,000) --
Long-term liabilities (779) (363)
-------- --------
Net cash provided by (used in) financing activities 12,821 (1,666)
-------- --------
Net increase (decrease) in cash and cash equivalents 9,014 (68,053)
Cash and cash equivalents - beginning of year 4,496 84,069
-------- --------
Cash and cash equivalents - end of period $ 13,510 $ 16,016
======== ========
</TABLE>
The accompanying footnotes are an integral part of these financial statements.
Page 5
<PAGE> 6
GT INTERACTIVE SOFTWARE CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
NOTE -1 - SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying interim consolidated financial statements of GT
Interactive Software Corp. and Subsidiaries (the "Company") are unaudited but in
the opinion of management reflect all adjustments, consisting of normal
recurring accruals, necessary for a fair presentation of the results for the
interim period in accordance with instructions for Form 10-Q. Accordingly, they
do not include all information and footnotes required by generally accepted
accounting principles for complete financial statements. These interim
consolidated financial statements should be read in conjunction with the
consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1995.
Net Income Per Share For The Three and Nine Months Ended September 30, 1996
Net income per share is computed by dividing net income by the weighted
average number of common and common equivalent shares outstanding during the
period.
NOTE 2 - ACQUISITIONS
On June 24, 1996, the Company acquired all of the outstanding common stock
of WizardWorks Group, Inc. ("WizardWorks"), a developer and publisher of
consumer software, in exchange for 2,350,000 shares of the Company's common
stock.
On June 28, 1996, the Company acquired all of the outstanding common stock
of Candel Inc., the parent company of FormGen Corp. ("FormGen"), a publisher of
multimedia consumer software, in exchange for 1,032,777 shares of the Company's
common stock.
On July 9, 1996, the Company acquired all of the outstanding common stock
of Humongous Entertainment, Inc., ("Humongous") a premier developer and
publisher of quality children's software, in exchange for 3,458,375 shares of
the Company's common stock.
WizardWorks, FormGen and Humongous (collectively the "Acquired Companies")
have been accounted for as pooling of interests and accordingly are included in
the Company's Consolidated Financial Statements as if the acquisitions had
occurred on January 1, 1994.
Page 6
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GT INTERACTIVE SOFTWARE CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(unaudited)
NOTE 3 - INVENTORIES, NET
Inventories consist of the following:
<TABLE>
<CAPTION>
December 31, September 30,
1995 1996
------- -------
(in thousands)
<S> <C> <C>
Finished goods $52,144 $67,197
Raw materials 4,067 3,179
------- -------
56,211 70,376
Less: reserve for obsolescence 7,066 7,319
------- -------
$49,145 $63,057
======= =======
</TABLE>
NOTE 4 - SUPPLEMENTAL CASH FLOW INFORMATION
<TABLE>
<CAPTION>
For the Nine Months
Ended September 30,
-----------------------
1995 1996
------- -------
(in thousands)
<S> <C> <C>
Issuance of Common Stock in connection with the
acquisition of Slash Corporation $20,000 $ --
Cash paid for income taxes 7,242 9,360
Cash paid for interest 442 660
</TABLE>
Page 7
<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following Management's Discussion and Analysis of Financial Condition
and Results of Operations contains forward-looking statements which involve
risks and uncertainties. The Company's actual results or future events could
differ materially from those anticipated in these forward-looking statements as
a result of certain factors, including, but not limited to, world-wide business
and industry conditions, adoption of new hardware systems, product delays,
software development requirements and their impact on product launches, company
customer relations and other risks and factors detailed, from time to time, in
the Company's SEC filings including, but not limited to, the factors described
on pages 7-10 of the Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 and the risk factors set forth on pages 6-12 of the
Registration Statement on Form S-1 (Registration No. 333-14441) filed October
18, 1996, as amended.
OVERVIEW
The Company creates, publishes and merchandises interactive entertainment,
edutainment and value-priced consumer software for a variety of platforms on a
world-wide basis. Since it commenced operations in February 1993, the Company
has experienced rapid revenue growth and its product and customer mix have
changed substantially.
An important element of the Company's financial performance is its product
mix which has varied over time as the Company has built its business. The
Company's product mix has been composed of two broad product categories:
published software and third-party software. Because each of these product
categories has different associated costs, the Company's margins have depended
and will depend, in part, on the percentage of net sales attributable to each
category. In addition, the Company's margins may vary significantly from quarter
to quarter depending on the timing of its new published product releases. To the
extent that mass merchants require greater proportions of third-party software
products, some of which may yield lower margins, the Company's operating results
may be impacted accordingly.
Through February 28, 1995, the Company was an S corporation for Federal and
New York state income tax purposes. The income tax provision for the nine months
ended September 30, 1995 includes a deferred tax benefit of approximately $3.5
million due to the Company's change in tax status.
On June 23, 1995, the Company acquired all of the outstanding stock of
Slash Corporation ("Slash"), a leading publisher, purchaser, repackager and
distributor of value-priced software in exchange for 2,793,000 newly issued
shares of the Company's Common stock and a nominal amount of cash. Historically,
Slash purchased excess inventory from major publishers and sublicensed catalog
titles. It sold these products at lower price points or repackaged these and
other products into compilation boxes, such as five-packs and ten-packs, for
volume sales primarily to mass merchants. Slash's sales of purchased excess
inventory have traditionally occurred at lower margins than its sales of
sublicensed catalog products. The Company's value-priced software business
primarily consists of sublicensed catalog titles which are sold largely to mass
merchant customers. Slash's financial results have been included in the
Company's Consolidated Financial Statements on a purchase basis for the period
since the acquisition.
On June 24, 1996, the Company acquired all of the outstanding stock of
WizardWorks Group, Inc. ("WizardWorks"), a leading developer and publisher of
value-priced interactive entertainment, edutainment and productivity software,
in exchange for 2,350,000 newly issued shares of the Company's Common Stock.
WizardWorks develops, publishes and distributes consumer software for Windows,
DOS and Macintosh formats.
On June 28, 1996, the Company acquired all of the outstanding stock of
Candel Inc., the parent company of FormGen, Inc. ("FormGen"), a leading
publisher of interactive personal computer ("PC") shareware and software in
exchange for 1,032,777 newly issued shares of the Company's Common Stock.
Page 8
<PAGE> 9
On July 9, 1996, the Company acquired all of the outstanding common stock
of Humongous Entertainment, Inc. ("Humongous"), a premier developer and
publisher of quality children's software, in exchange for 3,458,375 newly issued
shares of the Company's Common Stock.
WizardWorks, FormGen and Humongous (collectively the "Acquired Companies"),
have each been accounted for as a pooling of interests. Accordingly, the
Company's historical Financial Statements have been restated to include the
results of the Acquired Companies.
