<PAGE>
UNITED STATES 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 MARCH 24, 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 0-14709
-------------------------------------
HUTCHINSON TECHNOLOGY INCORPORATED
------------------------------------------------------------
(Exact name of registrant as specified in its charter)
MINNESOTA 41-0901840
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
40 WEST HIGHLAND PARK, HUTCHINSON, MINNESOTA 55350
----------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
(320) 587-3797
----------------------------------------------------------------------
(Registrant's telephone number, including area code)
----------------------------------------------------------------------
(Former name, address or fiscal year, if changed since last report)
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 preceeding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
As of April 24, 1996 the registrant had 5,449,145 of Common Stock issued and
outstanding.
- --------------------------------------------------------------------------------
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
HUTCHINSON TECHNOLOGY INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS - UNAUDITED
(Dollars in thousands)
<TABLE>
<CAPTION>
March 24, September 24,
1996 1995
----------- -------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $18,535 $30,479
Securities available for sale 2,061 1,190
Receivables, net 44,019 40,683
Inventories 18,789 13,298
Prepaid taxes and other expenses 6,228 4,842
---------- ----------
Total current assets 89,632 90,492
Property, plant and equipment, net 114,705 93,816
Other assets 8,035 6,590
---------- ----------
$212,372 $190,898
---------- ----------
---------- ----------
LIABILITIES AND SHAREHOLDERS' INVESTMENT
Current liabilities:
Current maturities of long-term debt $6,180 $4,255
Accounts payable and accrued expenses 20,697 13,907
Accrued compensation 17,071 13,628
Accrued income taxes 6,249 4,418
---------- ----------
Total current liabilities 50,197 36,208
Long-term debt and other 35,180 34,945
---------- ----------
Shareholders' investment:
Common stock, $.02 par value, 15,000,000
shares authorized, 5,449,000 and
5,447,000 issued and outstanding 109 109
Additional paid-in capital 43,317 43,261
Retained earnings 83,569 76,375
---------- ----------
Total shareholders' investment 126,995 119,745
---------- ----------
$212,372 $190,898
---------- ----------
---------- ----------
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
HUTCHINSON TECHNOLOGY INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS - UNAUDITED
(In thousands, except per share data)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-Six Weeks Ended
------------------------ ------------------------
March 24, March 26, March 24, March 26,
1996 1995 1996 1995
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales $86,546 $67,889 $169,878 $131,384
Cost of sales 68,667 52,650 130,555 103,157
-------- -------- -------- --------
Gross profit 17,879 15,239 39,323 28,227
Research and development
expense 3,750 2,892 12,803 5,718
Selling, general and
administrative expense 8,537 6,669 17,100 13,357
-------- -------- -------- --------
Income from operations 5,592 5,678 9,420 9,152
Other income 368 303 689 633
Interest expense (407) (699) (887) (1,325)
-------- -------- -------- --------
Income before income taxes 5,553 5,282 9,222 8,460
Provision for income taxes 1,221 1,198 2,028 2,031
-------- -------- -------- --------
Net income $4,332 $4,084 $7,194 $6,429
-------- -------- -------- --------
-------- -------- -------- --------
Net income per common
and common equivalent share $0.77 $0.75 $1.28 $1.18
-------- -------- -------- --------
-------- -------- -------- --------
Weighted average common and
common equivalent shares
outstanding 5,596 5,446 5,606 5,440
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
HUTCHINSON TECHNOLOGY INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - UNAUDITED
(Dollars in thousands)
<TABLE>
<CAPTION>
Twenty-Six Weeks Ended
-------------------------
March 24, March 26,
1996 1995
--------- ---------
<S> <C> <C>
Operating activities:
Net income $7,194 $6,429
Adjustments to reconcile net income to
cash provided by operating activities:
Depreciation and amortization 15,308 13,022
Deferred tax benefit (1,298) (1,668)
Loss on disposal of assets 157 147
Change in operating assets and liabilities (Note 5) 4,686 4,122
-------- --------
Cash provided by operating activities 26,047 22,052
-------- --------
Investing activities:
Capital expenditures (36,336) (15,317)
Sales of marketable securities 3,070 --
Purchases of marketable securities (3,941) (1,164)
-------- --------
Cash used for investing activities (37,207) (16,481)
-------- --------
Financing activities:
Repayments of long-term debt (1,340) (1,340)
Proceeds from issuance of long-term debt 500 --
Net proceeds from issuance of common stock 56 265
-------- --------
Cash used for financing activities (784) (1,075)
-------- --------
Net increase (decrease) in cash and cash equivalents (11,944) 4,496
Cash and cash equivalents at beginning of period 30,479 18,570
-------- --------
Cash and cash equivalents at end of period $18,535 $23,066
-------- --------
-------- --------
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
HUTCHINSON TECHNOLOGY INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands)
(1) ACCOUNTING POLICIES
The condensed consolidated financial statements have been prepared by the
Company, without audit, pursuant to the rules and regulations of the Securities
and Exchange Commission. The information furnished in the condensed
consolidated financial statements include normal recurring adjustments and
reflect all adjustments which are, in the opinion of management, necessary for a
fair presentation of such financial statements. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. Although the Company believes that the
disclosures are adequate to make the information presented not misleading, it is
suggested that these condensed consolidated financial statements be read in
conjunction with the financial statements and the notes thereto included in the
Company's latest Annual Report on Form 10-K. The quarterly results are not
necessarily indicative of the actual results that may occur for the entire
fiscal year.
(2) BUSINESS AND CUSTOMERS
The Company is the world's leading supplier of suspension assemblies for rigid
disk drives. Suspension assemblies hold the recording heads in position above
the spinning magnetic disks in the drive and are critical to maintaining the
necessary microscopic clearance between the head and disk. The Company
developed its leadership position in suspension assemblies through research,
development and design activities coupled with a substantial investment in
manufacturing technologies and equipment. The Company is focused on continuing
to develop suspension assemblies which address the rapidly changing requirements
of the rigid disk drive industry. The Company also is evaluating other product
opportunities in the medical market but does not expect any significant medical
revenues in fiscal 1996. A breakdown of customer sales is as follows:
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-Six Weeks Ended
------------------------ ------------------------
March 24, March 26, March 24, March 26,
Percentage of Net Sales 1996 1995 1996 1995
- ----------------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C>
Five Largest Customers 90% 84% 90% 85%
Seagate Technology 34 34 33 36
Yamaha 17 11 16 12
Read-Rite 15 20 17 21
SAE Magnetics 12 8 14 7
IBM 12 11 10 9
</TABLE>
Sales returns and allowances for the twenty-six weeks ended March 24, 1996 were
$986,000 compared to $1,430,000 for the comparable period in fiscal 1995.
<PAGE>
(3) INVENTORIES
All inventories are stated at the lower of last-in, first-out (LIFO) cost or
market. Inventories consisted of the following:
<TABLE>
<CAPTION>
March 24, September 24,
1996 1995
--------- -------------
<S> <C> <C>
Raw materials $4,276 $3,019
Work in process 5,252 3,159
Finished goods 9,546 7,455
LIFO reserve (285) (335)
------- -------
$18,789 $13,298
------- -------
------- -------
</TABLE>
(4) INCOME TAXES
The following table details the components of net deferred tax assets:
<TABLE>
<CAPTION>
March 24, September 24,
1996 1995
--------- -------------
<S> <C> <C>
Current net deferred tax assets
Related to sales and accounts receivables $797 $702
Related to inventories 2,724 1,830
Accruals and other reserves 2,321 1,783
-------- --------
5,842 4,315
Long-term net deferred tax assets
Related to property, plant and equipment 2,750 2,858
Accruals and other reserves 2,207 602
Tax credits 4,933 4,933
Valuation allowance (2,235) (2,235)
-------- --------
7,655 6,158
-------- --------
Total net deferred tax assets $13,497 $10,473
-------- --------
-------- --------
</TABLE>
The following table lists the types of tax credits available to the Company, and
their expiration dates:
<TABLE>
<CAPTION>
Year of
Carryforward Amount Expiration
- ------------ ------ ---------------
<S> <C> <C>
Research and development $1,395 2009 - 2011
Alternative minimum tax 3,538 Does not expire
</TABLE>
The Company determined that the realization of certain of these tax credits did
not meet the recognition criteria under Statement of Financial Accounting
Standards No. 109 ("SFAS 109"), "Accounting for Income Taxes", and accordingly,
a valuation allowance has been established.
<PAGE>
(5) SUPPLEMENTARY CASH FLOW INFORMATION
<TABLE>
<CAPTION>
Twenty-Six Weeks Ended
------------------------
March 24, March 26,
1996 1995
--------- ---------
<S> <C> <C>
Changes in operating assets and liabilities:
Receivables, net ($3,336) $2,414
Inventories (5,491) (6,418)
Prepaid taxes and other (1,551) (1,001)
Accounts payable and accrued liabilities 10,233 6,483
Accrued income taxes 1,831 2,644
Other non-current liabilities 3,000 --
------- -------
$4,686 $4,122
------- -------
------- -------
Cash paid for:
Interest $1,461 $1,603
Income taxes 2,865 2,000
</TABLE>
Capitalized interest for the twenty-six weeks ended March 24, 1996 was $565,000
compared to $254,000 for the comparable period in fiscal 1995.
<PAGE>
HUTCHINSON TECHNOLOGY INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
RESULTS OF OPERATIONS
THIRTEEN WEEKS ENDED MARCH 24, 1996 VS. THIRTEEN WEEKS ENDED MARCH 26, 1995.
Net sales for the thirteen weeks ended March 24, 1996 increased $18,657,000 or
27% over the comparable period in fiscal 1995. The Company shipped
approximately 40 million or 45% more suspension assemblies over the comparable
period in fiscal 1995.
Gross profit for the thirteen weeks ended March 24, 1996 increased $2,640,000 or
17% over the comparable period in fiscal 1995. Gross profit as a percent of net
sales decreased from 22% to 21%, primarily due to selling higher volumes of
lower-priced suspensions, partially offset by improved manufacturing
efficiencies.
The majority of the research and development expenses are attributable to the
development of new suspension assembly types to meet customers' changing
requirements. Research and development expenses for the thirteen weeks ended
March 24, 1996 were $3,750,000, an increase of $858,000 or 30% as compared to
the same period in fiscal 1995. The higher expenses were primarily due to an
increase in labor of $273,000 and supply expenses of $265,000.
Selling, general and administrative expenses for the thirteen weeks ended March
24, 1996 increased $1,868,000 or 28% from the comparable period in fiscal 1995.
The increased expenses were primarily due to an increase in professional
services of $546,000, recruitment and relocation expenses of $501,000 and labor
of $493,000. As a percent of net sales, selling, general and administrative
expenses remained at 10%.
The income tax provision for the thirteen weeks ended March 24, 1996 was based
on an estimated effective tax rate for the fiscal year of 22% which was below
the statutory federal rate primarily due to the large portion of sales that
qualify for the benefit of the Company's Foreign Sales Corporation.
Net income for the thirteen weeks ended March 24, 1996 was $4,332,000, an
increase of $248,000 over the comparable period in fiscal 1995. As a percent of
net sales, net income decreased from 6% to 5% primarily due to selling lower-
priced suspensions, partially offset by improved manufacturing efficiencies,
noted above.
TWENTY-SIX WEEKS ENDED MARCH 24, 1996 VS. TWENTY-SIX WEEKS ENDED MARCH 26, 1995.
Net sales for the twenty-six weeks ended March 24, 1996 increased $38,494,000 or
29% over the comparable period in fiscal 1995. The Company shipped
approximately 79 million or 46% more suspension assemblies over the comparable
period in fiscal 1995.
Gross profit for the twenty-six weeks ended March 24, 1996 increased $11,096,000
or 39% over the comparable period in fiscal 1995 and gross profit as a percent
of net sales increased from 21% to 23%. The increase in gross profit and gross
profit as a percent of net sales was primarily due to higher sales volume and
improved manufacturing efficiencies, partially offset by selling lower-priced
suspensions, noted above.
<PAGE>
The majority of the research and development expenses are attributable to the
development of new suspension assembly types to meet customers' changing
requirements. Research and development expenses for the twenty-six weeks ended
March 24, 1996 increased $7,085,000 or 124% as compared to the same period in
fiscal 1995. The higher expenses were primarily due to a one-time charge of
$5,500,000 related to the previously reported technology sharing agreement with
IBM.
Selling, general and administrative expenses for the twenty-six weeks ended
March 24, 1996 increased $3,743,000 or 28% from the comparable period in fiscal
1995. The increased expenses were primarily due to an increase in recruitment
and relocation expenses of approximately $1,400,000, mainly related to the
start-up of the Eau Claire, Wisconsin suspension assembly manufacturing
facility, and a $1,092,000 increase in labor expenses. As a percent of net
sales, selling, general and administrative expenses remained at 10%.
The income tax provision for the twenty-six weeks ended March 24, 1996 was
based on an estimated effective tax rate for the fiscal year of 22% which was
below the statutory federal rate primarily due to the large portion of sales
that qualify for the benefit of the Company's Foreign Sales Corporation.
Net income for the twenty-six weeks ended March 24, 1996 was $7,194,000, an
increase of $765,000 over the comparable period in fiscal 1995. The increase
was primarily due to higher sales volume and improved manufacturing
efficiencies, partially offset by increased research and development expenses
and selling lower-priced suspensions, noted above.
LIQUIDITY, CAPITAL RESOURCES AND OTHER MATTERS
Principal sources of liquidity are cash flow from operations, cash balances and
additional financing capacity. The Company's cash and cash equivalents
decreased to $18,535,000 at March 24, 1996 compared to $30,479,000 at September
24, 1995. The Company provided $26,047,000 from operating activities during the
twenty-six weeks ended March 24, 1996.
Cash used for capital expenditures for the twenty-six weeks ended March 24, 1996
totaled $36,336,000, an increase of $21,019,000 from the comparable period in
fiscal 1995. The Company anticipates, but is not contractually committed to,
fiscal 1996 expenditures of approximately $100,000,000 for manufacturing and
support equipment, the completion of a suspension assembly manufacturing
facility and the initial construction of a photoetch facility at the Eau Claire
site. Financing of these capital expenditures will be principally from
internally generated funds, cash balances and/or additional financing capacity.
The Company established a $25,000,000 unsecured revolving credit/letter of
credit facility with The First National Bank of Chicago during the first quarter
of fiscal 1996. At March 24, 1996, the Company had no borrowings under this
credit agreement. The Company's debt agreements contain various restrictive
covenants. As of March 24, 1996, the Company was in compliance with all such
covenants.
The Company believes that its cash and cash equivalents, additional cash to be
generated from operations, its existing bank facilities and additional financing
capacity will be sufficient to meet the Company's current and long-term
liquidity, debt installments, and capital requirements.
<PAGE>
MARKET TRENDS AND CERTAIN CONTINGENCIES
The Company expects that the expanding use of personal computers, increasingly
complex software and the emergence of new applications for disk storage, all of
which have contributed to the historical year-to-year increases in disk drive
production, will continue for the foreseeable future. As heads become still
smaller or require more leads, the Company believes "TRACE-TM- suspension
assemblies", suspensions with integrated electrical leads, will be of increasing
importance. The Company believes demand for disk drives will continue to be
subject, as it has in the past, to rapid short-term changes resulting from,
among other things, changes in disk drive inventory levels, responses to
competitive price changes and unpredicted high or low market acceptance of new
drive models.
Due to the dynamic nature of the disk drive industry, the Company has
historically experienced significant, unforeseen fluctuations in demand for
certain or all of its components. Also, the introduction of new types or sizes
of read/write heads and new disk drive designs tends to decrease customers'
yields with the result that the Company may experience temporary elevations of
demand for some types of suspension assemblies. The advent of new heads and new
drive designs may require rapid development and implementation of new suspension
types which may temporarily reduce the Company's manufacturing yields and
efficiencies. There can be no assurance that such changes will not continue to
affect the Company.
The Company generally experiences declining selling prices due to product
maturity and competitive pricing pressures. These forces may be temporarily
offset when the Company's new products, having initially higher selling prices,
enter the market.
In August of 1988, the Company and hundreds of other corporations were informed
that they are "potentially responsible parties" under the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA) as generators of
hazardous waste disposed of at a waste site in Gary, Indiana. In December of
1989, the Company settled its potential liability under a cost recovery action
by paying $9,000 of the surface cleanup costs (estimated to have been more than
$2,000,000 in the aggregate). The United States Environmental Protection Agency
(USEPA) notified the Company in September 1993 of its further potential
liability for reimbursement of the cost of future additional cleanup of the
Gary, Indiana site, in connection with the Company's status as a "potentially
responsible party" under CERCLA. The Company and a number of other parties
currently are negotiating with the USEPA regarding the terms of a proposed
further settlement of all remaining potential site liabilities.
The Company and certain users of the Company's products have from time to time
received, and may in the future receive, communications from third parties
asserting patents against the Company or its customers which may relate to
certain of the Company's manufacturing equipment or products or to products
which include the Company's products as a component. Although the Company has
not been a party to any material intellectual property litigation, certain of
its customers have been sued on patents having claims closely related to
products sold by the Company. In the event any third party were to make a valid
infringement claim and a license were not available on terms acceptable to the
Company, the Company's operating results could be adversely affected.
The Company is party to certain other claims arising in the ordinary course of
business. In the opinion of management, the outcome of such claims will not
materially affect the Company's current or future financial position or results
of operations.
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
At the Company's 1996 Annual Meeting of Shareholders held on January 24th, 1996,
the shareholders approved the following:
(a) a proposal to ratify the appointment of Arthur Andersen LLP to serve
as independent public accountants of the Company for the fiscal year ending
September 29, 1996. The proposal received 4,690,695 votes for, and 28,586
votes against, ratification. There were 18,534 abstentions and no broker
non-votes.
(b) the election of directors to serve until their successors are duly
elected. Each nominated director was elected as follows:
Director-Nominee Votes For Votes Withheld
-------------------- ------------ ------------------
Jeffrey W. Green 4,691,954 45,861
Wayne M. Fortun 4,691,754 46,061
W. Thomas Brunberg 4,686,593 51,222
James E. Donaghy 4,683,393 54,422
Harry C. Ervin, Jr. 4,689,654 48,161
Richard N. Rosett 4,689,854 47,961
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
a) EXHIBITS.
3.1 Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to Registration Statement No. 2-98270), as
amended by Articles of Amendment dated January 27, 1988 (incorporated by
reference to Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 27, 1987, File No. 0-14709).
3.2 Restated By-Laws of the Company (incorporated by reference to Exhibit 4.2
to the Company's Quarterly Report on Form 10-Q for the quarter ended March
27, 1988, File No. 0-14709), and amendment adopted on March 5, 1991
(incorporated by reference to Exhibit 4.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1991, File No. 0-
14709).
4.1 Instruments defining the rights of security holders, including an
indenture. The Registrant agrees to furnish the Securities and Exchange
Commission upon request copies of instruments with respect to long-term
debt.
4.2 Note Purchase Agreement dated as of April 20, 1994, providing for the
placement of $20,000,000 of senior unsecured notes with Teachers Insurance
and Annuity Association of America (incorporated by reference to Exhibit
4.10 to the Company's Quarterly Report on Form 10-Q for the quarter ended
March 27, 1994, File No. 0-14709) and Amendment dated as of March 15,
1996.
4.3 Note Purchase Agreement dated as of April 20, 1994, providing for the
placement of $5,000,000 of senior unsecured notes with Central Life
Assurance Company (incorporated by reference to Exhibit 4.11 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 27,
1994, File No. 0-14709) and Amendment dated as of March 15, 1996.
4.4 Note Purchase Agreement dated as of April 20, 1994, providing for the
placement of $5,000,000 of senior unsecured notes with Modern Woodmen of
America (incorporated by reference to Exhibit 4.12 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 27, 1994, File
No. 0-14709) and Amendment dated as of March 15, 1996.
4.5 Credit Agreement between the Company and The First National Bank of
Chicago, dated as of December 8, 1995 (incorporated by reference to
Exhibit 4.5 to the Company's Quarterly Report on Form 10-Q for the quarter
ended December 24, 1995, File No. 0-14709).
10.1 Lease with Right of Refusal between Donald Wendorff and Laura Wendorff,
Lessors, and the Company, Lessee, dated September 6, 1995 (incorporated by
reference to Exhibit 10.2 to the Company's Annual Report on Form 10-K for
the fiscal year ended September 24, 1995, File No. 0-14709).
10.2 Office/Warehouse Lease between OPUS Corporation, Lessor, and the Company,
Lessee, dated December 29, 1995.
<PAGE>
10.3 Building Lease dated April 1988 and Amendment to Building Lease dated
August 29, 1988 (incorporated by reference to Exhibit 10.9 to the
Company's Annual Report on Form 10-K for the fiscal year ended September
25, 1988, File No. 0-14709), Second Amendment to Building Lease dated as
of September 18, 1989, relating to the Company's Sioux Falls, South Dakota
facility (incorporated by reference to Exhibit 10.9 to the Company's
Annual Report on Form 10-K for the fiscal year ended September 30, 1990,
File No. 0-14709), Third Amendment to Building Lease dated September 19,
1991, relating to the Company's Sioux Falls, South Dakota facility
(incorporated by reference to Exhibit 10.9 to the Company's Annual Report
on Form 10-K for the fiscal year ended September 29, 1991, File No. 0-
14709), Fourth Amendment to Commercial Lease dated September 29, 1992,
relating to the Company's Sioux Falls, South Dakota facility (incorporated
by reference to Exhibit 10.10 to the Company's Annual Report on Form 10-K
for the fiscal year ended September 27, 1992, File No. 0-14709), Fifth
Amendment to Commercial Lease dated February 11, 1993, relating to the
Company's Sioux Falls, South Dakota facility (incorporated by reference to
Exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal
year ended September 24, 1995, File No. 0-14709), Sixth Amendment to
Commercial Lease dated February 17, 1995, relating to the Company's Sioux
Falls, South Dakota facility (incorporated by reference to Exhibit 10.6 to
the Company's Annual Report on Form 10-K for the fiscal year ended
September 24, 1995, File No. 0-14709), and Seventh Amendment to Commercial
Lease dated April 1, 1995, relating to the Company's Sioux Falls, South
Dakota facility (incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K for the fiscal year ended September
24, 1995, File No. 0-14709).
10.4 Hutchinson Technology Incorporated 401-K Plan and related 401-K Trust
(incorporated by reference to Exhibit 10.10 to the Company's Annual Report
on Form 10-K for the fiscal year ended September 30, 1990, File No. 0-
14709), and Amendment effective April 1, 1995.
10.5 Directors' Retirement Plan effective as of January 1, 1992 (incorporated
by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K
for the fiscal year ended September 27, 1992, File No. 0-14709).
10.6 Description of Bonus Program for Key Employees of Hutchinson Technology
Incorporated (incorporated by reference to Exhibit 10.13 to the Company's
Annual Report on Form 10-K for the fiscal year ended September 27, 1992,
File No. 0-14709).
10.7 1988 Stock Option Plan (incorporated by reference to Exhibit 10.8 to the
Company's Annual Report on Form 10-K for the fiscal year ended September
25, 1988, File No. 0-14709), Amendment to the 1988 Stock Option Plan
(incorporated by reference to Exhibit 10.5 to the Company's Annual Report
on Form 10-K for the fiscal year ended September 26, 1993, File No. 0-
14709), and Amendment to the 1988 Stock Option Plan (incorporated by
reference to Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 26, 1995, File No. 0-14709).
*10.8 Technology Transfer and Development Agreement, effective as of September
1, 1994, between Hutchinson Technology Incorporated and International
Business Machines Corporation (incorporated by reference to Exhibit 10.10
to the Company's Quarterly Report on Form 10-Q/A for the quarter ended
June 25, 1995, File No. 0-14709), and
<PAGE>
Amendment dated December 11, 1995 to the Technology Transfer and
Development Agreement between International Business Machines Corporation
and Hutchinson Technology Incorporated executed June 15, 1995
(incorporated by reference to Exhibit 10.8 to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 24, 1995, File No. 0-
14709).
*10.9 Patent License Agreement, effective as of September 1, 1994, between
Hutchinson Technology Incorporated and International Business Machines
Corporation (incorporated by reference to Exhibit 10.11 to the Company's
Quarterly Report on Form 10-Q/A for the quarter ended June 25, 1995, File
No. 0-14709).
11 Statement Regarding Computation of Net Income Per Share.
27 Financial Data Schedule.
b) REPORTS ON FORM 8-K.
No reports were filed on Form 8-K during the thirteen weeks ended March
24, 1996.
