<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED
JUNE 30, 1996 OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM _________________
TO _________________
COMMISSION FILE NUMBER: 0-13994
-------
Computer Network Technology Corporation
---------------------------------------
(Exact name of registrant as specified in its charter)
Minnesota 41-1356476
--------- ---------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
605 North Highway 169, Suite 800, Minneapolis, Minnesota 55441
-------------------------------------------------------- --------------
(Address of principal executive offices) (Zip Code)
Telephone Number: (612) 797-6000
-------------------------------------------
(Registrant's telephone number, including area code)
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 the filing
requirements for at least the past 90 days. Yes X No
--- ---
As of July 30, 1996, the registrant had 23,343,536 shares of $.01 par value
common stock issued and outstanding.
================================================================================
<PAGE>
COMPUTER NETWORK TECHNOLOGY CORPORATION
INDEX
-----
<TABLE>
<CAPTION>
<S> <C>
PART I. FINANCIAL INFORMATION Page
----
<C>
Item 1. Financial Statements
Consolidated Balance Sheets as of June 30, 1996 and
December 31, 1995.............................................3
Consolidated Statements of Income for the three and six months
ended June 30, 1996 and 1995..................................4
Consolidated Statements of Cash Flows for the six months
ended June 30, 1996 and 1995..................................5
Notes to Consolidated Financial Statements.....................6
Item 2. Management's Discussion and Analysis of
Results of Operations.........................................8
Financial Condition..........................................12
PART II. OTHER INFORMATION.............................................14
Item 4. Submission of matters to a vote of Security Holders
Item 5. None
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES...................................................................19
</TABLE>
<PAGE>
COMPUTER NETWORK TECHNOLOGY CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30 December 31
1996 1995
------------- -------------
<S> <C> <C>
ASSETS (UNAUDITED)
Current assets:
Cash and cash equivalents $ 11,540,347 $ 5,959,931
Marketable securities 22,170,195 22,448,987
Receivables, net 21,452,578 18,545,363
Inventories 10,386,240 10,534,152
Deferred tax asset 2,559,000 2,559,000
Other current assets 483,910 1,477,568
------------- -------------
Total current assets 68,592,270 61,525,001
------------- -------------
Property and equipment, net 8,262,054 8,598,666
Field support spares, net 3,763,743 4,406,225
Purchased technology, net 3,194,575 3,534,849
Goodwill, net 686,533 722,167
Other assets 462,402 347,209
------------- -------------
$ 84,961,577 $ 79,134,117
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 3,935,052 $ 2,578,188
Accrued liabilities 6,225,514 7,410,409
Deferred revenue 10,190,885 7,254,446
------------- -------------
Total current liabilities 20,351,451 17,243,043
------------- -------------
Deferred tax liability 1,385,000 1,385,000
------------- -------------
Total liabilities 21,736,451 18,628,043
------------- -------------
Shareholders' equity:
Preferred stock, authorized 1,000,000 shares;
none issued and outstanding - -
Common stock, $.01 par value; authorized
30,000,000 shares, issued and outstanding
23,312,161 at June 30, 1996 and
22,929,360 at December 31, 1995 233,122 229,294
Additional paid-in capital 59,743,768 58,150,984
Retained earnings 3,565,916 2,365,812
Cumulative translation adjustment (317,680) (240,016)
------------- -------------
Total shareholders' equity 63,225,126 60,506,074
------------- -------------
$ 84,961,577 $ 79,134,117
============= =============
</TABLE>
See accompanying notes to financial statements
3
<PAGE>
COMPUTER NETWORK TECHNOLOGY CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30 June 30
------------------------------- -----------------------------
1996 1995 1996 1995
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
REVENUE:
Product sales $ 19,972,393 $ 17,388,784 $ 37,334,710 $ 31,972,297
Service fees 5,573,652 4,387,199 10,568,646 8,534,477
------------ ------------ ------------- ------------
Total revenue 25,546,045 21,775,983 47,903,356 40,506,774
------------ ------------ ------------- ------------
COST OF REVENUE:
Cost of product sales 7,327,900 4,895,689 13,395,051 8,989,341
Cost of service fees 4,174,854 3,419,654 8,163,076 6,872,251
------------ ------------ ------------- ------------
Total cost of revenue 11,502,754 8,315,343 21,558,127 15,861,592
------------ ------------ ------------- ------------
GROSS PROFIT 14,043,291 13,460,640 26,345,229 24,645,182
------------ ------------ ------------- ------------
OPERATING EXPENSES:
Sales and marketing 7,517,939 5,633,728 15,255,764 10,222,462
Engineering and development 3,200,660 2,830,504 6,357,038 5,573,738
General and administrative 2,047,658 1,553,597 3,833,117 2,926,315
------------ ------------ ------------- ------------
Total operating expenses 12,766,257 10,017,829 25,445,919 18,722,515
------------ ------------ ----------- ------------
INCOME FROM OPERATIONS 1,277,034 3,442,811 899,310 5,922,667
------------ ------------ ------------- ------------
OTHER INCOME (EXPENSE):
Interest income 453,491 435,565 845,400 779,265
Interest expense (6,938) (30,117) (16,620) (43,226)
Other, net 92,369 79,516 117,014 133,571
------------ ------------ ------------- ------------
Other income 538,922 484,964 945,794 869,610
------------ ------------ ------------- ------------
INCOME BEFORE INCOME TAXES 1,815,956 3,927,775 1,845,104 6,792,277
PROVISION FOR INCOME TAXES 635,000 1,494,000 645,000 2,611,000
------------ ------------ ------------- ------------
NET INCOME $ 1,180,956 $ 2,433,775 $ 1,200,104 $ 4,181,277
============ ============ ============= ============
NET INCOME PER COMMON AND
COMMON EQUIVALENT SHARE $ .05 $ .10 $ .05 $ .18
============ ============ ============= ============
WEIGHTED AVERAGE NUMBER
OF COMMON AND COMMON
EQUIVALENT SHARES 23,808,772 23,743,694 23,626,768 23,532,195
============ ============ ============= ============
</TABLE>
See accompanying notes to financial statements
4
<PAGE>
COMPUTER NETWORK TECHNOLOGY CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Six months ended June 30
----------------------------------
1996 1995
-------------- --------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 1,200,104 $ 4,181,277
Depreciation and amortization 4,042,741 3,957,008
Compensation expense 125,000 -
CHANGES IN OPERATING ASSETS AND
LIABILITIES
Receivables (2,907,215) 2,839,558
Inventories 147,912 (1,197,163)
Other current assets 993,658 353,251
Accounts payable 1,356,864 967,995
Accrued expenses (1,184,895) (2,395,873)
Deferred revenue 2,936,439 3,031,266
------------ -------------
Cash provided by operating activities 6,710,608 11,737,319
------------ -------------
INVESTING ACTIVITIES:
Additions to property and equipment (1,815,562) (1,433,713)
Additions to field support spares (872,177) (889,761)
Purchase (redemption) of marketable 278,792 (7,356,346)
securities
Other (115,193) (128,039)
------------ -------------
Cash used for investing activities (2,524,140) (9,807,859)
------------ -------------
FINANCING ACTIVITIES:
Proceeds from issuance of common stock 1,471,612 1,039,391
------------ -------------
Cash provided by financing activities 1,471,612 1,039,391
------------ -------------
Effects of exchange rate changes (77,664) 249,730
------------ -------------
NET INCREASE IN CASH
AND CASH EQUIVALENTS 5,580,416 3,218,581
CASH AND CASH EQUIVALENTS - BEGINNING
OF PERIOD 5,959,931 15,855,905
------------ -------------
CASH AND CASH EQUIVALENTS - END OF
PERIOD $ 11,540,347 $ 19,074,486
============ =============
</TABLE>
See accompanying notes to financial statements
5
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The accompanying consolidated financial statements, which are unaudited except
for the balance sheet as of December 31, 1995, have been prepared in accordance
with instructions to Form 10-Q and do not include all the information and notes
required by Generally Accepted Accounting Principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included. These consolidated financial statements should be read in conjunction
with the financial statements and accompanying notes included in the Company's
Annual Report on Form 10-K filed with the Securities and Exchange Commission.
(2) INVENTORIES
Inventories, stated at the lower of cost (first-in, first-out method) or market,
consist of:
<TABLE>
<CAPTION>
JUNE 30 December 31
1996 1995
----------- -----------
<S> <C> <C>
Components and subassemblies $ 3,899,152 $ 4,471,969
Work in process 1,343,547 1,498,588
Finished goods 5,143,541 4,563,595
----------- -----------
$10,386,240 $10,534,152
=========== ===========
</TABLE>
(3) COMMON STOCK EQUIVALENTS
For the three and six months ended June 30, 1996 and 1995, net income per common
and common equivalent share was determined by dividing net income by the
weighted average number of common and common equivalent shares outstanding
during the period. Common equivalent shares, primarily resulting from dilutive
stock options and warrants, were converted using the treasury stock method.
(4) COMMON EQUITY PUT OPTION
In connection with a severance agreement entered into with a former officer and
director during the fourth quarter of 1995, the Company had an obligation to
repurchase up to 280,000 shares of its common stock on the last trading day of
calendar year 1997 for a price of $8.50 per share (see notes to the consolidated
financial statements incorporated by reference to the Company's annual report on
Form 10-K for the fiscal year ended December 31, 1995).
During the second quarter of 1996, the former officer and director sold on the
open market 182,600 common shares which were subject to the repurchase
obligation. As a result, at June 30, 1996, the Company's remaining obligation
with respect to the common equity put option is for the potential repurchase of
up to 97,400 shares of its common stock.
6
<PAGE>
The obligation will expire if the former officer and director sells the
remaining shares on the open market prior to the last trading day of calendar
year 1997, or, subject to certain exceptions, if for any five consecutive
trading days prior to the last trading day of calendar year 1997, the closing
market price for the Company's common stock equals or exceeds $8.50 per share.
The Company will adjust compensation expense in future periods as the market
price of its common stock increases or decreases until such time as the Company
has no remaining obligation to repurchase stock from the former officer and
director. For the three and six months ended June 30, 1996, compensation expense
has been reduced by $672,000 and $987,000, respectively, due to the increase in
the market price of the Company's common stock, and termination of a portion of
the Company's obligation under the common equity put option.
7
<PAGE>
Item 2. Managements Discussion and Analysis of Financial Condition and Results
of Operations
RESULTS OF OPERATIONS
As an aid to understanding the Company's operating results, the following table
sets forth certain information derived from the Consolidated Statements of
Income of the Company. (All amounts are expressed as a percentage of total
revenue except gross profit which is expressed as a percentage of the related
revenue.)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30 June 30
----------------------- ---------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
REVENUE:
Product sales 78.2% 79.9% 77.9% 78.9%
Service fees 21.8 20.1 22.1 21.1
----- ----- ----- -----
Total revenue 100.0 100.0 100.0 100.0
----- ----- ----- -----
GROSS PROFIT:
Product sales 63.3 71.8 64.1 71.9
Service fees 25.1 22.1 22.8 19.5
----- ----- ----- -----
Total gross profit 54.9 61.8 55.0 60.8
----- ----- ----- -----
OPERATING EXPENSES:
Sales and marketing 29.4 25.9 31.8 25.2
Engineering and development 12.5 13.0 13.3 13.8
General and administrative 8.0 7.1 8.0 7.2
----- ----- ----- -----
Total operating expenses 49.9 46.0 53.1 46.2
----- ----- ----- -----
INCOME FROM OPERATIONS 5.0 15.8 1.9 14.6
Other income 2.1 2.2 2.0 2.1
----- ----- ----- -----
INCOME BEFORE INCOME TAXES 7.1 18.0 3.9 16.7
Provision for income taxes (2.5) (6.8) (1.4) (6.4)
----- ----- ----- -----
NET INCOME 4.6% 11.2% 2.5% 10.3%
===== ===== ===== =====
</TABLE>
REVENUE
The Company's revenue primarily includes the sale and support of its Channelink
products for the high performance networking market and licensing, sale and
support of its Brixton hardware and software products for the enterprise-wide
application access and interoperability market.
Revenue increased 17% and 18% for the three and six month periods ended June 30,
1996, respectively, when compared to the same periods of 1995. Revenue from the
Company's Channelink product line totaled $22.8 million and $41.9 million for
the three and six month periods ended June 30, 1996, respectively, increases of
22% and 23%, respectively, when compared to 1995. Revenue from the Company's
Brixton product line totaled $2.7 million and $5.9 million for the three and six
month periods ended June 30, 1996, which are comparable to 1995 revenue levels
from the Brixton product line.
8
<PAGE>
Revenue from product sales totaled $20.0 million and $37.3 million for the three
and six month periods ended June 30, 1996, respectively, increases of 15% and
17%, respectively, when compared to the same periods of 1995. The increase in
revenue from product sales primarily resulted from the sale of the Company's
channel connectivity controller to two new OEM customers. During the first
quarter of 1996, the Company entered into an agreement to provide its channel
connectivity controller to IBM. The agreement, which runs through the end of
1996, is expected to provide approximately $7 million of product and service
revenue to the Company. During the three and six month periods ended June 30,
1996, the Company recognized product and service revenue under this agreement of
approximately $3.2 million and $4.9 million, respectively.
Revenue from service fees, which primarily reflects contracted maintenance
services, increased 27% and 24% during the three and six months ended June 30,
1996, respectively, when compared to the same periods of 1995. This increase
primarily resulted from the growing installed base of customers using the
Company's Channelink and Brixton products.
The Company derived approximately 27% of its revenue from international
customers for both the three and six month periods ended June 30, 1996, as
compared to 24% and 28%, respectively, for the same periods of 1995. The
percentage of revenue derived from international customers for any given period
is subject to fluctuation because of the variable timing of sizable orders from
customers both internationally and in North America.
Throughout most of 1995, the Company attempted to use its existing Channelink
sales force to sell Brixton products. The Company has determined that this
approach diverted sales focus away from the Company's traditional Channelink
market and was not an effective approach for the sale of Brixton products. As a
result, the Company has hired additional sales and marketing personnel to focus
exclusively on market opportunities for Brixton products and services through
direct sales and alternate distribution channels. In addition, the Company has
hired additional pre-sales and post-sales systems engineers dedicated to the
support of the Brixton product line.
While the Company believes that the markets for traditional data center
consolidation applications for its Channelink products has matured, it believes
that additional network-based storage applications should result in continuing
demand for its Channelink products. In addition, the Company will continue to
pursue the sale of its Channelink products through alternate distribution
channels. The levels of Channelink revenue reported by the Company in any given
period have been, and will continue to be impacted by, among other things, the
timing of the introduction of new products and applications by IBM and others.
Revenue from the Brixton product line for the three months ended June 30, 1996
was lower than expected given the new investments that have been made by the
Company in the engineering, sales and marketing of these products. The Company
believes that the improved product function associated with new Brixton products
released in 1995, the anticipated introduction of its new integrated gateway
product in the second half of 1996, and the increase in the number of employees
dedicated to the marketing and sale of the Brixton products, should result in
increased Brixton revenue in 1996.
9
<PAGE>
The Company believes service fees for its Channelink and Brixton product lines
will grow in 1996 at approximately the same rate as the installed base of these
products.
The Company expects to continue to see quarter-to-quarter fluctuations in
revenue. The timing of sizable orders, because of their relative impact on total
quarterly revenue, may contribute to such fluctuations.
As a result of the Company's strategy to hire a separate sales and marketing
organization dedicated exclusively to the Brixton market, the introduction of
the Company's new integrated gateway product, the introduction of additional
network-based storage applications for its Channelink products, and the
Company's existing $7 million OEM agreement with IBM, the Company believes
revenue in 1996 will increase when compared to 1995.
GROSS PROFIT
For the three and six months ended June 30, 1996, the gross profit margins from
product sales were 63% and 64%, respectively, as compared to 72% for both the
three and six months ended June 30, 1995. The decrease in gross profit margins
from product sales for both the three and six months ended June 30, 1996, when
compared to the same periods of 1995, primarily resulted from lower margin OEM
sales of the Company's channel connectivity controller to IBM, a decrease in
higher margin software sales as a percentage of total product sales, and
increased charges for inventory obsolescence.
As a result of worldwide competition, and the continued OEM sale of the
Company's channel connectivity controller to IBM, the Company anticipates that
its gross profit margin percentage from product sales will be somewhat lower for
the remainder of 1996 when compared to the same periods of 1995. The anticipated
decrease in the gross profit margin percentage from product sales for the
remainder of 1996 will be somewhat offset if the Company's new investments in
the sale, marketing and engineering of its Brixton products result in an
increase in the percentage of product sales coming from the Company's higher
margin Brixton software products. Actual gross profit margins on product sales
in 1996 will depend on a number of factors, including the mix of products,
market acceptance of the Brixton product line, the relative amount of products
sold through indirect distribution channels, the requirement to pay licensing
fees for the right to use certain technology, and the level of continuing price
competition.
For the three and six months ended June 30, 1996, gross profit margins from
service fees were 25% and 23%, respectively, as compared to 22% and 19%,
respectively, for the same periods of 1995. The increase in gross profit margins
from service fees resulted from a steadily increasing base of customers having
installed Channelink and Brixton products covered by maintenance contracts,
which provide economies of scale.
The Company anticipates that it will continue to make additional investments in
its service business, particularly to support the Brixton product line. As a
result of this increased investment, the Company currently anticipates that
gross profit margins from its service business for the remainder of 1996 will be
somewhat lower when compared to the second quarter of 1996.
10
<PAGE>
SPECIAL CHARGES
In connection with the management reorganization announced by the Company in
December 1995, the Company issued a common equity put option to a former officer
and director. The Company has adjusted compensation expense in the current
period, and will be required to adjust compensation expense in future periods,
as the market price of its common stock increases or decreases until such time
as the Company has no remaining obligation under the common equity put option.
For the three and six months ended June 30, 1996, engineering and development
expense has been reduced by $672,000 and $987,000, respectively, due to the
increase in the market price of the Company's common stock, and termination of a
portion of the Company's obligation under the common equity put option.
OPERATING EXPENSES
During the second quarter and first half of 1996, the Company continued to
expand its sales and marketing organizations, with a particular emphasis on new
employees dedicated to the Brixton product line. Sales and marketing expenses
increased during the three and six months ended June 30, 1996 by 33% and 49%,
respectively, when compared to the same periods of 1995. The increases for both
the three and six months ended June 30, 1996 were primarily attributable to an
increase in commission expense, due to the higher level of sales during 1996,
and an increase in compensation, travel and other expenses associated with the
continued expansion of the Company's sales organization. The increases for both
periods were somewhat offset by lower product evaluation expense. The Company
anticipates that sales and marketing expenses will be higher through the
remainder of 1996 when compared to the same period of 1995 due to the expense
associated with the additional sales and marketing employees hired in recent
quarters.
Engineering and development costs, primarily consisting of compensation and
related fringe benefits, depreciation, and consulting expenses related to new
product development and enhancements to existing products increased during the
three and six months ended June 30, 1996, by 37% and 32%, respectively, when
compared to the same periods of 1995 and excluding the impact of the previously
discussed common equity put option. The increase for both periods is primarily
attributable to increases in compensation expense, related fringe benefits and
engineering prototype materials. Engineering and development expenses, excluding
the impact of the common equity put option, were 15% of total revenue for both
the three and six months ended June 30, 1996, as compared to 13% and 14% of
total revenue, respectively, for the same periods of 1995. The Company
anticipates investing approximately 15% of total revenue on engineering and
development in 1996 (excluding the impact of the common equity put option),
which includes investments in current and future products. The Company believes
a sustained high level of investment is essential to customer satisfaction and
future revenue.