Sales are recorded net of expected future returns which historically have
been experienced and reserved for at approximately 30% of gross sales.
The consumer software industry is seasonal. Net sales are typically highest
during the fourth calendar quarter. This seasonality is primarily a result of
the increased demand for consumer software during the year-end holiday buying
season.
RESULTS OF OPERATIONS
The following table sets forth certain consolidated statement of operations
data as a percentage of net sales for the periods indicated:
<TABLE>
<CAPTION>
For the Three For the Nine
Months Ended Months Ended
September 30, September 30,
------------------------------- --------------------------------
1995 1996 1995 1996
------------- ----------- ------------ -----------
<S> <C> <C> <C> <C>
Net sales 100.0 % 100.0 % 100.0 % 100.0 %
Cost of goods sold 64.5 55.3 59.7 56.5
Selling and distribution expenses 16.4 20.6 18.1 22.2
General and administrative expenses 8.9 8.6 10.6 9.2
Merger costs -- 1.3 -- 1.2
------------ ----------- ------------ -----------
Operating income 10.2 14.1 11.6 11.0
Interest and other income, net .5 .7 .4 1.2
------------ ----------- ------------ -----------
Income before income taxes 10.7 14.8 12.0 12.2
Provision for income taxes 4.8 4.7 2.5 5.0
------------ ----------- ------------ -----------
Net income 5.9 % 10.1 % 9.5 % 7.2 %
============ =========== ============ ===========
</TABLE>
Net sales for the three months and nine months ended September 30, 1996
increased approximately $22.4 million or 35% and $100.1 million or 77% ,
respectively, as compared to the three and nine months ended September 30, 1995.
In the third quarter of 1995, Microsoft(R) Windows(R) 95 was introduced. This
one time event added net sales of approximately $13.2 million; without these
sales, net sales for the three and nine months ended September 30, 1996 would
have increased 71% and 97%, respectively. This growth in net sales for the three
months ended September 30, 1996 was primarily attributable to the introduction
of newly published titles such as Quake (full version in Europe, shareware
version in North America), Area 51, Final Doom for the Sony PlayStation, Bedlam,
"9" and Just Me & My Mom, the continuing strong sales of Doom and Doom-related
products and Duke Nukem 3D and increased royalty income. During the nine months
ended September 30, 1996, the growth in net sales was attributable to such
releases as well as the initial release of Duke Nukem 3D, Heretic: Shadow of the
Serpent Rider and Just Me & My Dad. Additionally, the expansion of the Company's
value-priced line of software, an increase in the shelf space available from its
existing mass merchant customers, an increase in the number of mass merchant
stores supplied and serviced by the Company and an increase in sales from its
existing mass merchant shelf space contributed to the growth in net sales during
the nine month period. The purchase of Slash by the Company effective June 23,
1995 and the increase in the distribution of third party software also
contributed to the growth in net sales during such period.
Page 9
<PAGE> 10
Cost of goods sold primarily includes costs of purchased products and
royalties paid to software developers. Cost of goods sold for the three and nine
months ended September 30, 1996 increased approximately $6.6 million or 16% and
$52.4 million or 67%, respectively, as compared to the three and nine months
ended September 30, 1995. Cost of goods sold as a percentage of net sales for
the three and nine months ended September 30, 1996 decreased to 55.3% and 56.5%,
respectively, compared to 64.5% and 59.7% during the three and nine months ended
September 30, 1995. This decrease was primarily due to a change in product mix
toward the Company's higher margin published products, which increased to
approximately 63% and 57% of net sales during the three and nine months ended
September 30, 1996, respectively, as compared to approximately 48% and 47%
during the three and nine months ended September 30, 1995.
Selling and distribution expenses primarily include shipping expenses,
sales and distribution labor expenses, advertising and promotion expenses and
distribution facilities costs. These expenses increased approximately $7.3
million or 70% and $27.5 million or 117% during the three and nine months ended
September 30, 1996, respectively, compared to the comparable periods of the
prior year. The increase was due to the additional advertising costs of
approximately $1.3 million and $6.9 million for the three and nine months ended
September 30, 1996, respectively, to support the growth of the Company's
published products and an increase in shipping costs of approximately $.8
million and $3.6 million for the three and nine months ended September 30, 1996,
respectively, attributable to the overall increase in sales volume. In addition,
costs associated with the expansion of the Company's sales and distribution
staff and distribution center increased approximately $4.8 million and $11.5
million for the three and nine months ended September 30, 1996, respectively, to
support its growth. Selling and distribution expenses as a percentage of net
sales for the three and nine months ended September 30, 1996 increased to 20.6%
and 22.2%, respectively, compared to 16.4% and 18.1% for the three and nine
months ended September 30, 1995, respectively.
General and administrative expenses primarily include personnel expenses,
facilities costs, professional expenses and other overhead charges. These
expenses for the three and nine months ended September 30, 1996 increased
approximately $1.7 million or 31% and $7.2 million or 52%, respectively, as
compared to the three and nine months ended September 30, 1995. The increase was
due primarily to the expansion of the Company's operations. General and
administrative expenses as a percentage of net sales for the three and nine
months ended September 30, 1996 decreased to 8.6% and 9.2%, respectively, from
8.9% and 10.6% for the three and nine months ended September 30, 1995,
respectively, due to certain economies of scale.
Merger costs consist of legal, accounting and other professional fees
incurred by the Company to complete the acquisitions of WizardWorks, FormGen and
Humongous.
Operating income and operating margins for the three months ended September
30, 1996 increased from approximately $6.5 million and 10.2% to $12.2 million
and 14.1%. For the nine months ended September 30, 1996 operating income
increased from approximately $15.2 million to approximately $25.4 million, while
operating margins remained relatively consistent. Excluding merger costs,
operating income and operating margins would have been approximately $13.3
million and 15.4% and $28.1 million and 12.2%, respectively, for the three and
nine months ended September 30, 1996.
Interest and other income, net increased approximately $.3 million and $2.3
million for the three and nine months ended September 30, 1996, respectively, as
compared to the comparable periods of the prior year. This is primarily
attributable to greater short-term investments and cash balances.
The Company's provision for income taxes for the three and nine months
ended September 30, 1996 includes the reversal of a valuation allowance relating
to a net operating loss carry-forward of one of the Acquired Companies.
Additionally, had the Company been a C Corporation for the entire nine months
ended September 30, 1995, the Company's provision for income taxes would have
been approximately $7.9 million and 6.0% of net sales for the period.