* Exhibits 10.8 and 10.9 contain portions for which confidential treatment
has been granted by the Securities and Exchange Commission.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HUTCHINSON TECHNOLOGY INCORPORATED
Date: April 26, 1996 By /s/Jeffrey W. Green
------------------------ ------------------------------
Jeffrey W. Green
Chairman of the Board of Directors,
Chief Executive Officer
Date: April 26, 1996 By /s/John A. Ingleman
------------------------ ------------------------------
John A. Ingleman
Vice President, Chief Financial Officer,
Secretary and Treasurer
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Page
- ------- --------------
<S> <C> <C>
4.2 Amendment to Note Purchase Agreement Electronically
Filed
4.3 Amendment to Note Purchase Agreement Electronically
Filed
4.4 Amendment to Note Purchase Agreement Electronically
Filed
10.2 Office/Warehouse Lease Electronically
Filed
10.4 Amendment to 401-K Plan Electronically
Filed
11 Statement Regarding Computation of Net Electronically
Income Per Share Filed
27 Financial Data Schedule Electronically
Filed
</TABLE>
<PAGE>
EXHIBIT 4.2
Dated as of March 15, 1996
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Central Life Assurance Company
611 Fifth Avenue
Des Moines, Iowa 50309
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "Company"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"Purchasers"), each dated as of April 20, 1994 (collectively, the "Agreements"),
pursuant to which the Purchasers purchased the 7.46% Senior Notes of the Company
dated April 20, 1994 in the aggregate original principal amount of $30,000,000
(the "Notes"). The Purchasers or their successors or assigns (collectively, the
"Noteholders") are the registered holders of 100% of the aggregate outstanding
principal amount of the Notes as reflected in the Note Register required to be
maintained by the Company pursuant to Section 1O.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold at least 66-2/3% of
the aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it proposes to enter into a
loan agreement with the Wisconsin Department of Development (the "Department"),
pursuant to which the Department will loan the Company $1,000,000 secured by
certain personal property, and a sale leaseback transaction, and has requested
that the Agreements be amended in certain respects to permit such transactions.
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows:
1. AMENDMENT TO SECTION 6.3(a). Section 6.3(a) of each of the Agreements
is amended by restating clause (iv) thereof in its entirety as follows:
<PAGE>
(iv) the Company may become and remain liable in respect of Funded
Debt relating to an equivalent principal amount of IDB Debt secured by
Liens permitted by subdivision (h) of SECTION 6.4 and in respect of Funded
Debt secured by Liens permitted by subdivision (i),(j) or (k) of SECTION
6.4, and any Subsidiary may become and remain liable in respect of
Subsidiary Secured Debt, if at the time of incurrence of any such Funded
Debt or Subsidiary Secured Debt and after giving effect to such incurrence
and to the concurrent retirement or incurrence of any other Debt by the
Company and its Subsidiaries and to the application of the proceeds of all
such incurred Debt, the aggregate principal amount outstanding of all Debt
of the Company and its Subsidiaries secured bv Liens permitted by
subdivision (g), (h), (i),(j) or (k) of SECTION 6.4 shall not exceed 19% of
Consolidated Net Worth, PROVIDED that, the Subsidiary Secured Debt
permitted by this subdivision (a)(iv) for which any one Subsidiary may
become and remain liable shall not at any one time exceed $500,000 in
aggregate principal amount outstanding; and
2. AMENDMENT TO SECTION 6.4.
(a) Section 6.4 of each of the Agreements is amended by (i) deleting
the word "and" at the end of clause (i) thereof, (ii) deleting the period at the
end of clause(j) thereof and adding ";and" at the end of said clause(j), and
(iii) adding a new clause (k) following clause (j) thereof, to read as follows:
(k) Liens on equipment of the Company securing Funded Debt in the
aggregate principal amount of $1,000,000 which was created pursuant to
that certain Major Economic Development Fund Agreement, dated as of March
21, 1996, between the Company and the Wisconsin Department of Development.
(b) Section 6.4 of each of the Agreements is further amended by
restating the penultimate and ultimate paragraphs thereof in their entirety as
follows:
It shall be a further condition to the creation, incurrence,
assumption, extension, renewal, refunding or refinancing of any Lien
otherwise permitted by subdivision (h), (i), (j) or (k) of this Section
that, on the date on which the Company or any of its Subsidiaries proposes
to take any such action and immediately after giving effect thereto, to the
substantially concurrent incurrence of any Debt and the substantially
concurrent retirement of any other Debt and to the application of the
proceeds of all such Debt, the Company or such Subsidiary, as the case may
be, shall be permitted to incur and remain liable in respect of at least
$1.00 of additional secured Funded Debt pursuant to subdivision (a)(iv) OF
SECTION 6.3. For all purposes of this Section, (A) Liens existing on or
with respect to any assets of any Person at the time it becomes a
Subsidiary shall be deemed to have been created at the time it becomes a
Subsidiary, (B) any extension, renewal, refunding or refinancing of any
Lien by
-2-
<PAGE>
the Company or any of its Subsidiaries shall be deemed to be an incurrence
of such Lien at the time of such extension, renewal, refunding or
refinancing, and (C) any Lien existing on any property at the time it is
acquired by the Company or any of its Subsidiaries shall be deemed to have
been created at the time of such acquisition.
In the event that any property or assets of the Company or any
Subsidiary shall become or be subject to a Lien not permitted by the
foregoing subdivisions (a) through (k) of this Section, the Company shall
make or cause to be made effective provision satisfactory to the holders of
the outstanding Notes whereby the Notes will be secured equally and ratably
with all other obligations secured by such Lien, and in any event, the
Notes shall have the benefit, to the full extent that (and with such
priority as) the holders thereof may be entitled under applicable law, of
an equitable Lien on such property or assets; PROVIDED, HOWEVER, that any
violation of this Section shall constitute a Default whether or not the
Company shall have made effective provision to secure the Notes equally and
ratably with any such other obligations or the holders of Notes shall be
entitled to such equal and ratable security or any such equitable Lien.
3. AMENDMENT TO SECTION 6.9. Section 6.9 of each of the Agreements is
amended by restating clause (d) thereof in its entirety as follows:
(d) the Company or any Subsidiary, in addition to making any sale,
lease, transfer, contribution or other disposition permitted by the
foregoing provisions of this Section, (i) may sell its interests, if any,
in and to the buildings and equipment constituting a part of the
Manufacturing Facility and the real estate appurtenant thereto as part of
the sale leaseback transaction described in clause (b) of Section 6.10
hereof and (ii) may sell any of its other assets for a consideration at
least equal to the fair market value thereof (as determined in good faith
by the Board of Directors) at the time of such sale but only if the assets
so sold, when taken together with all other assets of the Company and its
Subsidiaries (other than any buildings or equipment constituting a part of
the Manufacturing Facility and the real estate appurtenant thereto sold as
part of the sale leaseback transaction described in clause (b) of Section
6.10 hereof) then being or theretofore so sold (including deemed
dispositions pursuant to SECTION 6.8) during the period from and including
the first day of the then current fiscal year of the Company to and
including the date of such sale shall not have an aggregate fair market
value or an aggregate book value (such fair market value and such book
value to be determined in the case of any such assets as of the date of
sale or proposed sale thereof) which shall exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed prior fiscal year
of the Company.
-3-
<PAGE>
4. AMENDMENT TO SECTION 6.10. Section 6.10 of each of the Agreements
is amended in its entirety to read as follows:
6.10 RESTRICTIONS ON LONG TERM LEASES AND SALE LEASEBACKS.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any Long Term Lease unless, after giving
effect to such Long Term Lease, (i) the aggregate amount of all Long Term
Lease Rentals for which the Company and its Subsidiaries shall be liable in
any one fiscal year (including the then current and each future fiscal
year) under all Long Term Leases shall not exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed fiscal quarter of
the Company, and (ii) the aggregate amount of Long Term Lease Rentals for
which all such Subsidiaries shall be liable in any one fiscal year
(including the then current and each future fiscal year) under all Long
Term Leases shall not exceed $200,000.
(b) The Company will not, and will not permit any of its Subsidiaries
to, sell or otherwise transfer to any other Person any property (real,
personal or mixed), whether now owned or hereafter acquired, with the
intention that, as part of the same or any related transaction, the Company
or any of its Subsidiaries shall lease as lessee all or any part of such
property or any other property which would be used for substantially the
same purpose, unless the cash proceeds received by the Company or a
Subsidiary in such sale or other transfer are at least equal to the fair
market value (as determined by the Board of Directors) of the property
sold or transferred and such proceeds are applied within 180 days of
receipt thereof either to the retirement of Debt of the Company and its
Subsidiaries or to the acquisition of assets useful in the conduct of the
business of the Company and its Subsidiaries; provided, however, that the
Company may sell to Meridean Eau Claire LLC for an aggregate price of
$15,300,000 the Company's interest in the buildings and equipment
constituting a part of the Manufacturing Facility and the real estate
appurtenant thereto and thereafter lease back from Meridean Eau Claire LLC
such buildings and equipment and real estate appurtenant to the
Manufacturing Facility.
5. AMENDMENT TO SECTION 9.1. Section 9.1 of each of the Agreements is
amended by adding thereto in the proper alphabetical order the following
additional defined term:
MANUFACTURING FACILITY: the manufacturing facility of the Company
located in Eau Claire, Wisconsin.
6. MISCELLANEOUS. Except as specifically amended hereby, all terms and
provisions of each of the Agreements shall remain in full force and effect.
This Letter Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
-4-
<PAGE>
Capitalized terms used but not otherwise defined in this Letter Amendment shall
have the meanings assigned to them bv each of the Agreements.
If you are in agreement with the foregoing, please so indicate by executing
the form of acknowledgment set forth below, whereupon this letter shall become a
binding, agreement effective as of the date hereof,
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/John A. Ingleman
-----------------------------------
Its CFO
-------------------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/Marie A. Shmaruk
-------------------------------------------
Its Marie A. Shmaruk
----------------------------------------
Associate Director-Private Placements
----------------------------------------
CENTRAL LIFE ASSURANCE COMPANY
(now AMERICAN MUTUAL LIFE INSURANCE COMPANY)
By /s/Roger D. Fors
-------------------------------------------
Its Roger D. Fors
----------------------------------------
Vice President
----------------------------------------
MODERN WOODMEN OF AMERICA
By /s/Nick S. Coin
-------------------------------------------
Its Nick S. Coin
----------------------------------------
Supervisor, Securities Division
----------------------------------------
-5-
<PAGE>
EXHIBIT 4.3
Dated as of March 15, 1996
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Central Life Assurance Company
611 Fifth Avenue
Des Moines, Iowa 50309
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "Company"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"Purchasers"), each dated as of April 20, 1994 (collectively, the "Agreements"),
pursuant to which the Purchasers purchased the 7.46% Senior Notes of the Company
dated April 20, 1994 in the aggregate original principal amount of $30,000,000
(the "Notes"). The Purchasers or their successors or assigns (collectively, the
"Noteholders") are the registered holders of 100% of the aggregate outstanding
principal amount of the Notes as reflected in the Note Register required to be
maintained by the Company pursuant to Section 1O.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold at least 66-2/3% of
the aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it proposes to enter into a
loan agreement with the Wisconsin Department of Development (the "Department"),
pursuant to which the Department will loan the Company $1,000,000 secured by
certain personal property, and a sale leaseback transaction, and has requested
that the Agreements be amended in certain respects to permit such transactions.
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows:
1. AMENDMENT TO SECTION 6.3(a). Section 6.3(a) of each of the Agreements
is amended by restating clause (iv) thereof in its entirety as follows:
<PAGE>
(iv) the Company may become and remain liable in respect of Funded
Debt relating to an equivalent principal amount of IDB Debt secured by
Liens permitted by subdivision (h) of SECTION 6.4 and in respect of Funded
Debt secured by Liens permitted by subdivision (i),(j) or (k) of SECTION
6.4, and any Subsidiary may become and remain liable in respect of
Subsidiary Secured Debt, if at the time of incurrence of any such Funded
Debt or Subsidiary Secured Debt and after giving effect to such incurrence
and to the concurrent retirement or incurrence of any other Debt by the
Company and its Subsidiaries and to the application of the proceeds of all
such incurred Debt, the aggregate principal amount outstanding of all Debt
of the Company and its Subsidiaries secured bv Liens permitted by
subdivision (g), (h), (i),(j) or (k) of SECTION 6.4 shall not exceed 19% of
Consolidated Net Worth, PROVIDED that, the Subsidiary Secured Debt
permitted by this subdivision (a)(iv) for which any one Subsidiary may
become and remain liable shall not at any one time exceed $500,000 in
aggregate principal amount outstanding; and
2. AMENDMENT TO SECTION 6.4.
(a) Section 6.4 of each of the Agreements is amended by (i) deleting
the word "and" at the end of clause (i) thereof, (ii) deleting the period at the
end of clause(j) thereof and adding ";and" at the end of said clause(j), and
(iii) adding a new clause (k) following clause (j) thereof, to read as follows:
(k) Liens on equipment of the Company securing Funded Debt in the
aggregate principal amount of $1,000,000 which was created pursuant to
that certain Major Economic Development Fund Agreement, dated as of March
21, 1996, between the Company and the Wisconsin Department of Development.
(b) Section 6.4 of each of the Agreements is further amended by
restating the penultimate and ultimate paragraphs thereof in their entirety as
follows:
It shall be a further condition to the creation, incurrence,
assumption, extension, renewal, refunding or refinancing of any Lien
otherwise permitted by subdivision (h), (i), (j) or (k) of this Section
that, on the date on which the Company or any of its Subsidiaries proposes
to take any such action and immediately after giving effect thereto, to the
substantially concurrent incurrence of any Debt and the substantially
concurrent retirement of any other Debt and to the application of the
proceeds of all such Debt, the Company or such Subsidiary, as the case may
be, shall be permitted to incur and remain liable in respect of at least
$1.00 of additional secured Funded Debt pursuant to subdivision (a)(iv) OF
SECTION 6.3. For all purposes of this Section, (A) Liens existing on or
with respect to any assets of any Person at the time it becomes a
Subsidiary shall be deemed to have been created at the time it becomes a
Subsidiary, (B) any extension, renewal, refunding or refinancing of any
Lien by
-2-
<PAGE>
the Company or any of its Subsidiaries shall be deemed to be an incurrence
of such Lien at the time of such extension, renewal, refunding or
refinancing, and (C) any Lien existing on any property at the time it is
acquired by the Company or any of its Subsidiaries shall be deemed to have
been created at the time of such acquisition.
In the event that any property or assets of the Company or any
Subsidiary shall become or be subject to a Lien not permitted by the
foregoing subdivisions (a) through (k) of this Section, the Company shall
make or cause to be made effective provision satisfactory to the holders of
the outstanding Notes whereby the Notes will be secured equally and ratably
with all other obligations secured by such Lien, and in any event, the
Notes shall have the benefit, to the full extent that (and with such
priority as) the holders thereof may be entitled under applicable law, of
an equitable Lien on such property or assets; PROVIDED, HOWEVER, that any
violation of this Section shall constitute a Default whether or not the
Company shall have made effective provision to secure the Notes equally and
ratably with any such other obligations or the holders of Notes shall be
entitled to such equal and ratable security or any such equitable Lien.
3. AMENDMENT TO SECTION 6.9. Section 6.9 of each of the Agreements is
amended by restating clause (d) thereof in its entirety as follows:
(d) the Company or any Subsidiary, in addition to making any sale,
lease, transfer, contribution or other disposition permitted by the
foregoing provisions of this Section, (i) may sell its interests, if any,
in and to the buildings and equipment constituting a part of the
Manufacturing Facility and the real estate appurtenant thereto as part of
the sale leaseback transaction described in clause (b) of Section 6.10
hereof and (ii) may sell any of its other assets for a consideration at
least equal to the fair market value thereof (as determined in good faith
by the Board of Directors) at the time of such sale but only if the assets
so sold, when taken together with all other assets of the Company and its
Subsidiaries (other than any buildings or equipment constituting a part of
the Manufacturing Facility and the real estate appurtenant thereto sold as
part of the sale leaseback transaction described in clause (b) of Section
6.10 hereof) then being or theretofore so sold (including deemed
dispositions pursuant to SECTION 6.8) during the period from and including
the first day of the then current fiscal year of the Company to and
including the date of such sale shall not have an aggregate fair market
value or an aggregate book value (such fair market value and such book
value to be determined in the case of any such assets as of the date of
sale or proposed sale thereof) which shall exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed prior fiscal year
of the Company.
-3-
<PAGE>
4. AMENDMENT TO SECTION 6.10. Section 6.10 of each of the Agreements
is amended in its entirety to read as follows:
6.10 RESTRICTIONS ON LONG TERM LEASES AND SALE LEASEBACKS.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any Long Term Lease unless, after giving
effect to such Long Term Lease, (i) the aggregate amount of all Long Term
Lease Rentals for which the Company and its Subsidiaries shall be liable in
any one fiscal year (including the then current and each future fiscal
year) under all Long Term Leases shall not exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed fiscal quarter of
the Company, and (ii) the aggregate amount of Long Term Lease Rentals for
which all such Subsidiaries shall be liable in any one fiscal year
(including the then current and each future fiscal year) under all Long
Term Leases shall not exceed $200,000.
(b) The Company will not, and will not permit any of its Subsidiaries
to, sell or otherwise transfer to any other Person any property (real,
personal or mixed), whether now owned or hereafter acquired, with the
intention that, as part of the same or any related transaction, the Company
or any of its Subsidiaries shall lease as lessee all or any part of such
property or any other property which would be used for substantially the
same purpose, unless the cash proceeds received by the Company or a
Subsidiary in such sale or other transfer are at least equal to the fair
market value (as determined by the Board of Directors) of the property
sold or transferred and such proceeds are applied within 180 days of
receipt thereof either to the retirement of Debt of the Company and its
Subsidiaries or to the acquisition of assets useful in the conduct of the
business of the Company and its Subsidiaries; provided, however, that the
Company may sell to Meridean Eau Claire LLC for an aggregate price of
$15,300,000 the Company's interest in the buildings and equipment
constituting a part of the Manufacturing Facility and the real estate
appurtenant thereto and thereafter lease back from Meridean Eau Claire LLC
such buildings and equipment and real estate appurtenant to the
Manufacturing Facility.
5. AMENDMENT TO SECTION 9.1. Section 9.1 of each of the Agreements is
amended by adding thereto in the proper alphabetical order the following
additional defined term:
MANUFACTURING FACILITY: the manufacturing facility of the Company
located in Eau Claire, Wisconsin.
6. MISCELLANEOUS. Except as specifically amended hereby, all terms and
provisions of each of the Agreements shall remain in full force and effect.
This Letter Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
-4-
<PAGE>
Capitalized terms used but not otherwise defined in this Letter Amendment shall
have the meanings assigned to them bv each of the Agreements.
If you are in agreement with the foregoing, please so indicate by executing
the form of acknowledgment set forth below, whereupon this letter shall become a
binding, agreement effective as of the date hereof,
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/John A. Ingleman
-----------------------------------
Its CFO
-------------------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/Marie A. Shmaruk
-------------------------------------------
Its Marie A. Shmaruk
----------------------------------------
Associate Director-Private Placements
----------------------------------------
CENTRAL LIFE ASSURANCE COMPANY
(now AMERICAN MUTUAL LIFE INSURANCE COMPANY)
By /s/Roger D. Fors
-------------------------------------------
Its Roger D. Fors
----------------------------------------
Vice President
----------------------------------------
MODERN WOODMEN OF AMERICA
By /s/Nick S. Coin
-------------------------------------------
Its Nick S. Coin
----------------------------------------
Supervisor, Securities Division
----------------------------------------
-5-
<PAGE>
EXHIBIT 4.4
Dated as of March 15, 1996
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Central Life Assurance Company
611 Fifth Avenue
Des Moines, Iowa 50309
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "Company"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"Purchasers"), each dated as of April 20, 1994 (collectively, the "Agreements"),
pursuant to which the Purchasers purchased the 7.46% Senior Notes of the Company
dated April 20, 1994 in the aggregate original principal amount of $30,000,000
(the "Notes"). The Purchasers or their successors or assigns (collectively, the
"Noteholders") are the registered holders of 100% of the aggregate outstanding
principal amount of the Notes as reflected in the Note Register required to be
maintained by the Company pursuant to Section 1O.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold at least 66-2/3% of
the aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it proposes to enter into a
loan agreement with the Wisconsin Department of Development (the "Department"),
pursuant to which the Department will loan the Company $1,000,000 secured by
certain personal property, and a sale leaseback transaction, and has requested
that the Agreements be amended in certain respects to permit such transactions.
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows:
1. AMENDMENT TO SECTION 6.3(a). Section 6.3(a) of each of the Agreements
is amended by restating clause (iv) thereof in its entirety as follows:
<PAGE>
(iv) the Company may become and remain liable in respect of Funded
Debt relating to an equivalent principal amount of IDB Debt secured by
Liens permitted by subdivision (h) of SECTION 6.4 and in respect of Funded
Debt secured by Liens permitted by subdivision (i),(j) or (k) of SECTION
6.4, and any Subsidiary may become and remain liable in respect of
Subsidiary Secured Debt, if at the time of incurrence of any such Funded
Debt or Subsidiary Secured Debt and after giving effect to such incurrence
and to the concurrent retirement or incurrence of any other Debt by the
Company and its Subsidiaries and to the application of the proceeds of all
such incurred Debt, the aggregate principal amount outstanding of all Debt
of the Company and its Subsidiaries secured bv Liens permitted by
subdivision (g), (h), (i),(j) or (k) of SECTION 6.4 shall not exceed 19% of
Consolidated Net Worth, PROVIDED that, the Subsidiary Secured Debt
permitted by this subdivision (a)(iv) for which any one Subsidiary may
become and remain liable shall not at any one time exceed $500,000 in
aggregate principal amount outstanding; and
2. AMENDMENT TO SECTION 6.4.
(a) Section 6.4 of each of the Agreements is amended by (i) deleting
the word "and" at the end of clause (i) thereof, (ii) deleting the period at the
end of clause(j) thereof and adding ";and" at the end of said clause(j), and
(iii) adding a new clause (k) following clause (j) thereof, to read as follows:
(k) Liens on equipment of the Company securing Funded Debt in the
aggregate principal amount of $1,000,000 which was created pursuant to
that certain Major Economic Development Fund Agreement, dated as of March
21, 1996, between the Company and the Wisconsin Department of Development.
(b) Section 6.4 of each of the Agreements is further amended by
restating the penultimate and ultimate paragraphs thereof in their entirety as
follows:
It shall be a further condition to the creation, incurrence,
assumption, extension, renewal, refunding or refinancing of any Lien
otherwise permitted by subdivision (h), (i), (j) or (k) of this Section
that, on the date on which the Company or any of its Subsidiaries proposes
to take any such action and immediately after giving effect thereto, to the
substantially concurrent incurrence of any Debt and the substantially
concurrent retirement of any other Debt and to the application of the
proceeds of all such Debt, the Company or such Subsidiary, as the case may
be, shall be permitted to incur and remain liable in respect of at least
$1.00 of additional secured Funded Debt pursuant to subdivision (a)(iv) OF
SECTION 6.3. For all purposes of this Section, (A) Liens existing on or
with respect to any assets of any Person at the time it becomes a
Subsidiary shall be deemed to have been created at the time it becomes a
Subsidiary, (B) any extension, renewal, refunding or refinancing of any
Lien by
-2-
<PAGE>
the Company or any of its Subsidiaries shall be deemed to be an incurrence
of such Lien at the time of such extension, renewal, refunding or
refinancing, and (C) any Lien existing on any property at the time it is
acquired by the Company or any of its Subsidiaries shall be deemed to have
been created at the time of such acquisition.
In the event that any property or assets of the Company or any
Subsidiary shall become or be subject to a Lien not permitted by the
foregoing subdivisions (a) through (k) of this Section, the Company shall
make or cause to be made effective provision satisfactory to the holders of
the outstanding Notes whereby the Notes will be secured equally and ratably
with all other obligations secured by such Lien, and in any event, the
Notes shall have the benefit, to the full extent that (and with such
priority as) the holders thereof may be entitled under applicable law, of
an equitable Lien on such property or assets; PROVIDED, HOWEVER, that any
violation of this Section shall constitute a Default whether or not the
Company shall have made effective provision to secure the Notes equally and
ratably with any such other obligations or the holders of Notes shall be
entitled to such equal and ratable security or any such equitable Lien.
3. AMENDMENT TO SECTION 6.9. Section 6.9 of each of the Agreements is
amended by restating clause (d) thereof in its entirety as follows:
(d) the Company or any Subsidiary, in addition to making any sale,
lease, transfer, contribution or other disposition permitted by the
foregoing provisions of this Section, (i) may sell its interests, if any,
in and to the buildings and equipment constituting a part of the
Manufacturing Facility and the real estate appurtenant thereto as part of
the sale leaseback transaction described in clause (b) of Section 6.10
hereof and (ii) may sell any of its other assets for a consideration at
least equal to the fair market value thereof (as determined in good faith
by the Board of Directors) at the time of such sale but only if the assets
so sold, when taken together with all other assets of the Company and its
Subsidiaries (other than any buildings or equipment constituting a part of
the Manufacturing Facility and the real estate appurtenant thereto sold as
part of the sale leaseback transaction described in clause (b) of Section
6.10 hereof) then being or theretofore so sold (including deemed
dispositions pursuant to SECTION 6.8) during the period from and including
the first day of the then current fiscal year of the Company to and
including the date of such sale shall not have an aggregate fair market
value or an aggregate book value (such fair market value and such book
value to be determined in the case of any such assets as of the date of
sale or proposed sale thereof) which shall exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed prior fiscal year
of the Company.