General and administrative expenses increased by 32% and 31% during the three
and six months ended June 30, 1996, respectively, when compared to the same
periods of 1995. The increases are primarily attributable to increases in
recruiting and related costs associated with recruiting a new Chief Executive
Officer, executive compensation, and employee severance. General and
administrative expenses were 8% of total revenue for both the three and six
months ended June 30, 1996, as compared to 7% of total revenue during the same
periods of 1995. The Company anticipates that general and administrative
expenses will be approximately 7% of total revenue in 1996.
11
<PAGE>
The Company recorded a provision for income taxes at an effective rate of 35%
for both the three and six months ended June 30, 1996, as compared to 38% during
the same periods of 1995. The Company currently anticipates that its effective
tax rate for the remainder of 1996 will be approximately 35%.
FINANCIAL CONDITION
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically financed its operations through the private and
public sales of equity securities, bank borrowings under lines of credit,
capital equipment leases, and cash generated from operations. Cash, cash
equivalents, and marketable securities at June 30, 1996, totaled $33.7 million,
an increase of $5.3 million during the first six months of 1996. This increase
resulted from cash provided from operations of $6.7 million, financing
activities of $1.5 million (primarily consisting of proceeds from the exercise
of employee stock options), partially offset by the effects of exchange rate
changes and cash used for investing in property and equipment, field support
spares and other assets of $2.9 million. Expenditures for capital equipment and
field support spares have been, and will likely continue to be, a significant
capital requirement. The Company plans to continue to invest aggressively in
productivity tools for its employees and in its field support spares.
The Company believes that its current balances of cash, cash equivalents, and
marketable securities, when combined with anticipated cash flow from operations,
will be adequate to fund its operating plans and meet its currently anticipated
aggregate capital requirements, at least through 1997. However, if the Company
does not generate revenue as expected or incurs unanticipated expenses, or needs
additional investment funds to react to changes in its marketplace, it may need
additional capital earlier or in amounts greater than would otherwise be
required.
The Company believes that inflation has not had a material impact on its
operations or liquidity to date.
FORWARD LOOKING INFORMATION
Except for the historical information contained herein, the matters discussed
above are forward looking statements, including expected 1996 revenue levels and
revenue growth, gross profit margin percentages, and expense levels, made under
the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. All forward looking statements involve risks and uncertainties. In
addition to the factors discussed above, other factors could cause actual
results to differ materially from those described, including market acceptance
of the Brixton products; availability of new employees experienced in the
Brixton marketplace; growth and timing of new applications for the Company's
Channelink products, particularly in the area of network-based storage; the
successful expansion of distribution channels for products through OEM's and
others; the continuing availability of necessary intellectual property licenses
on commercially reasonable terms; changes in general economic conditions; cost
and availability of components; and fluctuations in foreign exchange rates. In
addition, the markets for the Company's products
12
<PAGE>
are characterized by significant competition, and the Company's results may be
adversely affected by the actions of existing or future competitors, including
the development of new technologies, the introduction of new products, and the
reduction of prices by such competitors to gain or retain market share.
13
<PAGE>
PART II. OTHER INFORMATION
Item 1-3. None
Item 4. Submission of Matters to a Vote of Security Holders
(a) The Annual Meeting of Shareholders was held on May 17, 1996
(a) Elected as Directors of the Company
Bruce T. Coleman
Erwin A. Kelen
Lawrence Perlman
John A. Rollwagen
(c) Matters voted upon
<TABLE>
<CAPTION>
Broker
Affirmative Negative Non
votes votes Abstain votes
----------- --------- ------- -------
<S> <C> <C> <C> <C>
1. Election of Directors
Bruce T. Coleman 19,523,593 340,710 0 0
Erwin A. Kelen 19,525,343 338,960 0 0
Lawrence Perlman 19,525,043 339,260 0 0
John A. Rollwagen 19,521,303 343,000 0 0
2. To amend the 1992
Stock Award Plan
to increase the number
of shares authorized
for issuance thereunder
from 3,250,000 to
4,350,000; to provide
for the automatic grant
of certain stock options
to nonemployee directors
upon initial election or
appointment to the Executive
Committee of the Board and
upon initial election as
Chairman or Vice Chairman of
the Board; and to increase
the maximum number of shares
subject to options that can
be awarded to any single
employee during any calendar
year to 750,000; 16,377,727 2,348,796 202,033 935,747
3. To amend the 1992
Employee Stock
Purchase Plan to
increase the number
of shares authorized
for issuance thereunder
from 400,000 to 450,000
and to limit the number of
shares that may be purchased
thereunder to 5,000 per
Participant for any annual
Purchase Period; 18,437,139 785,172 167,671 474,321
4. Proposal to ratify and
approve the appointment
of KPMG Peat Marwick
LLP as independent
Auditors of the Company
for the year ending
December 31, 1996 19,639,764 118,149 106,390 0
</TABLE>
Item 5. None
14
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits are filed herewith.
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
2A. Agreement and Plan of Merger among Computer Network Technology
Corporation, BRX Corp., Brixton Systems, Inc., and certain Significant
Shareholders of Brixton, dated February 4, 1994. (Incorporated by
reference to Exhibit 2 to current report on Form 8-K dated February
22, 1994.)
4A. Restated Articles of Incorporation of the Company, as amended.
(Incorporated by reference to Exhibit 2 to current report on Form 8-K
dated June 22, 1992.)
4B. By-laws of the Company, as amended. (Incorporated by reference to
Exhibit 3B to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1991.)
10A. Omitted
10B. Lease Agreement dated November 30, 1990 by and between TOLD
Development Company, a general partnership, and Computer Network
Technology Corporation. (Incorporated by reference to Exhibit 10C to
Form S-2 Registration Statement No. 33-41985.)
10C. Computer Network Technology Corporation 401(k) Salary Savings Plan
effective January 1, 1991. (Incorporated by reference to Exhibit 10F
to Form S-2 Registration Statement No. 33-41985.)
10D. Subscription Agreements of Kanematsu Electronics Ltd. and Kanematsu
USA Inc. dated October 22, 1990. (Incorporated by reference to
Exhibit 10G to Form S-2 Registration Statement No. 33-41985.)
10E. Amended and Restated Incentive Stock Option Plan (Incorporated by
reference to Exhibit 10A to Form S-8 Registration Statement,
Commission File No. 33-41986.)
10F. Amended 1986 Nonqualified Stock Option Plan. (Incorporated by
reference to Exhibit 10B to Form S-8 Registration Statement No. 33-
41986.)
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
10G. Certificate of Resolutions contained in Minutes of Annual Meeting of
Shareholders on May 30, 1990 increasing shares reserved under ISOP
from 500,000 to 1,000,000. (Incorporated by reference to Exhibit 10C
to Form S-8 Registration Statement No. 33-41986.)
10H. Certificate of Resolutions contained in Minutes of Special Meeting of
the Board of Directors on April 25, 1991 increasing the number of
shares reserved under the NSOP from 1,100,000 to 1,600,000.
(Incorporated by reference to Exhibit 10D to Form S-8 Registration
Statement No. 33-41986.)
10I. 1992 Employee Stock Purchase Plan (Incorporated by reference to
Exhibit 28 to Form S-8 Registration Statement No. 33-48954.)
10J. 1992 Stock Award Plan (Incorporated by reference to Exhibit 28 to Form
S-8 Registration Statement No. 33-48944.)
10K. Sublease Agreement by and between ITT Consumer Financial Corporation
and Computer Network Technology Corporation dated October 1, 1993.
(Incorporated by reference to Exhibit 10X to Annual Report on Form 10-
K for the fiscal year ended December 31, 1993.)
10L. First Amendment to Sublease Agreement by and between ITT Consumer
Financial Corporation and Computer Network Technology Corporation
dated October 26, 1993. (Incorporated by reference to Exhibit 10Y to
Annual Report on Form 10-K for the fiscal year ended December 31,
1993.)
10M. Minutes of Annual Meeting of Shareholders on May 27, 1993 increasing
shares reserved under the 1992 Stock Award Plan from 650,000 to
1,050,000 and increasing shares reserved under the 1992 Employee Stock
Purchase Plan from 150,000 to 300,000. (Incorporated by reference to
Exhibit 10BB to Annual Report on Form 10-K for the fiscal year ended
December 31, 1993.)
10N. Amendment No. 1 to Sublease Agreement by and between ITT Consumer
Financial Corporation and Computer Network Technology Corporation
dated February 9, 1994. (Incorporated by reference to Exhibit 10CC to
Form 10Q for the quarterly period ended March 31, 1994.)
10O. March 10, 1994 Incentive Stock Option Agreements (Incorporated by
reference to Exhibit 28.2 to Form S-8 Registration Statement No. 33-
83266.)
10P. March 10, 1994 Non-Qualified Stock Option Agreements (Incorporated by
reference to Exhibit 28.3 to Form S-8 Registration Statement No. 33-
83266.)
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
10Q. Amendment to 1992 Stock Award Plan increasing shares reserved from
1,050,000 to 3,250,000 (Incorporated by reference to Form S-8
Registration Statement No. 33-83262.)
10R. Amendment to Employee Stock Purchase Plan increasing shares reserved
from 300,000 to 400,000 (Incorporated by reference to Form S-8
Registration Statement No. 33-83264.)
10S. Amendment to and Restatement of Employment Agreement by and between
the Company and C. McKenzie Lewis III. (Incorporated by reference to
Exhibit 10S to Annual Report on Form 10-K for the fiscal year ended
December 31, 1995).
10T. Severance Agreement by and between the Company and Eugene D.
Misukanis. (Incorporated by reference to Exhibit 10T to Annual Report
on Form 10-K for the fiscal year ended December 31, 1995).
10U. Severance Agreement by and between the Company and Frantz Corneille.
(Incorporated by reference to Exhibit 10U to Annual Report on Form 10-
K for the fiscal year ended December 31, 1995).
10V. Independent Contractor Agreement by and between the Company and Bruce
T. Coleman. (Incorporated by reference to Exhibit 10V to Annual Report
on Form 10-K for the fiscal year ended December 31, 1995).
10W. Independent Contractor Agreement by and between the Company and Erwin
A. Kelen. (Incorporated by reference to Exhibit 10W to Annual Report
on Form 10-K for the fiscal year ended December 31, 1995).
10X. Independent Contractor Agreement by and between the Company and John
A. Rollwagen. (Incorporated by reference to Exhibit 10X to Annual
Report on Form 10-K for the fiscal year ended December 31, 1995).
10Y. Amendment No. 1 to Severance Agreement by and between the Company and
Eugene D. Misukanis.
10Z. Employment Agreement by and between the Company and Thomas G. Hudson
as amended.
10AA. Lease Agreement between Teachers Realty Corporation and Computer
Network Technology Corporation.
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
11. Statement Re: Computation of Net Income per Common and Common
Equivalent Share.
27. Financial Data Schedule.
(b) No reports on Form 8-K were filed during the quarter ended June 30,
1996.
</TABLE>
18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned duly authorized officers.
COMPUTER NETWORK TECHNOLOGY CORPORATION
(Registrant)
Date: August 8, 1996 By: /s/ John R. Brintnall
----------------------
John R. Brintnall
Vice President of Finance
(Principal financial and accounting
officer and duly authorized signatory
on behalf of the Registrant.)
19
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
2A. Agreement and Plan of Merger among Computer Network
Technology Corporation, BRX Corp., Brixton Systems,
Inc., and certain Significant Shareholders of
Brixton, dated February 4, 1994. (Incorporated by
reference to Exhibit 2 to current report on Form 8-K
dated February 22, 1994.)
4A. Restated Articles of Incorporation of the Company,
as amended. (Incorporated by reference to Exhibit 2
to current report on Form 8-K dated June 22, 1992.)
4B. By-laws of the Company, as amended. (Incorporated by
reference to Exhibit 3B to the Annual Report on Form
10-K for the fiscal year ended December 31, 1991.)
10A. Omitted
10B. Lease Agreement dated November 30, 1990 by and between
TOLD Development Company, a general partnership, and
Computer Network Technology Corporation. (Incorporated
by reference to Exhibit 10C to Form S-2 Registration
Statement No. 33-41985.)
10C. Computer Network Technology Corporation 401(k) Salary
Savings Plan effective January 1, 1991. (Incorporated by
reference to Exhibit 10F to Form S-2 Registration Statement
No. 33-41985.)
10D. Subscription Agreements of Kanematsu Electronics Ltd.
and Kanematsu USA Inc. dated October 22, 1990.
(Incorporated by reference to Exhibit 10G to Form S-2
Registration Statement No. 33-41985.)
10E. Amended and Restated Incentive Stock Option Plan
(Incorporated by reference to Exhibit 10A to Form
S-8 Registration Statement, Commission File No. 33-41986.)
10F. Amended 1986 Nonqualified Stock Option Plan.
(Incorporated by reference to Exhibit 10B to Form
S-8 Registration Statement No. 33-41986.)
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
10G. Certificate of Resolutions contained in Minutes of
Annual Meeting of Shareholders on May 30, 1990
increasing shares reserved under ISOP from 500,000 to
1,000,000. (Incorporated by reference to Exhibit 10C
to Form S-8 Registration Statement No. 33-41986.)
10H. Certificate of Resolutions contained in Minutes of
Special Meeting of the Board of Directors on April 25,
1991 increasing the number of shares reserved under the
NSOP from 1,100,000 to 1,600,000. (Incorporated by
reference to Exhibit 10D to Form S-8 Registration
Statement No. 33-41986.)
10I. 1992 Employee Stock Purchase Plan (Incorporated by
reference to Exhibit 28 to Form S-8 Registration
Statement No. 33-48954.)
10J. 1992 Stock Award Plan (Incorporated by reference
to Exhibit 28 to Form S-8 Registration Statement
No. 33-48944.)
10K. Sublease Agreement by and between ITT Consumer
Financial Corporation and Computer Network Technology
Corporation dated October 1, 1993. (Incorporated by
reference to Exhibit 10X to Annual Report on Form 10-K
for the fiscal year ended December 31, 1993.)
10L. First Amendment to Sublease Agreement by and between
ITT Consumer Financial Corporation and Computer Network
Technology Corporation dated October 26, 1993.
(Incorporated by reference to Exhibit 10Y to Annual Report
on Form 10-K for the fiscal year ended December 31, 1993.)
10M. Minutes of Annual Meeting of Shareholders on May
27, 1993 increasing shares reserved under the 1992
Stock Award Plan from 650,000 to 1,050,000 and increasing
shares reserved under the 1992 Employee Stock Purchase
Plan from 150,000 to 300,000. (Incorporated by reference
to Exhibit 10BB to Annual Report on Form 10-K for the
fiscal year ended December 31, 1993.)
10N. Amendment No. 1 to Sublease Agreement by and between
ITT Consumer Financial Corporation and Computer Network
Technology Corporation dated February 9, 1994.
(Incorporated by reference to Exhibit 10CC to Form 10Q
for the quarterly period ended March 31, 1994.)
10O. March 10, 1994 Incentive Stock Option Agreements
(Incorporated by reference to Exhibit 28.2 to Form S-8
Registration Statement No. 33-83266.)
10P. March 10, 1994 Non-Qualified Stock Option Agreements
(Incorporated by reference to Exhibit 28.3 to Form S-8
Registration Statement No. 33-83266.)
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
10Q. Amendment to 1992 Stock Award Plan increasing shares
reserved from 1,050,000 to 3,250,000 (Incorporated by
reference to Form S-8 Registration Statement No. 33-83262.)
10R. Amendment to Employee Stock Purchase Plan increasing
shares reserved from 300,000 to 400,000 (Incorporated by
reference to Form S-8 Registration Statement No. 33-83264.)
10S. Amendment to and Restatement of Employment Agreement
by and between the Company and C. McKenzie Lewis III.
(Incorporated by reference to Exhibit 10S to Annual Report
on Form 10-K for the fiscal year ended December 31, 1995).
10T. Severance Agreement by and between the Company and
Eugene D. Misukanis. (Incorporated by reference to Exhibit
10T to Annual Report on Form 10-K for the fiscal year ended
December 31, 1995).
10U. Severance Agreement by and between the Company and
Frantz Corneille. (Incorporated by reference to Exhibit 10U
to Annual Report on Form 10-K for the fiscal year ended
December 31, 1995).
10V. Independent Contractor Agreement by and between the
Company and Bruce T. Coleman. (Incorporated by reference to
Exhibit 10V to Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)
10W. Independent Contractor Agreement by and between the
Company and Erwin A. Kelen. (Incorporated by reference to Exhibit
10W to Annual Report on Form 10-K for the fiscal year ended
December 31, 1995)
10X. Independent Contractor Agreement by and between the
Company and John A. Rollwagen. (Incorporated by reference to
Exhibit 10X to Annual Report on Form 10-K for the fiscal
year ended December 31, 1995)
10Y. Amendment No. 1 to Severance Agreement by and between the
Company and Eugene D. Misukanis.............Electronically Filed
10Z. Employment Agreement by and between the Company and Thomas
G. Hudson as amended........................Electronically Filed
10AA. Lease Agreement between Teachers Realty Corporation and
Computer Network Technology Corporation.....Electronically Filed
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
11. Statement Re: Computation of Net Income per Common
and Common Equivalent Share....................... Electronically Filed
27. Financial Data Schedule........................... Electronically Filed
</TABLE>
23
<PAGE>
EXHIBIT 10Y
April 22, 1996
Mr. Eugene Misukanis
1035 Lake Beach Drive
Shoreview, MN 55126
Dear Gene:
Reference is made to that Severance Agreement dated December 11, 1995 (the
"Agreement") between you and the Company. Pursuant to Section 2 of the Agreement
you have the right to cause the Company to purchase, on the last trading day in
the calendar year 1997, up to 280,000 shares of Company Common Stock owned by
you as of the date of the Agreement. Section 2 also provides that such right
shall expire if, for any five consecutive trading days prior to the last trading
day of calendar 1997 (the "trading period"), the closing sale price per share of
the Company's Common Stock is $8.50 or more.
The Company hereby agrees that for purposes of calculating the trading period,
no trading day shall be included if (i) on that day you were in possession of
material, non-public information concerning the Company and (ii) such
information had previously been provided to you by the Company in conjunction
with the performance of your consulting services under Section 9 of the
Agreement. The determination as to whether or not you are in possession of
material, non-public information shall be made in good faith by the Company,
after consultation with counsel to the Company.
All other terms and provisions of the Agreement shall remain in effect without
modification. Please acknowledge your agreement with the foregoing by signing
your name below.
Very truly yours,
/s/ John R. Brintnall
John R. Brintnall
Vice President of Finance and CFO
Agreed to as of the date
first written above.
/s/ Eugene Misukanis
- --------------------
<PAGE>
EXHIBIT 10Z
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 9th day of June, 1996, by and
between Computer Network Technology Corporation, a Minnesota corporation
("CNT"), and Thomas G. Hudson, an individual ("Executive").
A. CNT wishes to secure Executive's services as an employee, under
the terms hereof; and
B. Executive wishes to provide such services to CNT.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and undertakings stated herein, Executive and CNT agree as follows:
1. Duties and Powers of Executive. CNT shall employ Executive as, and
Executive shall serve as, President and Chief Executive Officer of CNT.
Executive shall have all duties customarily associated with the office of
President and Chief Executive Officer of a business of the kind conducted by
CNT, shall have primary management responsibility for CNT, and shall perform
such other duties consistent with the position of President and Chief Executive
Officer as may be specified by the Board of Directors of CNT (the "Board"), to
whom Executive shall report. Executive shall devote full time to Executive's
duties under this Agreement and shall not accept other employment or engage in
other material business activity, except as approved in writing by the Board.