Page 10
<PAGE> 11
Net income and net income as a percentage of net sales, on a tax adjusted
basis, for the three and the nine months ended September 30, 1996 increased from
$3.8 million and 5.9% and $7.8 million and 6.0%, respectively, to $8.7 million
and 10.1% and $16.6 million and 7.2%. Excluding merger costs after taxes, net
income and net income as a percentage of net sales, on a pro forma basis, would
have been $9.4 million and 10.9% and $18.2 million and 7.9%, respectively, for
the three and nine months ended September 30, 1996.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1996, the Company's principal sources of liquidity
included cash and short-term investments of approximately $20.9 million. Cash
used for the nine months ended September 30, 1996 amounted to approximately
$68.1 million as compared to cash provided of approximately $9.0 million for
the nine months ended September 30, 1995. This decrease in cash and short-term
investments during the nine months ended September 30, 1996 was used to fund
royalty advances of $33.1 million, investments of $9.5 million, property and
equipment of $3.5 million and the repurchase of warrants for $1.9 million, with
the remainder, net of cash generated from operations, used for working capital
requirements to support the Company's growth. Working capital, funded by
available cash and internally generated funds, grew during the period ended
September 30, 1996 to approximately $107.6 million. Accounts receivable
approached seasonally high levels with sales in the third quarter of 1996
occurring late in the quarter, while sales in the comparable quarter of the
prior year occurred earlier in the quarter, resulting in earlier collections.
Inventory increased $ 31.8 million during the period ended September 30, 1996
as compared to the comparable period of the prior year primarily to fund the
rapid sales growth. When adjusting for the one time introduction of
Microsoft(R) Windows(R) 95 in the third quarter of 1995, net sales for the
third quarter of 1996 increased approximately 71% when compared to the third
quarter of 1995 and inventory increased accordingly. Royalty advances of $57.4
million as of September 30, 1996 represents advances to over 90 developers for
various products which are expected to be developed through the year 2001. Such
advances are amortized to cost of goods sold on a per unit basis as licensed
products are sold in accordance with the individual agreements. Accounts
payable at September 30, 1996 was only 5% higher than accounts payable at
September 30, 1995.
The Company believes that existing cash, cash equivalents and short-term
investments together with cash expected to be generated from operations, will be
sufficient to fund the Company's anticipated operations for the next twelve
months.
Page 11
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PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The following exhibits are filed as part of this report:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation (incorporated
herein by reference to the exhibit with the corresponding number
filed as part of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995).
3.2 Amended and Restated By-laws (incorporated herein by reference to
the exhibit with the corresponding number filed as part of the
Company's Registration Statement on Form S-1 filed on October 20,
1995, and all amendments thereto (Registration No. 33-98448)).
10.1 Lease Agreement between the Company and Plymouth 2200, LLP, dated
September 6, 1996.
27.1 Financial Data Schedule.
</TABLE>
- ------------
(b) Reports on Form 8-K
A report on Form 8-K, dated July 10, 1996, was filed with the Securities
and Exchange Commission (the "Commission") on July 15, 1996 announcing the
acquisition of Humongous Entertainment, Inc. in a stock-for-stock merger
pursuant to the Agreement and Plan of Reorganization.
A report on Form 8-K, dated June 24, 1996, was filed with the Commission on
July 9, 1996 announcing the acquisition of WizardWorks Group, Inc. and Candel
Inc. in stock-for-stock mergers pursuant to the respective Agreements and Plans
of Reorganization. The audited combined financial statements of WizardWorks as
of March 31, 1996 and 1995 were filed therewith.
Page 12
<PAGE> 13
SIGNATURES
Pursuant to the requirements 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.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ RONALD CHAIMOWITZ
--------------------------------
Ronald Chaimowitz
Chief Executive Officer and Director
Date: November 14, 1996
By: /s/ ANDREW GREGOR
--------------------------------
Andrew Gregor
Chief Financial Officer and Senior
Vice President, Finance and
Administration
Date: November 14, 1996
Page 13
<PAGE> 14
Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C>
3.1 Amended and Restated Certificate of
Incorporation (incorporated herein by
reference to the exhibit with the
corresponding number filed as part of the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995).
3.2 Amended and Restated By-laws (incorporated
herein by reference to the exhibit with the
corresponding number filed as part of the
Company's Registration Statement on Form S-1
filed on October 20, 1995, and all amendments
thereto (Registration No. 33-98448)).
10.1 Lease Agreement between the Company and
Plymouth 2200, LLP, dated September 6, 1996.
27.1 Financial Data Schedule.
</TABLE>
- ------------
Page 14
<PAGE> 1
EXHIBIT 10.1
STANDARD COMMERCIAL LEASE
ARTICLE 1. BASIC LEASE TERMS
1.1 PARTIES. This lease agreement ("Lease") is entered into this 6th day of
September, 1996, by and between Plymouth 2200, LLP, a Minnesota Limited
Liability Partnership ("Landlord") and GT Interactive Software Corp., a Delaware
corporation ("Tenant").
1.2 PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases, lets and demises to Tenant the
following described premises ("Premises") as illustrated on Exhibit A attached
hereto: approximately 242,830 square feet of space located at 2300 Berkshire
Lane ("Building") in Plymouth, Minnesota, as legally described on Exhibit B
attached hereto, it being the agreement of the parties that the Landlord shall
be entitled to retain possession of approximately 3,000 square feet of space in
the area cross-hatched on Exhibit A, without reduction of Base Rent and that
such 3,000 square feet retained by Landlord shall not be included within the
definition of "Premises." The improvements to the Premises shall consist of the
Demolition and Replacement Specifications attached hereto as Exhibit C to be
completed at the expense of Landlord; and the Schedule of Additional Leasehold
Improvements attached hereto as Exhibit D which shall detail the improvements,
if any, to be installed at the expense of Tenant.
1.3 TERM. Subject to and upon the conditions set forth herein, Landlord's
acquisition of the Building shall be a condition of this Lease and the term of
this Lease shall commence on the date of Landlord's work (the "Commencement
Date") and shall terminate thirty-six (36) full calendar months thereafter on
__________________, 19__, unless sooner terminated as hereinafter provided.
1.4 BASE RENT. Base rent is $640,000 per year, payable $53,500.00 per
month.