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<PAGE>
4. AMENDMENT TO SECTION 6.10. Section 6.10 of each of the Agreements
is amended in its entirety to read as follows:
6.10 RESTRICTIONS ON LONG TERM LEASES AND SALE LEASEBACKS.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any Long Term Lease unless, after giving
effect to such Long Term Lease, (i) the aggregate amount of all Long Term
Lease Rentals for which the Company and its Subsidiaries shall be liable in
any one fiscal year (including the then current and each future fiscal
year) under all Long Term Leases shall not exceed 10% of Consolidated Net
Worth as at the end of the then most recently completed fiscal quarter of
the Company, and (ii) the aggregate amount of Long Term Lease Rentals for
which all such Subsidiaries shall be liable in any one fiscal year
(including the then current and each future fiscal year) under all Long
Term Leases shall not exceed $200,000.
(b) The Company will not, and will not permit any of its Subsidiaries
to, sell or otherwise transfer to any other Person any property (real,
personal or mixed), whether now owned or hereafter acquired, with the
intention that, as part of the same or any related transaction, the Company
or any of its Subsidiaries shall lease as lessee all or any part of such
property or any other property which would be used for substantially the
same purpose, unless the cash proceeds received by the Company or a
Subsidiary in such sale or other transfer are at least equal to the fair
market value (as determined by the Board of Directors) of the property
sold or transferred and such proceeds are applied within 180 days of
receipt thereof either to the retirement of Debt of the Company and its
Subsidiaries or to the acquisition of assets useful in the conduct of the
business of the Company and its Subsidiaries; provided, however, that the
Company may sell to Meridean Eau Claire LLC for an aggregate price of
$15,300,000 the Company's interest in the buildings and equipment
constituting a part of the Manufacturing Facility and the real estate
appurtenant thereto and thereafter lease back from Meridean Eau Claire LLC
such buildings and equipment and real estate appurtenant to the
Manufacturing Facility.
5. AMENDMENT TO SECTION 9.1. Section 9.1 of each of the Agreements is
amended by adding thereto in the proper alphabetical order the following
additional defined term:
MANUFACTURING FACILITY: the manufacturing facility of the Company
located in Eau Claire, Wisconsin.
6. MISCELLANEOUS. Except as specifically amended hereby, all terms and
provisions of each of the Agreements shall remain in full force and effect.
This Letter Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
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<PAGE>
Capitalized terms used but not otherwise defined in this Letter Amendment shall
have the meanings assigned to them bv each of the Agreements.
If you are in agreement with the foregoing, please so indicate by executing
the form of acknowledgment set forth below, whereupon this letter shall become a
binding, agreement effective as of the date hereof,
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/John A. Ingleman
-----------------------------------
Its CFO
-------------------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/Marie A. Shmaruk
-------------------------------------------
Its Marie A. Shmaruk
----------------------------------------
Associate Director-Private Placements
----------------------------------------
CENTRAL LIFE ASSURANCE COMPANY
(now AMERICAN MUTUAL LIFE INSURANCE COMPANY)
By /s/Roger D. Fors
-------------------------------------------
Its Roger D. Fors
----------------------------------------
Vice President
----------------------------------------
MODERN WOODMEN OF AMERICA
By /s/Nick S. Coin
-------------------------------------------
Its Nick S. Coin
----------------------------------------
Supervisor, Securities Division
----------------------------------------
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<PAGE>
EXHIBIT 10.2
11/09/95 8/18/89
12/05/95 8/25/92
12/18/95 4/26/95
12/26/95
12/29/95(2)
OFFICE/WAREHOUSE LEASE
THIS INDENTURE of lease, dated this 29th day of December, 1995, by and
between OPUS CORPORATION, a Minnesota corporation, owner of the Office/Warehouse
Complex (as hereinafter defined), hereinafter referred to as "Lessor," and
HUTCHINSON TECHNOLOGY, INC., a Minnesota corporation, hereinafter referred to as
"Lessee."
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter
set forth, does hereby lease and let unto Lessee, and Lessee does hereby hire
and take from Lessor, that certain space shown and designated on the floor plan
attached hereto and made a part hereof as Exhibit A, located in the
Office/Warehouse Complex known and described as Trenton Commerce Center located
at 5905 Trenton Lane North, Plymouth, MN 55442. The aforesaid space leased and
let unto Lessee is hereinafter referred to as the "Premises"; and the land
(including all easement areas appurtenant thereto) upon which the building or
buildings of which the Premises are a part is hereinafter referred to as the
"Property"; and the Property and all buildings and improvements and personal
property of Lessor used in connection with the operation or maintenance thereof
located therein and thereon and the appurtenant parking facilities, if any, are
hereinafter called the "Office/Warehouse Complex." Lessee shall also have the
right in common with other tenants to use the sidewalks, parking lots, and
driveways of the Office/Warehouse Complex for their intended purposes, subject
to the provisions of Article XXV hereof.
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or
obligation on the part of Lessor to make any alterations, improvements or
repairs of any kind on or about the Premises, except as expressly provided
herein, for a term of ten (10) years, zero (0) months, commencing on the first
day of April, 1996, and ending on the thirty-first day of March, 2006, unless
sooner terminated, in the manner provided hereinafter, to be occupied and used
by Lessee for the purposes described in Article VI and for no other purpose,
subject to the covenants and agreements hereinafter contained.
ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, and the other
covenants of Lessor in this Lease, Lessee agrees to pay to Lessor, at NW-9832,
P.O. Box 1450, Minneapolis, MN 55485 or at such other place as Lessor from time
to time may designate in writing, an annual rental of Three Hundred Ninety-four
Thousand Five Hundred Five and 00/100 Dollars ($394,505.00), sometimes
hereinafter referred to as the "Base Rent," payable monthly, in advance, in
equal installments of Thirty-two Thousand Eight Hundred Seventy-five and 42/100
Dollars ($32,875.42), commencing on the first day of the term and continuing on
the first day of each and every month thereafter for the next succeeding months
during the balance of the term. If
<PAGE>
the term commences on a date other than the first day of a calendar month or
ends on a date other than the last day of a calendar month, monthly rent for the
first month of the term or the last month of the term, as the case may be, shall
be prorated based upon the ratio that the number of days in the term within such
month bears to the total number of days in such month. If Lessee disputes that
any rent claimed by Lessor is payable, Lessee may pay such rent under protest.
If it is ultimately determined that Lessee was correct, an appropriate
adjustment shall be made and, if not so made, Lessee may offset against other
rent payable the amount improperly retained by Lessor after such determination.
ARTICLE II. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee
under the provisions of Article I hereof, Lessee shall pay to Lessor "Additional
Rent" as hereinafter provided for in this Article II.
For purposes of this Article II, the parties hereto agree upon the
following definitions:
A. The term "Lease Year" shall mean each of those calendar years commencing
with and including the year during which the term of this Lease commences,
and ending with the calendar year during which the term of this Lease
(including any extensions or renewals) terminates.
B. The term "Real Estate Taxes" shall mean and include all personal property
taxes of Lessor relating to Lessor's personal property located in the
Office/Warehouse Complex and used or useful in connection with the
operation and maintenance thereof, real estate taxes, and installments of
special assessments, including interest thereon, relating to the Property
and Office/Warehouse Complex, and all other governmental charges, general
and special, ordinary and extraordinary, foreseen as well as unforeseen, of
any kind and nature whatsoever, or other tax, however described, which is
levied or assessed by the United States of America or the state in which
the Office/Warehouse Complex is located or any political subdivision
thereof, against Lessor or all or any part of the Office/Warehouse Complex
as a result of Lessor's ownership of the Property or Office/Warehouse
Complex, and payable during the respective Lease Year. It shall not
include any net income tax, estate tax, or inheritance tax.
C. The term "Excess Real Estate Taxes" for an applicable Lease Year shall mean
the amount of Real Estate Taxes payable during such applicable Lease Year
in excess of the sum of $-O-.
----
D. The term "Operating Expenses" shall mean and include all expenses incurred
with respect to the maintenance and operation of the Property and
Office/Warehouse Complex as reasonably determined by Lessor's accountant in
accordance with generally accepted accounting principles consistently
followed, including, but not limited to, insurance premiums, maintenance
and repair costs, steam, electricity, water, sewer, gas, and other utility
charges, fuel, lighting, window washing, common area janitorial services,
common area trash and rubbish removal, wages payable to employees of Lessor
whose duties are connected with the operation and maintenance of the
Property
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<PAGE>
and Office/Warehouse Complex (but only for the portion of their time
allocable to work related to the Office/Warehouse Complex), amounts paid to
contractors or subcontractors for work or services performed in connection
with the operation and maintenance of the Property and Office/Warehouse
Complex, all costs of uniforms, supplies and materials used in connection
with the operation and maintenance of the Property and Office/Warehouse
Complex, all payroll taxes, unemployment insurance costs, vacation
allowances, and the cost of providing disability insurance or benefits,
pensions, profit sharing benefits, hospitalization, retirement or other so-
called fringe benefits (but only for the portion of their time allocable to
work related to the Office/Warehouse Complex), and any other expense
imposed on Lessor, its contractors or subcontractors, pursuant to law or
pursuant to any collective bargaining agreement covering such employees,
all services, supplies, repairs, replacements or other expenses for
maintaining and operating the Office/Warehouse Complex, reasonable
attorney's fees and costs in connection with appeal or contest of real
estate or other taxes or levies, and such other expenses as may be
ordinarily incurred in the operation and maintenance of an office/warehouse
complex and not specifically set forth herein, including reasonable
management fees which annual management fees shall not exceed 3.0% of gross
rental income for such year (subject to Paragraph G below) and the costs of
a building office/warehouse at the Office/Warehouse Complex. The term
"Operating Expenses" shall not include any capital improvement to the
Office/Warehouse Complex other than replacements required for normal
maintenance and repair, nor shall it include repairs, restoration or other
work occasioned by fire, windstorm or other insured casualty, expenses
incurred in leasing or procuring tenants, leasing commissions, advertising
expenses, expenses for renovating space for new tenants, legal expenses
incident to enforcement by Lessor of the terms of any lease, interest or
principal payments on any mortgage or other indebtedness of Lessor,
depreciation allowance or expense, nor any of the following:
(a) Costs of Tenant Improvements for any rentable area of the
Office/Warehouse Complex;
(b) Costs of capital improvements (except as otherwise expressly provided
herein) which cannot be expensed for federal income tax purposes in
the year the improvement is made or placed in service;
(c) Any expenses for repairs or maintenance which are actually covered by
warranties and guarantees or would be covered by a one-year (from
substantial completion) general contractor warranty against defects in
materials and workmanship;
(d) Costs otherwise includable in Operating Expenses which are reimbursed
to Lessor by insurance or otherwise by third parties other than
tenants, less the out-of-pocket costs of collection;
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<PAGE>
(e) Costs otherwise included in Operating Expenses for utility or service
charges for utilities or services which are provided to tenants for
rentable areas other than the Premises over and above what is provided
to or available to Lessee.
(f) All amounts which would otherwise be included in Operating Expenses
which are payable to subsidiaries or affiliates of Lessor, for goods
or services to the extent that the costs of such goods or services
exceed the reasonable fair market value thereof for comparable goods
or for such services rendered by persons or entities of similar skill,
competence and experience, other than a subsidiary or affiliate of
Lessor.
(g) Costs of correcting defects in the design or construction of the
Office/Warehouse Complex or the materials used in the construction of
the Office/Warehouse Complex (including but not limited to latent
defects) or in the Office/Warehouse Complex equipment or appurtenances
thereto owned by Lessor which Lessee does not have the right to remove
upon termination of this Lease, except that, for the purposes of this
subsection, conditions resulting from ordinary wear and tear and use
shall not be deemed defects. For purposes of this subsection, defects
in design shall mean only defects arising out of failure of the final
plans and specifications to comply with good architectural or
engineering practice and shall not include any defects arising out of
design matters specified by Lessee or its consultants. Further, for
purposes of this subsection, defects in construction shall only mean
defects arising out of failure of Lessors' construction to comply with
the plans and specifications.
(h) Except for the management fee expressly provided for herein, all fees,
costs and expenses for off-site management of the Office/Warehouse
Complex that normally would be included in a similar management fee.
(i) Costs relating to hazardous substances, except to the extent caused,
installed, disposed of or released by Lessee, its agents, employees,
contractors and invitees.
Notwithstanding the foregoing, in the event Lessor installs equipment in or
makes improvements or alterations to the Office/Warehouse Complex which are
for the purpose of reducing energy costs, maintenance costs or other
Operating Expenses or which are required under any governmental laws,
regulations, or ordinances which were not required at the date of
commencement of the term of this Lease, Lessor may include in Operating
Expenses reasonable charges for interest on such investment and reasonable
charges for depreciation on the same so as to amortize such investment over
the reasonable life of such equipment, improvement or alteration on a
straight line basis. Operating Expenses shall also be deemed to include
expenses incurred by Lessor in connection with city sidewalks adjacent to
the Property and any pedestrian walkway system (either above or below
ground) or other public facility to which Lessor or the
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<PAGE>
Office/Warehouse Complex is from time to time subject in connection with
operations of the Property and Office/Warehouse Complex.
E. The term "Excess Operating Expenses" shall mean the amount of Operating
Expenses for any applicable Lease Year in excess of the sum of $-O-.
----
F. The term "Lessee's Pro Rata Share of Excess Real Estate Taxes" shall mean
the "Applicable Percentage" of the Excess Real Estate Taxes for the
applicable Lease Year, and the term "Lessee's Pro Rata Share of Excess
Operating Expenses" shall mean the "Applicable Percentage" of the Excess
Operating Expenses for the applicable Lease Year. The "Applicable
Percentage" for each Lease Year shall be the percentage which the average
gross area of the Premises bears to the total average gross area of the
Office/Warehouse Complex for such Lease Year. Gross area of each tenant
premises shall be measured to the center of demising walls and to the
outside surface of exterior walls and shall include mechanical and
electrical rooms outside of tenant premises having common electrical or
mechanical equipment allocated to each premises on a pro rata area basis.
Lessor's initial estimate of the "Applicable Percentage" is seventy-eight
and 6/10ths percent (78.6%). Lessor represents that the primary building
of the Office/Warehouse Complex will be approximately 100,384 gross square
feet in size.
G. Anything herein to the contrary notwithstanding, it is agreed that in the
event the Office/Warehouse Complex is not fully occupied during the
entirety of any Lease Year, a reasonable and equitable adjustment shall be
made by Lessor in computing the Operating Expenses for such year by
increasing those Operating Expenses which vary with occupancy so that the
Operating Expenses shall be adjusted to the amount that would have been
incurred had the Office/Warehouse Complex been fully occupied during such
year.
As to the Lease Year during which the term of this Lease commences,
Lessor's estimated amount of Lessee's Pro Rata Share of Excess Real Estate
Taxes and Lessor's estimated amount of Lessee's Pro Rata Share of Excess
Operating Expenses calculated on a full 365 day year basis and calculated
(for Operating Expenses only) assuming full occupancy of the entire
Office/Warehouse Complex during the entire year shall be the following
sums:
Lessee's Pro Rata Share of Excess Real Estate Taxes $19,725.25
Lessee's Pro Rata Share of Excess Operating Expenses $55,230.70
(Note: Taxes payable in the years 1996 and 1997 may be lower than
normalized taxes because of assessment on land and/or partially completed
improvements in respect to taxes payable in 1996 and/or 1997.)
Lessor represents that, to the best of its knowledge, the only special
assessments levied against the Office/Warehouse Complex are those in
respect to which 1995 payable
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<PAGE>
installments are shown on the tax statement for such property for taxes and
assessments payable in 1995, a copy of which has been received by Lessee.
Lessor further represents that the above estimate of Lessee's Pro Rata
Share of Excess Real Estate Taxes for Lease Year 1996 includes Lessor's
estimate of said installments payable in 1996 allocable to Lessee's Pro
Rata Share of Excess Real Estate Taxes.
H. Lessor agrees that (subject to Lessor's right to contest taxes) Lessor
will cause tax payments made by Lessee and other tenants to be applied to
payment of the applicable taxes. If Lessor breaches its covenant to so
apply tax payments from tenants and Lessee's rights in the Premises are in
immediate danger of being lost or forfeited by reason of such breach,
Lessee may make the required tax payment which was not paid by reason of
Lessor's breach and offset such amount against the next amounts of rental
otherwise due hereunder.
If Lessor receives any refund of Real Estate Taxes with respect to any
Lease Year, Lessor shall promptly refund to Lessee its equitable portion of such
refund, net of direct costs of obtaining the refund.
As to each Lease Year after the initial Lease Year, Lessor shall estimate
for each such Lease Year (i) the total amount of Excess Real Estate Taxes; (ii)
the total amount of Excess Operating Expenses; (iii) Lessee's Pro Rata Share of
Excess Real Estate Taxes; (iv) Lessee's Pro Rata Share of Excess Operating
Expenses; (v) the computation of the annual and monthly rental payable during
such Lease Year as a result of increases or decreases in Lessee's Pro Rata Share
of Excess Real Estate Taxes and Lessee's Pro Rata Share of Excess Operating
Expenses. Said estimate shall be in writing and shall be delivered or mailed to
Lessee at the Premises on or before December 15 of each Lease Year as to
Lessor's estimate for the following Lease Year.
Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata Share
of Excess Real Estate Taxes for each Lease Year and Lessee's Pro Rata Share of
Excess Operating Expenses for each Lease Year, so estimated, in equal monthly
installments, in advance, on the first day of each month during each applicable
Lease Year. In the event that said estimate is delivered to Lessee after the
first day of January of the applicable Lease Year, said amount, so estimated,
shall be payable as Additional Rent, in equal monthly installments, in advance,
on the first day of each month over the balance of such Lease Year, with the
number of installments being equal to the number of full calendar months
remaining in such Lease Year.
From time to time during any applicable Lease Year, Lessor may reestimate
the amount of Excess Real Estate Taxes and Excess Operating Expenses and
Lessee's Pro Rata Share thereof, and in such event Lessor shall notify Lessee,
in writing, of such reestimate in the manner above set forth and fix monthly
installments for the then remaining balance of such Lease Year in an amount
sufficient to pay the reestimated amount over the balance of such Lease Year
after giving credit for payments made by Lessee on the previous estimate.
Upon completion of each Lease Year, Lessor shall cause its accountants to
determine the actual amount of Excess Real Estate Taxes and Excess Operating
Expenses for such Lease
-6-
<PAGE>
Year and Lessee's Pro Rata Share thereof and deliver a written certification of
the amounts thereof to Lessee after the end of each Lease Year. If Lessee has
paid less than its Pro Rata Share of Excess Real Estate Taxes or its Pro Rata
Share of Excess Operating Expenses for any Lease Year, Lessee shall pay the
balance of its Pro Rata Share of the same within thirty (30) days after the
receipt of such statement. If Lessee has paid more than its Pro Rata Share of
Excess Real Estate Taxes or its Pro Rata Share of Excess Operating Expenses for
any Lease Year, Lessor shall refund such excess along with Lessor's written
certification. If Lessor fails to deliver the amount due to Lessee along with
such written certification, Lessee may offset the amount thereof against the
next rental payments due. A pro rata adjustment shall be made for a fractional
Lease Year occurring during the term of this Lease or any renewal or extension
thereof based upon the number of days of the term of this Lease during said
Lease Year as compared to three hundred sixty-five (365) days and all additional
sums payable by Lessee or credits due Lessee as a result of the provisions of
this Article II shall be adjusted accordingly.
Further, Lessee shall pay, also as Additional Rent, any tax or excise on
rents, gross receipts tax, or other tax, however described, which is levied or
assessed by the United States of America or the state in which the
Office/Warehouse Complex is located or any political subdivision thereof,
against Lessor in respect to the Base Rent, Additional Rent, or other charges
reserved under this Lease or as a result of Lessor's receipt of such rents or
other charges accruing under this Lease; provided, however, Lessee shall have no
obligation to pay net income taxes of Lessor. If such tax is a progressive tax,
the amount of such tax shall be calculated as though the rents or receipts of
Lessor under this Lease are Lessor's sole rents or receipts.
ARTICLE III. OVERDUE AMOUNTS - RENT INDEPENDENT: Any installment of Base Rent,
Additional Rent, or other charges to be paid by Lessee accruing under the
provisions of this Lease, which shall not be paid when due, shall bear interest
at the rate of twelve percent (12%) per annum from the date when the same is due
until the same shall be paid, but if such rate exceeds the maximum interest rate
permitted by law, such rate shall be reduced to the highest rate allowed by law
under the circumstances. Lessee's covenants to pay the Base Rent and the
Additional Rent are independent of any other covenant, condition, provision or
agreement herein contained. Notwithstanding the above, Lessee shall not be
liable for the first $200.00 of interest due in any Lease Year pursuant to this
Article.
ARTICLE IV. POSSESSION OF PREMISES: If Lessor shall be unable to give possession
of the Premises on the date of the commencement of the term because the
construction of the Office/Warehouse Complex or the completion of the Premises
has not been sufficiently completed to make the Premises ready for occupancy, or
for any other reason, Lessor shall not be subject to any claims, damages or
liabilities for the failure to give possession on said date except as provided
in Article XXX. Under said circumstances, the rent reserved and covenant to pay
same shall not commence until possession of the Premises is given or the
Premises are ready for occupancy, whichever is earlier, and failure to give
possession on the date of commencement of the term shall in no way affect the
validity of this Lease or the obligations of Lessee hereunder, nor shall the
same be construed in any way to extend the expiration date of the term. If
Lessee is given and accepts possession of the Premises on a date earlier than
the date above specified for commencement of the term, the rent reserved herein
and all covenants, agreements and
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<PAGE>
obligations herein and the term of this Lease shall commence on the date that
possession of the Premises is given to and accepted by Lessee.
The acceptance of possession by Lessee shall be deemed conclusively to
establish that the Premises and all other improvements of the Office/Warehouse
Complex required to be constructed by Lessor for use thereof by Lessee hereunder
have been completed (subject to the obligations of the respective party to
repair same otherwise described herein) unless Lessee notifies Lessor in writing
within sixty (60) days after commencement of the term as to any items not
completed. Lessee waives any claim as to matters not listed in said notice
except for latent defects not then known by Lessee.
ARTICLE V. SERVICES:
A. All electric lighting bulbs and tubes and all ballasts and starters within
the Premises shall be replaced by Lessee at the expense of Lessee.
B. Subject to Article II hereof, Lessor shall provide maintenance in good
order, condition and repair of the parking facilities and all driveways
leading thereto and keeping the same free from any unreasonable
accumulation of snow. Lessor shall keep and maintain the landscaped area
and parking facilities in a neat and orderly condition. Lessor reserves the
right to designate areas of the appurtenant parking facilities where
Lessee, its agents, employees and invitees shall park and may exclude
Lessee, its agents, employees and invitees from parking in other areas as
designated by Lessor, provided, however, Lessor shall not be liable to
Lessee for the failure of any tenant, its invitees, employees, agents, and
customers to abide by Lessor's designations or restrictions.
C. Lessee shall provide all cleaning and janitorial services required in
respect to the Premises (including any fluorescent tube removal and
disposal) and perform all routine maintenance and those repairs to the
Premises which are not specifically the obligation of Lessor herein.
No interruption in, or temporary stoppage of, any of the aforesaid services
caused by repairs, renewals, improvements, alterations, strikes, lockouts, labor
controversy, accidents, inability to obtain fuel or supplies, or other causes,
provided in any such case it is not the result of the intentional breach by
Lessor of the provisions of this Lease, shall be deemed an eviction or
disturbance of Lessee's use and possession, or render Lessor liable for damages,
by abatement of rent or otherwise or relieve Lessee from any obligation herein
set forth (except as expressly provided otherwise in Articles XLI and XXXVIII
hereof). In no event shall Lessor be required to provide any heat, air
conditioning, electricity or other service in excess of that permitted by laws,
ordinances or regulations of governmental authority.
ARTICLE VI. USE: The Premises shall be used for office, warehouse, distribution,
and manufacturing purposes (to the extent allowed by law and subject to the
provisions of Articles XXV and VIII hereof), and for carrying on such activities
as may be incidental thereto; provided, however, Lessee may not use or occupy
the Premises, or knowingly permit the
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<PAGE>
Premises to be used or occupied, contrary to any statute, rule, order,
ordinance, requirement or regulation applicable thereto (subject to the
limitations set forth in the last sentence of Article VIII), or in any manner
which would violate any certificate of occupancy or permit affecting the same,
or which would cause structural injury to the Premises or which would constitute
a private or public nuisance or waste, and Lessee agrees that it will promptly,
upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use.
ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use or
possession, or giving rise to any claim for setoff or abatement of rent:
A. To reasonably control all exterior signs on the Property, or on the
exterior of the Office/Warehouse Complex and in any common corridors,
entrances and other common areas thereof, except those signs within the
Premises not visible from outside the Premises. (See Article XXXIII).
B. To reasonably regulate any service in or to the Office/Warehouse Complex.
Any restriction, designation, limitation or control imposed by reason of
this subparagraph shall be imposed uniformly on Lessee and other tenants
occupying space in the Office/Warehouse Complex.
C. To make repairs, alterations, additions, or improvements, whether
structural or otherwise, in and about the Office/Warehouse Complex, or any
part thereof, and to the extent reasonably necessary for such purposes to
enter upon the Premises, and during the continuation of any of said work,
to temporarily close doors, entryways, public spaces, and corridors in the
Office/Warehouse Complex and to interrupt or temporarily suspend services
and facilities. (See Articles XXXVII and XVII(M)).
D. To approve the weight, size and location of safes and other heavy equipment
and articles in and about the Premises and the Office/Warehouse Complex and
to require all such items to be moved into and out- of the Office/Warehouse
Complex and the Premises only in such manner as Lessor shall reasonably
direct in writing.
ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any
improvements, alterations, additions or installations (other than movable
property and trade fixtures) in or to the Premises which alter the main
electrical service or which alter the mechanical, structural or roofing
components of the Office/Warehouse Complex (hereinafter referred to as the
"Work") without Lessor's prior written consent, which consent shall not be
unreasonably withheld or delayed. Along with any request for Lessor's consent
but in any event before commencement of any work or delivery of any materials to
be used in any work to the Premises or into the Office/Warehouse Complex, Lessee
shall furnish Lessor with plans and specifications (as to work in respect to
which plans or specifications are prepared or required by laws to be prepared),
names and addresses of contractors, necessary permits and licenses. In the
event that Lessee immediately prior to the work does not furnish to Lessor
reasonably
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<PAGE>
satisfactory evidence that the net financial worth of Lessee according to
generally accepted accounting principles is greater than $20,000,000. Lessee
shall also supply to Lessor prior to commencement of any work an indemnification
and security in such form and amount as may be reasonably satisfactory to Lessor
to assure Lessor that all payments for the alterations and improvements and also
payments to avoid liens for labor, material, skill and equipment arising
therefrom will be paid. Lessee shall cause all payments for the alterations and
improvements to be timely paid, when due, and to be paid in such manner as to
avoid liens for labor, material, skill and equipment arising therefrom. Lessee
agrees to defend and hold Lessor forever harmless from any and all claims and
liabilities of any kind and description which may arise out of said
improvements, alterations, additions or installations. No plans and
specifications shall be required if both (a) Lessor's consent to the
alterations, improvements, installations or additions is not required herein and
(b) plans and specifications and permits for the work are not required by law.
Lessor shall notify Lessee within ten (10) business days after receipt of the
request for consent and the required documentation of its consent or its
disapproval and failure of Lessor to respond within such ten (10) business day
period shall constitute approval of such submission. All Work shall be done only
by contractors or mechanics reasonably acceptable to Lessor and at such time and
in such manner as Lessor may from time to time reasonably designate. Lessee
shall pay the cost of all such improvements, alterations, additions or
installations, and also the cost of painting, restoring, or repairing the
Premises and the Office/Warehouse Complex deemed reasonably necessary by Lessor
by reason of such improvements, alterations, additions or installations. Upon
completion of the Work, Lessee shall furnish Lessor with contractor's affidavits
and full and final waivers of liens. All work shall comply with all insurance
requirements and all laws, ordinances, rules and regulations of all governmental
authorities and shall be constructed in a good and workmanlike manner. Subject
to the provisions of Article XXXVII, Lessee shall permit Lessor to inspect
construction operations in connection with any work. Lessee shall not be allowed
to make any alterations, modifications, improvements, additions, or
installations if such action results or would result in a labor dispute or
otherwise would materially interfere with Lessor's operation of the
Office/Warehouse Complex. At the time of granting approval (or if approval is
not required, upon written request of Lessee) for any improvements, alterations,
additions or installations, including the initial Tenant Improvements, Lessor
shall advise Lessee in writing whether or not it will require Lessee to remove
any such improvements, additions, alterations or installations installed by
Lessee in the Premises, and repair and restore any damage caused by the
installation and removal of such improvements, additions or installations;
provided, however, the only improvements, additions or installations which
Lessee shall remove shall be those specified. At the time approval is requested
or granted or at the time Lessee requests Lessor to make a designation pursuant
to the provisions hereof, as to any specific change or alteration, Lessor shall
designate which portion of such change or alteration shall be removed, repaired
and restored at termination of this Lease and which portion may be surrendered
at termination of this Lease without removal, repair and restoration and Lessor
shall not be arbitrary or capricious in respect to any such designation. If no
designation is made at the time approval or designation is requested or granted,
Lessee shall not be required to remove and shall not remove the items covered by
such request or grant, all except as otherwise provided herein. Further, in
respect to items as to which no specific written approval is requested or
granted, Lessor may require, upon termination of this Lease, the removal (and
repair of resulting damage) of any such applicable improvement, alteration,
addition or installation
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installed in the Premises. Lessee shall in no event remove any Tenant
Improvements described on Exhibit K attached hereto, unless specifically
designated for removal in accordance with the above provisions. Lessee shall
remove prior to termination of this Lease all items so designated by Lessor for
removal. Subject to the above provisions relating to the Exhibit K items, Lessee
may remove movable trade fixtures and other process equipment specific to its
business, however affixed. With respect to any removed items, Lessee shall
terminate and cap all electrical and other utility lines in accordance with
legal requirements and good practice. If any items involving roof penetrations
are removed, Lessee shall restore the affected area of the roof to a condition
comparable to the balance of the roof, taking such reasonable steps as may be
necessary to maintain any applicable roof warranty. Lessee shall be obligated to
restore voids or holes in exterior walls and concrete floors, including holes in
precast walls. Notwithstanding the foregoing provisions of this Article VIII,
however, Lessee shall not be required to remove any of the following:
(i) Improvements shown on Exhibit K-1 attached hereto.
(ii) Anchoring holes and devices in the floor or walls of the
manufacturing or warehouse areas of the Premises so long as any
anchoring devices are cut off flush with the floor or wall
surface.
(iii) Improvements which Lessor in its reasonable discretion determines
will not have any adverse effect upon subsequent tenancies in the
Premises or Lessor's ability to lease such space.
Lessee shall not make any alterations to the Premises which would require
parking spaces in respect to the Premises in excess of the limited spaces to be
provided by Lessor pursuant to the provisions of Article XXV hereof. Lessee
shall be responsible for the making of all improvements required by law which
arise out of Lessee's use, occupancy or alterations of the Premises and which
would not be required for use of all of the rentable areas of the
Office/Warehouse Complex irrespective of specific use or occupancy. Subject to
the provisions of Article II, Lessor shall be responsible for the making of
those improvements to the Premises and Office/Warehouse Complex required by law
not caused by Lessee's breach of Lessee's obligations under this Lease but only
those which both (a) do not arise out of Lessee's use, occupancy or alterations
of the Premises and/or Office/Warehouse Complex and (b) would be required for
use of all of the rentable area of the Office/Warehouse Complex irrespective of
specific use or occupancy.
ARTICLE IX. REPAIRS: Lessee shall, during the term of this Lease, at Lessee's
expense, keep the Premises in as good order, condition and repair as they were
at the time Lessee took possession of the same, reasonable wear and tear and
damage from fire and other casualties excepted. Lessee shall keep the Premises
in a neat and sanitary condition and shall not commit any nuisance or waste on
the Premises or in, on, or about the Office/Warehouse Complex, throw foreign
substances in the plumbing facilities. Notwithstanding the releases set forth in
Article X hereof, all uninsured damage or injury to the Premises, or to the
Office/Warehouse Complex caused by Lessee moving furniture, fixtures, equipment,
or other devices in or out of the
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Premises or Office/Warehouse Complex or by installation or removal of furniture,
fixtures, equipment, devices or other property of Lessee, its agents,
contractors, servants or employees, due to carelessness, omission, neglect,
improper conduct, or other wrongful act of Lessee, its servants, contractors,
employees, agents, visitors, or licensees, shall be repaired, restored and
replaced promptly by Lessee at its sole cost and expense to the reasonable
satisfaction of Lessor. All repairs, restorations and replacements shall be in
quality and class equal to the original work.
Lessor or its employees, or agents, shall have the right to enter the
Premises at any reasonable time or times (subject to the provisions of Article
XXXVII hereof) for the purpose of inspection, cleaning, repairs, altering, or
improving the same but nothing contained herein shall be construed as imposing
any obligation on Lessor to make any repairs, alterations or improvements which
are the obligation of Lessee.
Upon the request of either party, Lessor and Lessee agree to meet at the
Premises immediately prior to Lessor's vacation of the Premises for a joint
inspection of the Premises.
ARTICLE X. INSURANCE: Lessor shall keep the Office/Warehouse Complex insured for
the benefit of Lessor in an amount equivalent to the full replacement value
thereof (excluding foundation, grading and excavation costs) against:
(a) loss or damage from fire and extended coverage risks; and
(b) such other risk or risks of a similar or dissimilar nature as are now,
or may in the future be, customarily covered with respect to buildings
and improvements similar in construction, general location, use,
occupancy and design to the Office/Warehouse Complex, including, but
without limiting the generality of the foregoing, windstorms, hail,
explosion, vandalism, malicious mischief, civil commotion, and such
other coverage as may be deemed necessary by Lessor, providing such
additional coverage is obtainable and providing such additional
coverage is such as is customarily carried with respect to buildings
and improvements similar in construction, general location, use,
occupancy and design to the Office/Warehouse Complex.
If Lessor desires to carry rent insurance, Operating Expenses for rent
insurance shall include no more than the premiums for one (1) year of rent loss
coverage. Lessor agrees that such policy or policies of insurance shall contain
a waiver of subrogation clause as to Lessee and Lessor waives, releases and
discharges Lessee from all claims or demands whatsoever which Lessor may have or
acquire arising out of damage to or destruction or loss of use of the
Office/Warehouse Complex or Lessor's business therein occasioned by fire or
other cause, which such claim or demand may arise because of the negligence or
fault of Lessee, its agents, employees, customers or business invitees, or
otherwise, and Lessor agrees to look to the insurance coverage only in the event
of such loss; provided, however, Lessor does not release or waive any rights
against Lessee, or discharge Lessee from any claims, losses or expenses arising
out of violations by Lessee or its agents, contractors, or employees of any
environmental covenant herein or of any laws relating to the environment or
hazardous materials.
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Lessee shall keep all of its machinery, equipment, furniture, fixtures,
personal property (including also property under the care, custody or control of
Lessee) and business interests which may be located in, upon, or about the
Premises insured for the benefit of Lessee in an amount and with coverages as
Lessee shall deem appropriate.
Lessee agrees that any such policy or policies of insurance shall contain a
waiver of subrogation clause as to Lessor and Lessee waives, releases and
discharges Lessor from all claims or demands whatsoever which Lessee may have or
acquire arising out of damage to or destruction or loss of use of the machinery,
equipment, furniture, fixtures, personal property, property under Lessee's care,
custody, and control and business of Lessee occasioned by fire or other cause,
whether such claim or demand may arise because of the negligence or fault of
Lessor, its agents, employees, subcontractors or otherwise, and Lessee agrees to
look to the insurance coverage only in the event of such loss.
Lessor shall, as a portion of the Operating Expenses defined in Article II,
maintain, for its benefit and the benefit of its managing agent, general public
liability insurance against claims for personal injury, death or property damage
occurring upon, in or about the Office/Warehouse Complex, such insurance to
afford protection to Lessor and its managing agent.
Lessee shall, at Lessee's sole cost and expense but for the mutual benefit
of Lessor, its managing agent and Lessee, maintain general public liability
insurance against claims for personal injury, death or property damage occurring
upon, in or about the Premises, such insurance to afford protection to Lessor,
its managing agent and Lessee to the limit of not less than Three Million and
00/100 Dollars ($3,000,000.00) single limit coverage on an occurrence basis.
Such policies of insurance shall be written in companies reasonably satisfactory
to Lessor, naming Lessor and its managing agent as additional insureds
thereunder, and such policies, or a memorandum or certificate of such insurance,
shall be delivered to Lessor endorsed "Premium Paid" by the company or agency
issuing the same or accompanied by other evidence satisfactory to Lessor that
the premium thereon has been paid. At such time as insurance limits required of
tenants in Office/Warehouse buildings in the area in which the Office/Warehouse
Complex is located are generally increased to greater amounts, Lessor shall have
the right to require such greater limits as may then be customary. Lessee agrees
to include in such policy the contractual liability coverage insuring Lessee's
indemnification obligations provided for herein. Any such coverage shall be
deemed primary to any liability coverage secured by Lessor as to matters in the
Premises not caused by Lessor.
Subject to the releases provided for herein, Lessee agrees to indemnify and
save Lessor and its managing agent harmless against and from any and all claims
by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any act or negligence on the part of Lessee or its
agents, contractors, servants, employees or licensees, or arising from any
accident, injury or damage to the extent caused by Lessee, its agents, and
employees to any person, firm or corporation occurring during the term of this
Lease or any renewal thereof, in or about the Premises and Office/Warehouse
Complex, and from and against all costs, reasonable counsel fees, expenses and
liabilities incurred in or about any such claim or action or proceeding brought
thereon; and in case any action or proceeding be brought against Lessor or its
managing
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agent by reason of any such claim, Lessee, upon notice from Lessor, covenants to
resist or defend such action or proceeding by counsel reasonably satisfactory to
Lessor.
Subject to the releases and other indemnities provided for herein, Lessor
agrees to indemnify and save Lessee harmless against and from any and all third
party (other than Lessee's affiliates') claims, loss, damage or expense arising
out of bodily injury or property damage by or on behalf of any person or
persons, firm or firms, corporation or corporations, other than Lessee or its
affiliates, subtenants, assigns, or employees, arising from any act or
negligence or misconduct on the part of Lessor or its agents, employees,
servants, or contractors or arising from any accident, injury or damage to the
extent caused by Lessor, its agents and employees to any person, firm or
corporation occurring during the term of this Lease or any renewal thereof, in
or about the Premises and Office/Warehouse Complex, and from and against all
costs, reasonable counsel fees, expenses and liabilities incurred in or about
any such claim or action or proceeding brought thereon; and in case any action
or proceeding be brought against Lessee by reason of any such claim, Lessor,
upon notice from Lessee, covenants to resist or defend such action or proceeding
by counsel reasonably satisfactory to Lessee.
Lessee agrees, to the extent not expressly prohibited by law, that Lessor,
its agents, employees and servants shall not be liable, and Lessee waives all
claims for damage to property and business sustained during the term of this
Lease by Lessee occurring in or about the Office/Warehouse Complex, resulting
directly or indirectly from any existing or future condition, defect, matter or
thing in the Premises, the Office/Warehouse Complex, or any part thereof, or
from equipment or appurtenances becoming out of repair or from accident, or from
any occurrence or act or omission of Lessor, its agents, employees or servants,
or any tenant or occupant of the Building or any other person. This paragraph
shall apply especially, but not exclusively, to damage caused as aforesaid or by
the flooding of basements or other subsurface areas, or by refrigerators,
sprinkling devices, air conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or
noise, or the bursting or leaking of pipes or plumbing fixtures, and shall apply
equally, whether any such damage results from the act or omission of other
tenants or occupants in the Office/Warehouse Complex or any other persons, and
whether such damage be caused by or result from any of the aforesaid, or shall
be caused by or result from other circumstances of a similar or dissimilar
nature. The waiver in this paragraph shall not apply to damage caused by the
failure of Lessor to make repairs in accordance with the requirements of this
Lease within a reasonable time after written notice from Lessee of the need for
such repairs, but in no event shall this exclusion apply to damage arising out
of casualty or condemnation.
Anything herein to the contrary notwithstanding, in the event any damage to
the Office/Warehouse Complex results from any act or omission of Lessee, its
agents, employees or invitees, and all or any portion of Lessor's loss is
"deductible," Lessee shall pay to Lessor the amount of such deductible loss (not
to exceed $2,500 per event). All property on the Premises belonging to Lessee,
its agents, employees, invitees or otherwise located at the Premises and under
the care, custody, or control of Lessee or permitted by Lessee to be located
thereon, shall be at the risk of Lessee only, and Lessor shall not be liable for
damage thereto or theft, misappropriation or loss thereof and Lessee agrees to
defend and hold Lessor, its agents,
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employees and servants harmless and indemnify them against claims and liability
for injuries to such property.
ARTICLE XI. ASSIGNMENT AND SUBLETTING: Lessee shall not, without the prior
written consent of Lessor, (i) transfer, pledge, mortgage or assign this Lease
or any interest hereunder; (ii) permit any assignment of this Lease by voluntary
act, operation of law or otherwise; (iii) sublet the Premises or any part
thereof; or (iv) permit the use of the Premises by any parties other than
Tenant, its agents and employees. Lessee shall seek such written consent of
Lessor by a written request therefor, setting forth such information as Lessor
may deem necessary. Except in the case of a transfer permitted pursuant and
subject to the provisions of Article XXXIV, Lessee shall, by notice in writing,
advise Lessor of its intention from, on and after a stated date (which shall not
be less than thirty [30] days after date of Lessee's notice), to assign this
Lease or to sublet any part or all of the Premises for the balance or any part
of the term. Lessee's notice shall include all of the terms of the proposed
assignment or sublease and shall state the consideration therefor. Lessee's
notice shall state the name and address of the proposed assignee or subtenant
and a true and complete copy of the proposed assignment or sublease shall be
delivered to Lessor with Lessee's notice.
Upon receiving Lessee's notice with respect to any such space, Lessor will
not unreasonably withhold its consent to Lessee's assignment of the Lease or
subletting such space to the party identified in Lessee's notice.
Any subletting or assignment hereunder shall not release or discharge
Lessee of or from any liability, whether past, present or future, under this
Lease, and Lessee shall continue fully liable thereunder. The subtenant or
subtenants or assignee shall agree in a form reasonably satisfactory to Lessor
to comply with and be bound by all of the terms, covenants, conditions,
provisions and agreements of this Lease (other than rent) to the extent of the
space sublet or assigned, and Lessee shall deliver to Lessor promptly after
execution an executed copy of each such sublease or assignment and an agreement
of compliance by each such subtenant or assignee. Consent by Lessor to any
assignment of this Lease or to any subletting of the Premises shall not be a
waiver of Lessor's rights under this Article as to any subsequent assignment or
subletting.
Any sale, assignment, mortgage, transfer, or subletting of this Lease which
is not in compliance with the provisions of this Article XI shall be of no
effect and void. Lessor's right to assign its interest in this Lease shall
remain unqualified. Lessor may make a reasonable charge to Lessee for any
reasonable attorney's fees or expenses incident to a review of any documentation
related to any proposed assignment or subletting by Lessee.
Notwithstanding anything to the contrary in this Lease, but subject to the
provisions of Article XXXIV, Lessee shall not assign its rights under this Lease
or sublet all or any part of the Premises to a person, firm or corporation which
is (or, immediately prior to such subletting or assignment, was) a tenant or
occupant of the Office/Warehouse Complex. Further, Lessor agrees that it will
permit any tenant of other space in the Office/Warehouse Complex to sublet its
space to Lessee subject to requirements in regard to subletting (other than
consent) similar to the requirements in regard to subletting contained in this
Lease.
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ARTICLE XII. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall
render the whole or any material portion of the Premises untenantable, whether
directly, or indirectly (by reason of governmental order or regulation), and the
Premises can reasonably be expected to be made tenantable within two hundred
seventy (270) days from the date of such event, then Lessor shall repair and
restore the Premises and the Office/Warehouse Complex to as near their condition
prior to the fire or other casualty as is reasonably possible within such two
hundred seventy (270) day period (subject to delays for causes beyond Lessor's
reasonable control) and notify Lessee that it will be doing so, such notice to
be mailed within thirty (30) days from the date of such damage or destruction,
and this Lease shall remain in full force and effect, but the rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable). If Lessor is
required to repair the Office/Warehouse Complex and/or the Premises, as
aforesaid, said work shall be undertaken and prosecuted with all due diligence
and speed. Lessor shall have no obligation to repair or restore any property of
Lessee.
If fire or other casualty shall render the whole or any material part of
the Premises untenantable and the Premises cannot reasonably be expected to be
made tenantable within two hundred seventy (270) days from the date of such
event or if during the last eighteen (18) months of the term (as it may
theretofore have been extended or as it may have been extended within 10 days
after the date of the damage or destruction) fire or other casualty shall cause
an estimated damage to the Premises in excess of $500,000 or damage occurs to
the Premises which makes a material amount of the Premises untenantable which
damage is reasonably expected to take more than sixty (60) days to repair to
a condition of tenantability, then either party, by notice in writing to the
other mailed within thirty (30) days from the date of such damage or
destruction, may terminate this Lease effective upon a date within thirty (30)
days from the date of such notice, an appropriate refund of prepaid rent based
upon pro rata abatement for the portion of the Premises which is untenantable
from the date of casualty until the date of termination shall be made by Lessor
to Lessee.
If fire or other casualty shall render the whole or any material part of
the Premises untenantable and the Premises cannot reasonably be expected to be
made tenantable within two hundred seventy (270) days from the date of such
event and neither party hereto terminates this Lease pursuant to its rights
herein, then Lessor shall repair and restore the Premises and the
Office/Warehouse Complex to as near their condition prior to the fire or other
casualty as is reasonably possible with all due diligence and speed (subject to
delays for causes beyond Lessor's reasonable control) and the rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable). In no event
shall Lessor be obligated to repair or restore any special equipment or
improvements installed by Lessee at Lessee's expense.
In the event of a termination of this Lease pursuant to this Article, rent
shall be apportioned on a per diem basis and paid to the date of the fire or
other casualty.
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If fire or other casualty shall render the whole or any material part of
the Premises untenantable and irrespective of whether the Premises can
reasonably be expected to be made tenantable within two hundred seventy (270)
days from the date of such event and neither party hereto terminates this Lease
pursuant to its rights herein and if Lessor commences to repair and restore the
Premises and the Office/Warehouse Complex and Lessor fails to complete the
restoration required of Lessor herein on or before the date three hundred (300)
days after the date of such event, then Lessee may terminate this Lease by
written notice to Lessor given within ten (10) days subsequent to the end of
such 300-day period. Notwithstanding the above, the 300-day period provided for
herein shall be extended for the period that Lessor is unable to complete the
restoration by reason of fire, strike, shortages of fuel or materials, action or
inaction of public or private utilities or suppliers to such public or private
utilities, action or inaction of Lessee, and other causes beyond Lessor's
reasonable control. Further, in the event Lessor commences any restoration,
Lessee shall avoid interference with the restoration process to the extent
reasonable and practicable so as not to impede or delay the progress of the
completion of the restoration work.
ARTICLE XIII. EMINENT DOMAIN: If the whole of or any substantial part of the
Premises or Lessee's parking area is taken or access on the property to the
Premises is made materially more difficult by any public authority under the
power of eminent domain, or taken in any manner for any public or quasi-public
use, so as to render (in Lessee's reasonable judgment) the remaining portion of
the Premises unsuitable for the purposes intended hereunder, then the term of
this Lease shall cease as of the day possession shall be taken by such public
authority and Lessor shall make a pro rata refund of any prepaid rent. All
damages awarded for such taking under the power of eminent domain or any like
proceedings shall belong to and be the property of Lessor, Lessee hereby
assigning to Lessor its interest, if any, in said award. In the event that fifty
percent (50%) or more of the building area of the Office/Warehouse Complex is
taken by public authority under the power of eminent domain, then, at Lessor's
option, by written notice to Lessee, mailed within sixty (60) days from the date
possession shall be taken by such public authority, Lessor may terminate this
Lease effective upon a date within ninety (90) days from the date of such notice
to Lessee.
Anything in this Article XIII to the contrary notwithstanding, Lessee shall
have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Lessee's
movable trade fixtures and equipment and for moving expenses; provided, however,
Lessee shall in no event have any right to receive any award for its interest in
this Lease or for loss of leasehold. Anything in this Article XIII to the
contrary notwithstanding, in the event of a partial condemnation of the
Office/Warehouse Complex or the Premises and this Lease is not terminated,
Lessor shall, at its sole cost and expense, restore the Premises and
Office/Warehouse Complex to a complete architectural unit and the Base Rent
provided for herein during the period from and after the date of delivery of
possession pursuant to such proceedings to the termination of this Lease shall
be reduced to a sum equal to the product of the Base Rent provided for herein
multiplied by a fraction, the numerator of which is the fair market rent of the
Premises after such taking and after the same has been restored to a complete
architectural unit, and the denominator of which is the fair market rent of the
Premises prior to such taking.
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ARTICLE XIV. SURRENDER OF PREMISES: On the last day of the term of this Lease,
or on the sooner termination thereof, Lessee shall peaceably surrender the
Premises in good condition and repair consistent with Lessee's duty to make
repairs as herein provided. On or before the last day of the term of this Lease,
or the date of sooner termination thereof, Lessee shall, at its sole cost and
expense, remove all of its property and trade fixtures and equipment from the
Premises, and all property not removed shall be deemed abandoned. Lessee hereby
appoints Lessor its agent to remove all property which Lessee has an obligation
to remove from the Premises upon termination of this Lease and to cause its
transportation and storage for Lessee's benefit, all at the sole cost and risk
of Lessee and Lessor shall not be liable for damage, theft, misappropriation or
loss thereof and Lessor shall not be liable in any manner in respect thereto.
Lessee shall pay all costs and expenses of such removal, transportation and
storage. Lessee shall leave the Premises in good order, condition and repair
(subject to the provisions of Article XXXVIII and subject to Lessor's
obligations herein to make repairs), reasonable wear and tear and damage from
fire and other casualty excepted. Lessee shall reimburse Lessor upon demand for
any expenses incurred by Lessor with respect to removal, transportation, or
storage of abandoned property and with respect to restoring said Premises to
good order, condition and repair, subject to the provisions of Article VIII and
subject to the provisions of Article XXXVIII and Lessor's obligations herein to
make repairs. Subject to the provisions of Article VIII, all alterations,
additions and fixtures, other than Lessee's trade fixtures and equipment, which
have been made or installed by either Lessor or Lessee upon the Premises, shall
be and remain the property of Lessor and shall be surrendered with the Premises
as a part thereof except as otherwise provided herein. If the Premises be not
surrendered at the end of the term or sooner termination thereof, Lessee shall
indemnify Lessor against loss or liability resulting from delay by Lessee in so
surrendering the Premises, including, without limitation, claims made by any
succeeding tenants founded on such delay and any attorneys' fees resulting
therefrom. Lessee shall promptly surrender all keys for the Premises to Lessor
at the place then fixed for the payment of rent and shall inform Lessor of
combinations on any vaults, locks and safes left on the Premises.