Executive's employment with CNT shall commence on July 1st, 1996, or as may be
otherwise agreed upon by the Board and Executive.
2. Compensation. (a) While Executive is employed by CNT under this
Agreement, CNT shall pay to Executive a base salary at a rate of $250,000 per
year, or such greater amount as the Board in its discretion may from time to
time determine, payable in accordance with CNT's standard payroll practices in
effect from time to time.
(b) CNT shall pay to Executive a hiring bonus in the amount of
$100,000, $25,000 of which shall be payable within 15 days after Executive's
first day of employment and $75,000 of which shall be payable within 30 days
after Executive relocates his household to the Minneapolis metropolitan area.
(c) While Executive is employed by CNT under this Agreement, Executive
shall participate in the Leadership Program of CNT's Success Sharing Bonus Plan
in effect from time to time under the terms and conditions set forth in this
Section 2(c). The percentage of Executive's eligible compensation subject to
multiplication by the CNT Performance Factor shall be 60.
(i) From July 1, 1996 through December 31, 1996, CNT shall pay to
Executive the sum of $12,500 per calendar month as a
nonrecoverable minimum payment under CNT's Success Sharing
Bonus Plan. Executive's Success Sharing Bonus for 1996 shall be
based on CNT's
-1-
<PAGE>
performance from July 1, 1996 through December 31, 1996 as
compared with CNT's performance during the period from July 1,
1995 through December 31, 1995. If, after application of the
foregoing principles, Executive's Success Sharing Bonus for
1996 would be in excess of $75,000 (the total minimum payments
made to Executive from July 1, 1996 through December 31, 1996),
CNT shall pay to Executive the amount of such excess when
annual 1996 Success Sharing Bonuses are paid to other
participants in the Leadership Program. If, after application
of the foregoing principles, Executive's Success Sharing Bonus
for 1996 would be $75,000 or less, Executive shall be entitled
to retain all amounts paid under this Section 2(c)(i), but
Executive shall not receive any additional Success Sharing
Bonus for 1996.
(ii) For calendar year 1997, CNT shall pay to Executive the sum of
$12,500 per calendar month as a nonrecoverable minimum payment
under CNT's Success Sharing Bonus Plan. Executive's Success
Sharing Bonus for calendar year 1997 shall be based upon CNT's
performance for calendar year 1997 as compared with CNT's
performance during calendar year 1996. If, after application of
the foregoing principles, Executive's Success Sharing Bonus for
1997 would be in excess of $150,000 (the total minimum payments
made to Executive during calendar year 1997), CNT shall pay to
Executive the amount of such excess when annual 1997 Success
Sharing Bonuses are paid to other participants in the
Leadership Program. If Executive's Success Sharing Bonus for
1997 would be $150,000 or less, Executive shall be entitled to
retain all amounts paid under this Section 2(c)(ii), but
Executive shall not receive any additional Success Sharing
Bonus for 1997.
(iii) From January 1, 1998 through June 30, 1998, CNT shall pay to
Executive the sum of $12,500 per calendar month as a
nonrecoverable minimum payment under CNT's Success Sharing
Bonus Plan. Executive's Success Sharing Bonus for January 1,
1998 through June 30, 1998 shall be based on CNT's performance
from January 1, 1998 through June 30, 1998 as compared with
CNT's performance during the period from January 1, 1997
through June 30, 1997. If, after application of the foregoing
principles, Executive's Success Sharing Bonus for January 1,
1998 through June 30, 1998 would be in excess of $75,000 (the
total minimum payments made to Executive from January 1, 1998
through June 30, 1998), CNT shall pay to Executive the amount
of such excess when second quarter 1998 Success Sharing Bonuses
are paid to other participants in the Success Sharing Bonus
Plan generally. If, after application of the foregoing
principles, Executive's Success Sharing Bonus for January 1,
1998 through June 30, 1998 would be $75,000 or less, Executive
shall be entitled to retain all amounts paid under this Section
2(c)(iii), but shall not receive any additional Success Sharing
Bonus for the period January 1, 1998 through June 30, 1998.
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<PAGE>
(iv) For the period July 1, 1998 through December 31, 1998,
Executive's Success Sharing Bonus shall be based on CNT's
performance from July 1, 1998 through December 31, 1998 as
compared with CNT's performance during the period from July 1,
1997 through December 31, 1997; Executive shall not be entitled
to any minimum payment for this or succeeding periods. On and
after January 1, 1999, Executive shall participate in the
Leadership Program of CNT's Success Sharing Bonus Plan on the
same basis as other participants; however, in no event shall
the percentage of Executive's eligible compensation subject to
multiplication by the CNT Performance Factor be less than 60.
(d) Executive shall be entitled to certain stock options, as
follows:
(i) Executive shall receive a non-qualified option to purchase
500,000 shares of CNT's common stock, which option shall be
evidenced by a separate option agreement in customary form. One
hundred thousand of such shares shall vest and become
immediately exercisable on Executive's first day of employment
(the "Base Options"); the remaining 400,000 shares (the
"Periodic Options") shall vest at a rate of 8,333 shares on the
last day of each of the 47 consecutive calendar months
commencing July 1996 and 8,349 shares on the last day of June
2000.
(ii) Upon the effective date of a "Change of Control," the number of
unvested Periodic Options as equals the number of then vested
Periodic Options shall become immediately vested and
exercisable, provided in no event shall less than 150,000
Periodic Options be vested and exercisable upon a Change in
Control. (Consequently, the total minimum number of vested
options in the event of a Change of Control, including Base
Options and Periodic Options, would be no less than 250,000.)
(iii) "Change of Control" means: (A) an acquisition (other than
directly from CNT) by an individual, entity, or a group
(excluding CNT or an employee benefit plan of CNT or a
corporation controlled by CNT's shareholders) of 50% or more of
CNT's Common Stock or voting securities; or (B) merger,
consolidation, or sale of all or substantially all of CNT's
assets (collectively, a "Business Combination") other than a
Business Combination in which all or substantially all of the
stockholders of CNT receive 50% or more of the stock of the
company resulting from the Business Combination and at least a
majority of the members of the board of directors of the
resulting corporation were members of the Board of CNT
immediately prior to the Business Combination.
-3-
<PAGE>
(e) CNT shall reimburse Executive for all reasonable expenses
associated with the relocation of his household from Wilton, Connecticut to the
Minneapolis metropolitan area that are approved in advance by the Chairman of
the Board.
3. Fringe Benefits. While Executive is employed by CNT under this
Agreement, CNT shall provide to Executive such insurance and other benefits as
are provided from time to time by CNT to its other executives, in accordance
with CNT's general benefits practices then in effect, except that Executive
shall be entitled to four weeks of Personal Time Off ("PTO") each calendar year
(pro-rated for 1996) through December 31, 2000 and thereafter in accordance with
CNT's standard PTO policy from time to time.
4. Term and Termination. Executive's employment by CNT under this
Agreement shall end immediately upon:
(a) receipt by CNT of Executive's resignation (whether written, oral,
or in other form),
(b) written notice from the Board to Executive of termination of
Executive's employment, or
(c) Executive's death or incapacity,
and the date on which termination is effective shall be the "Termination Date."
5. Payments Upon Termination. (a) If Executive's employment under
this Agreement ends by reason of
(i) resignation or abandonment of Executive's employment,
(ii) termination by CNT for cause, or
(iii) Executive's death or incapacity,
then CNT shall pay Executive's base salary through the Termination Date.
(b) If Executive's employment under this Agreement ends by reason of
termination by CNT without cause, then CNT shall continue to pay Executive's
base salary and reimburse him for expenses incurred to retain ongoing COBRA
benefits, at the rate then in effect, for a period of one year following the
Termination Date, provided that if termination occurs upon or within six months
after a Change of Control, Executive shall receive an amount equal to one year's
base salary, at the rate then in effect, in a lump sum, payable within 30 days
after the Termination Date. Termination of Executive's employment by CNT without
cause shall include, but shall not be limited to, a termination initiated by
Executive within 30 days following the occurrence of a "Change in Employment
Terms."
-4-
<PAGE>
(c) "Termination by CNT for cause" means termination for
(i) any conviction of Executive, or plea of guilty or no contest by
Executive, to a felony, or
(ii) any act or acts of dishonesty by Executive intended to result
in personal enrichment to Executive at the expense of CNT.
(d) "Change in Employment Terms" means
(i) demotion of Executive or any assignment to material duties that
are substantially inconsistent with Executive's position and
title immediately prior to such assignment,
(ii) any reduction of Executive's base salary,
(iii) any requirement that Executive relocate,
(iv) any substantial reduction in benefits and perquisites provided
to Executive, or
(v) any other material change in terms and conditions of
Executive's employment.
It is provided, however, that none of the foregoing shall constitute a Change in
Employment Terms unless Executive objects thereto by giving written notice to
the Board within 30 days after Executive becomes aware of such demotion,
assignment, reduction, requirements or other change and CNT fails to correct the
same within 30 days following receipt of such notice, in which case a Change in
Employment Terms will be deemed to have occurred on the 31st day following the
Board's receipt of such notice. A "Change of Control" does not, standing alone,
constitute a "Change in Employment Terms."
(e) "Incapacity" means the inability of Executive to perform
Executive's duties under this Agreement by reason of illness or other physical
or mental impairment or condition, if such inability continues for an
uninterrupted period of 90 days or more. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work for a
continuous period of at least 30 days. An incapacity period shall be suspended
during any period Executive returns to full-time work for a continuous period of
at least five business days.
(f) Upon termination of Executive's employment, the sole obligation
of CNT shall be its obligation to make the payments called for by Section 5(a)
or Section 5(b) (as the case may be) and CNT shall have no other obligation to
Executive under any provision of this
-5-
<PAGE>
Agreement or otherwise for stock options, bonuses, or any other type of
compensation or benefits, except for any rights that Executive may have under
any benefit program of CNT that, by operation of law or the application of
contractual terms contained in a stock option or similar agreement, survive
termination.
6. Certain Covenants of Executive. (a) As used in Section 6 and
Section 7, "CNT" shall include Computer Network Technology Corporation and each
corporation, partnership, or other entity that controls Computer Network
Technology Corporation, is controlled by Computer Network Technology
Corporation, or is under common control with Computer Network Technology
Corporation (in each case "control" meaning the direct or indirect ownership of
50% or more of all outstanding equity interests).
(b) While Executive is employed by CNT and until the first
anniversary of the Termination Date, Executive will not, directly or indirectly:
(i) own, operate, invest in, lend money to, be employed by, consult
with, provide services to, act as agent, officer, or director
for, or acquire or hold any interest in (A) any business that
produces or markets, or that is considering producing or
marketing, any product or service that competes with a product
produced, marketed, or under development by CNT on the
Termination Date, or (B) any corporation, partnership,
association, or other entity of any nature that owns, operates,
or has an interest in any such competing business (except that
nothing herein shall prohibit Executive from owning not more
than 1% of the outstanding shares of any class of stock of a
corporation if such class of stock is regularly traded on a
recognized national securities exchange);
(ii) employ or attempt to employ any director, officer, or employee
of CNT, or otherwise interfere with or disrupt any employment
relationship (contractual or other) of CNT;
(iii) solicit, request, advise, or induce any present or potential
customer, supplier, or other business contact of CNT to cancel,
curtail, or otherwise change its relationship with CNT; or
(iv) publicly criticize or disparage in any manner or by any means
CNT or its management, policies, operations, products,
services, practices, or personnel.
(c) Executive hereby acknowledges and agrees that all non-public
information and data of CNT, including without limitation that related to
product and service formulation, customers, pricing, sales, and financial
results (collectively, "Trade Secrets") are of substantial value to CNT, provide
it with a substantial competitive advantage in its business, and are and have
been maintained in the strictest confidence as trade secrets. Except as
otherwise approved
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<PAGE>
by the Chairman of the Board, or as appropriate in the performance of
Executive's duties in the normal course of business, Executive shall not at any
time disclose or make accessible to anyone any Trade Secrets.
(d) Executive acknowledges and agrees that this Section 6 and each
provision hereof are reasonable and necessary to ensure that CNT receives the
expected benefits of this Agreement and that violation of this Section 6 will
harm CNT to such an extent that monetary damages alone would be an inadequate
remedy. Consequently, in the event of any violation or threatened violation by
Executive of any provision of this Section 6, CNT shall be entitled to an
injunction (in addition to all other remedies it may have) restraining Executive
from committing or continuing such violation. If any provision or application of
this Section 6 is held unlawful or unenforceable in any respect, this Section 6
shall be revised or applied in a manner that renders it lawful and enforceable
to the fullest extent possible.
(e) Upon termination of Executive's employment for any reason,
Executive covenants to resign from the Board effective no later than the
Termination Date.
7. Creations. (a) Executive hereby transfers and assigns to CNT (or
its designee) all right, title, and interest of Executive in and to every idea,
concept, invention, and improvement (whether patented or not) conceived by
Executive and all copyrighted or copyrightable matter created by Executive that
relates to CNT's business (collectively, "Creations"). Executive shall
communicate promptly and disclose to CNT, in such form as CNT may request, all
information, details, and data pertaining to each Creation. Every copyrightable
Creation, regardless of whether copyright protection is sought or preserved by
CNT, shall be "work for hire" as defined in 17 U.S.C. (S) 101 and CNT shall own
all rights in and to such matter throughout the world, without the payment of
any royalty or other consideration to Executive or anyone claiming through
Executive.
(b) All right, title, and interest in and to any and all trademarks,
trade names, service marks, and logos adopted, used, or considered for use by
CNT during Executive's employment (whether or not developed by Executive) to
identify CNT's products or services (collectively, the "Marks") and all other
materials, ideas, or other property conceived, created, developed, adopted, or
improved by Executive solely or jointly during Executive's employment by CNT and
relating to its business, shall be owned exclusively by CNT. Executive shall not
have, and will not claim to have, any right, title, or interest of any kind in
or to the Marks or such other property.
(c) Executive shall execute and deliver to CNT such formal transfers
and assignments and such other documents as CNT may request to permit CNT (or
its designee) to file and prosecute such registration applications and other
documents it deems useful to protect its rights under this Agreement. Any idea,
copyrightable matter, or other property relating to CNT's business and disclosed
by Executive prior to the first anniversary of the Termination Date shall be
deemed to be governed hereby unless proved by Executive to have been first
conceived and made after the Termination Date.
-7-
<PAGE>
8. No Violation of Other Agreements. Executive hereby represents and
agrees that neither (a) Executive's entering into this Agreement nor (b)
Executive's carrying out the provisions of this Agreement, will violate any
other agreement (oral, written, or other) to which Executive is a party or by
which Executive is bound.
9. Successors and Assigns. This Agreement is binding on Executive
and on CNT and CNT's successors and assigns, including, without limitation, any
corporation or other entity that purchases all or substantially all of the
assets of CNT or into which CNT is merged or consolidated. The rights and
obligations of CNT under this Agreement may be assigned to a successor. No
rights or obligations of Executive under this Agreement may be assigned by
Executive to any other person or entity.
10. Separate Representation. Executive hereby acknowledges that
Executive has sought and received independent advice from counsel of Executive's
own selection in connection with this Agreement and has not relied to any extent
on any officer, director, or shareholder of, or counsel to, CNT in deciding to
enter into this Agreement.
11. Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Minnesota.
12. Severability. Each section and provision of this Agreement shall
be considered severable and any invalidity of any provision shall not render
invalid or impair to any extent any other section or provision hereof.
13. Withholding of Taxes, Etc. All payments to Executive under this
Agreement are subject to withholding of income and employment taxes and all
other amounts required by law.
14. Indemnification. To the fullest extent permitted by law, CNT
shall indemnify Executive and hold him harmless for all acts or decisions made
by him in good faith while performing services for CNT, and CNT shall pay all
expenses, costs, and fees, including attorney's fees, actually incurred by or on
behalf of Executive in connection with any and all legal proceedings, of any
kind, including, without limitation, trial and arbitration, as well as the cost
of any settlement or judgment.
If CNT obtains insurance for Directors and Officers, Executive will be
included in such insurance policy.
15. Miscellaneous. All notices under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the party to receive the same at the address set forth with the
signature of such party hereto or at such other address as may have been
furnished to the sender by notice under this Agreement. All notices shall be
deemed given on the date on which
-8-
<PAGE>
delivered or, if mailed, on the date postmarked. This Agreement contains the
entire understanding of the parties hereto with respect to the employment of
Executive by CNT, and no provision hereof may be altered, amended, modified,
waived, or discharged in any way whatsoever except by written agreement executed
by both parties. No delay or failure of either party to insist, in any one or
more instances, upon performance of any of the terms and conditions of this
Agreement or to exercise any rights or remedies under this Agreement shall
constitute a waiver or a relinquishment of such rights or remedies or any other
rights or remedies under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the date and year first above written.
THOMAS G. HUDSON COMPUTER NETWORK
TECHNOLOGY CORPORATION
/s/ Thomas G. Hudson /s/ John A. Rollwagen
- ---------------------- -----------------------------
By John A. Rollwagen,
Chairman of the Board
-9-
<PAGE>
[LETTERHEAD]
June 20, 1996
Mr. Thomas G. Hudson
68 St. John's Road
Wilton, CT 06897
Dear Tom:
As compensation for time spent visiting with our employees on June 17, 1996, CNT
hereby agrees to amend your employment start date to June 28, 1996. If you are
in agreement with this change, please sign below and return this page to John
Brintnall.
Very truly yours,
/s/ John A. Rollwagen
John A. Rollwagen
Chairman of the Board
/s/ Thomas G. Hudson
- ------------------------------
Agreed to by Thomas G. Hudson
<PAGE>
EXHIBIT 10AA
LEASE
-----
THIS INSTRUMENT IS A LEASE, dated as of May 30, 1996 in which the Landlord
and the Tenant are the parties hereinafter named, and which relates to space in
the building known as 1700 West Park Drive (the "Building") in the Westborough
Office Park (the "Park") located in Westborough, Massachusetts. The parties to
this instrument hereby agree with each other as follows:
ARTICLE I
---------
BASIC LEASE PROVISIONS
----------------------
1.1 INTRODUCTION. The following terms and provisions set forth basic data and,
where appropriate, constitute definitions of the terms hereinafter listed:
1.2 BASIC DATA.
Landlord: Teachers Realty Corporation
Landlord's Original Address:
c/o Leggat McCall Properties Management, L.P.
Ten Post Office Square
Boston, MA 02110
Attention: Property Manager 1700 West Park Drive, Westborough
Tenant: Computer Network Technology Corporation, a Minnesota corporation
Tenant's Original Address: 6500 Wedgwood Road, Maple Grove, MN 55311
Guarantor: N/A
Basic Rent: For the period beginning on the Commencement Date through the day
immediately preceding the Expansion Commencement Date, Basic Rent payable under
this Lease shall be based upon a Premises Rentable Area of 17,379 rentable
square feet and shall be in the following amounts:
<TABLE>
<CAPTION>
Basic Rent
Lease Year Annual Amount Monthly Payment
- ---------- ------------- ---------------
<S> <C> <C>
1 $321,511.50 $26,792.63
2 $321,511.50 $26,792.63
3 $325,856.25 $27,154.69
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
4 $329,332.05 $27,444.34
5 $329,332.05 $27,444.34
</TABLE>
Effective as of the Expansion Commencement Date, Basic Rent shall be based on
the aggregate of 19,626 square feet of Premises Rentable Area and shall be
increased and adjusted as follows (pro rated for any partial calendar month in
which the Expansion Commencement Date shall fall):
<TABLE>
<CAPTION>
Lease Year Basic Rent Monthly Payment
<S> <C> <C>
1 $363,081.00 $30,256.75
2 $363,081.00 $30,256.75
3 $367,987.50 $30,665.63
4 $371,912.70 $30,992.73
5 $371,912.70 $30,992.73
</TABLE>
Premises Rentable Area: Initially, the Premises Rentable Area shall be 17,379
rentable square feet. Effective as of the Expansion Commencement Date, the
Premises Rentable Area shall include the Expansion Space and shall be 19,626
rentable square feet.