Month Monthly Base Rent
1.5 ADDRESSES.
Landlord's Address: Tenant's Building Address:
13400 15th Ave North ___________________________
<PAGE> 2
Suite F ________________________
Plymouth, MN 55441 ________________________
Copies of notice, shall be sent to:
If to Landlord: If to Tenant:
Robins, Kaplan, Miller & Ciresi ________________________
2800 LaSalle Plaza ________________________
800 LaSalle Avenue ________________________
Minneapolis, Minnesota 55402 ________________________
Attn: Steven A. Schumeister ________________________
1.6 PERMITTED USE: Office and Warehouse
ARTICLE 2. RENT
2.1 BASE RENT. Tenant agrees to pay monthly as base rent during the term of
this Lease the sum of money set forth in Section 1.4 of this Lease, which amount
shall be payable to Landlord at the address shown above. $100,000.00 in Base
Rent shall be due and payable on the date of execution of this Lease by Tenant,
$220,000.00 shall be due and payable on the Commencement Date, and $53,500.00
per month on the first day of the seventh (7th) month and a like monthly
installment shall be due and payable on or before the first day of each calendar
month thereafter. Tenant shall pay, as additional rent, all other sums due under
this Lease. Notwithstanding anything in this Lease to the contrary, if Landlord,
for any reason whatsoever (other than Tenant's default), cannot deliver
possession of the Premises to the Tenant within seventy (70) days following the
Commencement Date, beginning on the 71st day following the Commencement Date,
Landlord shall pay to Tenant liquidated damages in the amount of $1,000.00 per
day provided that the total amount to be paid by Landlord to Tenant under this
provision shall not exceed $50,000.00. If, upon 180 days following the
Commencement Date, Landlord cannot deliver possession of the Premises to Tenant,
Tenant shall have the right and option to terminate this Lease upon written
notice to Landlord. All base rent, additional rent and other sums payable by
Tenant pursuant to this Lease are payable without demand and without any
reduction, abatement, counterclaims or setoff.
2.2 LATE PAYMENT CHARGE. If the monthly rental payment or any other payment
due from Tenant to Landlord is not received by Landlord on or before the due
date thereof, Landlord shall be entitled to exercise any remedy for nonpayment
provided in this Lease and, in addition, if such payment is not received on or
before ten (10) days after the due date, a late payment charge of five percent
(5%) of such past due amount shall become due and payable by Tenant in addition
to such amounts owed under this Lease.
2.3 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Landlord for the Building is caused by Tenant's use of the
Premises or if
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Tenant vacates the Premises and causes an increase in such premiums, then Tenant
shall pay as additional rent the amount of such increase to Landlord.
2.4 HOLDING OVER. In the event that Tenant does not vacate the Premises
upon the expiration or termination of this Lease, Tenant shall be a tenant at
will for the holdover period and all of the terms and provisions of this Lease
shall be applicable during that period, except that Tenant shall pay Landlord as
base rental for the period of such holdover an amount equal to one and one-half
(1.5) times the base rent which would have been payable by Tenant had the
holdover period been a part of the original term of this Lease, together with
all additional rent as provided in this Lease. During any such holdover period,
Tenant agrees to vacate and deliver the Premises to Landlord upon Tenant's
receipt of notice from Landlord to vacate. The rental payable during the
holdover period shall be payable to Landlord on demand. No holding over by
Tenant, whether with or without the consent of Landlord, shall operate to extend
the term of this Lease.
ARTICLE 3. OCCUPANCY AND USE
3.1 USE. Tenant warrants and represents to Landlord that the Premises shall
be used and occupied only for the purpose as set forth in Section 1.6. Tenant
shall occupy the Premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful, reputable and
will not create a nuisance. Tenant shall neither permit any waste on the
Premises nor allow the Premises to be used in any way which would, in the
opinion of Landlord, be extra hazardous on account of fire or which would in any
way increase or render void the fire insurance on the Building.
3.2 SIGNS. No sign of any type or description shall be erected, placed or
painted in or about the Premises or project except those signs submitted to
landlord in writing and approved by Landlord in writing.
3.3 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's sole
cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the Premises. Landlord
shall have the right at all times to promulgate rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the Building or the Premises.
All changes and amendments to the rules and regulations of the Building will be
sent by Landlord to Tenant in writing and shall thereafter be carried out and
observed by Tenant.
3.4 WARRANTY OF POSSESSION. Landlord warrants that it is the legal owner or
tenant of the Building and the real estate upon which it is located and it has
the right and authority to execute this Lease, and Tenant, upon payment of the
required rents and subject to the terms, conditions, covenants and agreements
contained in this Lease, shall have possession of the Premises during the full
term of this Lease as well as any extension or renewal thereof. Landlord hereby
covenants and agrees that, as long as Tenant performs all of its obligations
under this Lease, Tenant shall have peaceful and quiet use and enjoyment of the
Premises
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without hinderance on the part of Landlord, and Landlord shall warrant and
defend Tenant in such peaceful and quiet use and enjoyment against the claims of
all persons claiming by, through or under Landlord. Landlord shall not be
responsible for the acts or omissions of any other lessee or third party that
may interfere with Tenant's use and enjoyment of the Premises.
3.5 RIGHT OF ACCESS. Landlord or its authorized agents shall at any and all
reasonable times, upon reasonable prior notice, have the right to enter the
Premises to inspect the same, to show the Premises to prospective purchasers or
lessees, and to repair the Premises or any other portion of the Building. Tenant
hereby waives any claim for damages for injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or use of the
Premises, and any other loss occasioned thereby. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and about
the Premises. Tenant shall not change Landlord's lock system or in any other
manner prohibit Landlord from entering the Premises. Landlord shall have the
right to use any and all means which Landlord may deem proper to open any door
in an emergency without liability therefor. Tenant shall permit Landlord to
erect, use, maintain and repair pipes, cables, conduits, plumbing vents and
wires in, to and through the Premises as often and to the extent that Landlord
may now or hereafter deem to be necessary or appropriate for the proper use,
operation and maintenance of the Building.
3.6 ACCEPTANCE. The commencement by Tenant of any business in the Premises
shall constitute an acknowledgement that the Premises are in the condition
called for in this Lease and that Landlord has performed all of Landlord's work;
provided, however, Tenant may provide to Landlord within thirty (30) days
following Tenant's occupation of the Premises, a punch list of items within the
scope of Landlord's work and improvements listed on Exhibit C, to be completed
by Landlord.
ARTICLE 4. UTILITIES AND SERVICE
4.1 BUILDING SERVICES. Tenant shall pay when due, all charges for utilities
furnished to or for the use or benefit of Tenant or the Premises; provided that
in the event that a defect in the Building mechanical systems results in the
imposition of an extraordinary utility expense (as compared to expenses for
comparable type, size and age of buildings), Landlord shall use reasonable
efforts to remedy such defect. Tenant shall have no claim for rebate of rent on
account of any interruption in utility service.
4.2 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for losses to
Tenant's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Premises or the Building.
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ARTICLE 5. REPAIRS AND MAINTENANCE
5.1 LANDLORD REPAIRS. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Premises
or the Building during the term of this Lease except as are set forth in this
Lease. Landlord shall maintain only the roof, foundation, parking and the
structural soundness of the Building, and Landlord shall provide and maintain
all utilities serving the Building, including electrical wiring and plumbing, up
to the exterior of the Building. Landlord shall not be liable to Tenant, except
as expressly provided in this Lease, for any damage or inconvenience, and Tenant
shall not be entitled to any abatement or reduction of rent by reason of any
repairs, alterations or additions made by Landlord under this Lease.