In the event Lessee remains in possession of the Premises after expiration
of this Lease, and without the execution of a new lease, but with Lessor's
written consent, it shall be deemed to be occupying the Premises as a tenant
from month-to-month, subject to all the provisions, conditions and obligations
of this Lease insofar as the same can be applicable to a month-to-month tenancy,
except that the Base Rent shall be escalated to the Base Rent agreed to by
Lessor in connection with such consent and if no Base Rent is agreed to in
connection with such consent, at the last Base Rent payable by Lessee herein,
absent temporary abatements. In the event Lessee remains in possession of the
Premises after expiration of this Lease and without the execution of a new lease
and without Lessor's written consent, Lessee shall be deemed to be occupying the
Premises without claim of right and Lessee shall pay Lessor for all costs
arising out of loss or liability resulting from delay by Lessee in so
surrendering the Premises as above provided and shall pay a charge for each day
of occupancy an amount equal to 125% of the Base Rent and Additional Rent (on a
daily basis) then currently being charged by Lessor on new leases for space
similar to the Premises.
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ARTICLE XV. DEFAULT OF LESSEE: All rights and remedies of Lessor herein
enumerated shall be cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Lessor may be lawfully entitled in case of
any breach or threatened breach of Lessee of any provision of this Lease. The
failure of Lessor to insist in any one or more cases upon the strict performance
of any of the covenants of this Lease or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of such
covenant or option. A receipt by Lessor of rent with knowledge of the breach of
any covenant hereof (other than breach of the obligation to pay the portion of
such rent paid) shall not be deemed a waiver of such breach, and no waiver by
Lessor of any provisions of this Lease shall be deemed to have been made unless
expressed in writing and signed by Lessor. In addition to other remedies in this
Lease provided, Lessor shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of the covenants, conditions and
provisions of this Lease.
Subject to laws relating to bankruptcy, if, during the term of this Lease
or any renewal term, (i) the then Lessee shall make an assignment for the
benefit of creditors, or (ii) a voluntary petition be filed by Lessee under any
law having for its purpose the adjudication of Lessee a bankrupt, or Lessee be
adjudged a bankrupt pursuant to an involuntary petition in bankruptcy, or (iii)
a receiver be appointed for the property of Lessee by reason of the insolvency
of Lessee, or (iv) any department of the State or Federal government, or any
officer thereof, duly authorized, shall take possession of the business or
property of Lessee by reason of the insolvency of Lessee, the occurrence of any
of such contingencies shall be deemed a breach of this Lease and this Lease
shall ipso facto upon the happening of any of said contingencies be terminated
and the same shall expire as fully and completely as if the day fixed for the
expiration of the initial term of this Lease or any renewal term, as the case
may be, had occurred, and Lessee will then quit and surrender the Premises, but
Lessee shall remain liable as hereinafter provided.
If, during the initial term of this Lease or any renewal term, (i) Lessee
shall default in fulfilling any of the covenants, obligations, or agreements of
this Lease (other than the covenants for the payment of rent payable by Lessee
hereunder), or (ii) this Lease, without the prior written consent of Lessor and
in violation of the express provisions hereof shall be assigned, pledged,
mortgaged, transferred, or sublet in any manner, Lessor may give Lessee notice
of such default or the happening of any contingency in this paragraph referred
to and, if at the expiration of thirty (30) days after service of such notice
the default or contingency upon which said notice was based shall continue to
exist, or in the event of a default or contingency which cannot with due
diligence be cured within a period of thirty (30) days, if Lessee fails to
proceed promptly after the service of said notice and with all due diligence to
commence to cure the same and thereafter to prosecute the curing of such default
with all due diligence (it being intended that in connection with a default not
susceptible of being cured with diligence within thirty [30] days, the time
within which Lessee is to cure the same shall be extended for such period as may
be necessary to complete the same with all due diligence), Lessor, at its
option, may terminate this Lease and upon such termination Lessee will quit and
surrender the Premises to Lessor but Lessee shall remain liable as hereinafter
provided.
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If Lessee defaults in any payment of the rent expressly reserved hereunder,
or any part of the same and such default shall continue for ten (10) days after
written notice thereof by Lessor, or if Lessee shall make default in the payment
of any item or any charge required to be paid by Lessee hereunder, or any part
of the same and such default shall continue for ten (10) days after written
notice thereof by Lessor, Lessor or Lessor's agent or servant may immediately or
at any time thereafter terminate this Lease, and upon such termination for
failure to pay such rent, item, or charge, or if this Lease shall terminate by
reason of the insolvency of Lessee, as set forth above, Lessor or Lessor's agent
or servant may re-enter the Premises and remove all persons and all or any
property therefrom, either by summary dispossess proceedings, or by any suitable
action or proceeding at law only, without being liable to indictment,
prosecution, or damage therefor and repossess and enjoy the Premises, together
with all additions, alterations and improvements, without such re-entry and
repossession working a forfeiture or waiver of the rents to be paid and the
covenants to be performed by Lessee during the full term of this Lease. Upon
termination of this Lease or expiration of Lessee's right to occupy the
Premises, whether with or without legal proceedings, by reason of or based upon
or arising out of a default or breach of this Lease on the part of Lessee,
Lessor may, at its option, at any time and from time to time relet the Premises
or any part or parts thereof, for the account of Lessee or otherwise, and
receive and collect the rent therefor, applying the same first to the payment of
such expenses as Lessor may have incurred in recovering possession of the
Premises, including attorney's fees and expenses for putting the same into good
order and condition or preparing or altering the same for re-rental to the
extent Lessor deems necessary or desirable and all other expenses, commissions
and charges paid, assumed or incurred by Lessor in or about reletting the
Premises and then to the fulfillment of the covenants of Lessee hereunder. Any
such reletting herein provided for may be for the remainder of the initial term
or any renewal term of this Lease, as originally granted, or for a longer or
shorter period; Lessor shall have the right to change the character and use made
of the Premises, and Lessor shall not be required to accept any substitute
tenant offered by Lessee or to observe any instructions given by Lessee about
reletting. In any such case, and whether or not the Premises or any part thereof
be relet, Lessee shall pay to Lessor the Base Rent and all Additional Rent and
other charges required to be paid by Lessee up to the later of the time of such
termination of the Lease or of such recovery of possession of the Premises by
Lessor, as the case may be, and thereafter, except in a case in which liability
of Lessee as hereinafter provided, arises by reason of the happening of the
insolvency of Lessee, Lessee covenants and agrees, if required by Lessor, to pay
to Lessor (monthly) until the end of the initial term of this Lease, and/or any
renewal term, as the case may be, the equivalent of the amount of all rent
reserved hereunder, and all other charges required to be paid by Lessee, less
the net proceeds of reletting, if any. Lessor shall have the election in place
of and instead of holding Lessee so liable for subsequent periods forthwith to
recover against Lessee as damages for loss of the bargain and not as a penalty,
an aggregate sum which at such time represents the then net present worth of the
excess, if any, of the aggregate of the rent and all other charges payable by
Lessee hereunder that would have accrued for the balance of the initial term,
and/or any renewal term, as the case may be, over the then present worth of the
fair market rents and all other charges for the Premises for the balance of such
term. In the computation of present worth, a discount rate equal to the then
current yield on U.S. government bonds having a remaining term equal to the
unexpired portion of this Lease shall be employed.
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If this Lease shall terminate by reason of the bankruptcy or insolvency of
Lessee, as above set forth, Lessor shall also be entitled, notwithstanding any
other provisions of this Lease or any present or future law, to recover from
Lessee or Lessee's estate (in lieu of the equivalent of the amount of all rent
unpaid at the time of such termination) as damages for loss of the bargain, and
not as a penalty, an aggregate sum which, at the time of such termination of
this Lease, represents the excess, if any, of the then present worth of the
aggregate of the rent and other charges payable by Lessee hereunder that would
have accrued for the balance of the initial term and any renewal term, as the
case may be, over the then present worth of the fair market rents and all other
charges for the Premises for the balance of the initial term and any renewal
term, as the case may be, unless any statute or rule of law governing the
proceedings in which such damages are to be proved shall limit the amount of
such claim capable of being so proved. In such case, Lessor shall be entitled to
prove, as and for liquidated damages, by reason of such breach and termination
of this Lease, the maximum amount which may be allowed by or under such statute
or rule of law. Nothing herein contained shall limit or prejudice Lessor's right
to prove and obtain as liquidated damages arising out of such breach or
termination the maximum amount allowed by any such statute or rule of law which
may govern the proceedings in which such damages are to be proved whether or not
such amount be greater, equal to, or less than the amount of the excess of the
then net present worth of the rent and all other charges reserved herein over
the then net present worth of the fair market rents and all other charges
referred to above.
ARTICLE XVI. SUBORDINATION: This Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed upon the
Premises, the Office/Warehouse Complex, the Property, or any portion thereof by
Lessor, its successors or assigns, and to amendments, replacements, renewals and
extensions thereof. Lessee agrees at any time hereafter, upon demand, to execute
and deliver any instruments, releases, or other documents that may be reasonably
required for the purpose of subjecting and subordinating this Lease, as above
provided, to the lien of any such mortgage, deed of trust or ground lease. No
subordination provided for herein shall be effective unless the holder of the
applicable mortgage, ground lease, or deed of trust agrees in an instrument
reasonably acceptable to Lessee that as long as Lessee is not in default in the
payment of Base Rent, Additional Rent, and the payment of other charges to be
paid by Lessee under this Lease, and the performance of all covenants,
agreements and conditions to be performed by Lessee under this Lease, then
neither Lessee's right to quiet enjoyment under this Lease, nor the right of
Lessee to continue to occupy the Premises and to conduct its business thereon,
in accordance with the terms of this Lease as against any lessor, lessee,
mortgagee, trustee, or their successors or assigns shall be interfered with. By
way of example and not by way of limitation, the sample "Non-disturbance,
Subordination, and Attornment Agreement attached hereto as Exhibit G is deemed
approved by Lessee. Lessor warrants that no mortgage or other lien for financing
encumbers the Premises as of the date hereof.
Notwithstanding anything hereinabove contained in this Article XVI, in the
event the holder of any mortgage, deed of trust or ground lease shall at any
time elect to have this Lease constitute a prior and superior lien to its
mortgage, deed of trust or ground lease, then, and in such event, upon any such
holder or landlord notify Lessee to that effect in writing, this Lease
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shall be deemed prior and superior in lien to such mortgage, deed of trust, or
ground lease, whether this Lease is dated prior to or subsequent to the date of
such mortgage, deed of trust or ground lease and Lessee shall execute such
attornment agreement as may be reasonably requested by said holder.
Lessee agrees, provided the mortgagee, ground lessor or trust deed holder
under any mortgage, ground lease, deed of trust or other security instrument
shall have notified Lessee in writing (by way of a notice of assignment of lease
or otherwise) of its address and such notice expressly requests Lessee to give
the notices provided for in this paragraph, Lessee shall give such mortgagee,
ground lessor or trust deed holder, or other secured party ("Mortgagee")
simultaneously with delivery of notice to Lessor, by registered or certified
mail, a copy of any such notice of default served upon Lessor. Lessee further
agrees that said Mortgagee shall have the right to cure any alleged default
during the same period that Lessor has to cure such default. Lessor hereby
authorizes Lessee to give the Mortgagee such notice without liability of any
nature whatsoever for doing so.
ARTICLE XVII. MISCELLANEOUS:
A. Lessee represents and warrants to Lessor that Lessee has not incurred any
obligation or liability, contingent or otherwise, for brokerage or finder's
fees or agent's commissions or other like payment in connection with this
Lease Agreement or the transactions contemplated hereby and Lessee agrees
to indemnify, defend and hold Lessor harmless against and in respect of any
such obligation and liability based in any way upon agreements,
arrangements or understandings made or claimed to have been made by Lessee
with any third person. Lessor hereby agrees to indemnify and defend Lessee
against any claim for commission which is due and payable to any broker on
the transaction contemplated hereby arising out of any agreements or
understandings made or claimed to have been made by Lessor with any third
party. In respect to any claim indemnified against herein, the indemnifying
party shall be given prompt notice of such claims and opportunity to defend
with counsel of its selection. Notwithstanding anything herein to the
contrary, Lessor shall pay the commission payable pursuant to written
commitments by Lessor to CB Commercial Group, Inc., and Towle Real Estate
acting through Mark Kolsrud.
B. Lessee and Lessor agree from time to time upon not less than ten (1O) days
prior written request by the other to deliver to the other a statement in
writing certifying that to the best of the knowledge of the certifying
party (i) this Lease is unmodified and in full force and effect (or if
there have been modifications that the Lease as modified is in full force
and effect and stating the modifications); (ii) the date to which the rent
and other charges have been paid; (iii) Lessor or Lessee, as the case may
be, is not in default in any provision of this Lease or, if in default, the
nature thereof specified in detail; (iv) the amount of monthly rental
currently payable by Lessee; (v) the amount of any prepaid rent, and (vi)
such other matters as may be reasonably requested by Lessor, Lessee, or any
Mortgagee or prospective purchaser of the Office/Warehouse Complex.
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C. All notices, demands and requests which may be or are required to be given,
demanded or requested by either party to the other shall be in writing. All
notices, demands and requests shall be sent by United States registered or
certified mail, postage prepaid, or by an independent overnight courier
service, addressed as follows:
(i) If addressed to Lessee:
Hutchinson Technology, Inc.
40 West Highland Park
Hutchinson, MN 55350
Attn: William Craig
with a copy to:
Hutchinson Technology, Inc.
5905-1 Trenton Lane North
Plymouth, MN 55442
or at such other address as Lessee may hereafter designate by
written notice to Lessor, in which case said notice shall be
effective at the time of mailing such notice, except notice of
default shall be effective upon receipt.
(ii) If addressed to Lessor:
Opus Corporation
800 Opus Center
9900 Bren Road East
Minnetonka, MN 55343
Attn: Law Department
or at such other address as Lessor may hereafter designate by
written notice to Lessee, in which case said notice shall be
effective at the time of mailing such notice, except notice of
default shall be effective upon receipt.
D. All rights and remedies of Lessor under this Lease or that may be provided
by law may be executed by Lessor in its own name, individually, or in the
name of its agent, and all legal proceedings for the enforcement of any
such rights or remedies, including those set forth in Article XV, may be
commenced and prosecuted to final judgment and execution by Lessor in its
own name or in the name of its agent.
E. Lessor covenants and agrees that Lessee, upon paying the Base Rent,
Additional Rent and other charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part
to be kept and performed, shall lawfully and quietly hold, occupy and enjoy
the Premises during the term of this Lease.
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F. The covenants and agreements herein contained shall bind and inure to the
benefit of Lessor, its successors and assigns, and Lessee and its permitted
successors and assigns.
G. If any term or provision of this Lease shall to any extent be held invalid
or unenforceable, the remaining terms and provisions of this Lease shall
not be affected thereby, but each term and provision of this Lease shall be
valid and enforced to the fullest extent permitted by law. This Lease shall
be construed and enforced in accordance with the laws of the state in which
the Premises are located.
H. Lessee covenants not to do or suffer any waste or damage or disfigurement
or injury to the Premises or Office/Warehouse Complex and Lessee further
covenants that it will not abandon the Premises during the term of this
Lease.
I. The term "Lessor" as used in this Lease so far as covenants or obligations
on the part of Lessor are concerned shall be limited to mean and include
only the owner or owners of the Office/Warehouse Complex at the time in
question, and in the event of any transfer or transfers or conveyances the
then grantor shall be automatically freed and released from all personal
liability accruing from and after the date of such transfer or conveyance
as respects the performance of any covenant or obligation on the part of
Lessor contained in this Lease to be thereafter performed, it being
intended hereby that the covenants and obligations contained in this Lease
on the part of Lessor shall be binding on Lessor, its successors and
assigns, only during and in respect to their respective successive periods
of ownership.
In the event of a sale or conveyance by Lessor of the Office/Warehouse
Complex or any part of the Office/Warehouse Complex, the same shall operate
to release Lessor from any liability thereafter accruing upon any of the
covenants or conditions herein contained, but only if the transferee
assumes all obligation of Lessor under this Lease thereafter accruing and
in such event Lessee agrees to look solely to the responsibility of the
successor in interest of Lessor in and to this Lease. This Lease shall not
be affected by any such sale or conveyance, and Lessee agrees to attorn to
the purchaser or grantee, which shall be personally obligated on this Lease
only as to liability accruing during the period that it is the owner of
Lessor's interest in and to this Lease. Any transfer shall be subject to
those limited rights of setoff expressly provided herein.
J. The marginal or topical headings of the several Articles are for
convenience only and do not define, limit or construe the contents of said
Articles.
K. All preliminary negotiations are merged into and incorporated in this
Lease.
L. This Lease can only be modified or amended by an agreement in writing
signed by the parties hereto. No receipt of money by Lessor from Lessee or
any other person after termination of this Lease or after the service of
any notice or after the commencement of any suit, or after final judgment
for possession of the Premises shall reinstate, continue or extend the term
of this Lease or affect any such notice, demand or suit, or imply
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consent for any action for which Lessor's consent is required, unless
specifically agreed to in writing by Lessor. Any amounts received by Lessor
may be allocated to any specific amounts due from Lessee to Lessor as
Lessor determines.
M. Lessor shall have the right to close any portion of the building area or
land area to the extent as may, in Lessor's reasonable opinion, be
necessary to prevent a dedication thereof or the accrual of any rights to
any person or the public therein. Lessor shall at all times have full
control, management and direction of the Office/Warehouse Complex, subject
to the rights of Lessee in the Premises, and Lessor reserves the right at
any time and from time to time to reduce, increase, enclose or otherwise
change the size, number and location of buildings, layout and nature of the
Office/Warehouse Complex and the other tenancies, premises and buildings
included in the Office/Warehouse Complex, to construct additional buildings
and additions to any building, and to create additional rentable areas
through use and/or enclosure of common areas, or otherwise, and to place
signs on the Office/Warehouse Complex, and to change the name, address,
number or designation by which the Office/Warehouse Complex is commonly
known. Lessor shall not be permitted to modify or alter the
Office/Warehouse Complex if such modification or alteration would
materially adversely affect Lessee's access to or right to utilize the
Premises as granted in this Lease. No implied easements are granted by this
Lease. Lessor shall in no event be liable for any lack of security in
respect to the Office/Warehouse Complex.
N. Subject to the provisions of Articles XXXVII and XVII(M), Lessee shall
permit Lessor to erect, use, maintain, replace and repair pipes, cables,
conduits, plumbing, vents, and telephone, electric and other wires or other
items, in, to and through the Premises, as and to the extent that Lessor
may now or hereafter deem reasonably necessary for the proper operation and
maintenance of the Office/Warehouse Complex. In connection therewith, to
the extent work is required within the Premises or to the extent work at
the Office/Warehouse Complex would materially adversely affect operations
within the Premises, Lessee may, at its election which shall be exercised
within a time as reasonably required by Lessor, perform the work in
accordance with plans, specifications, and other reasonable requirements of
Lessor, and shall comply with reasonable schedules established by Lessor.
Lessor shall consult with Lessee as to such matters and Lessor shall modify
its plans, specifications or schedules as reasonably requested by Lessee so
long as Lessor's needs and schedules can be accommodated. Lessor shall
reimburse Lessee for Lessee's direct costs of performing such work;
provided, however, if such work is not for the exclusive use of another
tenant, Lessee shall pay the extra costs arising out of performance of the
work in the manner desired by Lessee as opposed to the costs which would
have been incurred if Lessor had performed the work and was not restricted
by Lessee's requested modifications in respect to the design, timing or
methods of performance.
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0. The submission of this document for examination does not constitute an
offer to lease, or a reservation of, or option for, the Premises. This
document becomes effective and binding only upon the execution and delivery
hereof by Lessor and by Lessee. Lessee confirms that Lessor and its agents
have made no representations or promises with respect to the Premises or
the making of or entry into this Lease except as in this Lease expressly
set forth, and agrees that no claim or liability shall be asserted by
Lessee against Lessor for, and Lessor shall not be liable by reason of,
breach of any representations or promises not expressly stated in this
Lease. This Lease, except for the Building Rules and Regulations, in
respect to which subparagraph P of this Article shall prevail, can be
modified or altered only by agreement in writing between Lessor and Lessee,
and no act or omission of any employee or agent of Lessor shall alter,
change or modify any of the provisions hereof.
P. Lessee shall perform, observe and comply with the Building Rules and
Regulations of the Office/Warehouse Complex attached hereto as Exhibit B
and made a part hereof, with respect to the safety, care and cleanliness of
the Premises and the Office/Warehouse Complex, and the preservation of good
order thereon, and, upon written notice thereof to Lessee, Lessee shall
perform, observe, and comply with any reasonable changes, amendments or
additions thereto as from time to time shall be established and deemed
advisable by Lessor for tenants of the Office/Warehouse Complex. Lessor
shall not be liable to Lessee for any failure of any other tenant or
tenants of the Office/Warehouse Complex to comply with such Building Rules
and Regulations. Lessor shall not enforce such Building Rules and
Regulations more stringently against Lessee than against other tenants in
the Office/Warehouse Complex.
Q. All rights and occupancy of Lessee herein shall be subject to all
governmental laws, ordinances and regulations, and subject to the
provisions of Article VIII Lessee shall comply with the same.
R. All obligations of Lessor and Lessee hereunder not fully performed as of
the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof,
including, without limitation, all payment obligations with respect to
Operating Expenses and Real Estate Taxes and all obligations concerning the
condition of the Premises.
S. Lessee agrees to look solely to Lessor in the Office/Warehouse Complex for
the recovery of any judgment from Lessor, it being agreed that Lessor's
partners whether general or limited, or if Landlord is a corporation, its
directors, officers or shareholders, shall never be personally liable for
any such judgment.
T. Lessee shall furnish to Lessor promptly upon demand, a corporate
resolution, proof of due authorization of partners, or other appropriate
documentation reasonably requested by Lessor evidencing the due
authorization of Lessee to enter into this Lease.
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U. This Lease shall not be deemed or construed to create or establish any
relationship or partnership or joint venture or similar relationship or
arrangement between Lessor and Lessee hereunder.
ARTICLE XVIII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible, Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
thirty (30) days after delivery to Lessee by Lessor of a reasonably detailed
statement and explanation in writing setting forth the amount of such taxes
reasonably applicable to Lessee's personal property.
ARTICLE XIX. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
1. Floor Plan - Exhibit A.
2. Building Rules and Regulations - Exhibit B.
3. Rider to Lease - Exhibit C.
4. List of Base Building Outline Plans - Exhibit D.
5. List of Base Building Outline Specifications - Exhibit E.
6. Lessor's Tenant Sign Criteria - Exhibit F.
7. Non-disturbance, Subordination, and Attornment Agreement (Sample) -
Exhibit G.
8. (Deleted by Intent of the Parties)
9. Cost of the Work Definitions - Exhibits I and I-1.
10. Bidding Process - Exhibit I-2.
11. Improvements to be Constructed by Lessee - Exhibit J.
12. Items Not to be Removed by Lessor - Exhibit K.
13. Scope of Initial Offices for purposes of Article VIII (Exhibit K-1).
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
OPUS CORPORATION (Lessor) HUTCHINSON TECHNOLOGY, INC.
(Lessee)
By /s/ James B. Heller By /s/ Richard Myers
----------------------- ----------------------
Its V.P. Gen. Mgr. Its V.P. Administration
---------------------- ----------------------
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EXHIBIT A
[TRENTON COMMERCE CENTER FLOOR PLAN]
Initials:
- --------
Lessor /s/ J.H.
-------------
Lessee /s/ R.M.
-------------
<PAGE>
EXHIBIT B
BUILDING RULES AND REGULATIONS
1. (Deleted by Intent of the Parties)
2. No awning or other projection shall be attached to the outside walls
of the Office/Warehouse Complex. No curtains, blinds, shades or screens visible
from the exterior of the Office/Warehouse Complex or visible from the exterior
of the Premises, shall be attached to or hung in, or used in connection with any
window or door of the Premises without the prior written consent of Lessor,
which shall not unreasonably be withheld.
3. Lessee, its servants, employees, customers, invitees and guests shall
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in and about the Office/Warehouse Complex which are used in common
with other tenants and their servants, employees, customers, guests and
invitees, and which are not a part of the Premises of Lessee. Lessee shall not
place objects against glass partitions or doors or windows which would be
unsightly from the Office/Warehouse Complex corridors or from the exterior of
the Office/Warehouse Complex and will promptly remove any such objects upon
notice from Lessor.
4. Lessee shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors which
would constitute a nuisance or otherwise cause a violation of law or another
tenant's right of quiet enjoyment, or that would interfere with the operation of
any device, equipment, radio, television broadcasting or reception from or
within the Office/Warehouse Complex or elsewhere and shall not place or install
any projections, antennas, aerials or similar devices inside or outside of the
Premises or on the Office/Warehouse Complex except as expressly permitted in
this Lease.