Permitted Uses: General office, exclusive however of an office use that would
cause the Premises to be deemed "a place of public accommodation" as defined in
the American with Disabilities Act of 1990, as amended.
Escalation Factor: Initially, the Escalation Factor shall be 16.11%, as
computed in accordance with the Escalation Factor Computation based on 17,379
rentable square feet and, thereafter, effective as of the Expansion Commencement
Date, the Escalation Factor shall be 18.19% as computed in accordance with the
Escalation Factor Computation based on 19,626 rentable square feet.
Expansion Space: The space marked as such on Exhibit A.
Expansion Commencement Date: As defined in Section 14.28 hereof.
Initial Term: Five (5) years commencing on the Commencement Date and expiring
at the close of the day immediately preceding the fifth (5th) anniversary of the
Commencement Date, except that if the Commencement Date shall be other than the
first day of a calendar month, the expiration of the Initial Term shall be at
the close of the day on the last day of the calendar month on which such
anniversary date shall fall.
2
<PAGE>
Security Deposit: $30,665.63
Base Operating Expenses: The Operating Expenses for the calendar year ending
December 31, 1996.
Base Utility Expenses: The Utility Expenses for the calendar year ending
December 31, 1996.
Base Taxes: Taxes assessed to the Property for the Tax Year ending June 30,
1997, as they may be reduced by the amount of any abatement.
1.3 ADDITIONAL DEFINITIONS.
Manager: Leggat McCall Properties Management, L.P.
Building Rentable Area: 116,000 rentable square feet.
Business Days: All days except Saturday, Sunday, New Year's Day, Martin Luther
King Day, Presidents Day, Patriot's Day, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day (and the
following day when any such day occurs on Sunday).
Commencement Date: As defined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Article VIII and Article IX plus
the Tenant's Electrical Charge.
Escalation Factor Computation: Premises Rentable Area divided by 93% of the
Building Rentable Area.
Force Majeure: Collectively and individually, strike or other labor trouble,
fire or other casualty, governmental preemption of priorities or other controls
in connection with a national or other public emergency or shortages of, or
inability to obtain, fuel, supplies or labor resulting therefrom, or any other
cause, whether similar or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $1,000,000 per person; $3,000,000 per
occurrence (combined single limit) for property damage, bodily injury or death.
Land Parcel: The parcel of Land upon which the Building is located and shown as
Lot 5.1 on a certain plan entitled "Compiled Plan of Land in Westborough, Mass.
(Worcester County) Scale 1" = 80', March 19, 1987 by Robinson & Fox, a Division
of Boston Survey Consultants, Inc., 33 Waldo Street, Worcester,
3
<PAGE>
Massachusetts. Owner: Teachers Insurance and Annuity Association of America
prepared by BSC Group -- Worcester, Inc. 33 Waldo Street, Worcester, MA."
Lease Year or lease year: Each consecutive 12 calendar month period
immediately following the Commencement Date, but if the Commencement Date shall
fall on other than the first day of a calendar month, then such term shall mean
each consecutive twelve calendar month period commencing with the first day of
the first full calendar month of the Initial Term. The first lease year shall
include any partial month between the Commencement Date and the first day of the
first full calendar month immediately following the Commencement Date.
Operating Expenses: As set forth in Article IX.
Operating Year: As defined in Section 9.1.
Park: The entire development known as Westborough Office Park in which the
Building is located and situated on approximately 137.9 acres of Land located at
West Park Drive, Westborough, MA.
Premises: A portion of the Building as shown on Exhibit A annexed hereto.
Property: The Building and the Land Parcel.
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenants Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in accordance
with the provisions hereof.
Utility Expenses: As defined in Section 9.1.
Exhibits: The following Exhibits are annexed to this Lease and incorporated
herein by this reference:
Exhibit A - Plan Showing Premises
Exhibit B - Tenant's Plans and Specifications
Exhibit C - Intentionally Omitted
Exhibit D - Building Services
Exhibit E - Operating Expenses
Exhibit F - Pan Showing First Office Space
4
<PAGE>
ARTICLE II
----------
PREMISES AND APPURTENANT RIGHTS.
--------------------------------
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
Term of this Lease and upon the terms and conditions hereinafter set forth, and
Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use, and permit its invitees to use
in common with others, the common entrances, exits, roads and walkways of the
Park and the parking areas and walkways on the Land Parcel, public or common
lobbies, hallways, stairways and elevators and common walkways necessary for
access to the Building, and if the portion of the Premises on any floor includes
less than the entire floor, the common toilets, corridors and elevator lobby of
such floor; but Tenant shall have no other appurtenant rights and all such
rights shall always be subject to reasonable rules and regulations from time to
time established by Landlord pursuant to Section 14.7 and to the right of
Landlord to designate and change from time to time areas and facilities so to be
used.
(b) Excepted and excluded from the Premises are the ceiling, floor, perimeter
walls and exterior windows, except the inner surfaces thereof and any space or
areas in the Premises used for shafts, pipes, stacks, conduits, fan rooms ducts,
electricity or other utilities, mechanical rooms or other Building facilities,
but the entry doors (and related glass and finish work) to the Premises are a
part thereof Tenant agrees that Landlord shall have the right to place in the
Premises subcontrol devices (by way of illustration, an electric sub panel,
etc.), utility lines, pipes, equipment and the like, in, over and upon the
Premises. Tenant shall install and maintain, as Landlord may require, proper
access panels in any hung ceilings or walls as may be installed by Tenant in the
Premises to afford access to any facilities above the ceiling or within or
behind the walls.
In the event that the useable square footage of the Building is actually reduced
as a result of Landlords exercise of its rights pursuant to this Section 2.2(b)
then, the rentable square footage of the Premises Rentable Area shall be
adjusted accordingly.
(c) Tenant shall at all times be entitled to the non-exclusive use of up to 4
parking spaces (undesignated and unreserved) per 1,000 rentable square feet of
Premises Rentable Area. In addition, so long as Landlord owns the Building
known as 1800 West Park Drive, Tenant shall have access to the locker room
facilities located at 1800 West Park Drive (for the use of Tenant's employees
only.)
5
<PAGE>
ARTICLE III
-----------
BASIC RENT
----------
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by Landlord,
commencing on the Commencement Date without offset, abatement (except as
provided in Article 12.1), deduction or demand, the Basic Rent. Such Basic Rent
shall be payable in equal monthly installments, in advance, on the first day of
each and every calendar month during the Term of this Lease, at such place as
Landlord shall from time to time designate by notice to Tenant, in lawful money
of the United States. Until notice of some other designation is given, Basic
Rent and all other charges for which provision is herein made shall be paid by
remittance payable to the Manager and addressed to the Manager, P.O. Box 3186,
Boston, MA 02103-3186, and all remittances so received as aforesaid, or by any
subsequently designated recipient, shall be treated as a payment to Landlord. In
the event that any installment of Basic Rent or Escalation Charges is not paid
within five (5) days after the due date thereof on more than two occasions
during any twelve calendar month period then, beginning with the third such
event in said twelve calendar month period and thereafter on each such
subsequent event during said 12 month period, Tenant shall pay, in addition to
any Escalation Charges or other additional charges due under this Lease, an
administrative fee equal to 3% of the overdue payment.
(b) Basic Rent for any partial month shall be pro-rated on a daily basis, and if
the first day on which Tenant must pay Basic Rent shall be other than the first
day of a calendar month, the first payment which Tenant shall make to Landlord
shall be equal to a proportionate part of the monthly installment of Basic Rent
or the partial month from the first day on which Tenant must pay Basic Rent to
the last day of the month in which such day occurs, plus the installment of
Basic Rent for the succeeding calendar month.
(c) Landlord acknowledges receipt from Tenant of the first month's Basic Rent to
be held as advance rental and security to be forfeited, without limitation of
other remedies, for any default or Event of Default hereunder by Tenant
occurring prior to the commencement of the term hereof. If no such default
occurs, then such payment shall be applied by Landlord against the rental first
falling due hereafter.
ARTICLE IV
----------
COMMENCEMENT AND CONDITION
--------------------------
4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur of (i)
August 1, 1996 (the "Construction Completion Date"), or (ii) the day
6
<PAGE>
following the date on which the Premises are "ready for occupancy" as provided
in Section 4.2. Notwithstanding the foregoing, if Tenant's personnel shall
occupy all or any part of the Premises for the conduct of its business prior to
the Commencement Date, such date shall for all purposes of this Lease be the
Commencement Date. The Tenant shall, upon demand of the Landlord, execute a
certificate confirming the Commencement Date as it is determined in accordance
with the provisions of this Section 4.1. To the extent required by applicable
law, Landlord shall obtain the Building Permits and other permits necessary to
perform and complete Landlords Work and a Certificate of Occupancy relating to
Landlords Work.
4.2 PREPARATION OF THE PREMISES. (a) Landlord shall promptly commence and
thereafter exercise all reasonable efforts to complete the work ("Landlord's
Work") necessary to prepare the Premises for Tenant's occupancy pursuant to the
Plans and Specifications attached hereto as Exhibit B, and in accordance with
Landlord's building standard materials, work and improvements, but Tenant shall
have no claim against Landlord for failure to complete such Landlord's Work
except for the right to terminate this Lease in accordance with Section 4.2(c).
Tenant hereby approves all matters set forth in Exhibit B. Landlord shall
perform Landlords Work in accordance with applicable provisions of the Americans
with Disabilities Act of 1990, and any regulations promulgated thereunder in
effect as of the Commencement Date.
To the extent that Tenant shall require (and Landlord shall approve) any changes
to Exhibit B and such changes result in an increase in the total cost of all
work, materials, improvements, permits, approvals and architectural and
engineering fees necessary to complete Landlord's Work, Landlord shall advise
Tenant of such costs in writing and Tenant shall pay the actual cost of such
increased requirements to Landlord as an additional charge hereunder as follows:
50% of such costs shall be paid on the execution hereof and 50% shall be paid on
the Commencement Date (or, in either case, at such later time as Landlord
advises Tenant of the amount of such excess). Tenant shall, if requested by
Landlord, execute a work letter confirming such excess costs prior to the time
Landlord shall be required to commence work. It is agreed and understood that
Landlord's Work shall include work in the Expansion Space (except for purposes
of Sections 4.2(b) and (c) hereof).
(b) The Premises shall be deemed "ready for occupancy" on the fourth Business
Day (the "Substantial Completion Date") after Landlord's Work has been completed
except for items of work (and, if applicable, adjustment of equipment and
fixtures) which can be completed after occupancy has been taken without causing
undue interference with Tenant's use of the Premises (i.e., so called "punch
list" items), and Tenant shall afford Landlord access to the Premises for such
purposes. It is agreed and understood that Landlord's failure to substantially
complete Landlord's Work in the space marked on Exhibit A as the "Expansion
Space" shall not preclude the Premises from being deemed "ready for occupancy"
for purposes of establishing the Commencement Date.
7
<PAGE>
(c) If the Substantial Completion Date has not occurred by the Construction
Completion Date (as it may be extended pursuant to Section 4.4), Tenant shall
have the right to terminate this Lease by giving notice to Landlord, not later
than thirty (30) days after the Construction Completion Date (as so extended),
of Tenant's desire so to do; and this Lease shall cease and come to an end
without further liability or obligation on the part of either party ninety (90)
days after the giving of such notice, unless, within such ninety (90)-day
period, Landlord substantially completes Landlord's Work to the extent required
by Section 4.2(b) above, which substantial completion shall void Tenant's
election to terminate; and such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete such
Work within such time.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Unless Tenant shall have given
Landlord written notice by the end of the first three (3) full calendar months
after the Commencement Date of specific respects in which landlord has not
performed Landlord's Work in compliance with the matters set forth in Exhibit B,
Tenant shall have no claim that Landlord has failed to perform any of Landlord's
Work. Except for Landlord's Work, the Premises are being leased in their
condition, "as is" without warranty or representation by Landlord. Tenant
acknowledges that it has inspected the Premises and common areas of the Building
and, except for Landlord's Work, has found the same to be satisfactory.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the Substantial Completion
Date as the result of:
(i) any request by Tenant that Landlord delay in the commencement or
completion of Landlord's Work for any reason; or
(ii) any change by Tenant in Exhibit B or final plans and specifications
detailing Landlord's Work (as approved by Landlord and Tenant); or
(iii) any other act or omission of Tenant or its officers, partners,
agents, servants or contractors; or
(iv) any reasonably necessary displacement of any of Landlord's Work from
its place in Landlord's construction schedule resulting from any of the causes
for delay referred to in clauses (i), (ii) or (iii) of this paragraph and the
fitting of such Work back into the schedule;
then, in any such event, Tenant shall, from time to time and within ten (10)
days after demand therefor, pay to Landlord for each day the Substantial
Completion Date is delayed by reason of the delays referred to in clauses (i),
(ii), (iii) and (iv) above, an amount equal to one day of Basic Rent (pro-rated
on a daily basis) for each such day of delay.
8
<PAGE>
(b) Intentionally Omitted.
(c) The delays referred to in paragraph (a) hereof are hereafter referred to
collectively and individually as "Tenant's Delay".
(d) If, as a result of Tenant's Delay, the Substantial Completion Date is
delayed in the aggregate for more than ninety (90) days, Landlord may (but shall
not be required to) at any time thereafter terminate this Lease by giving
written notice of such termination to Tenant and thereupon this Lease shall
terminate without further liability or obligation on the part of either party,
except that Tenant shall pay to Landlord the cost theretofore incurred by
Landlord in performing Landlord's Work, plus an amount equal to Landlord's out-
of-pocket expenses incurred in connection with this Lease, including, without
limitation, brokerage and legal fees, together with any amount required to be
paid pursuant to paragraph (a) through the effective termination date.
(e) The Construction Completion Date shall automatically be extended for the
period of any delays caused by Tenant's Delay or Force Majeure.
ARTICLE V
---------
USE OF PREMISES
---------------
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses specifically excluding, without
limitation, use for utility company or employment agency offices or any other
use that would cause the Premises to be deemed a "place of public accommodation"
under the Americans With Disabilities Act of 1990.
(b) Tenant agrees to conform to the following provisions during the Term of this
Lease:
(i) Tenant shall cause all freight to be delivered to or removed from the
Building and the Premises in accordance with reasonable rules and regulations
established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises (including both
interior and exterior surfaces of doors and interior surfaces of windows) or on
any part of the Building outside the Premises, any signs, symbol, advertisements
or the like visible to public view outside of the Premises. Landlord will not
unreasonably withhold consent for signs or lettering on the entry doors to the
Premises provided such signs (i) conform to building standards adopted by
Landlord and Tenant has submitted a sketch of the sign to be placed on such
entry doors and (ii) conform to regulations, ordinances or by-laws promulgated
or adopted by any state, local or other governmental authority. Landlord shall
cause
9
<PAGE>
Tenants corporate name (as well as other tenants' names) to be listed on the
monument sign at the entry to the Park.
(iii) Tenant shall not perform any act or carry on any practice which may
injure the Premises, or any other part of the Building, or cause offensive odors
or loud noise or constitute a nuisance or menace to any other tenant or tenants
or other persons in the Building or Park;
(iv) Tenant shall, in its use of the Premises, comply with the requirements
of all applicable governmental laws, rules and regulations including, without
limitation, the Americans With Disabilities Act of 1990, as amended and any
regulations promulgated thereunder; and
(v) Tenant shall continuously throughout the Term of this Lease occupy the
Premises for the Permitted Uses and for no other purposes.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises without Landlord's prior
written consent which consent shall not be unreasonably withheld or delayed as
to non-mechanical, non-structural and non-electrical changes or alterations to
the Premises. Any such alterations, additions or improvements shall (i) be in
accordance with complete plans and specifications prepared by Tenant and
approved in advance by Landlord; (ii) be performed in a good and workmanlike
manner and in compliance with all applicable laws; (iii) be performed and
completed in the manner required in Section 5.2(d) hereof; (iv) be made at
Tenant's sole expense and at such times as Landlord may from time to time
reasonably designate; and (v) become a part of the Premises and the property of
Landlord.
(b) All articles of personal property and all machinery, equipment and furniture
owned or installed by Tenant solely at its expense in the Premises ("Tenant's
Removable Property") shall remain the property of Tenant and may be removed by
Tenant at any time prior to the expiration of this Lease, provided that Tenant,
at its expense, shall repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
Premises. Whenever and as often as any mechanic's lien shall have been filed
against the Premises based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall forthwith take such actions by bonding,
deposit or payment as will remove or satisfy the lien.
(d) All of the Tenant's alterations, additions and installation of furnishings
shall be coordinated with any work being performed by Landlord and in such
manner as to
10
<PAGE>
maintain harmonious labor relations and not damage the Property or interfere
with Building construction or operation and shall be performed by contractors or
workmen first approved by Landlord which approval will not be unreasonably
withheld or delayed. Installation and moving of furnishings, equipment and the
like shall be performed only with labor compatible with that being employed by
Landlord for work in or to the Building and not to employ or permit the use of
any labor or otherwise take any action which might result in a labor dispute
involving personnel providing services in the Building. Except for work by
Landlord's general contractor, Tenant before its work is started shall: secure
all licenses and permits necessary therefor; deliver to Landlord a statement of
the names of all its contractors and subcontractors and the estimated cost of
all labor and material to be furnished by them; and cause each contractor to
carry workmen's compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and comprehensive public liability
insurance and property damage insurance with such limits as Landlord may
reasonably require but in no event less than a combined single limit of Two
Million and No/100ths ($2,000,000.00) Dollars (all such insurance to be written
in companies approved by Landlord and insuring Landlord and Tenant as well as
the contractors), and to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent contractors, and not
to cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises or the Property and immediately
to discharge any such liens which may so attach and, at the request of Landlord
to deliver to Landlord security satisfactory to Landlord against liens arising
out of the furnishing of such labor and material. Upon completion of any work
done on the Premises by Tenant, its agents, employees, or independent
contractors, Tenant shall promptly deliver to Landlord original lien releases
and waivers executed by each contractor, subcontractor, supplier, materialmen,
architect, engineer or other party which furnished labor, materials or other
services in connection with such work and pursuant to which all liens, claims
and other rights of such party with respect to labor, material or services
furnished in connection with such work are unconditionally released and waived.
Tenant shall pay within fourteen (14) days after being billed therefor by
Landlord, as an additional charge hereunder, one hundred percent (100%) of any
increase in real estate taxes on the Property not otherwise billed to Tenant
which shall, at any time after commencement of the Term, result from any
alteration, addition or improvement to the Premises made by or on behalf of
Tenant (including Tenant's subsequent alterations, additions, substitutions and
improvements) done after the commencement of the Term of this Lease.
ARTICLE VI
----------
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor the term
and
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estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred and that neither the
Premises nor any part thereof will be encumbered in any manner by reason of any
act or omission on the part of Tenant, or used or occupied, by anyone other than
Tenant, or for any use or purpose other than a Permitted Use, or be sublet
(which term, without limitation, shall include granting of concessions, licenses
and the like) in whole or in part, or be offered or advertised for assignment or
subletting. The provisions of this Section 6.1(a) are subject to all other
provisions of this Article VI including, without limitation, the provisions of
Section 6.1(d).