5.2 TENANT REPAIRS. Tenant shall, at all times throughout the term of this
Lease, including renewals and extensions and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary condition and in compliance
with all applicable laws, codes, ordinances, rules and regulations. Landlord
shall install new replacement heating, ventilation and air conditioning
equipment and shall assign all warranties to Tenant. Tenant's obligations
hereunder shall include, but not be limited to, the maintenance, repair and
replacement, if necessary, of all heating, ventilation, air conditioning,
lighting and plumbing fixtures and equipment, fixtures, motors and machinery,
all interior walls, partitions, doors and windows, including the regular
painting thereof, all exterior entrances, windows, doors and locks and the
replacement of all broken glass. When used in this provision, the term "repairs"
shall include replacements or renewals when necessary, and all such repairs made
by the Tenant shall be equal in quality and class to the original work. The
Tenant shall keep and maintain all portions of the Premises and the sidewalk and
areas adjoining the same in a clean and orderly condition, free of accumulation
of dirt, rubbish, snow and ice. If Tenant fails, refuses or neglects to maintain
or repair the Premises as required in this Lease after notice shall have been
given Tenant, in accordance with this Lease, Landlord may make such repairs
without liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures or other property or to Tenant's business by reason
thereof, and upon completion thereof, Tenant shall pay to Landlord all costs
plus ten percent (10%) for overhead incurred by Landlord in making such repairs
upon presentation to Tenant of bill therefor.
5.3 TENANT DAMAGES. Tenant shall not allow any damage to be committed on
any portion of the Premises or Building or common areas, and at the termination
of this Lease, by lapse of time or otherwise, Tenant shall deliver the Premises
to Landlord in as good condition as existed at the Commencement Date of this
Lease, ordinary wear and tear excepted. The cost and expense of any repairs
necessary to restore the condition of the Premises to the condition required
under this Section 5.3 shall be borne by Tenant.
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ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 LANDLORD IMPROVEMENTS. If construction to the Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance with
plans and specifications agreed to by Landlord and Tenant, which plans and
specifications are made a part of this Lease by reference. Within seven (7) days
of receipt of plans and specifications, Tenant shall execute a copy of the plans
and specifications and, if applicable, change orders setting forth the amount of
any costs to be borne by Tenant. Any changes or modifications to the approved
plans and specifications shall be made and accepted by written change order or
agreement signed by Landlord and Tenant and shall constitute an amendment to
this Lease.
6.2 TENANT IMPROVEMENTS. Tenant shall not make or allow to be made any
alterations or physical additions in or to the Premises without first obtaining
the written consent of Landlord, which consent may in the sole and absolute
discretion of Landlord be denied. Any alterations, physical additions or
improvements to the Premises made by Tenant shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination of this
Lease; provided, however, Landlord, at its option, may require Tenant to remove
any physical additions and/or repair any alterations in order to restore the
Premises to the condition existing at the time Tenant took possession, all costs
of removal and/or alterations to be borne by Tenant. This clause shall not apply
to moveable equipment, trade fixtures or furniture owned by Tenant, which may be
removed by Tenant at the end of the term of this Lease if Tenant is not then in
default and if such equipment, trade fixtures and furniture are not then subject
to any other rights, liens and interests of Landlord.
ARTICLE 7. CASUALTY AND INSURANCE
7.1 SUBSTANTIAL DESTRUCTION. If all or a substantial portion of the
Premises or the Building should be totally destroyed by fire or other casualty,
or if the Premises or the Building should be damaged so that rebuilding cannot
reasonably be completed within one hundred eighty (180) working days after the
date of notification to Landlord of the destruction, or if insurance proceeds
are not made available to Landlord, or are inadequate for restoration, this
Lease shall terminate at the option of Landlord by written notice to Tenant
within sixty (60) days following the occurrence, and the rent shall be abated
for the unexpired portion of the Lease, effective as of the date of the written
notification. If Landlord does not terminate the Lease under this Section 7.1,
Landlord shall promptly commence restoration of the Premises; if such
restoration is not completed within one hundred eighty (180) days following the
date of damage or destruction, the Tenant shall have the right and option to
terminate this Lease upon written notice to Landlord prior to substantial
completion of such restoration.
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7.2 PARTIAL DESTRUCTION. If the Premises should be partially damaged by
fire or other casualty, and rebuilding or repairs can reasonably be completed
within one hundred eighty (180) working days from the date of notification to
Landlord of the destruction, and insurance proceeds are adequate and available
to Landlord for restoration, this Lease shall not terminate, and Landlord shall
at its sole risk and expense proceed with reasonable diligence to rebuild or
repair the Building or other improvements to substantially the same condition in
which they existed prior to the damage. If the Premises are to be rebuilt or
repaired and are untenantable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by act or negligence of
Tenant, its agents, employees, invitees or those for whom Tenant is responsible,
the rent payable under this Lease during the period for which the Premises are
untenantable shall be adjusted to such an extent as may be fair and reasonable
under the circumstances. In the event that Landlord fails to complete the
necessary repairs or rebuilding within one hundred eighty (180) working days
from the date of written notification by Tenant to Landlord of the destruction,
Tenant may at its option terminate this Lease by delivering written notice of
termination to Landlord, whereupon all rights and obligations under this Lease
shall cease to exist.
7.3 PROPERTY INSURANCE. Landlord shall not be obligated in any way or
manner to insure any personal property (including, but not limited to, any
furniture, machinery, goods or supplies) of Tenant upon or within the Premises,
any fixtures installed or paid for by Tenant upon or within the Premises, or any
improvements which Tenant may construct on the Premises. Tenant shall maintain
property insurance on its personal property and shall also maintain plate glass
insurance. Tenant shall have no right in or claim to the proceeds of any policy
of insurance maintained by Landlord even if the cost of such insurance is borne
by Tenant as set forth in Article 2.
7.4 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Premises, the improvements of the Building or personal property
within the Building, by reason of fire or the elements, regardless of cause or
origin, including negligence of Landlord or Tenant and their agents, officers
and employees. Landlord and Tenant agree immediately to give their respective
insurance companies which have issued policies of insurance covering all risk of
direct physical loss, written notice of the terms of the mutual Waivers
contained in this Section.
7.5 HOLD HARMLESS. Landlord shall not be liable to Tenant's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the Premises caused by any act or
omission of Tenant, its agents, servants or employees, or of any other person
entering upon the Premises under express or implied invitation by Tenant, or
caused by the improvements located on the Premises becoming out of repair, the
failure or cessation of any service provided by Landlord (including security
service and devices), or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises, Tenant agrees to indemnify and hold
harmless Landlord of and from any loss, attorney's fees, expenses or claims
arising out of any such damage or injury.