5. Lessee shall not allow the pipes and equipment within the Premises to
freeze.
6. Lessee assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
7. Except in a manner not in violation of the express provisions of this
Lease relating to Hazardous Materials, in no event shall Lessee bring into the
Office/Warehouse Complex inflammables, such as gasoline, kerosene, naphtha and
benzene, or explosives or any other article of intrinsically dangerous nature.
If, by reason of the failure of Lessee to comply with the provisions of this
subparagraph, any insurance premium for all or any part of the Office/Warehouse
Complex shall at any time be increased, Lessee shall make immediate payment of
the whole of the increased insurance premium, without waiver of any of Lessor's
other rights at law or in equity for Lessee's breach of this Lease.
<PAGE>
8. Subject to the provisions of Article VIII, Lessee shall comply with
all applicable federal, state and municipal laws, ordinances and regulations,
and building rules relating to Lessee's use and occupancy of the Premises and
the Office/Warehouse Complex and shall not directly or indirectly make any use
of the Premises which may be prohibited by any of the foregoing.
9. Lessor shall have the right to prohibit any advertising by Lessee
which in Lessor's reasonable opinion tends to impair the reputation of the
Office/Warehouse Complex or its desirability as an office/warehouse complex for
office/warehouse use, and upon written notice from Lessor, Lessee shall refrain
from or discontinue such advertising.
10. The Premises shall not be used for cooking (as opposed to heating of
food), lodging, sleeping or for any immoral or illegal purpose.
11. Lessee and Lessee's servants, employees, agents, visitors and
licensees shall observe the foregoing rules and regulations and such other and
further reasonable appropriate rules and regulations as Lessor or Lessor's agent
may from time to time adopt. Reasonable notice of any additional rules and
regulations shall be given in such manner as Lessor may reasonably elect.
12. Upon termination of this Lease or of Lessee's possession, Lessee shall
surrender all keys of the Premises and shall explain to Lessor all combination
locks on safes, cabinets and vaults.
13. Any carpeting cemented down by Lessee shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
14. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by Lessee who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same. No person shall waste water by
interfering or tampering with the faucets or otherwise.
15. Lessee shall not overload any utilities serving the Premises.
16. No bicycle or other vehicle, and no dog or other animal (other than
seeing eye dogs or dogs to assist the disabled) shall be allowed in the
Premises.
17. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryways provided for
such purposes.
18. All safes, equipment or other heavy articles shall be carried in or
out of the Premises only in such manner as shall be prescribed in writing by
Lessor, and Lessor shall in all
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cases have the right to specify the proper position of any such safe, equipment
or other heavy article, which shall only be used by Lessee in a manner which
will not interfere with or cause damage to the Premises or the Office/Warehouse
Complex in which they are located, or to the other tenants or occupants of said
Office/Warehouse Complex.
19. Canvassing, soliciting, and peddling in or about the Office/Warehouse
Complex is prohibited and each Lessee shall cooperate to prevent the same.
20. Wherever in these Building Rules and Regulations the word "Lessee"
occurs, it is understood and agreed that it shall mean Lessee and Lessee's
employees, agents, invitees, visitors and contractors. Wherever the word
"Lessor" occurs, it is understood and agreed that it shall mean Lessor and
Lessor's agents, employees, and contractors.
21. Lessor shall have the right to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same, subject to the
provisions of Article XXXVII hereof.
22. Subject to the provisions of Article XXXVII hereof, Lessor shall have
the right to enter the Premises at hours convenient to Lessee for the purpose of
exhibiting the same to prospective tenants within the one year period prior to
the expiration of this Lease, and may place signs advertising the Premises for
rent on the exterior of said Premises at any time within said one year period.
23. Lessee, its servants, employees, customers, invitees and guests shall,
when using the parking facilities, if any, in and around the Office/Warehouse
Complex, observe and obey all signs regarding fire lanes and no parking zones,
and when parking always park between the designated lines and comply with the
parking restrictions provided for herein. Lessor reserves the right to tow away,
at the expense of the owner, any vehicle which is improperly parked or parked in
a no parking zone. All vehicles shall be parked at the sole risk of the owner,
and Lessor assumes no responsibility for any damage to or loss of vehicles. To
the extent allowed by law, vehicles otherwise permitted herein may be parked by
Lessee overnight but Lessee shall cause such vehicles to be moved upon notice
from Lessor if reasonably necessary for snow removal or for maintenance, repair,
or replacement of the parking facilities.
24. In case of invasion, mob, riot, public excitement or other commotion,
Lessor reserves the right to prevent access to the Office/Warehouse Complex
during the continuance of the same by closing the doors or otherwise, for the
safety of the tenants or the protection of the Office/Warehouse Complex and the
property therein. Lessor shall in no case be liable for damages for any error or
other action taken with regard to the admission to or exclusion from the
Office/Warehouse Complex of any person.
25. All entrance doors to the Premises shall be locked when the Premises
are not in use. All common corridor doors, if any, shall also be closed during
times when the air conditioning equipment in the Office/Warehouse Complex is
operating so as not to dissipate the effectiveness of the system or place an
overload thereon.
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26. Lessor reserves the right at any time and from time to time to
rescind, alter (subject to the provisions of Paragraph XVII(P) of this Lease) or
waive, in whole or in part, any of these Rules and Regulations when it is deemed
necessary, desirable, or proper, in Lessor's judgment, for reasonable operation
of the Office/Warehouse Complex or for the best interest of the tenants of the
Office/Warehouse Complex.
Initials:
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Lessor /s/ J.H.
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Lessee /s/ R.M.
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EXHIBIT C
RIDER TO OFFICE/WAREHOUSE LEASE
ARTICLE XX. LOCK BOX: Lessor may from time to time designate a lock box
collection agent for the collection of rents or other charges due Lessor. In
such event, the payment made by Lessee to the lock box shall be deemed to have
been made by Lessee as of the date of receipt by the lock box collection agent
of such payment (or the date of collection of any such sum if payment is made in
the form of a negotiable instrument thereafter dishonored upon presentment);
however, for the purpose of this Lease, no such payment or collection shall be
deemed a waiver by Lessor of any breach by Lessee of any term, covenant or
condition of this Lease nor a waiver of any of Lessor's rights or remedies and
any payments of amounts other than that deemed due and proper by Lessor shall
not prejudice Lessor in any manner nor constitute a waiver and Lessor shall
hereby be authorized to retain the proceeds of any payments by Lessee, whether
restrictively endorsed or otherwise, and apply same to the amounts due and
payable from Lessee under this Lease without waiver.
ARTICLE XXI. PRIOR PROPOSALS: All prior proposals between Lessor and Lessee in
connection with this Lease are hereby terminated.
ARTICLE XXII. UTILITIES: Notwithstanding anything contained in Article II
("Additional Rent") hereof to the contrary, all electricity and gas used in the
Premises shall be separately metered and paid for directly by Lessee upon
receipt of invoice from the applicable utility. Further, the cost of all
electricity and gas used in all areas of the Office/Warehouse Complex rented to
tenants shall not be included in "Operating Expenses"; provided, however, the
cost of all other electricity and gas, including, but not limited to,
electricity for building systems, building equipment and lighting for common
areas, shall be included in "Operating Expenses." Lessee agrees to refrain from
overloading the electrical system designed for the Premises. All electric
lighting bulbs and tubes and all ballasts and starters within the Premises shall
be replaced by Lessee at the expense of Lessee.
Notwithstanding the foregoing, in the event that a utility to be separately
metered is actually metered over an area other than only the Premises, Lessor
shall make an appropriate equitable adjustment and Lessee shall pay its share as
so equitably and reasonably determined by Lessor. Should any such allocation be
or become unfair or unreasonable to Lessor or Lessee by reason of part of the
Office/Warehouse Complex which is served by said utility meter being or becoming
vacant or by reason of disproportionate use by the applicable tenants or the
fact that part of the Office/Warehouse Complex which is served by such meter is
being utilized at other than normal business hours or otherwise, Lessor shall
reasonably apportion such utility charges to Lessee and to other areas of the
Office/Warehouse Complex served through such meter, which apportionment shall
then become the basis for charges to be paid by Lessee.
Further, if costs of utilities (such as water) which are part of Operating
Expenses are used in a disproportionate manner by the various tenants in the
Office/Warehouse Complex, an equitable
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adjustment shall be made by Lessor in accordance with Lessor's reasonable
determination to equitably allocate such costs in accordance with estimated
usage.
ARTICLE XXIII. HAZARDOUS MATERIALS: Lessee shall not bring any materials onto
the Property or allow under its authority any materials to be brought onto the
Property which are so-called "Hazardous Waste" or "Hazardous Materials" under
federal or state environmental laws or which would subject Lessor or Lessee to
liability for clean-up or other damages if such were spilled, released or
disposed of (through storm sewers or otherwise) on the Property except for
chemicals used by Lessee in accordance with law and in the ordinary course of
Lessee's business and kept in legal and proper containers. To the best of
Lessor's knowledge, the Property does not currently contain any "Hazardous
Waste" or "Hazardous Materials" as described above.
Lessee shall at all times and in all respects comply with all federal,
state and local laws, ordinances and regulations ("Hazardous Materials Laws")
relating to the industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, presence, disposal or transportation
of any oil, flammable explosives, asbestos, urea formaldehyde, polychlorinated
biphenyls, radioactive materials or waste, or other hazardous toxic,
contaminated or polluting materials, substances or wastes, including without
limitation any "hazardous substances," "hazardous wastes," "hazardous materials"
or "toxic substances" under any such laws, ordinances or regulations
(collectively, "Hazardous Materials").
Lessee shall at its own expense procure, maintain in effect and comply with
all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Lessee's use of the Premises, including,
without limitation, discharge of (appropriately treated) materials or waste into
or through any sanitary sewer system serving the Premises. Except as discharged
into the sanitary sewer in strict accordance and conformity with all applicable
Hazardous Materials Laws, prior to termination of this Lease, Lessee shall cause
any and all Hazardous Materials to be removed from the Premises and transported
solely by duly licensed haulers to duly licensed facilities for final disposal
of such Hazardous Materials and wastes. Lessee shall in all respects handle,
treat, deal with and manage any and all Hazardous Materials in, on, under or
about the Premises in complete conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding the management of such
Hazardous Materials. All reporting obligations imposed by Hazardous Materials
Laws are solely the responsibility of Lessee. Upon expiration or earlier
termination of this Lease, Lessee shall cause all Hazardous Materials to be
removed from the Premises and transported for use, storage or disposal in
accordance with and in complete compliance with all applicable Hazardous
Materials Laws. Lessee shall not take any remedial action in response to the
presence of any Hazardous Materials in, on, about or under the Premises or in
any Improvement situated on the Land, nor enter into any settlement agreement,
consent decree or other compromise in respect to any claims relating to any
Hazardous Materials in any way connected with the Premises or the Improvements
on the Land without first notifying Lessor of Lessee's intention to do so and
affording Lessor reasonable opportunity to appear, intervene or otherwise
appropriately assert and protect Lessor's interest with respect thereto. In
addition, at Lessor's request, Lessee shall remove all tanks or fixtures which
contain or contained or are contaminated with Hazardous Materials.
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If Lessor has reason to believe that unauthorized Hazardous Materials may
exist on or in respect to the Premises, or that Hazardous Materials may have
been spilled or disposed of or treated or handled in violation of the provisions
hereof, Lessor shall have the right to require Lessee to undertake and submit to
Lessor an environmental audit from an environmental company reasonably
acceptable to Lessor, which audit shall evidence Lessee's compliance with this
provision. Lessor may, at its expense, commission an environmental audit of the
Premises at any time after prior written notice to Lessee. Lessor shall deliver
copies of any resulting reports to Lessee.
Lessee's obligations under this Article XXII shall only apply to Hazardous
Materials brought onto or permitted to be brought onto the Office/Warehouse
Complex by Lessee, its agents, employees, or contractors.
Lessor represents and warrants that to the best of its knowledge no
Hazardous Materials are present in, on or under the Office/Warehouse Complex as
of the date hereof, all except as may be disclosed or referred to in the
environmental report entitled Phase I Environmental Assessment dated April 10,
1989 prepared by GME Consultants, Inc., a true and correct copy of which has
been provided by Lessor to Lessee; provided, however, no such warranty is made
as to materials which might naturally be expected to be found from place to
place in the soil and ground water.
ARTICLE XXIV. BASE RENT ESCALATION: Notwithstanding anything contained in
Article I ("Base Rent") hereof to the contrary, Base Rent shall escalate
effective April 1, 2001 to Four Hundred Forty-three Thousand Four Hundred
Twenty-three and 62/100 Dollars ($443,423.62) per annum, payable monthly, in
advance, in equal installments of Thirty-six Thousand Nine Hundred Fifty-one and
97/100 Dollars ($36,951.97).
ARTICLE XXV. PARKING RIGHTS OF LESSEE: Lessee shall have the right in common
with other tenants to have the use for its employees and invitees of 250 parking
spaces in the common parking facilities (exclusive of "handicapped" stalls which
shall be open for all those legally permitted to use same) at the
Office/Warehouse Complex, such use to be in common with the other tenants in the
Office/Warehouse Complex. So long as 250 spaces remain available for use by
Lessee, Lessor reserves the right to designate areas of the appurtenant common
parking facilities where Lessee, its agents, employees and invitees shall park
and may exclude Lessee, its agents, employees and invitees from parking in other
areas as designated by Lessor; provided, however, Lessor shall not be liable to
Lessee for the failure of any tenant, its invitees, employees, agents and
customers to abide by designations or restrictions so long as Lessor uses all
reasonable effort (other than lease termination and litigation) to enforce such
restrictions. Lessor shall make such designations if Lessee notifies Lessor that
Lessee has suffered from a recurring inability to use 250 spaces at the
Office/Warehouse Complex by reason of utilization by other tenants and their
agents, employees, and invitees. Lessor shall have the right to designate and
Lessee shall thereupon have the right to use 250 designated parking spaces as
the exclusive parking spaces to be used by Lessee, its agents and employees.
Lessee, its agents, employees and invitees shall not use more (in absolute
numbers) of the common parking facilities at the
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Office/Warehouse Complex than Lessee could use if Lessor made the designations
permitted herein. Notwithstanding anything contained in this Lease to the
contrary, all costs and expenses of such special parking control, signs in
connection therewith, and costs of any enforcement shall be an Operating Expense
pursuant to the provisions of Article II hereof. Lessee shall pay all reasonable
costs and expenses in connection with signs or traffic control devices for
Lessee's exclusively designated parking area.
ARTICLE XXVI. RIGHT OF NOTICE: Lessor shall advise Lessee, upon Lessee's written
request, of the identity of all the then existing tenants of the
Office/Warehouse Complex occupying space adjacent to the Premises, and the
expiration dates of the leases under which said tenants occupy such space and
the provisions as to rights of such tenants to renew the terms of said leases.
Such information shall be held in confidence by Lessee and used only to
determine whether Lessee desires to lease additional space in the
Office/Warehouse Complex. The purpose of this paragraph is to provide notice to
Lessee so that Lessee may be in a position to offer to lease such vacant space,
or to be vacant space, on a competitive basis with others. In no event shall
the provisions hereof be deemed to be a right of first refusal or option to
lease.
ARTICLE XXVII. ADJACENT SPACE: In respect to any leases during the initial 10-
year term of this Lease of the space immediately adjacent to the Premises and
identified as the "Abutting Space" on Exhibit A attached hereto, Lessor agrees
to refrain from entering into any lease for such space with a term in excess of
five (5) years and no renewal option or right shall be granted to and no new
lease shall be made with the tenant under such lease unless Lessee and Lessor
have failed to enter into an agreement in respect to such space on or before the
date six (6) months prior to the expiration or termination of such lease for
such adjacent space (the "Abutting Space"). Such adjacent space (as to any lease
during the initial 10-year term of this Lease only) shall be leased by Lessor
only to a single tenant, but such covenant in this sentence shall not prevent
such tenant from subleasing any of such space. Notwithstanding the above, if
Lessor requests Lessee after the date one (1) year prior to the expiration or
termination of such lease for the Abutting Space and prior to the date seven (7)
months prior to the expiration or termination of such lease for the Abutting
Space, to make an election as to such space, within thirty (30) days after
receipt of such notice, Lessee may advise Lessor in good faith whether Lessee
has or does not have a bona fide interest in leasing such Abutting Space upon
expiration of the then current lease. If Lessee notifies Lessor that it does not
have, such a bona fide interest or if Lessee fails to give any notice to Lessor
that it has a bona fide interest in leasing such Abutting Space within such 30-
day period, Lessor shall be free to lease such space to any third party (subject
to the limitations on length of term, renewal terms, and single tenancy as
provided for herein).
ARTICLE XXVIII. EARLY TERMINATION: Lessee shall have the option to terminate
this Lease effective March 31, 2003 provided Lessee notifies Lessor, in writing,
of its election to terminate on or before March 31, 2002 and provided Lessee,
along with such notice delivers to Lessor a certified check in the amount of
Four Hundred Thirty-one Thousand Three Hundred Nineteen and 65/100 Dollars
($431,319.65) as and for an early cancellation fee.
ARTICLE XXIX. EARLY OCCUPANCY: Lessee shall have the right to enter the Premises
before the commencement date but no earlier than February 1, 1996, solely for
the purposes of
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installing equipment and accepting supplies but not for operation of Lessee's
business; provided, however, said early occupancy shall be allowed only if
Lessee complies with the following requirements:
1. Lessee is subject to all the terms, conditions, and covenants of this
Lease, including specifically Article X ("Insurance") hereof, except for
the obligations under Articles I and II hereof as to the payment of Base
Rent and Additional Rent until such rent commences pursuant to the other
provisions herein.
2. Lessee shall be obligated to pay for all electricity and gas charges
reasonably allocated by Lessor to Lessee's usage (in excess of the usage of
Lessor and its contractors, if any) commencing at the date of entry upon
the Premises.
3. Lessee agrees that it shall not materially interfere with or in any manner
delay Lessor's ongoing tenant improvement work in the Premises, if any, or
cause a labor dispute; in the event Lessee does interfere, any delay caused
by said interference shall excuse Lessor's delivery of the Premises as
required in this Lease for a period equal to the period of delay caused by
Lessee and Lessee shall pay Lessor all of its reasonable costs (including
lost rents) arising solely out of delay caused by Lessee.
4. Lessor shall have no responsibility to deliver a Certificate of Occupancy
for the Premises prior to the substantial completion of the Premises.
ARTICLE XXX. LIQUIDATED DAMAGES: Notwithstanding any limitation or waiver of
damages set forth in this Lease (including but not limited to Article IV), in
the event Lessor fails to give actual possession of the Premises to Lessee on or
before April 1, 1996, Lessor agrees to pay to Lessee liquidated damages in the
amount of $500.00 per day until possession of the Premises (with the Tenant
Improvements to be installed by Lessor substantially completed in accordance
with the requirements of Exhibits D and E and with a certificate of occupancy
issued unless inability to secure same results from failure to perform work
which is not Lessor's responsibility) is delivered to Lessee; provided, however,
the date April 1, 1996 provided for herein shall be extended for the period that
Lessor is unable to give possession by reason of fire, strike, shortages of fuel
or materials, action or inaction of public or private utilities or suppliers to
such public or private utilities, action or inaction of Lessee, and other causes
beyond Lessor's reasonable control.
Notwithstanding any limitation or waiver of damages set forth in this Lease
(including but not limited to Article IV), and in addition to the liquidated
damages provided for above, in the event Lessor fails to give actual possession
(with the concrete floor complete and the building enclosed and heated with
temporary heat) of the 2-bay manufacturing portion of the Premises (located
between grid lines 4, 6, E and F) for the purposes and subject to the provisions
of Article XIX hereof to Lessee on or before February 1, 1996, Lessor agrees to
pay to Lessee liquidated damages in the amount of $500.00 per day until
possession of such portion of the Premises is given pursuant to the early
occupancy provisions of Article XXIX ("Early Occupancy") and subject to the
terms and conditions of said Article XXIX; provided, however, the date February
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1, 1996 provided for herein shall be extended for the period that Lessor is
unable to give possession by reason of fire, strike, shortages of fuel or
materials, action or inaction of public or private utilities or suppliers to
such public or private utilities, action or inaction of Lessee, and other causes
beyond Lessor's reasonable control.
Further, in the event Lessor fails to give actual possession of the
Premises to Lessee on or before July 1, 1996, with the Tenant Improvements to be
done by Lessor substantially completed, then Lessee shall have the option, as
its sole remedy, to terminate this Lease upon notice to Lessor given subsequent
to such date and prior to the date that Lessor tenders possession of the
Premises to Lessee. Further, such July 1, 1996 date shall be extended for the
period (not to exceed one hundred eighty [180] days except to the extent caused
by Lessee, its agents, separate contractors and employees) that Lessor is unable
to give possession by reason of fire, strike, shortages of fuel, labor or
suppliers, action or inaction of public or private utilities or suppliers,
action or inaction by Lessee, and other causes beyond Lessor's reasonable
control. Further, in the event Lessor notifies Lessee that Lessor will not be
able to give possession of the Premises by such date, as it may be extended as
provided above, Lessee may not terminate this Lease under the provisions hereof
unless it does so within five (5) days of receipt by Lessee of such notice.
Further, Lessee shall not have the option to terminate this Lease pursuant to
this Article XXX if Lessee has taken possession of any part of the Premises or
commenced to install its equipment, trade fixtures, inventory of furniture
therein.
ARTICLE XXXI. TENANT IMPROVEMENTS: Lessor is providing only the base building
("Base Building") in accordance with the Base Building Outline Plans and Base
Building Outline Specifications listed on Exhibits D and E attached hereto.
Further, Lessor is providing a tenant improvement allowance of Seven Hundred
Twenty-nine Thousand Eight Hundred Thirty-four and 00/100 Dollars ($729,834.00)
to Lessee. All improvements to the Base Building will be so called "Tenant
Improvements" to be installed by Lessor prior to commencement of the term of
this Lease (except as otherwise expressly provided herein), but to be selected
by Lessee and paid for by Lessee subject to Lessor's providing an allowance in
the aforesaid amount. In the event Lessee desires any Tenant Improvements having
a price in excess of the allowance, Lessor shall install same upon mutually
acceptable terms, and Lessee shall pay such excess in cash to Lessor upon
substantial completion or as soon thereafter as the price thereof is determined,
except as otherwise provided in Article XXXII. Lessee shall pay to Lessor an
interest factor on the portion of Tenant Improvements required to be paid by
Lessee in cash upon substantial completion or as soon thereafter as the price is
determined at the rate of eight percent (8%) per annum on such amount from March
15, 1996 (assuming substantial completion by April 1, 1996, and otherwise, such
March 15, 1996 shall be equitably postponed) until paid. All Tenant Improvements
shall be subject to the provisions of Article VIII hereof.
Lessee shall be responsible for the complete design of the HVAC, plumbing
and electrical systems for the Premises. Lessee shall deliver complete working
drawings for such systems to Lessor on or before January 15, 1996, except
underground plumbing and electrical working drawings shall be provided by
December 31, 1995. Such design to be provided by Lessee shall be in such form as
shall be necessary for bidding and completion of the work without further
information necessary for completion of the work contemplated thereby. Lessee
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warrants that the design embodied by such plans and specifications provided by
Lessee shall be in accordance with all requirements of law and with good
architectural and engineering practice and that such design shall be sufficient
for procurement of necessary permits in connection with such work and that such
design shall not interfere with base building design. Lessee shall provide to
Lessor on or before December 31, 1995 all necessary information so that Lessor
may cause to be provided all architectural, structural, and other design for the
Tenant Improvements. Such information shall include all information necessary to
make structural modifications to the Base Building roof structure to support
rooftop equipment and cranes, all of which modifications shall be part of the
Tenant Improvements. Unless otherwise agreed in writing by the parties, Lessor
shall have no responsibility for design or construction of security systems,
data and communication systems and wiring, energy management system and/or
telephone wiring and systems and other items and systems listed on Exhibit J
attached hereto or Lessee's trade fixtures and equipment, and in respect
thereto, all design and construction work shall be performed by or under Lessee
subject to the other provisions of this Lease. Lessee acknowledges that workers
installing such systems or other work for Lessee will not cause a labor dispute
or such work must be done at such time and in such manner as to avoid labor
disputes. Lessor and Lessee shall reasonably cooperate with each other in
avoiding labor disputes; provided, however, Lessee shall not be allowed to take
action which would interfere with Lessor's completion of Lessor's work herein or
delay completion of Lessor's work required herein. Except for Base Building
construction required by the Exhibits D and E Outline Plans and Outline
Specifications, Lessee shall be responsible for all compliance of the Premises
and improvements therein with the Americans with Disabilities Act as it may be
amended.