(b) The provisions of paragraph (a) of this Section shall apply to a transfer
(by one or more transfers) of a majority of the stock or partnership interests,
or other evidences of ownership of Tenant as if such transfer were an assignment
of this Lease; but such provisions shall not apply to transactions with an
entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred or to any entity which
controls or is controlled by Tenant or is under common control with Tenant,
provided that in any of such events (i) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the net worth of Tenant immediately prior to such merger, consolidation
or transfer, (ii) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least 10 days prior to the effective date of any
such transaction, and (iii) the assignee agrees directly with Landlord, by
written instrument in form satisfactory to Landlord, to be bound by all the
obligations of Tenant hereunder including, without limitation, the covenant
against further assignment or subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof be sublet
or occupied by anyone other than Tenant, Landlord may, at any time and from time
to time, collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy, collection or
modification of any provisions of this Lease shall be deemed a waiver of this
covenant, or the acceptance of the assignee, subtenant or occupant as a tenant
or a release of the original named Tenant from the further performance by the
original named Tenant hereunder. No assignment or subletting hereunder shall
relieve Tenant from its obligations hereunder and Tenant shall remain fully and
primarily liable therefor. No assignment or subletting, or occupancy shall
affect Permitted Uses.
(d) In connection with any request by Tenant for consent to assignment or
subletting, Tenant shall first submit to Landlord in writing: (i) the name of
the proposed assignee or subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require, and (iii) all
terms and provisions upon which the proposed assignment or subletting is to be
made. Upon receipt from Tenant of such request and information, the Landlord
shall have an option (sometimes hereinafter referred to as the "option" or "Take
Back Option") to be exercised in writing within fifteen (15) days after its
receipt from Tenant of such request and information, if the request is to assign
the Lease or to
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sublet all of the Premises, to cancel or terminate this Lease, or, if the
request is to sublet a portion, of the Premises only, to cancel and terminate
this Lease with respect to such portion, in each case, as of the date set forth
in Landlord's notice of exercise of such option, which shall be not less than
sixty (60) nor more than ninety (90) days following the giving of such notice;
in the event Landlord shall exercise such option, Tenant shall surrender
possession of the entire Premises, or the portion which is the subject of the
option, as the case may be, on the date set forth in such notice in accordance
with the provisions of this Lease relating to surrender of Premises at the
expiration of the Term. If this Lease shall be cancelled as to a portion of the
Premises only, Basic Rent, Tenant's Electrical Charge and Escalation Charges
shall thereafter be abated proportionately according to the ratio the number of
square feet of the portion of the space surrendered bears to the size of the
Premises. As additional rent, Tenant shall reimburse Landlord promptly for
reasonable legal and other expenses incurred by Landlord in connection with any
request by Tenant for consent to assignment or subletting.
If Landlord shall not exercise its option pursuant to the foregoing provisions,
Landlord will not unreasonably delay or withhold its consent to the assignment
or subletting to the party referred to upon all the terms and provisions set
forth in Tenant's notice to Landlord, provided that the terms and provisions of
such assignment or subletting shall specifically make applicable to the assignee
or sublessee all of the provisions of this Article VI of the Lease so that
Landlord shall have against the assignee or sublessee all rights with respect to
any further assignment or subletting which are set forth in Article VI of the
Lease as amended hereby except that no such assignee or sublessee shall have any
right to further assign or sublet the Premises. In any case where Landlord
consents to an assignment of this Lease, Landlord shall be entitled to receive
50% of all amounts received by Tenant in connection with such assignment.
Further, in any case where Landlord consents to a subletting, Landlord shall be
entitled to receive 50% of all Subleasing Overages (as said term is hereinafter
defined). As used herein, the term "Subleasing Overages" shall mean, for each
period in question, all amounts received by Tenant in excess of Basic Rent and
Escalation Charges and other items of additional rent reserved under this Lease
attributable to the space sublet (including, without limitation, all lump sum
payments made in connection therewith).
Any such assignment or subletting shall nevertheless be subject to all the terms
and provisions of Article VI and no assignment shall be binding upon Landlord or
any of Landlord's mortgagees, unless Tenant shall deliver to Landlord an
instrument in recordable form which contains a covenant of assumption by the
assignee running to Landlord and all persons claiming by, through or under
Landlord. The failure or refusal of the assignee to execute such instrument of
assumption shall not release or discharge the assignee from its liability as
Tenant hereunder. In addition, Tenant shall furnish to Landlord a conformed copy
of any sublease effected under terms of this Article VI. In no event shall the
Tenant hereunder be released from its liability under this Lease.
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Landlord shall not be deemed unreasonable in refusing to approve a sublease
wherein the rent is, in the reasonable judgment of Landlord, at rates which are
below market for the Premises or Building or where such proposed subtenant is a
tenant of any building in the Park.
ARTICLE VII
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RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
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SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease, Landlord
agrees to keep in good order, condition and repair the roof, public areas,
exterior walls (including exterior glass) and structure of the Building
(including plumbing, mechanical and electrical systems installed by Landlord but
excluding any systems installed specifically for Tenant's benefit), all insofar
as they affect the Premises, all insofar as they affect the Premises, except
that Landlord shall in no event by responsible to Tenant for the condition of
glass in the Premises or for the doors (or related glass and finish work)
leading to the Premises, or for any condition in the Premises or the Building
caused by any act or neglect of Tenant, its agents, employees, invitees or
contractors. The fact that Landlord is responsible for the foregoing described
repairs shall not be construed to prohibit the costs thereof from being included
in Operating Expenses. Landlord shall not be responsible to make any
improvements or repairs to the Building other than as expressly in this Section
7.1 provided, unless expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1 or
elsewhere in this Lease, unless Tenant has given notice to Landlord of the need
to make such repairs, and Landlord has failed to commence to make such repairs
within a reasonable time after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from time to
time, in whole or in part, by employees of Landlord or by the Manager of the
Property or by one or more third persons and Landlord further reserves the right
to require Tenant to enter into reasonable agreements with such persons in form
and content approved by Landlord for the furnishing of such services.
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7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain in good
order, condition and repair the Premises and every part thereof, excepting only
those repairs for which Landlord is responsible under the terms of this Lease,
reasonable wear and tear of the Premises, and damage by fire or other casualty
and as a consequence of the exercise of the power of eminent domain, and Tenant
shall surrender the Premises, at the end of the Term, in such condition. Without
limitation, Tenant shall continually during the Term of this Lease maintain the
Premises in accordance with all laws, codes and ordinances from time to time in
effect and all directions, rules and regulations of the proper officers of
governmental agencies having jurisdiction, and of the applicable Board of Fire
Underwriters, and shall, unless otherwise expressly set forth in this Lease, at
Tenant's own expense, obtain all permits, licenses and the like required by
applicable law. Notwithstanding the foregoing or the provisions of Article XII,
Tenant shall be responsible for the cost of repairs which may be necessary by
reason of damage to the Property or the Park caused by any act or neglect of
Tenant or its agents, employees, contractors or invitees (including any damage
by fire or any other casualty arising therefrom).
Without limitation of the foregoing, Tenant shall not do or perform, and shall
not permit its agents, servants, employees, contractors or invitees to do or
perform any act or thing in or upon the Property which will invalidate or be in
conflict with the certificate of occupancy for the Premises or the Building or
violate any statute, law, rule, by-law or ordinance of any governmental entity
having jurisdiction over the Property (the "Requirements"). Tenant shall, at
Tenant's sole cost and expenses, take all action, including the making of any
improvements or alterations necessary to comply with all Requirements
(including, but not limited to the Americans With Disabilities Act of 1990 (the
"ADA"), as modified and supplemented from time to time) which shall, with
respect to the Premises or with respect to any abatement of nuisance, impose any
violation, order or duty upon Landlord or Tenant arising from, or in connection
with the Premises, Tenant's occupancy, use or manner of use of the Premises
(including, without limitation, any occupancy, use or manner of use that
constitutes a "place of public accommodation" under the ADA), or any
installations in the Premises, or required by reason of a breach of any of
Tenant's covenants or agreements under this Lease, whether or not such
Requirements shall now be in effect or hereafter enacted or issued, and whether
or not any work required shall be ordinary or extraordinary or foreseen or
unforeseen at the date hereof. Notwithstanding the preceding sentence, Tenant
shall not be obligated to perform any alterations necessary to comply with any
Requirements, unless compliance shall be required by reason of (i) any cause or
condition arising out of any alterations or installations in the Premises
(whether made by Tenant or by Landlord on behalf of Tenant except for Landlords
Work pursuant to Article IV), (ii) Tenant's particular use, manner of use or
occupancy of the Premises (as opposed to mere use as executive, general and
administrative offices), (iii) any breach of any of Tenant's covenants or
agreements under this Lease, or (iv) any wrongful act or omission by Tenant or
Tenant's agents, servants, employees, contractors or invitees, or (v) Tenant's
use or manner of use or occupancy of the Premises as a "place of public
accommodation"
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within the meaning of the ADA. Notwithstanding anything curtained herein to the
contrary, Landlord shall perform Landlords Work in compliance with the ADA and
all regulations promulgated thereunder which are in effect as of the
Commencement Date.
(b) If repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand that Tenant make the same forthwith, and if Tenant refuses
or neglects to commence such repairs and complete the same with reasonable
dispatch after such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made (the provisions of Section 14.18 being
applicable to the costs thereof) and shall not be responsible to Tenant for any
loss or damage that may accrue to Tenant's stock or business by reason thereof.
Notwithstanding the foregoing, Landlord may elect to take action hereunder
immediately and without notice to Tenant if Landlord reasonably believes an
emergency to exist.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any
floor in the Premises exceeding the floor load per square foot of area which
such floor was designed to carry and which is allowed by law. Landlord reserves
the right to prescribe the weight and position of all business machines and
mechanical equipment, including safes, which shall be placed so as to distribute
the weight. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient, in Landlord's
judgment, to absorb and prevent vibration, noise and annoyance. Tenant shall not
move any safe, heavy machinery, heavy equipment, freight, bulky matter or
fixtures into or out of the Building without Landlord's prior consent, which
consent may include a requirement to provide insurance, naming Landlord as an
insured, in such amounts as Landlord may deem reasonable.
(b) If such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Tenant agrees to employ only persons holding a Master
Rigger's License to do such work, and that all work in connection therewith
shall comply with applicable laws and regulations. Any such moving shall be at
the sole risk and hazard of Tenant, and Tenant will exonerate, indemnify and
save Landlord harmless against and from any liability, loss, injury, claim or
suit resulting directly or indirectly from such moving.
7.4 BUILDING SERVICES. Subject to the terms and provisions of Exhibit D Landlord
shall provide the Building Services described in Exhibit D.
ARTICLE VIII
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REAL ESTATE TAXES
-----------------
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "Tax Year" shall mean the twelve-month period commencing on
the July 1 immediately preceding the Commencement Date and
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each twelve-month period thereafter commencing during the Term of this Lease;
and the term "Taxes" shall mean real estate taxes and special or general
betterment assessments assessed with respect to the Property for any Tax Year.
(b) In the event that, for any reason, Taxes shall be greater during
any Tax Year than Base Taxes, Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) the excess of Taxes over Base Taxes, multiplied
by (ii) the Escalation Factor, such amount to be apportioned for any fraction of
a Tax Year in which the Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion herein provided for the payment of
Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the time real estate tax payments are due a sum equal to
Tenant's required payments, as estimated by Landlord from time to time, on
account of Taxes for the then current Tax Year. Promptly after receipt by
Landlord of bills for such Taxes, Landlord shall advise Tenant of the amount
thereof and the computation of Tenant's payment on account thereof. If estimated
payments theretofore made by Tenant for the Tax Year covered by such bills
exceed the required payments on account thereof for such Year, Landlord shall
credit the amount of overpayment against subsequent obligations of Tenant on
account of Taxes (or refund such overpayment if the Term of this Lease has ended
and Tenant has no further obligation to Landlord); but if the required payments
on account thereof for such Year are greater than estimated payments theretofore
made on account thereof for such Year, Tenant shall make payment to Landlord
within 30 days after being so advised by Landlord. Landlord shall have the same
rights and remedies for the non-payment by Tenant of any payments due on account
of Taxes as Landlord has hereunder for the failure of Tenant to pay Basic Rent.
8.2 ABATEMENT. If Landlord shall receive any tax refund or
reimbursement of Taxes or sum in lieu thereof with respect to any Tax Year which
is not due to vacancies in the Building, then out of any balance remaining
thereof after deducting Landlord's expenses reasonably incurred in obtaining
such refund, Landlord shall pay to Tenant, provided there does not then exist a
Default of Tenant, an amount equal to such refund or reimbursement or sum in
lieu thereof (exclusive of any interest) multiplied by the Escalation Factor;
provided, that in no event shall Tenant be entitled to receive more than the
payments made by Tenant on account of real estate tax increases for such Year
pursuant to paragraph (b) of Section 8.1 or to receive any payments or abatement
of Basic Rent if Taxes for any Year are less than Base Taxes or Base Taxes are
abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall
replace the current method of assessment of real estate taxes in whole or in
part, or the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord relating to the Property, Tenant agrees that Tenant shall
pay a proportionate share of the same as an additional charge computed in a
fashion consistent with the method of computation herein provided, to the end
that
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Tenant's share thereof shall be, to the maximum extent practicable, comparable
to that which Tenant would bear under the foregoing provisions.
(b) If a tax (other than Federal or State net income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under this
Lease, Tenant agrees to pay the same as an additional charge within ten (10)
days after billing therefor, unless applicable law prohibits the payment of such
tax by Tenant.
ARTICLE IX
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OPERATING EXPENSES
------------------
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
have the following respective meanings:
(i) Operating Year: Each calendar year in which any part of the
Term of this Lease shall fall.
(ii) Operating Expenses: The aggregate costs or expenses
incurred by Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property (including a proportionate
share of any common area expenses imposed on Landlord or the Property arising
from the fact that the Property is a portion of the Park but specifically
excluding Utility Expenses) including, without limitation those matters set
forth in Exhibit E annexed hereto, provided that, if during any portion of the
Operating Year for which Operating Expenses are being computed, less than all of
Building Rentable Area was occupied by tenants or if Landlord is not supplying
all tenants with the services being supplied hereunder, actual Operating
Expenses incurred shall be reasonably extrapolated by Landlord on an item by
item basis to the estimated Operating Expenses that would have been incurred if
the Building were fully occupied for such Year and such services were being
supplied to all tenants, and such extrapolated amount shall, for the purposes
hereof, be deemed to be the Operating Expenses for such Year.
(iii) Utility Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to supplying electricity (other
than electricity supplied to those portions of the Building leased to tenants),
oil, steam, gas, water and sewer and other utilities supplied to the Property
and not paid for directly by tenants, provided that, if during any portion of
the Operating Year for which Utility Expenses are being computed, less than all
Building Rentable Area was occupied by tenants or if Landlord is not supplying
all tenants with the utilities being supplied hereunder, actual utility expenses
incurred shall be reasonably extrapolated by Landlord on an item-by-item basis
to the estimated Utility Expenses that would have been incurred if the Building
were fully occupied for such Year and such utilities were being supplied to all
tenants, and such
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extrapolated amount shall, for the purposes hereof, be deemed to be the Utility
Expenses for such Year.
9.2 TENANT'S PAYMENTS. (a) In the event that for any Operating Year Operating
Expenses shall exceed Base Operating Expenses, Tenant shall pay to Landlord, as
an Escalation Charge, an amount equal to (i) such excess Operating Expenses
multiplied by (ii) the Escalation Factor, such amount to be apportioned for any
partial Operating Year in which the Commencement Date falls or the Term of this
Lease ends.
(b) In the event that for any Operating Year Utility Expenses shall exceed Base
Utility Expenses, Tenant shall pay to Landlord, as an Escalation Charge, an
amount equal to (i) such excess Utility Expenses multiplied by (ii) the
Escalation Factor, such amount to be apportioned for any partial Operating Year
in which the Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Operating Expenses shall be made
monthly and at the time and in the fashion herein provided for the payment of
Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to Tenant's
required payments, as estimated by Landlord from time to time during each
Operating Year, on account of Operating Expenses and Utility Expenses for such
Operating Year. After the end of each Operating Year, Landlord shall submit to
Tenant a reasonably detailed accounting of Operating Expenses and Utility
Expenses for such Year, and Landlord shall certify to the accuracy thereof. If
estimated payments theretofore made for such Year by Tenant exceed Tenant's
required payment on account thereof for such Year, according to such statement,
Landlord shall credit the amount of overpayment against subsequent obligations
of Tenant with respect to Operating Expenses and Utility Expenses (or refund
such overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord), but, if the required payments on account thereof for
such Year are greater than the estimated payments (if any) theretofore made on
account thereof for such Year, Tenant shall make payment to Landlord within
thirty (30) days after being so advised by Landlord. Landlord shall have the
same rights and remedies for the nonpayment by Tenant of any payments due on
account of Operating Expenses and Utility Expenses as Landlord has hereunder for
the failure of Tenant to pay Basic Rent.
(d) Provided that Tenant shall have first paid all amounts due and payable by
Tenant pursuant to this Article IX and upon the written request of Tenant (but
not more than once with respect to any Operating Year), Tenant shall be
permitted to inspect Landlord's books and records pertaining to Operating
Expenses applicable to the Property for such Operating Year. Such inspection
shall take place at a mutually agreeable time at the location where such books
and records are kept by the Landlord (or the Manager) in the ordinary course.
Tenant shall keep the results of any such inspection strictly confidential and
shall not disclose the results of such inspection nor the content of such books
and records with any third party.
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Failure of Tenant to provide Landlord with a written request to review such
books and records within 60 days after receipt of a final statement pursuant to
this Article IX with respect to each respective Operating Year shall be deemed a
waiver of Tenant's rights hereunder with respect to such Operating Year.
(e) Notwithstanding that the Escalation Factor Computation is based upon 93% of
the Building Rentable Area, Landlord shall not collect more than 100% of
increases in Escalation Charges with respect to any Operating Year. Nothing
contained herein shall preclude Landlord from performing the Extrapolations set
forth in Section 9.1(i) and (ii) hereof.