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7.6 PUBLIC LIABILITY INSURANCE. Tenant shall during the term hereof keep in
full force and effect at its expense a policy or policies of public liability
insurance with respect to the Premises and the business of Tenant, on terms and
with companies approved in writing by Landlord, in which both Tenant and
Landlord shall be covered by being named as insured parties under reasonable
limits of liability not less than $5,000,000, combined single limit coverage for
injury or death. Such policy or policies shall provide that thirty (30) days'
written notice must be given to Landlord prior to cancellation thereof. Tenant
shall furnish evidence satisfactory to Landlord at the time this Lease is
executed that such coverage is in full force and effect.
ARTICLE 8. CONDEMNATION
8.1 SUBSTANTIAL TAKING. If all, or a part of the building and, of the
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would in Tenant's reasonable business judgment
prevent or materially interfere with the use of the Premises for the purpose for
which it is then being used, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease effective on the date physical
possession is taken by the condemnating authority. Tenant shall have no claim to
the condemnation award or proceeds in lieu thereof, except that Tenant shall be
entitled to a separate award for the cost of removing and moving its personal
property.
8.2 PARTIAL TAKING. If a portion of the Premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by purchase in lieu thereof, and this Lease is
not terminated as provided in Section 8.1 above, the rent payable under this
Lease during the unexpired portion of the term shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. Tenant shall have
no claim to the condemnation award or proceeds in lieu thereof, except that
Tenant shall be entitled to a separate award for the cost of removing and moving
its personal property.
ARTICLE 9. ASSIGNMENT OR SUBLEASE
9.1 LANDLORD ASSIGNMENT. Landlord shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the Building. Any such sale, transfer or assignment shall operate to release
Landlord from any and all Liabilities under this Lease accruing after the date
of such sale, assignment or transfer.
9.2 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises, in whole or in part, without the prior written
consent of Landlord, and in no event shall say such assignment or sublease ever
release Tenant or any guarantor from any obligation or liability hereunder.
Notwithstanding
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anything in this Lease to the contrary, in the event of any assignment or
sublease, any option or right of first refusal granted to Tenant shall not be
assignable by Tenant to any assignee or sublessee. No assignee or sublessee of
the Premises or any portion thereof may assign or sublet the Premises or any
portion thereof.
9.3 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all or
any part of the Premises, it shall so notify Landlord at least thirty (30) days
in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease and such information as Landlord might request concerning the
proposed assignee or sublessee to allow Landlord to make informed judgment, as
to the financial condition, reputation, operations and general desirability of
the proposed assignee or sublessee. Within fifteen (15) days after Landlord's
receipt of Tenant's proposed assignment or sublease and all required information
concerning the proposed assignee or sublessee, Landlord shall have the following
options: (1) cancel this Lease as to the Premises or portion thereof proposed to
be assigned or sublet; (2) consent to the proposed assignment or sublease, and
if the rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) net of Tenant's out-of-pocket expenses in procuring
the proposed assignment or sublease exceeds the rent payable under this Lease
for such space, Tenant shall pay to Landlord all such excess rent and other
excess consideration within ten (10) days following receipt thereof by Tenant;
or (3) refuse, in its sole and absolute discretion and judgment, to consent to
the proposed assignment or sublease. Which refusal shall be deemed to have been
exercised unless Landlord gives Tenant written notice providing otherwise. Upon
the occurrence of an event of default, if all or any part of the Premises are
then assigned our sublet, Landlord, in addition to any other remedies provided
by this Lease or provided by law, may, at its option, collect directly from the
assignee or sublessee all rents becoming due to Tenant by reason of the
assignment or sublease, and Landlord shall have a security interest in all
properties on the Premises to secure payment of such sums. Any collection
directly by Landlord from the assignee or sublessee shall not be construed to
constitute a novation or a release of Tenant or any guarantor from the further
performance of its obligations under this Lease.
9.4 RIGHTS OF MORTGAGE. Tenant accepts this Lease subject and subordinate
to any recorded mortgage presently existing or hereafter created upon the
Building and to all existing recorded restrictions, covenants, easements and
agreements with respect to the Building. Landlord is hereby irrevocably vested
with full power and authority to subordinate Tenant's interest under this Lease
to any first mortgage lien hereafter placed on the Premises, and Tenant agrees
upon demand to execute additional instruments subordinating this Lease as
Landlord may require. If the interests of Landlord under this Lease shall be
transferred by reason of foreclosure or other proceedings for enforcement of any
first mortgage or deed of trust on the Premises, Tenant shall be bound to the
transferee (sometimes called the "Purchaser") at the option of the Purchaser,
under the terms, covenants and conditions of this Lease for the balance of the
term remaining, including any extensions or renewals, with the same force and
effect as if the Purchaser were Landlord under this Lease, and, if requested by
the Purchaser, Tenant agrees to attorn to the Purchaser, including the first
mortgagee under any such mortgage if it
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be the Purchaser, as its Landlord. Notwithstanding the foregoing, Tenant shall
not be disturbed in its possession of the Premises so long as Tenant is not in
default hereunder.
9.5 TENANT STATEMENT. Tenant agrees to furnish, from time to time, within
ten (10) days after receipt of a request from Landlord or Landlord's mortgagee,
a statement certifying, if applicable, the following: Tenant is in possession of
the Premises; the Premises are acceptable; the Lease is in full force and
effect; the Lease is unmodified; Tenant claims no present charge, lien, or claim
of offset against rent; the rent is paid for the current month, but is not
prepaid for more than one month and will not be prepaid for more than one month
in advance; there is no existing default by reason of some act or omission by
Landlord; and such other matters as may be reasonably required by Landlord or
Landlord's mortgagee. Tenant's failure to deliver such statement, in addition to
being a default under this Lease, shall be deemed to establish conclusively that
this Lease is in full force and effect except as declared by Landlord, that
Landlord is not in default of any of its obligations under this Lease, and that
Landlord has not received more than one month's rent in advance. Tenant agrees
to furnish, from time to time, within ten (10) days after receipt of a request
from Landlord, a current financial statement of Tenant, certified as true and
correct by Tenant.
ARTICLE 10. DEFAULT AND REMEDIES
10.1 DEFAULT BY TENANT. The following shall be deemed to be events of
default ("Default") by Tenant under this Lease: (1) Tenant shall fail to pay
when due any installment of rent or any other payment required pursuant to this
Lease and the failure is not cured within five (5) days after written notice to
Tenant; (2) Tenant shall abandon any substantial portion of the Premises; (3)
Tenant shall fail to comply with any term, provision or covenant of this Lease,
other than the payment of rent, and the failure is not cured within thirty (30)
days after written notice to Tenant; (4) Tenant shall file a petition or if an
involuntary petition is filed against Tenant, and not dismissed within sixty
(60) days or becomes insolvent, under any applicable federal or state bankruptcy
or insolvency law or admit that it cannot meet its financial obligations as they
become due; or a receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant; or Tenant shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors; or (5)
Tenant shall do or permit to be done any act which results in a lien being filed
against the Premises or the Building and/or project of which the Premises are a
part, which lien is not removed within fifteen (15) days after written notice to
Tenant.