The price for such Tenant Improvements shall be as determined pursuant to
the Cost of the Work definitions attached hereto and incorporated herein by
reference as Exhibits I and I-1 as to such work plus an administration fee of
eight percent (8%) of such Cost of the Work. There shall be no credit to Lessee
for any failure of Lessee to utilize such allowance. Lessee shall be responsible
for all of Lessor's increased costs or damages (including lost rent) arising out
of any failure of Lessee to make any selections and provide design information
on or before the date required above. If Lessee designates any Tenant
Improvements which cannot be permitted, designed, bid, contracted for, delivered
to the site, and completed by April 1, 1996 according to reasonably efficient
project management schedules without use of overtime or if Lessee designates any
Tenant Improvements which would affect delivery of the manufacturing portion of
the Premises which cannot be designed, bid, permitted, contracted for, delivered
to the site, and completed by April 1, 1996 according to reasonably efficient
project management schedules without use of overtime, then Lessee shall pay all
increased costs, expenses and losses arising out of delay in connection with
such items including rents and other charges which would have been payable under
this Lease but which are not paid because of such delay. Further, Lessor agrees
that the Tenant Improvement work shall be bid in accordance with the Bidding
Process attached hereto and incorporated herein by reference as Exhibit I-2.
Lessee shall be responsible for providing and delivering to the Premises
all HVAC equipment and electrical switch gear required by the design provided by
Lessee, all to allow completion of the installation of same and the other Tenant
Improvement work on or before April 1, 1996 according to reasonably efficient
project management schedules without use of
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overtime. Such equipment and switch gear, costs of procurement and delivery to
the job site shall not be included in Tenant Improvements but the Cost of the
Work shall include installation of same. Lessor shall have no warranty
obligations in respect to such equipment provided by Lessee. Notwithstanding the
provisions of the preceding sentence, if Lessee does not otherwise fully utilize
its allowances herein, costs incurred by Lessee in purchasing such equipment and
switch gear may be utilized by Lessee as a charge against such allowance and
Lessor will make the appropriate reimbursement to Lessee. Such equipment shall
be Lessor's property in any event.
ARTICLE XXXII. EXCESS TENANT IMPROVEMENTS: In the event the price of the Tenant
Improvements to be constructed by Lessor exceeds the allowance provided in
Article XXXI hereof, Lessee shall have the right to require Lessor to provide a
special allowance for excess Tenant Improvements to the Premises to be
constructed by Lessor up to $500,000. If Lessee requests Lessor to provide such
excess allowance in connection with the initial Tenant Improvements, the Base
Rent otherwise provided for herein shall be increased by an amount necessary to
amortize the said special allowance over the remaining Initial Term of the Lease
at a rate of 9% per annum in equal monthly installments of principal and
interest. In the event this Lease, is terminated for any reason prior to the
full amortization of any such excess Tenant Improvement payments, Lessee shall
pay to Lessor such unamortized amount upon termination of the Lease. Upon
completion of such Tenant Improvements, the parties hereto shall enter into an
amendment of this Lease evidencing the additional Base Rent payable and the
other provisions herein as to the amount of the special allowance utilized.
ARTICLE XXXIII. SIGNAGE: Provided Lessee receives all necessary governmental and
quasi-governmental approvals therefor, Lessor shall allow Lessee to erect a sign
on the exterior of the Office/Warehouse Complex. Such sign shall be Lessee's
"name," shall be subordinate in size to Lessor's building designation sign and
shall be subject to the reasonable approval of Lessor as to location, size,
graphics, color(s), and style pursuant to Lessor's Tenant Sign Criteria, a copy
of which is attached hereto as Exhibit F and made a part hereof. Lessee shall
pay all costs of installation and maintenance of such sign and shall keep such
sign in good condition, order and repair at its sole cost and expense, shall
remove such sign prior to termination of the term of this Lease and shall repair
and restore any damage to the Office/Warehouse Complex caused by such
installation and/or removal. Any such sign shall be subject to the terms of any
restrictive covenants recorded in connection with the Property and all
applicable laws, ordinances and regulations.
Lessee shall have the right to install and maintain at Lessee's cost and expense
a sign face on the building monument sign at the entrance to the
Office/Warehouse Complex. Such sign face and its method of installation shall be
subject to the reasonable approval of Lessor and shall be removed by Lessee upon
termination of this Lease.
ARTICLE XXXIV. ASSIGNMENT AND SUBLETTING: Anything in this Lease to the contrary
notwithstanding, Lessee shall have the right to assign or sublease the Premises
to an affiliated U.S. entity or a U.S. entity with which Lessee is merged in a
statutory merger or to whom substantially all of the assets of Lessee is
transferred, without the consent of Lessor,
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subject to the other provisions of Article XI and subject to the provisions
hereinafter provided. An affiliated entity shall be defined as including any
entity, the controlling interest of which is owned by either a general partner
of Lessee or the controlling (50% or more) parent of a general partner of
Lessee, domestic U.S. parent corporation of Lessee owning at least fifty percent
(50%) of the equity interest of Lessee, any domestic U.S. subsidiary of Lessee
or its affiliated parent company or any U.S. domestic corporation which
purchases substantially all of the assets of Lessee. Such assignment or
subletting shall be subject to the following conditions:
(a) That Lessee shall pay all costs and expenses in connection with the
making of such assignment or sublease;
(b) Lessee shall deliver to Lessor an executed copy of each sublease or
assignment within ten (10) days after the execution thereof, together
with copies of any other agreement relating thereto, and a memorandum
detailing any oral agreement or understanding between Lessee and the
assignee or subtenant;
(c) That nothing herein contained or contained in the sublease or
assignment shall relieve Lessee of its obligations under this Lease
agreement and Lessee shall remain liable for the payment of all rent
and the performance of all terms and conditions in this Lease
contained on Lessee's part to be paid or performed;
(d) That any sublease shall be subject to the terms, covenants and
conditions of this Lease and any assignee shall assume, in writing,
for the benefit of Lessor, all obligations of this Lease agreement
accruing after the date of the assignment and the form of said
assumption shall be subject to the reasonable approval of Lessor;
(e) Subsequent to any assignment, Lessor need not consent to any amendment
or modification of this Lease unless the original tenant and all prior
assignees consent to such amendment or modification and confirm their
continuing liability as Lessee under the Lease as amended or modified.
ARTICLE XXXV. OPTION TO EXTEND. Lessee shall have the right, to be exercised as
hereinafter provided, to extend the term of this Lease for two (2) periods of
five (5) years, on the following terms and conditions and subject to the
limitations hereinafter set forth, each such five (5) year extension period
being in this Lease sometimes referred to as the "Renewal Term."
(a) That at the times hereinafter set forth for the exercise of the
renewal options, this Lease shall be in full force and effect and
Lessee shall not be in default in the performance of any of the terms,
covenants and conditions herein contained in respect to a matter as to
which notice of default has been given hereunder which has not been
remedied within the time limited in this Lease, but Lessor shall have
the right, at its sole discretion, to waive the non-default conditions
herein.
(b) That each such Renewal Term shall be upon the same terms, covenants
and conditions as in this Lease provided; provided, however, the
annual Base Rent for
-9-
<PAGE>
the applicable Renewal Term shall be the fair market Base Rent rate
for such space on the date such applicable Renewal Term shall commence
in relation to comparable (in quality and location) space located in
the Minneapolis - St. Paul metropolitan area. The fair market Base
Rent for the Premises shall be determined as of the date eleven (11)
months prior to commencement of the Renewal Term. Provided Lessee has
properly elected to renew the term of this Lease, and if Lessor and
Lessee fail to agree to least eleven (11) months prior to
commencement of the applicable Renewal Term upon the fair market Base
Rent of the Premises, the amount of the fair market Base Rent of the
Premises shall be determined by arbitration in accordance with the
provisions of Article XXXVI hereof. The fair market Base Rent of the
Premises shall be based upon the highest and best use of the Premises
but shall not reflect any increase in value based upon improvements
(which do not replace other improvements) paid for in cash by Lessee
(including improvements amortized pursuant to Article XXXII but
excluding any improvements, as selected by Lessor, for which the
allowance set forth in Article XXXI hereof is utilized), but in any
event the value of the Premises shall not be less than if such value
were calculated assuming the Premises were fully fitted up with office
improvements for at least 20% of the Premises and with normal
warehouse HVAC, electrical and lighting improvements for the remaining
80% of the Premises. In no event shall the Base Rent of the Premises
for the applicable Renewal Term be less than the Base Rent rate
payable (absent temporary abatements) by Lessee immediately prior to
commencement of the applicable Renewal Term.
(c) That Lessee shall exercise its rights to extend the term of this Lease
for the applicable Renewal Term by notifying Lessor, in writing, of
its election to exercise the right to renew and extend the term of
this Lease no later than the first to occur of (a) the date nine (9)
months prior to expiration of the then current initial term or
applicable Renewal Term, as the case may be, or (b) the date ninety
(90) days after the date Lessor gives a notice, if at all, to Lessee
notifying Lessee of Lessee's option to extend herein provided such
notice is given after the date fifteen (15) months prior to
expiration of the then current initial term or applicable Renewal
Term, as the case may be. Upon notification with respect to such
renewal, and for a period of thirty (30) days thereafter, the parties
hereto shall make a good faith effort to agree upon the fair market
Base Rent of the Premises for the applicable Renewal Term. In the
event that Lessor and Lessee fail to agree within the thirty (30) day
time period set forth in this subparagraph (c), the fair market Base
Rent of the Premises for the applicable Renewal Term shall be
determined by Arbitration in the manner set forth in Article XXXVI
("Arbitration") hereof. However, such arbitrators shall be directed to
determine the fair market Base Rent for the Premises as above provided
and in determining the same said appraisers shall be instructed to
make said appraisal independently, without consulting with each other.
Any determination by arbitration or any agreement reached by the
parties hereto with respect to such fair market Base Rent and
resulting Base Rent of the Premises for such applicable Renewal Term
-10-
<PAGE>
shall be expressed in writing and shall be executed by the parties
hereto, and a copy thereof delivered to each of the parties.
ARTICLE XXXVI. ARBITRATION: Any disagreement, dispute or determination required
by or arising under the provisions of Article XXXV of this Lease requiring
arbitration shall be carried on and concluded in accordance with the provisions
of paragraphs (a) and (b) hereof.
(a) In each case where it shall become necessary to resort to arbitration, and
the subject of the arbitration is to determine fair market Base Rent, all
arbitrators appointed by or on behalf of either party or appointed pursuant
to the provisions hereof shall be MAI members of the American Institute of
Real Estate Appraisers with not less than ten (10) years of experience in
the appraisal of improved commercial and industrial real estate in the
Minneapolis - St. Paul metropolitan area and be devoting substantially all
of their time to professional appraisal work at the time of appointment and
be in all respects impartial and disinterested.
(b) The party desiring such arbitration shall give written notice to that
effect to the other party, specifying in such notice the name, address and
professional qualifications of the person designated to act as arbitrator
on its behalf. Within twenty (20) days after service of such notice, the
other party shall give written notice to the party desiring such
arbitration specifying the name, address and professional qualifications of
the person designated to act as arbitrator on its behalf. If the two (2)
arbitrators so selected cannot agree within fifteen (15) days after the
appointment of the second arbitrator, the two (2) arbitrators shall, within
ten (10) days thereafter, select a third arbitrator. The decision of the
arbitrators so chosen shall be given within a period of thirty (30) days
after the appointment of such third arbitrator. Each party shall pay the
fees and expenses of the arbitrator appointed by or on behalf of such party
and the fees and expenses of the third arbitrator shall be borne equally by
both parties. If the party receiving a request for arbitration fails to
appoint its arbitrator within the time above specified, or if the two (2)
arbitrators so selected cannot agree on the selection of the third
arbitrator within the time above specified, then either party, on behalf of
both parties, may request such appointment of such second or third
arbitrator, as the case may be, by application to any Judge of the District
Court of the County of Hennepin, State of Minnesota, upon ten (10) days
prior written notice to the other party of such intent. The arbitrators so
selected shall have all rights and powers conferred on them by the Uniform
Arbitration Act of the state in which the Premises are situated, and except
as otherwise provided for herein, the arbitration proceedings shall be
carried on and governed by such Act. Upon an established date at an
established time, all three (3) arbitrators shall simultaneously submit
their determinations as to fair market Base Rent, such determinations to be
submitted in sealed envelopes and to be opened jointly by Lessor and
Lessee. The fair market Base Rent for the Renewal Term shall be determined
by averaging the two (2) arbitrators' fair market Base Rent determinations
which are closest in amount to each other (or if one appraisal is less than
one of the other appraisals and more than the other appraisal by the same
amount, all three appraisals shall be averaged).
-11-
<PAGE>
ARTICLE XXXVII. NOTICE UPON ENTRY: Anything in this Lease to the contrary
notwithstanding, Lessor shall give Lessee reasonable notice, written, oral,
telephonic, or by fax, in the event Lessor intends to enter the Premises for
purposes of inspection, repair, maintenance or alterations of the
Office/warehouse Complex or Premises, but in no event shall more than twenty-
four (24) hours notice be required and no notice shall be required in the event
of an emergency. Lessor shall perform its repair or other operations in the
Premises with all due diligence and care and, in connection therewith, shall
interfere with the business of Lessee as little as reasonably possible under the
circumstances; provided, however, nothing herein shall require Lessor to perform
any necessary work during other than normal business hours, except performance
of such work (except in an emergency) shall be performed after normal business
hours (after 6:00 P.M. weekdays, on weekends or on holidays) if performance of
such work would materially adversely affect Lessee's operation in the Premises.
Notwithstanding the above, if Lessee requests that such work be done after
normal business hours, Lessee shall pay the extra costs, if any, arising from
such after hours or overtime work. Lessee shall have the right to accompany any
entry by Lessor.
ARTICLE XXXVIII. REPAIRS.
A. Notwithstanding anything contained in this Lease to the contrary
relating to the obligation of Lessor to make repairs, in the event
Lessor fails to make repairs to the Office/Warehouse Complex which are
Lessor's responsibility herein (and which Lessor is required to do)
within a reasonable time after notice by Lessee under the
circumstances, but only if in connection therewith Lessee's property
is under imminent threat of damage, Lessee may, at its option, upon
telephonic or written notice to Lessor, make the necessary repairs so
as to avoid such threat of damage to Lessee's property and in such
event Lessee shall invoice Lessor for the reasonable costs thereof and
Lessor shall reimburse Lessee therefor (subject to the provisions of
Article II hereof) within thirty (30) days of presentation of invoice
and copies of all bills and invoices in connection therewith. If
Lessor fails to make such reimbursement as above required, Lessee may
offset against rents the amounts due and payable by Lessor to Lessee
pursuant to this paragraph. Nothing herein shall require Lessor to
make repairs or pay for repairs done by Lessee, if the threat to
Lessee's property arises out of casualty or condemnation and Lessor is
in the process of making a decision as to whether to repair or
terminate the Lease as allowed under the terms of this Lease.
B. Further, notwithstanding anything contained in this Lease to the
contrary relating to the obligation of Lessor to make repairs, in the
event Lessor fails to make repairs to the Office/Warehouse Complex
which are Lessor's responsibility herein (and which Lessor is required
to do) within a reasonable time after notice by Lessee under the
circumstances, but only if in connection therewith Lessee's use and
occupancy of the Office/Warehouse Complex is materially adversely
affected thereby, Lessee may, at its option, upon telephonic or
written notice to Lessor, make the necessary repair so as to avoid
such material adverse effect upon Lessee's use or occupancy and in
such event Lessee shall invoice Lessor for the
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<PAGE>
reasonable cost thereof and Lessor shall reimburse Lessee therefor
(subject to the provisions of Article II hereof within thirty (30)
days of presentation of invoice and copies of all bills and invoices
in connection therewith. Lessee shall have no right to make repairs
under this Paragraph B unless such repairs relate to matters outside
of the principal building of which the Premises is a part, nor shall
Lessee have any rights to make repairs under this Paragraph B unless
the other tenants in the building consent in writing to the making of
such repairs. Further, nothing in this Paragraph B shall permit Lessee
to make any replacements of a capital nature which would not be
included in Operating Expenses pursuant to Article II hereof.
C. Notwithstanding anything contained in this Lease to the contrary,
Lessee shall repair and maintain all electrical, mechanical, plumbing
and HVAC equipment and systems serving the Premises at its sole cost
and expense and make any replacements necessary in connection
therewith. Further, the costs of maintenance and repair of mechanical,
electrical, plumbing and HVAC equipment and systems serving only other
rentable areas of the Office/Warehouse Complex shall not be included
in Operating Expenses.
D. Lessor shall keep in good order, condition and repair, casualty damage
excepted, and make all necessary replacements to the roof, structure
(including concrete floor) and all exterior walls of the Premises
other than damage caused by ordinary wear and tear and damage caused
by intentional acts of Lessee, its agents, employees and
subcontractors. Lessor's obligations to make payment therefor shall be
subject to the provisions of Article II hereof.
ARTICLE XXXIX. KEYS. Lessor shall not be entitled to keep keys for the Premises,
provided, however, if the local fire department or law enforcement agency
requires that an entrance key be deposited with such departments, Lessee shall
comply with such requirements. If entry is reasonably necessary in any
emergency, Lessee shall pay all costs of damage and repair arising out of forced
entry.
ARTICLE XL. LESSEE'S AUDIT RIGHTS: Lessor hereby agrees, at Lessee's request, to
make available to Lessee or its representative for its inspection and
examination all of the books and records that relate to Lessor's statement as to
Lessee's Pro Rata Share of Real Estate Taxes and Lessee's Pro Rata Share of
Operating Expenses. If Lessee elects to audit such costs and expenses and
Lessor's statement is found to be in error, the appropriate party shall pay to
the other such payment as may be required based upon such audit within thirty
(30) days of the date of determination of such error. In the event Lessor's
final adjusted accounting statement is found to be in error by more than three
percent (3%), Lessor agrees to pay the reasonable cost of such audit not to
exceed $2,500. The right to inspect and audit herein shall be waived as to any
applicable Lease Year if such right is not exercised within one (1) year after
Lessee receives Lessor's final adjustment accounting for such Lease Year and
after such one (1) year period has expired, such accounting shall be deemed
final and conclusive. Lessor shall reasonably cooperate with Lessee in
connection with such audit.
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<PAGE>
ARTICLE XLI. ABATEMENT ON INTERRUPTION OF SERVICES: Notwithstanding anything in
Article V ("Services") hereof to the contrary, in the event Lessor does not
provide any of the services required to be maintained by Lessor pursuant to said
Article V or obligation pursuant to Article XXXVIII or the last sentence of
Article VIII, and in the event such inability renders the whole or a portion of
the Premises untenantable or unsuitable for the purposes intended hereunder for
a period of three (3) consecutive days after notice of untenantability or
unsuitability from Lessee, rent for the portion of the Premises rendered
untenantable or unsuitable for the purposes intended hereunder shall abate pro
rata until the services or Premises are restored to such a condition that the
portion of the Premises affected is again rendered tenantable or suitable.
Notwithstanding anything contained herein to the contrary, there shall be no
such abatement of rent if Lessor's inability to provide services is caused by
misuse or neglect of Lessee or Lessee's agents, employees or invitees or is
caused by shortages of fuel or other energy supplies to be provided by public or
private utilities or suppliers. The right of abatement shall be in addition to
any other remedy for damages to which Lessee is entitled expressly pursuant to
the terms of this Lease.
ARTICLE XLII. MITIGATION: In the event Lessor terminates this Lease or is
entitled to possession of the Premises after surrender thereof by Lessee by
reason of default by Lessee, Lessor shall use reasonable efforts under the
circumstances to relet the space; provided, however, Lessor may lease or refrain
from leasing as Lessor deems appropriate, using the same standards as Lessor
would use when leasing similar space (assuming Lessor had all ownership and
financial risk as to such similar space). Further, in the event of a default or
breach of this Lease by either party, the other party shall use all reasonable
effort under the circumstances to mitigate any damages for which the breaching
party might be responsible. Lessor shall in no event be required to lease the
Premises or any part thereof in competition with other space in the
Office/Warehouse Complex or in other buildings owned by Lessor or its
affiliates.
ARTICLE XLIII. ATTORNEYS' FEES: If either party shall bring suit against the
other to enforce the terms of this Lease, the losing party shall pay to the
prevailing party that percentage of the prevailing party's costs and expenses,
including reasonable attorneys' fees, equal to the percentage that the value of
the judgment or award received by the prevailing party bears to the total value
of the judgment or award claimed by such party.
ARTICLE XLIV. SATELLITE DISH ANTENNA: Lessor licenses Lessee to use at no charge
(except as otherwise provided in this Article XLIV) a portion of the rooftop
area of the Office/Warehouse Complex for the purpose of installing a "satellite"
communication antenna for the use and operation of that antenna, which antenna
shall not exceed eight feet in diameter. Said installation shall be in
accordance with plans and specifications approved by Lessor which shall include
the means of attaching the portion of such equipment to the roof of the
Office/Warehouse Complex or improvements located thereon. Lessor agrees to
cooperate with Lessee to secure all necessary approvals from state, federal and
other governmental authorities to construct, operate and maintain such
equipment. All such equipment shall be constructed, maintained, and screened by
Lessee in accordance with applicable laws, ordinances, rules and regulations and
in compliance with the requirements of the insurers of the Office/Warehouse
Complex. Lessee shall indemnify and defend Lessor from and against all loss,
claim, damage and expense arising
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<PAGE>
out of the construction, maintenance and operation of such equipment. All work
in connection with such equipment shall be done by Lessee as an alteration or
improvement under Article VIII hereof; provided, Lessee shall remove all such
equipment on or before the expiration or termination date of this Lease, and
repair any damage caused by installation or removal, and no such action shall
materially interfere with work being performed by Lessor or cause a labor
dispute. Lessee shall give to Lessor notice of any notices which Lessee receives
from third parties that any of the equipment is or may be in violation of any
law, ordinance, or regulation. Lessee shall pay all taxes of any kind or nature
whatsoever levied upon said equipment and all licensing fees, franchise taxes
and other charges, expenses and other costs of any nature whatsoever relating to
the construction, ownership, maintenance and operation of said equipment. Lessor
shall provide reasonable access for Lessee to the roof. Lessee agrees to refrain
from interference with the operation of radio, television or other
electromagnetic radiation and reception facilities or AM or FM broadcasting and
two-way radio and microwave transmission in and around the Office/Warehouse
Complex which comply with U.S. Government regulations. Nothing herein shall
prevent Lessor from licensing others to use the roof in other areas, of the
Office/Warehouse Complex for development, installation and operation of
electromagnetic radiation and reception facilities or FM broadcasting and two-
way radio and microwave transmission provided such facilities do not
unreasonably or materially interfere with the operations of Lessee pursuant to
its rights granted herein. Such equipment shall be screened in a manner
reasonably acceptable to Lessor.
ARTICLE XLV. DEFAULT OF LESSOR: In the event of any alleged breach by Lessor of
its covenants contained in this Lease, Lessee shall have available all rights
and remedies provided at law or in equity, subject to the terms and conditions
of this Lease; provided, however, Lessee may not exercise any such right or
remedy unless Lessee has notified Lessor and any party having a recorded
mortgage or bond indenture lien against the property written notice of such
alleged default and the notified party or parties have not cured such default
within the thirty (30) day period subsequent to receipt of such notice, or in
the event such alleged default is of such a nature that it cannot reasonably be
cured within such thirty (30) day period, such notified party or parties have
failed to cure such alleged default with all due diligence. No rent may be
offset unless and until Lessee has commenced legal action against Lessor in
respect to such default and no legal action shall be maintained or continued
unless Lessee deposits into escrow reasonably satisfactory to Lessor any amount
of disputed rent or offset rent. Interest on the escrow shall become a part of
the deposit but shall be taxable to Lessee.
ARTICLE XLVI. REPRESENTATION AS TO COMPLIANCE WITH BUILDING LAWS: Lessor
represents and warrants that the Base Building (exclusive of Tenant
Improvements) shall be in compliance with applicable building laws and
ordinances and dimensional aspects of zoning regulations. Further, Lessor
represents and warrants that the Base Building (exclusive of Tenant Improvements
to be installed by Lessor) shall be in compliance with the access requirements
of the Americans with Disabilities Act ("ADA"). Lessee shall be responsible for
all other compliance of the Premises with the ADA relating to the use, occupancy
and alterations and improvements relating to the Premises (except as may
otherwise be provided by the specifications relating to the Tenant
Improvements).
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<PAGE>
ARTICLE XLVII. POND MAINTENANCE: Lessee and Lessor agree that the costs of
compliance with the Pond Maintenance Agreement dated February 28, 1991 (Document
No. 5780416, as amended by Supplemental Allocation Agreement dated May 23, 1995
(Document No. 6441329) shall be deemed to be Operating Expenses pursuant to the
provisions of Article II hereof, to the extent such costs are allocable to the
Office/Warehouse Complex.
ARTICLE XLVIII. OUTSIDE STORAGE: Lessee acknowledges that outside storage shall
not be permitted without the prior written consent of Lessor. Further, any
outside storage approved by Lessor shall be subject to restrictions imposed by
the City of Plymouth.
Initials:
---------
Lessor /s/ J.H.
-----------
Lessee /s/ R.M.
-----------
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<PAGE>
EXHIBIT D
<TABLE>
<CAPTION>
Outline Plans prepared by Opus Architects & Engineer, Inc. as listed below:
Sheet Title Date
----- ----- ----
<S> <C> <C>
SP1 Site Plan 10/13/95
C1 Grading Plan 10/11/95
C2 Utility Plan 8/2/95
A1 Floor Plan 9/6/95
A2 Elevations & Wall Sections 9/6/95
A3 Sections & Details 9/6/95
S1 Title Sheet 9/6/95
S2 Foundation Plan 9/6/95
S3 Roof Framing Plan 9/6/95
S4 Sections & Details 9/6/95
S5 Sections & Details 9/6/95
</TABLE>
Initials:
---------
Lessor /s/ J.H.