ARTICLE X
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INDEMNITY AND PUBLIC LIABILITY INSURANCE
----------------------------------------
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnify and save harmless
Landlord from and against all claims, loss, liability, costs and damages of
whatever nature arising from any default by Tenant under this Lease and the
following: (i) from any accident, injury, death or damage whatsoever to any
person, or to the property of any person, occurring in or about the Premises;
(ii) from any accident, injury, death or damage occurring outside of the
Premises but on the Property or in the Park, where such accident, damage or
injury results or is claimed to have resulted from an act or omission on the
part of Tenant or Tenant's agents, employees, invitees or independent
contractors; or (iii) in connection with the conduct or management of the
Premises or of any business therein, or any thing or work whatsoever done, or
any condition created (other than by Landlord) in or about the Premises; and, in
any case, occurring after the date of this Lease, until the end of the Term of
this Lease, and thereafter so long as Tenant is in occupancy of the Premises.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in, or in connection with, any such
claim or proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and appellate
levels. The provisions of this Section 10.1 shall survive the expiration or any
earlier termination of this Lease. Nothing contained in this Section 10.1 shall
require that Tenant indemnify Landlord from Landlords own negligence or the
negligence of Landlords agents, servants or employees.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from
the date upon which Tenant first enters the Premises for any reason, throughout
the Term of this Lease, and thereafter so long as Tenant is in occupancy of any
part of the Premises, a policy of general liability and property damage
insurance (including broad form contractual liability, independent contractor's
hazard and completed operations coverage) under which Landlord, Manager (and
such other persons as are in privity of estate with Landlord as may
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be set out in notice from time to time) and Tenant are named as insureds, and
under which the insurer agrees to defend, indemnify and hold Landlord, Manager,
and those in privity of estate with Landlord, harmless from and against all
cost, expense and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages set forth in Section 10.1. Each such policy
shall be non-cancellable and non-amendable with respect to Landlord, Manager and
Landlord's said designees without thirty (30) days' prior notice to Landlord and
shall be in at least the amounts of the Initial Public Liability Insurance
specified in Section 1.3 or such greater amounts as Landlord shall from time to
time request, and a duplicate original or certificate thereof shall be delivered
to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made effective
according to law, Tenant agrees to use and occupy the Premises and to use such
other portions of the Property and the Park as Tenant is herein given the right
to use at Tenant's own risk; and Landlord shall have no responsibility or
liability for any loss of or damage to Tenant's Removable Property or for any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is permitted by this
Lease or required by law to make in or to any portion of the Premises or other
sections of the Property, or in or to the fixtures, equipment or appurtenances
thereof. Tenant shall carry "all-risk" property insurance on a "replacement
cost" basis (including so-called improvements and betterments), and provide a
waiver of subrogation as required in Section 14.20. Nothing contained in this
Section 10.3 shall be deemed or construed to exculpate Landlord from liability
for personal injuries resulting from (i) the gross negligence or willful
misconduct of Landlord or (ii) the gross negligence or willful misconduct of
Landlord's agents, servants or employees. The provisions of this Section 10.3
shall be applicable from and after the execution of this Lease and until the end
of the Term of this Lease, and during such further period as Tenant may use or
be in occupancy of any part of the Premises or of the Building. The provisions
of this Section 10.3 shall survive any expiration or earlier termination of the
Term of this Lease.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may be
made effective according to law, Tenant agrees that Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Property, the
Park or otherwise. The provisions of this Section 10.4 shall survive the
expiration or any earlier termination of this Lease.
10.5 LANDLORD'S INSURANCE. Landlord shall maintain and keep in effect throughout
the term of this Lease (a) insurance against loss or damage to the Building by
fire or other casualty as may be included within either fire and extended
coverage insurance or "all-risk" insurance in an amount equal to the full
replacement cost of the Building (exclusive of foundations) and (b)
comprehensive general liability insurance in amounts reasonably determined by
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Landlord. Such coverage may be effected directly and/or through the use of
blanket insurance coverage covering more than one location and may contain such
reasonable deductibles as Landlord may elect.
ARTICLE XI
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LANDLORD'S ACCESS TO PREMISES
-----------------------------
11.1 LANDLORD'S RIGHTS. Landlord shall have the right to enter the Premises at
all reasonable hours upon advance oral or written notice (except in the case of
emergency when no notice shall be necessary) for the purpose of inspecting or
making repairs to the same, and Landlord shall also have the right to make
access available at all reasonable hours to prospective or existing mortgagees,
purchasers or tenants of any part of the Property or the Park.
ARTICLE XII
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FIRE, EMINENT DOMAIN, ETC.
--------------------------
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
Basic Rent and Escalation Charges payable by Tenant shall abate proportionately
for the period in which, by reason of such damage, there is substantial
interference with Tenant's use of the Premises, having regard to the extent to
which Tenant may be required to discontinue Tenant's use of all or a portion of
the Premises, but such abatement or reduction shall end if and when Landlord
shall have substantially restored the Premises (excluding any alterations,
additions or improvements made by Tenant pursuant to Section 5.2) to the
condition in which they were prior to such damage. If the Premises shall be
affected by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered
by Tenant. In no event shall Landlord have any liability for damages to Tenant
for inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
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12.2 RIGHT OF TERMINATION. If the Premises or the Building are substantially
damaged by fire or casualty (the term "substantially damaged" meaning damage of
such a character that the same cannot, in ordinary course, reasonably be
expected to be repaired within sixty (60) days from the time the repair work
would commence), or if any part of the Building is taken by any exercise of the
right of eminent domain, then Landlord shall have the right to terminate this
Lease (even if Landlord's entire interest in the Premises may have been
divested) by giving notice of Landlord's election so to do within sixty (60)
days after the occurrence of such casualty or the effective date of such taking,
whereupon this Lease shall terminate thirty (30) days after the date of such
notice with the same force and effect as if such date were the date originally
established as the expiration date hereof.
12.3 RESTORATION; TENANT'S RIGHT OF TERMINATION. If this Lease shall not be
terminated pursuant to Section 12.2, Landlord shall thereafter use due diligence
to restore the Premises (excluding any alterations, additions or improvements
made by Tenant) to proper condition for Tenant's use and occupation, provided
that Landlord's obligation shall be limited to the net amount of insurance
proceeds actually made available to Landlord therefor. If, for any reason, such
restoration shall not be substantially completed within five months after the
expiration of the sixty (60) day period referred to in Section 12.2 (which five-
month period may be extended for such periods of time as Landlord is prevented
from proceeding with or completing such restoration for any cause beyond
Landlord's reasonable control), Tenant shall have the right to terminate this
Lease by giving notice to Landlord thereof within thirty (30) days after the
expiration of such period (as so extended). Upon the giving of such notice, this
Lease shall cease and come to an end without further liability or obligation on
the part of either party unless, within such 30-day period, Landlord
substantially completes such restoration. Such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for Landlord's failure so
to complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Property and the leasehold interest hereby created, and to compensation accrued
or hereafter to accrue by reason of such taking, damage or destruction, and by
way of confirming the foregoing, Tenant hereby grants and assigns, and covenants
with Landlord to grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant
from, at its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of Tenant's Removable
Property installed in the Premises by Tenant at Tenant's expense and for
relocation expenses, provided that such action shall not affect the amount of
compensation otherwise recoverable by Landlord from the taking authority.
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ARTICLE XIII
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DEFAULT
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13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
any one or more of the following events (herein referred to as a "Default of
Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Tenant's
Electrical Charge, Escalation Charges or other sums payable as additional
charges hereunder when due and such failure shall continue for ten (10) days
after written notice from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or observed, or
Tenant shall desert or abandon the Premises or the Premises shall become, or
appear to have become vacant (regardless whether the keys shall have been
surrendered or the rent and all other sums due shall have been paid), and Tenant
shall fail to remedy the same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such failure is of such a nature that
Tenant cannot reasonably remedy the same within such thirty (30) day period,
Tenant shall fail to commence promptly to remedy the same and to prosecute such
remedy to completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or answer seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future Federal,
State or other statute, law or regulation for the relief of debtors, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties, or
shall admit in writing its inability to pay its debts generally as they become
due; or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future Federal, State or other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of sixty (60) days (whether or not
consecutive), or if any debtor in possession (whether or not Tenant) trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties or of the Premises shall be appointed without the consent or
acquiescence of Tenant and such appointment
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shall remain unvacated or unstayed for an aggregate of sixty (60) days (whether
or not consecutive); or
(vi) If a Default of Tenant of the kind set forth in clauses (i) or
(ii) above shall occur and if either (a) Tenant shall cure such Default within
the applicable grace period or (b) Landlord shall, in its sole discretion,
permit Tenant to cure such Default after the applicable grace period has
expired, and an event which would constitute a similar Default if not cured
within the applicable grace period shall occur more than once within the next
365 days, whether or not such event is cured within the applicable grace period;
then in any such case (1) if such Default of Tenant shall occur prior to the
Commencement Date, this Lease shall ipso facto, and without further act on the
part of Landlord, terminate, and (2) if such Default of Tenant shall occur after
the Commencement Date, Landlord may terminate this Lease by notice to Tenant,
and thereupon this Lease shall come to an end as fully and completely as if such
date were the date herein originally fixed for the expiration of the Term of
this Lease, and Tenant will then quit and surrender the Premises to Landlord,
but Tenant shall remain liable as hereinafter provided.
(b) If this Lease shall be terminated as provided in this Article, or if any
execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the Premises shall be taken or occupied by someone other than
Tenant, then Landlord may, without notice, re-enter the Premises, either by
force, summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as if this
Lease had not been made, and Tenant hereby waives the service of notice of
intention to re-enter or to institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been the
Term of this Lease in the absence of such termination, and whether or not the
Premises shall have been relet, shall be liable to Landlord for, and shall pay
to Landlord, as liquidated current damages, the Basic Rent, Escalation Charges
and other sums which would be payable hereunder if such termination had not
occurred, less the net proceeds, if any, of any reletting of the Premises, after
deducting all expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration costs and
expenses of preparation for such reletting. Tenant shall pay such current
damages to Landlord monthly on the days which the Basic Rent would have been
payable hereunder if this Lease had not been terminated.
(d) At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such demand, at Landlord's election
Tenant shall pay to Landlord an amount equal to the excess, if any, of the Basic
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Rent, Escalation Charges and other sums as hereinbefore provided which would be
payable hereunder from the date of such demand (assuming that, for the purposes
of this paragraph, annual payments by Tenant on account of Taxes, Utility
Expenses and Operating Expenses would be the same as the payments required for
the immediately preceding Operating or Tax Year) for what would be the then
unexpired Term of this Lease if the same had remained in effect, over the then
fair net rental value of the Premises for the same period.
(e) In the case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord may (i) re-let the
Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent to the
extent that Landlord considers advisable and necessary to re-let the same (but
such free rent concessions shall be allocated over the entire term of the re-
letting if the reletting extends beyond what would have been expiration of the
Term of this Lease) and (ii) may make such reasonable alterations, repairs and
decorations in the Premises as Landlord in its sole judgment considers advisable
and necessary for the purpose of reletting the Premises; and the making of such
alterations, repairs and decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord shall in no event
be liable in any way whatsoever for failure to re-let the Premises, or, in the
event that the Premises are re-let, for failure to collect the rent under such
re-letting. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the covenants and
conditions of this Lease.
(f) If a Guarantor of this Lease is named in Section 1.2, the happening of any
of the events described in paragraphs (a)(iv) or (a)(v) of this Section 13.1
with respect to the Guarantor shall constitute a Default of Tenant hereunder.
(g) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which Landlord
may at any time be entitled to lawfully, and Landlord may invoke any remedy
(including the remedy of specific performance) allowed at law or in equity as if
specific remedies were not herein provided for. All costs and expenses incurred
by or on behalf of Landlord (including, without limitation, attorneys' fees and
expenses) in enforcing its rights hereunder and/or occasioned by any Default of
Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of the
performance of any of Landlord's obligations hereunder unless and until Landlord
shall have unreasonably failed to perform such obligation within a period of
time reasonably required to correct any such default, after notice by Tenant to
Landlord specifying wherein Landlord has failed to perform any such obligations.
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ARTICLE XIV
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MISCELLANEOUS PROVISIONS
------------------------
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do or
permit anything to be done in or upon the Premises, the Property or the Park, or
bring in anything or keep anything therein, which shall increase the rate of
property or liability insurance on the Premises or on the Property or on the
Park above the standard rate applicable to premises being occupied for Permitted
Uses; and Tenant further agrees that, in the event that Tenant shall do any of
the foregoing, Tenant will promptly pay to Landlord, on demand, any such
increase resulting therefrom, which shall be due and payable as an additional
charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively, of any of
the other's rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a waiver of any of
the other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any action by
the other requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account of the earliest installment of any payment due from Tenant
under the provisions hereof. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter accompanying
such check, that such lesser amount is payment in full, shall be given no
effect, and Landlord may accept such check without prejudice to any other rights
or remedies which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and provisions of
this Lease, on payment of the Basic Rent and Escalation Charges and observing,
keeping and performing all of the other terms and provisions of this Lease on
Tenant's part to be observed, kept and performed, shall lawfully, peaceably and
quietly have, hold, occupy and enjoy the Premises during the term hereof,
without hindrance or ejection by any persons lawfully claiming under Landlord to
have title to the Premises superior to Tenant; the foregoing covenant of quiet
enjoyment is in lieu of any other implied covenant.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for recovery
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of any judgment from Landlord; it being specifically agreed that Landlord
(original or successor) shall never be personally liable for any such judgment,
or for the payment of any monetary obligation to Tenant.
(b) With respect to any services or utilities to be furnished by Landlord to
Tenant, Landlord shall in no event be liable for failure to furnish the same
when prevented from doing so by Force Majeure, strike, lockout, breakdown,
accident, order or regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to obtain supplies,
parts or employees necessary to furnish such services, or because of war or
other emergency, or for any cause beyond Landlord's reasonable control, or for
any cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under Tenant; nor
shall any such failure give rise to any claim in Tenant's favor that Tenant has
been evicted, either constructively or actually, partially or wholly. To the
extent within its control, Landlord shall use good faith efforts to promptly
restore any service or utility so curtailed or suspended.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant from
whatever cause.
(d) With respect to any repairs or restoration which are required or permitted
to be made by Landlord, the same may be made during normal business hours and
Landlord shall have no liability for damages to Tenant for inconvenience,
annoyance or interruption of business arising therefrom. In exercising its
rights under this Section (d), Landlord shall use good faith efforts to avoid
unreasonable interference with Tenant's use of the Premises.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease which
includes the Premises, no notice from Tenant to Landlord alleging any default by
Landlord shall be effective unless and until a copy of the same is given to such
holder or ground lessor (provided Tenant shall have been furnished with the name
and address of such holder or ground lessor), and the curing of any of
Landlord's defaults by such holder or ground lessor shall be treated as
performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the rents
payable hereunder, conditional in nature or otherwise, which assignment is made
to the holder of a mortgage on property which includes the Premises, Tenant
agrees that the execution thereof by Landlord, and the acceptance thereof by the
holder of such mortgage, shall never be treated as an assumption by such holder
of any of the obligations of Landlord hereunder unless such holder shall, by
notice sent to Tenant, specifically otherwise elect and that, except as
aforesaid, such holder shall be treated as having assumed Landlord's obligations
hereunder
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only upon foreclosure of such holder's mortgage and the taking of possession of
the Premises.
(b) In no event shall the acquisition of Landlord's interest in the Property by
a purchaser which, simultaneously therewith, leases Landlord's entire interest
in the Property back to the seller thereof be treated as an assumption by
operation of law or otherwise, of Landlord's obligations hereunder, but Tenant
shall look solely to such seller-lessee, and its successors from time to time in
title, for performance of Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such purchaser. For
all purposes, such seller-lessee, and its successors in title, shall be the
Landlord hereunder unless and until Landlord's position shall have been assumed
by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event of any
transfer of title to the Property by Landlord, Landlord shall thereafter be
entirely freed and relieved from the performance and observance of all covenants
and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations from
time to time established by Landlord, it being agreed that such rules and
regulations will be established and applied by Landlord in a non-discriminatory
fashion, such that all rules and regulations shall be generally applicable to
other tenants of the Building of similar nature to the Tenant named herein.
Landlord agrees to use reasonable efforts to insure that any such rules and
regulations are uniformly enforced, but Landlord shall not be liable to Tenant
for violation of the same by any other tenant or occupant of the Building, or
persons having business with them. In the event that there shall be any conflict
between such rules and regulations and the provisions of this Lease, the
provisions of this Lease shall control. In establishing rules and regulations,
Landlord shall not act in an arbitrary and capricious manner.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated or payable as an additional charge, Landlord shall have
the same rights and remedies as Landlord has hereunder for failure to pay Basic
Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by Law.
14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an
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individual, upon and to his heirs, executors, administrators, successors and
assigns. Each term and each provision of this Lease to be performed by Tenant
shall be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Tenant, but has reference only to those instances in
which Landlord may later give consent to a particular assignment as required by
those provisions of Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party hereto
agrees, on the request of the other, to execute a so-called notice of lease in
form recordable and complying with applicable law and reasonably satisfactory to
Landlord's attorneys. In no event shall such document set forth the rent or
other charges payable by Tenant under this Lease; and any such document shall
expressly state that it is executed pursuant to the provisions contained in this
Lease, and is not intended to vary the terms and conditions of this Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
approvals shall or may by given either to Landlord or to Tenant, such notices,
consents or approvals shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original Address
with a copy Addressed to Landlord at 730 Third Avenue, New York, New York 10017
Attention: Mr. Joseph Flanagan (or to such other address as may from time to
time hereafter by designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address until
the Commencement Date and thereafter to the Premises (or to such other address
or addresses as may from time to time hereafter be designated by Tenant by like
notice.)
All such notices shall be effective when deposited in the United States Mail
within the Continental United States, provided that the same are received in
ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and this
Lease expressly supersedes any proposals or other written documents relating
hereto. This Lease may be modified or altered only by written agreement between
Landlord and Tenant, and no act or omission of any employee or agent of Landlord
shall alter, change or modify any of the provisions hereof.
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14.14 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument are
for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction, or meaning of the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to
any mortgage or ground lease from time to time encumbering the Premises, whether
executed and delivered prior to or subsequent to the date of this Lease, if the
holder of such mortgage or ground lease shall so elect. If this Lease is
subordinate to any mortgage or ground lease and the holder thereof (or
successor) shall succeed to the interest of Landlord, at the election of such
holder (or successor) Tenant shall attorn to such holder (or successor) and this
Lease shall continue in full force and effect between such holder (or successor)
and Tenant. Tenant agrees to execute such instruments of subordination or
attornment in confirmation of the foregoing agreement as such holder (or
successor) may request, and Tenant hereby appoints such holder (or successor) as
Tenant's attorney-in-fact to execute such subordination or attornment agreement
upon default of Tenant in complying with such holder's (or successor) request.
In addition to and without limitation of the foregoing provisions of this
Section 14.15, in the event that there shall be a ground lease affecting the
Property (whether now existing or hereafter created), at the option of the
Lessor under such ground lease, this Lease shall not be cancelled or terminated
in the event that any such ground lease is terminated prior to the expiration of
its term. Upon such prior termination of any such ground lease and upon the
request of the lessor under such ground lease, Tenant under this Lease shall
make full and complete attornment to the Lessor under the ground lease by
executing the form of agreement prepared by the Lessor under the ground lease
and this Lease shall continue in full force and effect for the remainder of the
Term of this Lease, as though it originally was made directly between the Lessor
under the ground lease and the Tenant under this Lease.
Notwithstanding anything to the contrary contained in this Section 14.15 or in
Section 14.6 of this Lease, Tenant shall not be required to subordinate this
Lease to any mortgage or the lien of any mortgage or sale and a leaseback, nor
shall the subordination provided herein be self-operative unless the holder of
such mortgage or ground lease, as the case may be, shall enter into an Agreement
with Tenant, recordable, to the effect that in the event of foreclosure of, or
similar action taken under, such mortgage or ground lease, Tenant's possession
the Premises under this Lease shall not be terminated or disturbed by such
mortgage holder or ground lessor or anyone claiming under such mortgage holder
or a ground lessor, as the case may be, so long as Tenant shall not be in
default under this Lease. The form of any such Agreement shall be the form
reasonably required by any such mortgagee or ground lessor.
14.16 STATUS REPORT. Recognizing that Landlord and Tenant may find it necessary
to establish to third parties, such as accountants, banks, mortgagees,
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ground lessors, or the like, the then current status of performance of Tenant or
Landlord hereunder, each party on the written request of the other party made
from time to time, will within 20 days of any such request promptly furnish to
such requesting party, or to any other third party designated by the requesting
party, as the case may be, a statement of the status of any matter pertaining to
this Lease, including, without limitation, acknowledgment that (or the extent to
which) each party is in compliance with its obligations under the terms of this
Lease.