In the event that an order for relief is entered in any case under Title
11, U.S.C. (the "Bankruptcy Code") in which Tenant is the debtor and: (A) Tenant
as debtor-in-possession, or any trustee who may be appointed in the case (the
"Trustee") seeks to assume the Lease, then Tenant, or Trustee if applicable, in
addition to providing adequate assurance described in applicable provisions of
the Bankruptcy Code shall provide adequate assurance to Landlord of Tenant's
future performance under the Lease by depositing with Landlord a sum equal to
the lesser of twenty-five percent (25%) of the rental and other charges due for
the balance of the Lease term of six (6) months' rent ("Security"), to be held
(without any allowance for interest thereon) to secure Tenant's obligations
under the Lease, and (B) Tenant, or Trustee if applicable, seeks to assign the
Lease after assumption of the same, then Tenant, in addition to
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providing adequate assurance described in applicable provisions of the
Bankruptcy Code, shall provide adequate assurance to Landlord of the proposed
assignee's future performance under the Lease by depositing with Landlord a sum
equal to the Security to be paid (without any allowance or interest thereon) to
secure performance under the Lease. Nothing contained herein expresses or
implies, or shall be construed to express or imply, that Landlord is consenting
to assumption and/or assignment of the Lease by Tenant, and Landlord expressly
reserves all of its rights to object to any assumption and/or assignment of the
Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of any
"fire," bankruptcy," "going out of business" or auction sale in or from the
Premises.
10.2 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of a Default as
defined above Landlord may elect either (i) to cancel and terminate this Lease
and this Lease shall not be treated as an asset of Tenant's bankruptcy estate,
or (ii) to terminate Tenant's right to possession only without cancelling and
terminating Tenant's continued liability under this Lease. Notwithstanding the
fact that initially Landlord elects under (ii) to terminate Tenant's right to
possession only, Landlord shall have the continuing right to cancel and
terminate this Lease by giving three (3) days' written notice to Tenant of such
further election, and shall have the right to pursue any remedy at law or in
equity that may be available to Landlord.
In the event of election under (ii) to terminate Tenant's right to
possession only, Landlord may, at Landlord's option, enter into the Premises and
take and hold possession thereof, without such entry into possession terminating
this Lease or releasing Tenant in whole or in part from Tenant's obligation to
pay all amounts hereunder for the full stated term. Upon such reentry, Landlord
may remove all persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant, without becoming liable for any loss or damage which may be
occasioned thereby. Such reentry shall be conducted in the following manner:
without resort to judicial process or notice of any kind if Tenant has abandoned
or voluntarily surrendered possession of the Premises; and, otherwise, by resort
to judicial process. Upon and after entry into possession without termination of
the Lease, Landlord may, but is not obligated to, relet the Premises, or any
part thereof, to any one other than the Tenant, for such time and upon such
terms as Landlord, in Landlord's sole discretion, shall determine. Landlord may
make alterations and repairs to the Premises to the extent deemed by Landlord
necessary or desirable.
Upon such reentry, Tenant shall be liable to Landlord as follows:
A. For all reasonable attorneys' fees incurred by Landlord in connection
with exercising any remedy hereunder.
B. For the unpaid installments of base rent, additional rent or other
unpaid sums which were due prior to such reentry, including interest and late
payment fees, which sums shall be payable immediately.
C. For the installments of base rent, additional rent, and other sums
falling due pursuant to the provisions of this Lease for the period after
reentry during which the
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Premises remain vacant, including late payment charges and interest, which sums
shall be payable as they become due hereunder.
D. For all expenses incurred in releasing the Premises, including leasing
commissions, reasonable attorneys' fees, and costs of alteration and repairs,
which shall be payable by Tenant as they are incurred by Landlord; and
E. While the Premises are subject to any new lease or leases made pursuant
to this Section, for the amount by which the monthly installments payable under
such new lease or leases is less than the monthly installment for all charges
payable pursuant to this Lease, which deficiencies shall be payable monthly.
Notwithstanding Landlord's election to terminate Tenant's right to
possession only, and notwithstanding any reletting without termination,
Landlord, at any time thereafter, may elect to terminate this Lease, and to
recover (in lieu of the amounts which would thereafter be payable pursuant to
the foregoing, but not in diminution of the amounts payable as provided above
before termination), as damages for loss of bargain and not as a penalty, an
aggregate sum equal to the amount by which the rental value of the portion of
the term unexpired at the time of such election is less than an amount equal to
the unpaid base rent, percentage rent, and additional rent and all other charges
which would have been payable by Tenant for the unexpired portion of the term of
this Lease, which deficiency and all expenses incident thereto, including
commissions, attorneys' fees, expenses of alterations and repairs, shall be due
to Landlord as of the time Landlord exercises said election, notwithstanding
that the term had not expired.
If this Lease shall be terminated by reason of the bankruptcy or insolvency
of Tenant, Landlord shall be entitled to recover from Tenant or Tenant's estate,
as liquidated damages for loss of bargain and not as a penalty, the amount
determined by the immediately preceding paragraph.
10.3 LANDLORD'S FLIGHT TO PERFORM FOR ACCOUNT OF TENANT. If Tenant shall be
in Default under this Lease, Landlord may cure the Default at any time for the
account and at the expense of Tenant. If Landlord cures a Default on the part of
Tenant, Tenant shall reimburse Landlord upon demand for any amount expended by
Landlord in connection with the cure, including, without limitation, reasonable
attorney's fees and interest.
10.4 INTEREST AND ATTORNEY'S FEES. In the event of a Default by Tenant: if
a monetary default, interest shall accrue on any sum due and unpaid at the rate
of the lesser of fifteen percent (15%) per annum or the highest rate permitted
by law and, if Landlord places in the hands of an attorney the enforcement of
all or any part of this Lease, the collection of any rent due or to become due
or recovery of the possession of the Premises, Tenant agrees to pay Landlord's
costs of collection, including reasonable attorney's fees for the services of
the attorney, whether suit is actually filed or not.
- 12 -
<PAGE> 13
10.5 ADDITIONAL REMEDIES, WAIVERS, ETC.
A. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereafter provided by law, all
rights and remedies shall be cumulative and not exclusive of each other.
Landlord may exercise its rights and remedies at any time, in any order, to any
extent, and as often as Landlord deems advisable without regard to whether the
exercise of one right or remedy precedes, concurs with or succeeds the exercise
of another.
B. A single or partial exercise of a right or remedy shall not preclude a
further exercise thereof, or the exercise of another right or remedy from time
to time.