14.17 SECURITY DEPOSIT. Concurrently with the execution and delivery of this
Lease, Tenant shall deposit the Security Deposit specified in Section 1.2 hereof
and that Landlord shall hold the same throughout the Term of this Lease as
security for the performance by Tenant of all obligations on the part of Tenant
hereunder. Landlord shall have the right from time to time without prejudice to
any other remedy Landlord may have on account thereof, to apply such deposit, or
any part thereof, to Landlord's damages arising from, or to cure, any Default of
Tenant. If Landlord shall so apply any or all of such deposit, Tenant shall
immediately deposit with Landlord the amount so applied to be held as security
hereunder. There then existing no Default of Tenant, Landlord shall return the
deposit, or so much thereof as shall theretofore not been applied in accordance
with the terms of this Section 14.17, to Tenant on the expiration or earlier
termination of the Term of this Lease and surrender of possession of the
Premises by Tenant to Landlord at such time. While Landlord holds such deposit,
Landlord shall have no obligation to pay interest on the same and shall have the
right to commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof not
previously applied, may be turned over by Landlord to Landlord's grantee, and,
if so turned over, Tenant agrees to look solely to such grantee for proper
application of the deposit in accordance with the terms of this Section 14.17,
and the return thereof in accordance therewith. The holder of a mortgage shall
not be responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless such
deposit shall have been received in hand by such holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or to do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or neglect
of Tenant to perform any of the provisions of this Lease, and in the event of
the exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a rate
equal to 3% over the prime rate in effect from time to time at the Bank of
Boston (but in no event greater than the maximum interest rate permitted by
Law), as an additional charge. Any payment of Basic Rent, Escalation Charges or
other sums payable hereunder not paid when due shall, at the option of Landlord,
bear interest at a rate equal to 3% over the prime rate in effect from time to
time at the Bank of Boston (but in no event greater than the maximum interest
rate permitted by Law) from the due date thereof and shall be payable forthwith
on demand by Landlord, as an additional charge.
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14.19 HOLDING OVER. Any holding over by Tenant after the expiration or earlier
termination of the Term of this Lease shall be treated as a daily tenancy at
sufferance at a rate equal to the then fair rental value of the Premises but in
no event less than 150% of the sum of (i) Basic Rent and (ii) Escalation Charges
in effect on the date immediately preceding such expiration or earlier
termination date. Tenant shall also pay to Landlord all damages, direct and/or
indirect (including any loss of a tenant or rental income), sustained by reason
of any such holding over. Otherwise, such holding over shall be on the terms and
conditions set forth in this Lease as far as applicable (except there shall be
no first offer rights, options to extend or options to purchase if any be
contained in this Lease). The Landlord may, but shall not be required to, and
only on written notice to Tenant after the expiration of the Term hereof and any
hold-over by Tenant longer than three (3) months after expiration or earlier
termination of the Term of this Lease, elect to treat such holding over in
excess of three (3) months as an extension of the Term of this Lease for a
period of up to one (1) year beginning on the last day of such three month
period, as designated by Landlord, such extension to be on the terms and
conditions set forth in this Section 14.19.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the following
provision shall not make it impossible to secure insurance coverage obtainable
from responsible insurance companies doing business in the locality in which the
Property is located (even though extra premium may result therefrom) Landlord
and Tenant mutually agree that any property damage insurance carried by either
shall provide for the waiver by the insurance carrier of any right of
subrogation against the other, and they further mutually agree that, with
respect to any damage to property, the loss from which is covered by insurance
then being carried by them, respectively, the one carrying such insurance and
suffering such loss releases the other of and from any and all claims with
respect to such loss to the extent of the insurance proceeds actually paid with
respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the
Term of this Lease, Tenant shall peaceably quit and surrender to Landlord the
Premises in neat and clean condition and in good order, condition and repair,
together with all alterations, additions and improvements which may have been
made or installed in, on or to the Premises prior to or during the Term of this
Lease, excepting only ordinary wear and use and damage by fire or other casualty
for which, under other provisions of this Lease, Tenant has no responsibility of
repair and restoration. Tenant shall remove all of Tenant's Removable Property
and, to the extent specified by Landlord, all alterations and additions made by
Tenant and all partitions wholly within the Premises; and shall repair any
damage to the Premises or the Building caused by such removal. Any Tenant's
Removable Property which shall remain in the Building or on the Premises after
the expiration or termination of the Term of this Lease shall be deemed
conclusively to have been abandoned, and either may be retained by Landlord as
its property or may be disposed of in such manner as Landlord may see fit, at
Tenant's sole cost and expense.
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14.22 SUBSTITUTE SPACE. Intentionally Omitted.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than R.M. Bradley
and Leggat McCall Properties Management, L.P. (the "Broker"), and, in the event
of any brokerage claims against Landlord predicated upon prior dealings with
Tenant, Tenant agrees to defend the same and indemnify Landlord against any such
claim (except any claim by the Broker).
14.24 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any time
and from time to time, to unilaterally amend the provisions of this Lease if
Landlord is advised by its Counsel that all or any portion of the monies paid by
Tenant to Landlord hereunder are, or may be deemed to be, unrelated business
income within the meaning of the United States Internal Revenue Code, or
regulation issued thereunder, and Tenant agrees that it will execute all
documents or instruments necessary to effect such amendment or amendments,
provided that no such amendment shall result in Tenant having to pay in the
aggregate more money on account of its occupancy of the demised premises under
the provisions of this Lease as so amended and provided further, that no such
amendment or amendments shall result in Tenant receiving under the provisions of
this Lease less services than it is entitled to receive nor services of a lesser
quality.
Anything contained in the foregoing provisions of this Lease (including, without
limitation, Article 6 hereof) to the contrary notwithstanding, neither Tenant
nor any other person having an interest in the possession, use, occupancy or
utilization of the Premises shall enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of space in the
Premises which provides for rental or other payment for such use, occupancy or
utilization based, in whole or in part, on the net income or profits derived by
any person from the premises leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and any
other agreements shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization of any part
of the Premises.
14.25 HAZARDOUS MATERIALS. Tenant shall not (either with or without negligence)
cause or permit the escape, disposal, release or threat of release of any
biologically or chemically active or other Hazardous Materials (as said term is
hereafter defined) on, in, upon or under the Property or the Premises. Tenant
shall not allow the generation, storage, use or disposal of such Hazardous
Materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the generation, storage, use and disposal of such
Hazardous Materials, nor allow to be brought into the Property any such
Hazardous Materials except for use in the ordinary course of Tenant's business,
and then only after written notice is given to Landlord of the identity of such
Hazardous Materials. Hazardous Materials shall include, without limitation, any
material or substance which is (i) petroleum, (ii) asbestos, (iii) designated as
a "hazardous substance" pursuant to
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Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et
seq. (33 U.S.C. SS 1321) or listed pursuant to SS 307 of the Federal Water
Pollution Control Act (33 U.S.C. SS 1317), (iv) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. SS 6901 et seq. (42 U.S.C. SS 6903), (v) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. SS 9601 et seq. (42 U.S.C. SS 9601),
as amended, or (vi) defined as "oil" or a "hazardous waste", a "hazardous
substance", a "hazardous material" or a "toxic material" under any other law,
rule or regulation applicable to the Property, including, without limitation,
Chapter 21E of the Massachusetts General Laws, as amended. If any lender or
governmental agency shall ever require testing to ascertain whether or not there
has been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges but
only if such requirement applies to the Premises or may be the result of the
acts or omissions of Tenant. In addition, Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises. In all events, Tenant shall indemnify and
save Landlord harmless from any release or threat of release on the presence or
existence of Hazardous Materials on the Premises occurring while Tenant is in
possession, or elsewhere on the Property if caused by Tenant or persons acting
under Tenant. The within covenants and indemnity shall survive the expiration or
earlier termination of the Term of this Lease. Landlord expressly reserves the
right to enter the Premises to perform regular inspections. Nothing contained in
this Section 14.25 shall require Tenant to indemnify the Landlord with respect
to Hazardous Materials present on the Premises or Property prior to Tenant
taking possession of the Premises under this Lease. Landlord hereby represents
and warrants to Tenant that Landlord has received no notices of any violation of
the above-referenced Hazardous Waste Laws with respect to the Property.
14.26 GOVERNING LAW. This Lease shall be governed exclusively by the provisions
hereof and by the laws of the Commonwealth of Massachusetts, as the same may
from time to time exist.
14.27 SURVIVAL PROVISION. It is expressly understood and agreed that any
indemnity provision contained in this Lease shall survive any expiration or
earlier termination of this Lease.
14.28 AUTOMATIC EXPANSION OF PREMISES. (a) There is certain space, identified
on Exhibit A as the "Expansion Space". Effective as of the Expansion
Commencement Date, the Expansion Space shall be added to and included within the
"Premises" for all purposes under the Lease without the requirement of any
further attention on the part of either Landlord or Tenant and in such case,
effective as of the Expansion Commencement Date, this Lease shall be deemed
amended in the following respects (and if requested by Landlord, Tenant shall
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promptly execute and deliver an amendment to this Lease reflecting the matters
herein set forth):
(i) The Premises shall be deemed amended to include the Expansion Space
within the Premises and the Premises shall be increased by 2,247 rentable square
feet included in the Expansion Space to contain a total of 19,626 rentable
square feet;
(ii) Basic Rent per annum shall be increased as set forth in Section 1.2
hereof;
(iii) the Escalation Factor shall be deemed increased as set forth in
Section 1.2 hereof and, accordingly, Tenant's monthly and annual payments on
account of the Escalation Charges shall be increased to reflect the increase in
the size of the Premises by virtue of the addition of the Expansion Space;
(iv) The increases in the size of the Premises, Basic Rent, Escalation
Factor and Escalation Charges as described in subparagraphs (i) through (iii)
above shall become effective on the Expansion Commencement Date.
(b) As used in this Lease, the term "Expansion Commencement Date" shall mean
January 1, 1997 . Notwithstanding the foregoing, if Tenant's personnel shall
occupy or use all or any part of the Expansion Space for any purpose (storage,
conduct of business or otherwise) prior to the Expansion Commencement Date, such
date shall for all purposes of this Lease be the Expansion Commencement Date.
The Tenant shall, upon demand of the Landlord, execute a certificate confirming
the Expansion Commencement Date as it is determined in accordance with the
provisions of this paragraph (b).
(c) At Landlord's option, that portion of Landlord's Work shown on Exhibit B
which relates to the Expansion Space may be performed by Landlord at the time
Landlord performs Landlord's Work in the original 17,379 square foot portion of
the Premises.
14.29 OPTION TO EXTEND. Tenant shall have the right and option, which said
option and right shall not be severed from this Lease or separately assigned,
mortgaged or transferred, to extend the Initial Term for one (1) additional
consecutive period of either (i) three (3) years or (ii) five (5) years
(hereinafter referred to as the "Extension Period"), provided that (a) Tenant
shall give Landlord notice (an "Option Notice") of Tenant's exercise of such
option at least nine (9) full calendar months prior to the expiration of the
Initial Term (b) no Default of Tenant shall exist at the time of giving the
applicable Option Notice and the commencement of the Extension Period and (c)
the Original Tenant named herein is itself occupying the entire Premises both at
the time of giving the applicable Option Notice and at the time of commencement
of such Extension Period. Except for the amount of Basic Rent (which is to be
determined as hereinafter provided), all the terms, covenants, conditions,
provisions and
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agreements in the Lease contained shall be applicable to the additional period
through which the Term of this Lease shall be extended as aforesaid, except that
there shall be no further options to extend the Term, no Automatic Expansion of
the Premises nor shall Landlord be obligated to make or pay for any improvements
to the Premises nor pay any inducement payments of any kind or nature. If Tenant
shall give notice of its exercise of such option to extend in the manner and
within the time period provided aforesaid, the Term of this Lease shall be
extended upon the giving of each such Option Notice without the requirement of
any further attention on the part of either Landlord or Tenant except as may be
required in order to determine Basic Rent as hereafter set forth. Landlord
hereby reserves the right, exercisable by Landlord in its sole discretion, to
waive (in writing) any condition precedent set forth in clauses (a), (b) or (c)
above. The Option Notice shall specify Tenant's election as to the length of the
Extension Period (whether three (3) years or five (5) years). It is agreed and
understood that the determination as to whether the Extension Period shall be
three (3) years or five (5) years shall be made by Tenant at the time it shall
provide Landlord with its Option Notice provided, however, that , if Tenant
shall fail to specify the length of the Extension Period in Tenant's Option
Notice then, the length of the Extension Period shall be deemed to be three (3)
years.
If Tenant shall fail to give timely notice of the exercise of such option as
aforesaid, Tenant shall have no right to extend the Term of this Lease, time
being of the essence of the foregoing provisions. Any termination of this Lease
Agreement shall terminate the rights hereby granted Tenant.
The Basic Rent payable for each twelve (12) month period during the Extension
Period shall be the Fair Market Rental Value (as said term is hereinafter
defined) as of commencement of the Extension Period but in no event less than
the Basic Rent per annum plus Escalation Charges payable for and with respect to
the last 12 calendar months of the Initial Term. "Fair Market Rental Value"
shall be computed as of the beginning of the Extension Period at the then
current annual rental charges, including provisions for subsequent increases and
other adjustments, for extensions of existing leases then currently being
negotiated or executed in comparable space and buildings located in the Park. In
determining Fair Market Rental Value, the following factors, among others, shall
be taken into account and given effect: size of the premises, escalation charges
then payable under the Lease, location of the premises, location of the
building, allowances or lack of allowances (if any), condition of the Premises
and lease term.
Dispute as to Fair Market Value. Landlord shall initially designate the Fair
Market Rental Value and shall furnish data in support of such designation. If
Tenant disagrees with Landlord's designation of the Fair Market Rental Value,
Tenant shall have the right, by written notice given to Landlord within thirty
(30) days after Tenant has been notified of Landlord's designation, to submit
such Fair Market Rental Value to arbitration as follows: Fair Market Rental
Value shall be determined by agreement between Landlord and Tenant but if
Landlord and Tenant are unable to agree upon the Fair Market Rental Value at
least ten (10)
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months prior to the date upon which the Fair Market Rental Value is to take
effect, then the Fair Market Rental Value shall be determined by appraisal as
follows: The Landlord and Tenant shall each appoint a Qualified Appraiser (as
said term is hereinafter defined) at least nine (9) months prior to the
commencement of the period for which Fair Market Rental Value is to be
determined and shall designate the Qualified Appraiser so appointed by notice to
the other party. The two appraisers so appointed shall meet within ten (10) days
after both appraisers are designated in an attempt to agree upon the Fair Market
Rental Value for the applicable Extension Period and if, within fifteen (15)
days after both appraisers are designated, the two appraisers do not agree upon
the Fair Market Rental Value, then each appraiser shall, not later than thirty
(30) days after both appraisers have been chosen, deliver a written report to
both the Landlord and Tenant setting forth the Fair Market Rental Value as
determined by each such appraiser taking into account the factors set forth in
this Section 14.29. If the lower of the two determinations of Fair Market Rental
Value as determined by such two appraisers is equal to or greater than 95% of
the higher of the Fair Market Rental Value as determined by such two appraisers,
the Fair Market Rental Value shall be deemed to be the average of such Fair
Market Rental Value as set forth in such two determinations. If the lower
determination of Fair Market Rental Value is less than 95% of the higher
determination of Fair Market Rental Value, the two appraisers shall promptly
appoint a third Qualified Appraiser and shall designate such third Qualified
Appraiser by notice to Landlord and Tenant. The cost and expenses of each
appraiser appointed separately by Tenant and Landlord shall be borne by the
party who appointed the appraiser. The cost and expenses of the third appraiser
shall be shared equally by Tenant and Landlord. If the two appraisers cannot
agree on the identity of the third Qualified Appraiser at least three (3) months
prior to commencement of the period for which Fair Market Rental Value is to be
determined, then the third Qualified Appraiser shall be appointed by the
American Arbitration Association ("AAA") sitting in Boston, Massachusetts and
acting in accordance with its rules and regulations. The costs and expenses of
the AAA proceeding shall be borne equally by the Landlord and Tenant. The third
appraiser shall promptly make its own independent determination of Fair Market
Rental Value for the Premises taking into account the factors set forth in this
Section 14.29 and shall promptly notify Landlord and Tenant of his
determination. If the determinations of the Fair Market Rental Value of any two
of the appraisers shall be identical in amount, said amount shall be deemed to
be the Fair Market Rental Value for the Premises. If the determinations of all
three appraisers shall be different in amount, the average of the two nearest in
amount shall be deemed the Fair Market Rental Value. The Fair Market Rental
Value of the subject space determined in accordance with the provisions of this
Section shall be binding and conclusive on Tenant and Landlord. As used herein,
the term "Qualified Appraiser" shall mean any disinterested person (a) who is
employed by an appraisal firm of recognized competence in the greater Boston
area, (b) who has not less than ten (10) years experience in appraising and
valuing properties of the general location, type and character as the Premises,
and (c) who is either a Senior Real Property Appraiser of the Society of Real
Estate Appraisers or a member of the Appraisal Institute (or
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any successor organization). Notwithstanding the foregoing, if either party
shall fail to appoint its appraiser within the period specified above (such
party referred to hereinafter as the "Failing Party"), the other party may serve
notice on the Failing Party requiring the Failing Party to appoint its appraiser
within ten (10) days of the giving of such notice and if the Failing Party shall
not respond by appointment of its appraiser within said ten (10) day period,
then the appraiser appointed by the other party shall be the sole appraiser
whose determination of Fair Market Rental Value shall be binding and conclusive
upon Tenant and Landlord. If, for any reason, Fair Market Rental Value shall not
have been determined by the time of commencement of the Extension Period and
until such rent is determined, Tenant shall pay Basic Rent during the Extension
Period in an amount (the "Interim Rent") as specified by Landlord's appraiser
and upon receipt of a final determination of Fair Market Rental Value as
hereinabove set forth, any overpayment or underpayment of Interim Rent shall be
paid promptly to the party entitled to receive the same.
14.30 RIGHT OF FIRST OFFER. In the event that during the Initial Term, all or
any portion of the space shown on Exhibit F to this Lease as the "First Offer
Space" shall become "available for leasing" (as said term is hereafter defined),
as determined by Landlord and provided that the "Offer Conditions" (as hereafter
defined) are then satisfied, Landlord shall first offer (the "Offer") to lease
all of the such available portion of the First Offer Space to Tenant upon terms
and conditions specified by Landlord. If (a) within ten (10) days after
Landlord provides the Offer to Tenant, Tenant does not unconditionally accept
the Offer as to all of such space described in the Offer in writing and
concurrently deposit one month's advanced rent and one month's security deposit
with Landlord or (b) if Tenant accepts the Offer as aforesaid but does not
execute and deliver a final fully executed Amendment to this Lease Agreement in
form and substance satisfactory to Landlord within 14 days after acceptance of
the Offer as aforesaid, Landlord shall be free to rent all or any part of such
space to any party upon substantially similar terms and conditions as were set
forth in the Offer and Tenant's Right of First Offer shall terminate as to all
of the space described in such Offer.
As used herein the term "Offer Conditions" shall mean (i) that no Default of
Tenant exist and be continuing either at the time Landlord provides Tenant with
the Offer or at the time of acceptance of the Offer by Tenant and (ii) that
Tenant shall have, during the 180 day period immediately preceding Landlords
determination that all or any portion of the First Offer Space is "available for
leasing", provided Landlord with written notice of its interest in leasing
additional space and its request that Landlord provide Tenant with an Offer in
the event that any such First Offer Space shall become "available for leasing".
As used herein, first Offer Space shall be deemed "available for leasing" by
Landlord when, as determined by Landlord in its sole discretion, any Tenant then
occupying the First Offer Space shall fail or refuse to exercise any option to
extend or renew its lease or shall fail to negotiate and enter into a renewal or
extension of its lease with Landlord for such portion of the First Offer Space.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
TENANT: LANDLORD:
COMPUTER NETWORK TEACHERS REALTY CORPORATION
TECHNOLOGY CORPORATION
By: /s/ Bruce T. Coleman By: /s/ Richard J. Usas
Its: President Its: Director
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EXHIBIT A
This exhibit page of the lease is a picture layout of the office space
indicating in general the initial building premises and expansion space
offered to Computer Network Technology.
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Exhibit B - page 1 of 3
This page 1 of Exhibit B is a picture layout of the office space indicating
the detailed layout of the space offered to Computer Network Technology.
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Exhibit B - page 2 of 3
LANDLORDS WORK
--------- ----
Westborough Office Park
Computer Network Technology
-------- ------- ----------
1. Carpet: Landlord will contribute $15/sq. yd. installed (including
vinyl base).
Cypress Point III by Shaw Commercial Carpet. Adhesive to be Shaw Subset
1000 Carpet Adhesive.
Color: To be selected from building standards
2. Base: Johnsonite 4" vinyl toeless at carpeted areas. Johnsonite 4"
vinyl cove at VCT.
Color: To be selected from building standards
3. VCT: Arrnstrong Imperial Texture "Standard Excelon" 12x12 (cove base
installed with all VCT.) Adhesive to be Shaw Sureset 5000 Pressure
Sensitive Vinyl Backed Carpet Adhesive.
Color: To be selected from building standards
4. Paint: Sherwin Williams, paint all existing and new walls within the
confines of the space.
Color: To be selected from building standards
5. Ceiling: 2X2 tegular-edged tiles set at 9'-1-1/4" (at top of door
frames.) Areas of existing grid and tile that are not disturbed by
demolition of existing partitions will remain in place, and adjacent
areas may require a soffit. Existing ceiling tiles will be re-used
wherever practicable. Align new grid with existing (unless noted
otherwise) and match existing grid color/finish/manufacturer.
Tiles: Celotex 24-4 # MT454
Grid: Chicago Metallic 2x2 standard 7/8 grid-white
6. Lighting: 2X2, 9-cell parabolic fluorescent fixtures. Existing stock
fixtures will be reused wherever practicable, to be supplemented with
new where required. New fixtures to match existing. Rewire and new
switching at new enclosed offices.
Fixtures by: Columbia #P4-222UG4-3 3333-LE-277V.
7. Doors, Frames & Hardware: 9'-0" cherry veneer shop pre-finished solid
core doors in 1-1/4" bronze anodized aluminum frames with lever
mortise passage sets in US26 (bright chrome) finish. Standard doors
will be used at all interior and entrance locations. Provide lock sets
at suite entry. PROVIDE 24" WIDE X 9'-0" HEIGHT SIDELIGHTS WITH 1/4"
TEMPERED GLASS AT ALL OFFICES
8. Partitions: 2-1/2" metal studs with 5/8" wallboard on both sides and
batt insulation. Interior partitions run to the underside of the hung
ceiling. Demising partitions
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are 1-hour rated and run to the underside of the structural floor/roof
decking above. Use TYPE X 5/8" wallboard. Corridor partitions run to
the underside of the structural floor/roof decking above. Partitions
to window mullions utilize RACO Alum. Wallcap #375 Series Bronze with
compressed foam insulation. AREAS WHERE ADDITIONAL COOLING IS BEING
PROVIDED, PARTITIONS RUN TO THE UNDERSIDE OF THE STRUCTURAL FLOOR/ROOF
DECKING ABOVE.
DRAFT VERSION 3 MAY 16, 1996
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Exhibit B - page 3 of 3
LANDLORD WORK - Computer Network Technology
9. Window Treatment: existing building standard blinds will be re-used at
all exterior windows. If any new or replacement blinds are required,
they are to match existing. Blinds on interior windows are provided at
tenants expense. Horizontal Levalor mini blinds - oyster white
10. Electrical: Open office areas with modular furniture will be power-wired as
follows:
Groups of cubicles adjacent to partitions will be provided with
wire mold as shown on drawing Al. I. Other outlets to be added
as shown on plan or if not shown as per all codes.
PHONE ROOM ELECTRICAL REQUIREMENTS-
(1) DEDICATED 120V/20 AMP DUPLEX OUTLET (FOR PBX SYSTEM)
(5) 208V/30AMP DEDICATED DUPLEX OUTLETS-NEMA L6-30
(+/-16)BUILDING STANDARD DUPLEX OUTLETS @ 3'-0" O.C.
COMPUTER ROOM ELECTRICAL REQUIREMENTS-
(+/-32)BUILDING STANDARD DUPLEX OUTLETS @ 3'-0" O.C.
POWER SUPPLY FOR (50) COMPUTER STATIONS @120V/6AMPS EA. (BUS DUCT OR WALL
MOUNTED)
11. Mechanical: Extend existing duct work to new locations as layout requires.
Relocate thermostat(s) as required. Provide new or relocate existing
diffusers to provide building standard heating/cooling at all locations.
PHONE ROOM HVAC REQUIREMEN'S
35,000 BTU'S MAINTAINED 24HRS /DAY 70 DEGREES MAX. TEMP.
ISOLATED ROOM TEMPERATURE CONTROL
COMPUTER ROOM HVAC REQUIREMENTS
50,000 BTU' MAINTAINED 24 HRS./DAY (50 MACHINES @ 1000 BTU'S EACH)
ISOLATED ROOM TEMPERATURE CONTROL
12. Fire Protection & Life Safety: Provide new sprinkler heads, exit
signs, emergency lights as layout requires and as per Westborough
Fire Department.
13. INSTALL SINK, COUNTER, WALL AND BASE CABINETS (APPROX. 10 L.F.) IN
KITCHEN AREA. Stock cabinets, as manufactured by Merillat, Mills
Pride or equal. Provide standard laminate counter top.
Color: TO BE SELECTED FROM BUILDING STANDARDS
DRAFT VERSION 3 MAY 16, 1996
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EXHIBIT D (1700)
(Building Services)
1. Heating and Cooling. Landlord shall supply, on Business Days from
8:00 a.m. to 5:30 p.m., heating and cooling as normal seasonal changes may
require to provide reasonably comfortable space temperature and ventilation
for occupants of the Premises under normal business operation at an
occupancy of not more than one person per 150 square feet of Premises
Rentable Area and an electrical load not exceeding 2.3 watts per square
foot of Premises Rentable Area. If Tenant shall require air conditioning,
heating or ventilation outside the hours and days above specified, Landlord
may furnish such service and Tenant shall pay therefor-such charges as may
from time to time be in effect. The rate in effect as of the date of this
Lease shall be $25.00 per hour, and shall be subject to increase or
decrease thereafter to reflect increases or decreases thereafter in utility
rates. In the event Tenant introduces into the Premises personnel or
equipment which overloads the capacity of the Building system or in any
other way interferes with the system's ability to perform adequately its
proper functions, supplementary systems may, if and as needed, at
Landlord's option, be provided by Landlord, at Tenant's expense.
2. Cleaning.
A. Office Area
Daily on Business Days:
1. Empty and clean all waste receptacles and ash trays and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all carpeted areas using a dust treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal surfaces
including furniture, office equipment, window sills, door ledges,
chair rails, and convector tops, within normal reach.
5. Wash clean all water fountains.
6. Remove and dust under all desk equipment and telephones and replace
same.
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7. Wipe clean all brass and other bright work.
8. Hand dust all grill work within normal reach.
9. Upon completion of cleaning, all lights will be turned off and doors
locked, leaving the Premises in an orderly condition.
WEEKLY:
1. Dust coat racks, and the like.
2. Remove all finger marks from private entrance doors, light switches and
doorways.
QUARTERLY:
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs, and similar wall hangings.
2. Dusting all vertical surfaces, such as walls, partitions, doors, and
ducts.
3. Dusting all pipes, ducts and high moldings.
4. Dusting all venetian blinds.
B. Lavatories
DAILY on Business Days:
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles, bright
work, flushometers, piping, and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls, and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
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7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
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MONTHLY:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. Main Lobby. Elevators. Building Exterior and Corridors
DAILY on Business Days:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls and corridors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding Building Entrance doors.
MONTHLY:
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
D. Window Cleaning
Windows of exterior walls will be washed quarterly. Windows of atrium will
be washed as required.
E. Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
3. Electrical Service.
A. Landlord shall supply electricity to the Premises to meet a
requirement not to exceed 1.8 watts per square foot of Premises Rentable
Area for lighting plus 0.5 watts per square foot of Premises Useable Area
for office machines through standard receptacles single-phase 120 volt
alternating current (the "Basic Electrical Service") and Tenant agrees in
its use of the Premises not to exceed such requirement and that its total
connected lighting load will not exceed the maximum from time to time
permitted under applicable governmental regulations. Landlord shall
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purchase and install, at Tenant's expense (other than those in place as of
the Commencement Date), all lamps, tubes, bulbs, starters and ballasts.
Electricity used in the Premises shall be separately metered. Tenant shall
pay the utility company directly. In order to assure that the foregoing
requirements are not exceeded and to avert any possible adverse affect on
the Building's electric system, Tenant shall not, without Landlord's prior
written consent, connect any fixtures, appliances or equipment to the
Building's electric distribution system other than office coffee makers,
photocopiers, personal computers, Facsimile machines, typewriters, pencil
sharpeners, adding machines, handheld or desk top calculators, dictaphones,
clocks and radios. Landlord, at its option, may require separate metering
and billing to Tenant for the electric power required for any special
equipment (such as computers and photocopiers) that require either 3-phase
electric power or any voltage other than 120.
B. If Tenant shall require, demand, use or consume electricity in
excess of the Basic Electric Service (the cost of which Landlord has not
otherwise collected from Tenant pursuant to the foregoing provisions of
this paragraph 3 of Exhibit D) Tenant shall, upon demand, reimburse
Landlord, for the cost of such excess electricity. Further if (i) in
Landlord's judgment, Landlord's facilities are inadequate for such excess
requirements, or (ii) such excess use shall result in an additional burden
on the Building's utility systems or additional cost on account thereof, as
the case may be Tenant shall, upon demand, reimburse Landlord for all
additional costs related thereto. Further, if Tenant requires electricity
in excess of the quantity, voltage or connected load specified in Basic
Electric Service, Landlord, upon written request from Tenant, and at the
sole cost and expense of Tenant, will furnish and install such additional
wire, conduits, feeders, switchboards and appurtenances as Landlord may
require to supply such additional requirements of Tenant (if electricity
therefor is then available to Landlord without affecting the Building or
Landlord's plans therefor); provided that Landlord shall have no obligation
to furnish any such excess electricity unless the same shall be permitted
by applicable laws and insurance regulations and shall not cause or
threaten permanent damage or injury to the Building or the Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs or interfere with, or disturb other
tenants or occupants of, the Building or interfere with Landlord's plans
for the Building.
C. Landlord shall not in any way be liable or responsible to Tenant for
any loss, damage or expense which Tenant may sustain or incur if the
quantity, character, or supply of electricity is changed or is no longer
available or suitable for Tenant's requirements. Landlord reserves the
right to curtail, suspend, interrupt
50
<PAGE>
and/or stop the supply of water, sewage, electrical current, cleaning, and
other services, and to curtail, suspend, interrupt and/or stop use of
entrances and/or lobbies serving access to the Building, without thereby
incurring any liability to Tenant, when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements in the
judgment of Landlord desirable or necessary, or when prevented from
supplying such services or use by strikes, lockouts, difficulty of
obtaining materials, accidents or any other cause beyond Landlord's
control, or by laws, orders or inability, by exercise of reasonable
diligence, to obtain electricity, water, gas, steam, coal, oil or other
suitable fuel or power. No diminution or abatement of rent or other
compensation, nor any direct, indirect or consequential damages shall or
will be claimed by Tenant as a result of, nor shall this Lease or any of
the obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the
foregoing services or use, irrespective of the cause thereof. Failure or
omission on the part of Landlord to furnish any of the foregoing services
or use shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor to render the
Landlord liable in damages, nor release Tenant from prompt fulfillment of
any of its covenants under this Lease. To the extent within its control,
Landlord shall use good faith efforts to promptly restore any service or
utility suspended or curtailed by the acts or omissions of Landlord.
4. Other Services.
Landlord shall also provide:
A. Passenger elevator service from the existing passenger elevator system in
common with Landlord and other tenants in the Building.
B. Hot water for lavatory purposes and cold water (at temperatures supplied by
the municipality in which the Property is located) for drinking, lavatory
and toilet purposes. If Tenant uses water for any purpose other than for
ordinary lavatory and drinking purposes, Landlord may assess a reasonable
charge for the additional water so used, or install a water meter and
thereby measure Tenant's water consumption for all purposes. In the latter
event, Tenant shall pay the cost of the meter and the cost of installation
thereof and shall keep such meter and installation equipment in good
working order and repair. Tenant agrees to pay for water consumed, as shown
on such meter, together with the sewer charge based on such meter charges,
as and when bills are rendered, and in default in making such payment
Landlord may pay such charges and collect same from Tenant as an additional
charge.
C. Free access to the Premises on Business Days from 8:00 a.m. to 5:30 p.m.,
subject to restrictions based on emergency conditions and restricted access
51
<PAGE>
at all other times under reasonable conditions imposed to provide
security for the Building, and all other applicable provisions of this
Lease.
D. A food and beverage service facility on the ground floor or the Building
which will operate from 8:00 a.m. to 3:00 p.m. on Business Days. The
facility will serve coffee and pastries in the morning and soup and a
limited sandwich menu for lunch.
52
<PAGE>
EXHIBIT E
(Items Included in Operating Expenses)
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, workman's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Landlord or Landlord's agents pursuant to any
collective bargaining agreement for the services of employees of Landlord
or Landlord's agents in connection with the operation, repair, maintenance,
cleaning, management and protection of the Property, and its mechanical
systems including, without limitation, day and night supervisors, property
manager, accounts, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers and personnel engaged in supervision of any of
the persons mentioned above; provided that, if any such employee is also
employed on other property of Landlord, such compensation shall be suitably
prorated among the Property and such other properties. In no event shall
the foregoing expenses include those for any employee of Landlord or
Manager above the level of Regional or Area Manager.
2. The cost of services, utilities, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management and protection
of the Property, including without limitation fees, if any, imposed upon
Landlord, or charged to the Property or the park, by the state or
municipality in which the Property or the Park are located on account of
the need of the Property or the park for increased or augmented public
safety services.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties.
4. Where the Property is managed by Landlord or an affiliate of Landlord, a
sum equal to the amounts customarily charged by management firms in the
Boston area for similar properties, whether or not actually paid, or where
managed by parties other than Landlord or an affiliate thereof, the amounts
accrued for management, together with, in either case, amounts accrued for
reasonable legal and other professional fees relating to the
53
<PAGE>
Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not
related to the normal administration and operation of the Building.
5. Premiums for insurance against damage or loss to the Building from such
damage or loss to the Building from such hazards as shall from time to time
be generally required by institutional mortgagees in the Boston area for
similar properties, including, but not limited to insurance covering loss
of rent attributable to any such hazards, and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the Operating Year
in which it was made and in Operating Expenses for each succeeding
Operating Year, an annual charge-off of such capital expenditure. The
annual charge-off shall be determined by dividing the original capital
expenditure plus an interest factor, reasonably determined by Landlord, as
being the interest rate then being charged for long-term mortgages, by
institutional lenders on like properties within the locality in which the
Building is located, by the number of years of useful life of the capital
expenditure, and the useful life shall be determined reasonably by Landlord
in accordance with generally accepted accounting principles and practices
in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by tenants.
8. Amounts payable by Landlord as Landlord's contribution to the expenses of
operation, repair, replacements, maintenance, cleaning, management and
protection of common areas of the Park. Such amounts shall include, without
limitation, utility charges, insurance and maintenance, repair and
replacement of common utility systems, roadways, landscaping and snow
plowing.
9. Amounts payable by Landlord as may be required to subsidize food service
operations on the Premises or within the Park.
l0. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
11. Betterment assessments, provided the same are apportioned equally over the
longest period permitted by law.
Operating expenses shall not include:
54
<PAGE>
A. Leasing commissions payable for leasing space in the Building
B. Costs of improving space for Tenants of the Building
C. Legal fees incurred by Landlord in enforcing leases against
Tenants of the Building
D. Taxes
55
<PAGE>
EXHIBIT F
This exhibit page of the lease is a picture layout of the office space
indicating in general the original building premises, expansion space, and
first offer space offered to Computer Network Technology.
56
<PAGE>
Exhibit 11
----------
COMPUTER NETWORK TECHNOLOGY CORPORATION
Statement Re: Computation of Net Income Per Common and Common Equivalent Share
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1996 1995 1996 1995
----------- ---------- ---------- ------------
<S> <C> <C> <C> <C>
Net Income $ 1,180,956 $ 2,433,775 $ 1,200,104 $ 4,181,277
=========== =========== =========== ===========
Primary Earnings Per Share:
- ---------------------------
Weighted average number of
common shares outstanding 23,201,993 22,536,615 23,118,114 22,476,474
Dilutive effect of outstanding common
equivalent shares 606,779 1,207,079 508,654 1,055,721
----------- ----------- ----------- -----------
Weighted average number of common and
common equivalent shares outstanding 23,808,772 23,743,694 23,626,768 23,532,195
----------- ----------- ----------- -----------
Net income per common and common
equivalent share $.05 $.10 $.05 $.18
=========== =========== =========== ===========
Fully Diluted Earnings Per Share:
- ---------------------------------
Weighted average number of common
shares outstanding 23,201,993 22,536,615 23,118,114 22,476,474
Dilutive effect of outstanding common
equivalent shares 606,779 1,302,874 635,642 1,312,079
----------- ---------- ----------- -----------
Weighted average number of common and
common equivalent shares outstanding 23,808,772 23,839,489 23,753,756 23,788,553
=========== ========== =========== ===========
Net income per common and common
equivalent share $.05 $.10 $.05 $.18
=========== ========== ========== ==========
</TABLE>
24
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheet and income statement of Computer Network Technology
Corporation as of and for the six months ended June 30, 1996 and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> JUN-30-1996
<CASH> 11,540,347
<SECURITIES> 22,170,195
<RECEIVABLES> 22,521,661
<ALLOWANCES> 1,069,083
<INVENTORY> 10,386,240
<CURRENT-ASSETS> 68,592,270
<PP&E> 22,426,110
<DEPRECIATION> 14,164,056
<TOTAL-ASSETS> 84,961,577
<CURRENT-LIABILITIES> 20,351,451
<BONDS> 0
<COMMON> 233,122
0
0
<OTHER-SE> 62,992,004
<TOTAL-LIABILITY-AND-EQUITY> 84,961,577
<SALES> 37,334,710
<TOTAL-REVENUES> 47,903,356
<CGS> 13,395,051
<TOTAL-COSTS> 21,558,127
<OTHER-EXPENSES> 6,357,038<F1>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 16,620
<INCOME-PRETAX> 1,845,104
<INCOME-TAX> 645,000
<INCOME-CONTINUING> 1,200,104
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,200,104
<EPS-PRIMARY> .05
<EPS-DILUTED> .05
<FN>
<F1> Amount presented represents engineering and development expense.
</FN>
</TABLE>