C. No delay or omission by Landlord in exercising a right or remedy shall
exhaust or impair the same or constitute a waiver of, or acquiesce to, a
Default.
D. No waiver of a Default shall extend to or affect any other Default or
impair any right of remedy with respect thereto.
E. No inaction by Landlord shall constitute a waiver of a Default.
F. No waiver of a Default shall be effective unless it is in writing and
signed by Landlord.
ARTICLE 11. AMENDMENT AND LIMITATION OF WARRANTIES
11.1 ENTIRE AGREEMENT. It is expressly agreed by Tenant, as a material
consideration for the execution of this Lease, that this Lease, with the
specific references to written extrinsic documents, is the entire agreement of
the parties; that there are, and were no verbal representations, warranties,
understandings, stipulations, agreements or promises pertaining to this Lease or
to the expressly mentioned written extrinsic documents not incorporated in
writing in this Lease.
11.2 AMENDMENT. This Lease may not be altered, waived, amended or extended
except by an instrument in writing signed by Landlord and Tenant.
11.3 LIMITATION OF WARRANTIES. Landlord and Tenant expressly agree that
there are and shall be no implied warranties of merchantability, habitability,
fitness for a particular purpose or of any other kind arising out of this Lease,
and there are no warranties which extend beyond those expressly set forth in
this Lease.
- 13 -
<PAGE> 14
ARTICLE 12. MISCELLANEOUS
12.1 ACT OF GOD. Landlord and Tenant, except as to the payment of Rent and
other sums due under this Lease, shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to the other party so long
as the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by an act of God, force majeure.
12.2 SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure to
the benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Landlord's interest in the Premises cease to exist for any reason during
the term of this Lease, then notwithstanding the happening of such event this
Lease nevertheless shall remain unimpaired and in full force and effect, and
Tenant hereunder agrees to attorn to the then owner of the Premises.
12.3 RENT TAX. If applicable in the jurisdiction where the Premises are
issued, Tenant shall pay and be liable for all rental, sales and use taxes or
other similar taxes. If any such tax is located, levied or imposed by any city,
state, county or other governmental body having authority, such payments shall
be in addition to all other payments required to be paid to Landlord under the
terms of this Lease. Any such payment shall be paid concurrently with the
payment of the rent, additional rent, operating expenses or other charge upon
which the tax is based as set forth above.
12.4 CAPTIONS. The captions appearing in this Lease are intended only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any Section.
12.5 NOTICE. All rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth in Section 1.5. All
payments required to be made by Landlord to Tenant shall be payable to Tenant at
the address set forth in Section 1.5, or at any other address within the United
States as Tenant may specify from time to time by written notice. Any notice or
document required or permitted to be delivered by the terms of this Lease shall
be deemed to be delivered (whether or not actually received) when deposited in
the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the parties at the respective addresses set forth in
Section 1.5.
12.6 SUBMISSION OF LEASE. Submission of this Lease to Tenant for signature
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by and delivery to both Landlord and Tenant.
12.7 CORPORATE AUTHORITY. If Tenant executes this Lease as a corporation,
Tenant does hereby represent and warrant that Tenant is a duly authorized and
existing corporation, that Tenant is qualified to do business in the state in
which the Premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation is authorized to do so.
- 14 -
<PAGE> 15
12.8 HAZARDOUS SUBSTANCES. Tenant shall not bring or, after having brought
to the Premises, permit to remain on the Premises or the Building, any asbestos,
petroleum or petroleum products, explosives, toxic materials, or substances
defined as hazardous wastes, hazardous materials, or hazardous substances under
any federal, state, or local law or regulation ("Hazardous Materials"). Tenant's
violation of the foregoing prohibition shall constitute a material breach and
default hereunder and Tenant shall indemnify, hold harmless and defend Landlord
from and against any claims, damages, penalties, liabilities, and costs
(including reasonable attorney fees and court costs) caused by or arising out of
(i) a violation of the foregoing prohibition or (ii) the presence or any release
of any Hazardous Materials on, under, or about the Premises or the Building
during the term of the Lease; provided, however, that Tenant shall not be deemed
in violation of the foregoing nor required to indemnify Landlord with respect to
the Hazardous Materials in existence at the Premises on the date hereof, except
to the extent damage, injury, loss or disturbance is caused by Tenant, its
agents, contractors or employees. Tenant shall clean up, remove, remediate and
repair any soil or ground water contamination and damage caused by the presence
and any release of any Hazardous Materials in, on, under, or about the Premises
or the Building during the term of the Lease in conformance with the
requirements of applicable law. Tenant shall immediately give Landlord written
notice of any suspected breach of this paragraph, upon learning of the presence
of any release of any Hazardous Materials, and upon receiving any notices from
governmental agencies pertaining to Hazardous Materials, which may affect the
Premises or the Building. The obligations of Tenant hereunder shall survive the
expiration or earlier termination, for any reason, of this Lease.
12.9 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be declared invalid or
unenforceable to any extent, the remainder of this Lease and the application of
such provisions to other persons or Circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
12.10 LANDLORD'S LIABILITY. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against the Landlord, such judgment shall be satisfied only out of the
right, title and interest of Landlord in the Building and other property of the
Landlord located therein or used exclusively in connection therewith, as the
same may then be encumbered and neither Landlord nor any person or entity
comprising Landlord be liable for any deficiency. In no event shall Tenant have
the right to levy execution against any property of Landlord nor any person or
entity comprising Landlord other than its interest in the Building and such
other property as herein expressly provided.
12.11 BROKERAGE. Landlord and Tenant each represents and warrants to the
other that there is no obligation to pay any brokerage fee, commission, finder's
fee or other similar charge in connection with this Lease, other than fees due
to ______, which are the responsibility of _______. Each party covenants that it
will defend, indemnify and hold harmless the other party from any injury, loss
or liability by reason of brokerage or similar services alleged to have been
rendered to it at the instance of, or agreed upon by said indemnifying party.
Notwithstanding anything herein to the contrary, Landlord and Tenant agree
- 15 -
<PAGE> 16
that there shall be no brokerage fee or commission due on expansions, options or
renewals by Tenant.
12.12 EXHIBITS. Reference is made to the following Exhibits which are
attached hereto and made a part hereof.
A Plan of Demised Premises
B Legal Description
C Specifications
D Schedule of Additional Leasehold Improvements
ARTICLE 13. SIGNATURES
SIGNED effective the day and year first above written:
LANDLORD TENANT
Plymouth 2200 LLP GT Interactive Software
By:/s/ BRAD HOYT By: /s/ CHARLES F. BOND
---------------------------- -------------------------
Its: Partner Its: President
(Type Name and Title) (Type Name and Title)
- 16 -
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<PERIOD-START> JAN-01-1996
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