-----------
Lessee /s/ R.M.
-----------
<PAGE>
EXHIBIT E
Outline Specifications for Design and Construction of Trenton Commerce
Center, Plymouth, Minnesota, dated December 6, 1995 (5 pages plus cover
page).
Initials:
---------
Lessor /s/ J.H.
-----------
Lessee /s/ R.M.
-----------
<PAGE>
ATTACHMENT 1 [SINGLE TENANT SIGNAGE - FLOOR PLAN]
<PAGE>
ATTACHMENT 2 [FLOOR PLAN]
<PAGE>
ATTACHMENT 3 [BASS CREEK BUSINESS CTR. - FLOOR PLAN]
<PAGE>
EXHIBIT F
TRENTON COMMERCE CENTER
TENANT SIGN CRITERIA
The building sign criteria for Bass Creek Business Center shall be as follows:
It is the tenant's responsibility to provide the Main Tenant Identification
Sign.
I. Front of Building - Exterior Sign
A) Main Tenant Identification Signs - Exterior
1) All exterior front of building tenant identification signs shall
be limited in location to the brick or precast band directly
above the store front. See Attachment 1 for details.
2) Tenants may use upper or lower case letters not exceeding 24
inches in height. With individual entrances, signage shall be
centered vertically within the band and centered horizontally
over tenant entry doorway/sidelight per attachment 1, or centered
above the tenant's space if the door is off center. Where
tenants share an entrance the signage is to be installed on the
appropriate side of entrance per Attachment 2.
3) The total width of letters shall not exceed 50% of the front face
of that portion of the building occupied by the tenant.
4) Letter face shall be of 3/16" off white plexiglass with matching
off white edge trim to be selected by owner. The letter edge
depth shall be 1 1/4" (plus or minus 1/16"). The face recess
shall be 1/4". The building standard lettering style shall be
Helvetica Medium, but tenants may select from other type styles
if approved by the building owner.
5) Logos are acceptable if they conform to lettering size and
placement criteria as specified above.
6) Method of attaching letters to the building shall conform to
Attachment 2.
B) Front Doors - Exterior/Interior
1) Exterior Front Doors
a) Building address number and suite numbers are required on
the main glass entrance door. Graphics shall be 4 inches
high, 3M, pressure sensitive vinyl, matte white #3680-20,
heat removable, Helvetica Medium typestyle, applied first
surface. For individual entrances, numbers shall be
centered on the door with the top of the letter 4" below the
top of the glass. For shared entrance doors, numbers shall
be centered on the appropriate half and 4" below the top of
the glass. See Attachment 1 and 2 for details.
2) Interior Doors
a) The name of the business and suite number shall appear on
the interior vestibule door in all upper case letters; 4"
address and 2 1/2" name. Graphics shall be 3M, pressure
sensitive vinyl, matte white #3680-20, heat removable,
Helvetica Medium typestyle, applied first surface. See
Attachment 3.
<PAGE>
TRENTON COMMERCE CENTER
TENANT SIGN CRITERIA
PAGE 2
II. Truck Court Doors - Exterior/Interior Signs
1) Exterior Service Door: Tenant provides graphics applied directly
to door. 4" address, 2 1/2" name of 3M, pressure sensitive
vinyl, matte white #3680-20, heat removable, Helvetica Medium
typestyle, applied first surface. The first tenant shall place
its name and numbers at top of door, see Attachment 3. A maximum
of 2 tenants per door. All copy to be upper case.
2) Interior Vestibule Service Door: Graphics shall be identical with
front interior door per 1, B, 2, a.
III. Prohibited Signs
1) Prohibited signs are as follows:
a. Signs on glass visible from exterior except as identified in
this criteria.
b. Roof top signs.
c. Freestanding signs other than the project identification
sign and appropriately authorized real estate sign(s).
d. The use of electrical components that flash, illuminate,
revolve, rotate, or make noise.
e. Auxiliary signage, including banners.
f. Parking space signage without approval of the owner, 3
square feet maximum.
g. Signs on vehicles when parked other than in a parking stall.
IV. Approval Process
1) Three copies of a sign layout drawing must be submitted by tenant
to the building owner. Approval must be granted in writing by
the building owner prior to signage installation.
2) Tenant is responsible for all permits required by the City.
V. Miscellaneous
1) Tenant is responsible for cost of sign removal upon vacating the
space.
2) Tenant may solicit bids from sign manufacturers of its selection.
3) Owner reserves the right to approve alternative signage when
deemed appropriate in its sole discretion.
<PAGE>
EXHIBIT G
NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT made as
of this ____ day of __________ 199_, by and between _________________ (together
with any successor as mortgagee, "Mortgagee"), whose address is_________________
_______________________________________ and________________________________, a
_____________________________("Lessee"), having an office at____________________
________________________________________________________________.
W I T N E S S E T H
WHEREAS, Lessee is the owner of the Lessee's interest under that
certain Lease which is hereinafter identified; and
WHEREAS, Mortgagee is the mortgagee under that certain Mortgage which
is hereinafter defined; and
WHEREAS, Mortgagee and Lessee are desirous of entering into this
Nondisturbance, Attornment and Subordination Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
execution of this Agreement by the parties, Mortgagee and Lessee agree as
follows:
1. DEFINITIONS: For the purposes of this Agreement, the following
terms shall have the following meanings:
DEMISED PREMISES: The property demised under the Lease,
LEASE: That certain Lease Agreement dated as of __________, ______,
between Mortgagor, or its predecessor in interest, as landlord, and Lessee, as
Lessee, as amended.
MORTGAGE: That certain _______________________________________________
________________________________________________________________________________
________________________ and _______________________________________________ and
__________________________________________, made by Mortgagor to Mortgagee,
which encumbers, and shall be (or has been) recorded against, the Mortgaged
Property, as the same may be amended, consolidated, spread or supplemented from
time to time.
MORTGAGED PROPERTY: The Demised Premises Initials:
---------
Lessor /s/ J.H.
------------
Lessee /s/ R.M.
------------
<PAGE>
MORTGAGEE:_______________________________________.
MORTGAGOR:_______________________________________________, a _________
________________________________________, or its successor who is the
holder of the fee interest in the Mortgaged Property and of the interest of
landlord under the Lease.
PERSON: An individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
PURCHASER: Any Person acquiring the Mortgaged Property (i) in any
foreclosure or any action or proceeding (judicial or nonjudicial)
instituted under or in connection with the Mortgage or (ii) by delivery of
a deed or assignment given in lieu of foreclosure, and such Person's
successors and assigns.
2. NONDISTURBANCE. As long as no default exists beyond any
applicable notice and grace period under the Lease, which would then entitle the
landlord under the Lease to terminate the Lease or would cause, without any
further action of such landlord, the termination of the Lease or would then
entitle such landlord to dispossess the Lessee thereunder, the Lease shall not
be terminated, nor shall Lessee's use, possession or enjoyment of the Demised
Premises be interfered with, nor shall the leasehold estate granted by the Lease
(nor any rights or options of the Lessee thereunder, such as, but not limited
to, rights or options to extend or renew, or rights or options to purchase so
long as Lessee makes the purchase price available to the Mortgagee in
satisfaction of the debt secured by the Mortgaged Property) be affected in any
other manner, in any foreclosure or any action or proceeding instituted under or
in connection with the Mortgage or in the case the Mortgagee takes possession of
the Mortgaged Property pursuant to any provisions of the Mortgage, except that
Purchaser shall not be (a) liable for any act or omission or default of any
prior lessor or landlord (including, without limitation, the then defaulting
landlord in respect of time prior to the date Purchaser acquires the Mortgaged
Property) except in respect to the Landlord's obligations to complete the
Office/Warehouse Complex and tenant improvements for the Premises in accordance
with the provisions of the Lease; or (b) subject to any offsets or defenses
which Lessee might have against any prior lessor or landlord (including, without
limitation, the then defaulting landlord) in respect of time prior to the date
Purchaser acquires the Mortgaged Property except in respect to the Landlord's
obligations to complete the Office/Warehouse Complex and tenant improvements for
the Premises in accordance with the provisions of the Lease and except for
rights of setoff expressly provided in the Lease; or (c) bound by any rent or
additional rent which Lessee might have paid for more than the current month to
any prior landlord (including, without limitation, the then defaulting
landlord); or (d) bound by any amendment or modification of the Lease or any
cancellation or surrender of the same made without Mortgagee's prior written
consent (which consent shall be subject to the same requirements as Landlord's
consent); or (e) bound by any obligation to make any payment to Lessee which was
required to be made prior to the time such Purchaser succeeded to any prior
landlord's interest except in respect to the Landlord's obligations to complete
the Office/Warehouse Complex and tenant improvements for the Premises in
accordance with the provisions of the Lease; or (f) bound by any obligation
under the
-2-
<PAGE>
Lease to perform any work or to make any improvements to the Demised Premises
except in respect to the Landlord's obligations to complete the Office/Warehouse
Complex and tenant improvements for the Premises in accordance with the
provisions of the Lease.
3. ATTORNMENT. If the interests of the landlord under the Lease
shall be transferred to a Purchaser, Lessee shall be bound to such Purchaser
under all of the terms, covenants and conditions of the Lease for the balance of
the term thereof remaining and any extensions or renewals thereof which may be
effected in accordance with any option therefor in the Lease, with the same
force and effect as if Purchaser were the landlord under the Lease, and Lessee
attorns to the Purchaser, including Mortgagee if it be Purchaser, as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments upon Purchaser's succeeding to the interest
of the landlord under the Lease. The respective rights and obligations of
Lessee and Purchaser upon such attornment, to the extent of the then remaining
balance of the term of the Lease and any such extensions and renewals, shall be
and are the same as now set forth therein, except as herein otherwise provided.
4. SUBORDINATION. The Lease now is and at all times shall
continue to be subject and subordinate in each and every respect to the lien of
the Mortgage and to any and all increases, renewals, modifications, extensions,
substitutions, consolidations and replacements of the Mortgage.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Mortgagee, its successors and assigns as mortgagee, and
Lessee and its successors and assigns as holders of the interest of the Lessee
under the Lease.
6. CHOICE OF LAW. This Agreement shall be governed and
construed in accordance with the laws of the state in which the Mortgaged
Property is located.
7. NO PARTNERSHIP. It is understood and agreed that the sole
interest of Mortgagee in the Mortgaged Property is that of mortgagee and nothing
herein is to be construed as either creating or evidencing a partnership or
joint venture between Mortgagor and Mortgagee or creating a guaranty of the
obligations of owner by Mortgagee.
8. RECOGNITION OF MORTGAGEE AS "MORTGAGEE" UNDER THE LEASE.
Lessee hereby recognizes Mortgagee as "Mortgagee" under the Lease and agrees to
forward copies of any notices required to be given to the Mortgagee pursuant to
the terms of the Lease at the address of Mortgagee set forth above. Lessee
further agrees that Mortgagee shall be entitled to any other rights and
privileges granted to a "Mortgagee" under the Lease.
-3-
<PAGE>
IN WITNESS WHEREOF, Mortgagee and Lessee have executed the foregoing
agreement as of the day and year first hereinabove written.
-----------------------------------
Mortgagee
By:
-------------------------------
Its:
-----------------------------
-----------------------------------
Lessee
By:
--------------------------------
Its:
-----------------------------
-4-
<PAGE>
STATE OF______________)
) ss.
COUNTY OF_____________)
The foregoing was acknowledged before me this ____ day of _____, _____, by
__________________________________, the _______________________________________
________________________ of _________________________, a _________________ under
the laws of the State of _______________________, on behalf of the ____________.
NOTARY STAMP OR SEAL: ------------------------------
SIGNATURE OF PERSON TAKING
ACKNOWLEDGMENT
STATE OF ____________)
) ss.
COUNTY OF ___________)
The foregoing was acknowledged before me this ____ day of _____, _____, by
__________________________________, the _______________________________________
________________________ of _________________________, a _________________ under
the laws of the State of _______________________, on behalf of the ____________.
NOTARY STAMP OR SEAL: ------------------------------
SIGNATURE OF PERSON TAKING
ACKNOWLEDGMENT
-5-
<PAGE>
EXHIBIT I
COST OF THE WORK
The term "Cost of the Work" shall mean costs (net of discounts and rebates)
reasonably incurred in the performance of the design and construction of the
Tenant Improvements to be constructed by Lessor (hereafter the "Work") and paid
by the Landlord or Landlord's contractor. Such costs shall be at rates not
higher than the standard paid in the locality of the Work, except with prior
consent of the Lessee or as determined in this Exhibit I, and shall include the
items set forth below:
(i) Supervisory Cost (FSC) of field supervisory and project management
personnel assigned to the Project, wherever employed in connection with the Work
as follows:
Field Superintendent $65.00 per hour
(ii) Field Labor Cost (FLC) of field personnel who are in the direct employ
of the general contractor in performance of the Work. The FLC shall
consist of all wages determined, if applicable, under appropriate
collective bargaining agreements and all payroll taxes and insurance
and all fringe benefits.
(iii) Rental charges of all machinery and equipment, exclusive of hand
tools, used at the Site, whether rented from the contractor or others,
including installation, minor repairs and replacements, dismantling,
removal, transportation and delivery costs thereof, at rental charges
consistent with those prevailing in the area at the time of such
rental. Such rental charges and transportation costs shall begin at
such time as the transportation of the machinery and equipment being
rented to the job site begins and ends at such time as transportation
from the construction site ends. Average rental charges for equipment
owned by the contractor shall not exceed seventy percent (70%) of
standard published rates for such equipment in the locality of the
Project.
(iv) The costs of the insurance maintained in connection with performance
of the Work (as reasonably allocated to the Project); and the costs of
premiums for all bonds required in connection with such Work.
(v) Sales, use, gross receipts or similar taxes related to the Work
imposed by any governmental authority.
(vi) Fees and costs for permits, governmental building fees and licenses;
damages for infringement of patents and costs of defending suits
therefor; and deposits lost due to any cause other than the negligence
of Lessor or its contractor or their subcontractors or suppliers.
Initials:
---------
Lessor /s/
-------------
Lessee /s/
-------------
<PAGE>
EXHIBIT I-1
OPUS ARCHITECTS & ENGINEERS, INC.
DESIGN SERVICES BY POSITION
BILLING RATE SCHEDULE
TO APRIL 1, 1995
- --------------------------------------------------------------------------------
Vice President $80.00
Director 75.00
Managers 67.00
Associate Manager 63.00
Senior Design Architect 59.00
Design Architect 56.00
Senior Project Architect 59.00
Project Architect 52.00
Architect 43.00
Senior Technician 39.00
Technician 34.00
Drafter 28.00
Senior Interior Designer 52.00
Senior Mechanical Engineer 59.00
Senior Civil/Structural Engineer 59.00
Project Engineer 56.00
Registered Architect 52.00
Engineer 43.00
Clerical 27.00
<PAGE>
(vii) Minor expenses such as telegrams, telephone service at the Site, field
office supplies, field first aid supplies, photographs and renderings,
expressage, and related miscellaneous costs incurred in connection
with the Work, blueprint and duplication costs.
(viii) Costs incurred due to an emergency affecting the safety of persons and
property in connection with the Work, and the cost of safety equipment
and procedures required by safety and health regulations.
(ix) The portion of reasonable transportation, traveling and hotel expenses
(excluding meals) of Lessor or its contractor incurred in the
discharge of duties related to the Work. No out of town travel costs
shall be charged for employees to Cost of Work unless approved by
Lessee, which approval shall not unreasonably be withheld.
(x) Payments made or amounts payable to subcontractors for work performed
pursuant to subcontracts, and to vendors for materials, equipment and
supplies purchased for the Work, together with the cost of
transportation, unloading charges and installation.
(xi) Cost of temporary offices at the job site, facilities and utilities
such as water, electricity, power and fuel incurred in connection with
the Work, including costs of connections, crossing or protecting any
public utility installation and removal of temporary lines,
connections, tap fees, etc. Notwithstanding the above, the
Superintendent's job site trailer and vehicle are not to be included
as separate Cost of Work in that they are included in the rate for the
Superintendent set forth in subparagraph (i) above.
(xii) Costs incurred by Lessor or its contractor for tests required for the
Work or such contractor's quality control program, laws, ordinances,
rules, regulations or order of any public authority having
jurisdiction over the Project.
(xiii) Five-hundredths of one percent (0.05%) of the Cost of the Work
(exclusive of this cost item) to cover the cost of all expendable
tools purchased in connection with the performance of the Work;
provided, however, that the cost of such tools shall not exceed One
Hundred Fifty and 00/100 Dollars ($150.00) per tool. At completion of
the Work, those tools shall remain the property of the contractor.
(xiv) Cost of losses to the Work for perils generally covered by so-called
All Risk Builder's Risk insurance (not to exceed the amount of
reasonable uninsured "deductible" losses), which are not compensated
by insurance or otherwise.
(xv) All other costs and expenses or other outlays incurred or sustained by
Lessor's contractor as a direct result of the Work (including
reasonable
-2-
<PAGE>
attorney fees incurred by such contractor without such contractor's
fault) and which are established by vendor invoices or other
documents, all provided same are approved by Tenant, which approval
shall not unreasonably be withheld or delayed.
(xvi) Costs of warranty work (except that work originally done by Lessor's
or Lessor's general contractor's own forces) properly requested by
Lessor or Lessee herein. This item shall apply only to work which
Lessor or Lessor's general contractor may be compelled to perform
because of breach by subcontractors.
(xvii) Design and engineering costs incurred by Lessor or Lessor's general
contractor in connection with the design aspects of the Work, such
costs to be in accordance with the Schedule I-1 attached hereto.
(xviii) Sewer and water residential equivalency charges and sewer availability
charges.
Notwithstanding the above, Cost of the Work shall not include the following:
1. The premium portion of overtime wages and benefits except to the
extent same (a) has been approved in advance by Lessee or (b) the
applicable overtime is routinely appropriate for completion of the
applicable portion of the work such as cement finishing.
2. Costs for correction of the work (other than minor jobsite
corrections) arising out of the negligence or other fault of Lessor or
Lessor's general contractor except as provided in subparagraph (xvi)
above.
3. Costs of Lessor's or Lessor's general contractor's home office
overhead and accounting except as expressly included above.
-3-
<PAGE>
REIMBURSABLE EXPENSES
A. All following costs will be billed separately at 1.00 times direct cost:
- Expense of transportation in connection with the project
- Long distance communications, postage and handling of documents
- Expense of reproductions for Lessor and Lessee approvals, city
submittals, bidding, construction, and subcontractor's use, including
revisions thereof
- Expense of renderings, models, and mockups requested by Lessee
- Expense of special consultants requested by Lessor or Lessee
B. Expenses for plotting will be billed separately at $19.70 per vellum
(30"x42") and $25.40 per mylar (30"x42").
-5-
<PAGE>
EXHIBIT I-2
THE BIDDING PROCESS
1. Bidder's List.
- A potential bidder's list of approved pre-qualified bidders will be
developed by Lessor for each subcontract category. Such list will be
reviewed with Lessee and amended to reflect mutually agreed-upon
changes.
- The bidder's list for each subcontract category can be added to or
deleted from any time up until award of subcontract.
- Bidder's lists will be determined based on the bidder's
qualifications, past experience on similar type projects, availability
to do the work, financial strength, and previous history with doing
business with Lessor.
2. Review of Bids.
- All bids received for a specific work task will be opened for review
after the defined closure time and date as specified in the Bid
Specification Documents.
- The bids will be opened and reviewed by Lessor for, but not limited
to: completeness, compliance with bid request, dollars versus budget
comparison, and ability of subcontractor to complete commitment.
Lessee may participate in the bid review process if it so elects.
3. Selection of Subcontractor.
- After review of bids, Lessor shall prepare recommendations for award
and present same to Lessee for approval.
- Lessee will reserve the right to reject any or all of Lessor's
recommendations to award and, if justified by good faith reasons, to
select any bid regardless of cost, but shall pay any cost detriment to
Lessor in connection with such action. Lessor shall not be required
to accept bids which are unacceptable to it or to do business with any
subcontractor to whom Lessor has reasonable objection. Lessee's
approval shall not be unreasonably withheld or delayed.
Lessee shall be responsible for all costs of delays (including lost
rent) necessitated by rebidding or delays in bid opening required by
Lessee.
<PAGE>
4. Work by Lessor's Own Forces.
- All grading/earthwork, cast-in-place concrete, masonry, carpentry,
general conditions and drywall work shall be performed at Lessor's
option by Lessor's own forces without requirement of competitive
bidding.
-2-
<PAGE>
EXHIBIT J
ITEMS AND SYSTEMS TO BE
CONSTRUCTED AND INSTALLED
BY LESSEE
1. Compressed air system: air compressors, compressed air driers, and various
controls
2. Overhead lift systems: cranes, rails and bridges, and controls
3. Vacuum systems: vacuum pumps, vacuum piping, controls, etc.
4. Production exhaust: exhaust fans, exhaust ductwork and controls
5. Mist collectors: mist separators, ductwork and controls
6. Racking: the warehouse racking, and miscellaneous racking apparatus
7. All furniture
8. Signage
9. Computers and computer networks
10. Computer room
11. Video teleconference equipment
12. Audio/visual equipment
13. Phones, phone switch, phone mail
14. Paging and music systems
Initials:
---------
Lessor /s/ J.H.
-------------
Lessee /s/ R.M.
-------------
<PAGE>
EXHIBIT K
1. Any improvements which would cause the Premises upon termination of this
Lease to not have full and reasonable mechanical, plumbing, air
conditioning, electrical and lighting systems in good working order.
2. Main electric switch gear or secondary gear required for operation of HVAC
equipment and lighting systems or electrical power panels or primary or
other HVAC units or equipment reasonably necessary to provide heating to
65 DEG. in accordance with good engineering practice, together with
associated piping and duct work.
3. Dock hardware and necessary ancillary tools, dual dock, dock levelers, dock
locks, dock seals.
4. All office improvements for the office portion of the Premises which Lessor
allows to remain. Lessor shall allow, at a minimum, Lessee to leave the
initial office space as contemplated by the plan attached hereto as Exhibit
K-1.
5. All air conditioning systems.
6. Heating equipment (boilers, hot water pumps, baseboard heating, space
heaters at loading areas).
7. Electrical distribution (480 volt switchgear, 480/120 transformers,
panelboards and motor control centers).
8. Building management system (computer controlled temperature controls).
9. Security system (card access system, door locks and controlling computer).
10. Fire alarm system (electronic monitoring and alarming of all fire systems).
11. Interior systems (restrooms, coat rooms, lunchroom, carpet, walls, doors,
etc.).
Initials:
---------
Lessor /s/ J.H.
-------------
Lessee /s/ R.M.
-------------
<PAGE>
EXHIBIT K-1
TRENTON COMMERCE CENTER
HUTCHINSON TECHNOLOGY
[FLOOR PLAN]
<PAGE>
EXHIBIT 10.4
Amendment to Hutchinson Technology Incorporated 401-K Plan effective
April 1, 1995, amending Sec. 5.2 in its entirety to read as follows:
SEC. 5.2 MATCHING CONTRIBUTIONS. The Company will make a
Matching Contribution for each eligible Participant for each calendar
quarter according to the following:
(a) Commencing April 1, 1995, the Matching Contribution for each
eligible Participant will be determined according to the following
schedule:
If the Participant contributed the The Matching Contribution will
following percent of Certified be the following percent of the
Earnings as Salary Reduction Participant's Certified Earnings
Contributions for the calendar quarter: for the calendar quarter:
--------------------------------------- --------------------------------
Less than 1% 0%
At least 1% but less than 2% 3%
2% or more 6%
(b) To be eligible to receive a Matching Contribution for a
particular calendar quarter, a Participant (i) must be employed by the
Company or an Affiliate on the last day of the calendar quarter,
(ii) must have completed at least 1000 Hours of Service during the
calendar year preceding the year in which falls the calendar quarter
for which a Matching Contribution is to be made, and (iii) must have
had in effect a salary reduction agreement on each day during the
particular calendar quarter under which the Participant elected
Salary Reduction Contributions of at least 1% of Certified Earnings.
(c) Notwithstanding that a Participant's actual Salary Reduction
Contributions may be reduced below 1% of Certified Earnings because of
the requirements of Sec. 5.3, Sec. 5.4 or Sec. 5.6, or because the
Participant has reached the limit for the calendar year under
Sec. 5.1(g), the Participant will be deemed to have met the "1% rule"
of clause (iii) of subsection (b) if the Participant had previously
made the requisite election and such election would have been in
effect throughout the particular calendar quarter for which the
Matching Contribution is to be made if those provisions did not
apply. For purposes of applying subsection (a), such a Participant
will be deemed to have made the Salary Reduction Contributions that
would have been made during that quarter if the Participant's Salary
Reduction Contributions for the entire Plan Year had been made equally
during each calendar quarter for which the requisite election was
in effect.
(d) Any individual who becomes a Participant on a July 1 Entry Date
will be deemed to satisfy the Hour of Service requirement of clause
(ii) of subsection (b) for the remainder of the year in which the
Entry Date occurs.
(e) Any Forfeitures for a Plan Year which are not used to reinstate
Accounts pursuant to Sec. 9.2(b) shall be credited against the
Company's Matching
<PAGE>
Contributions for that Plan Year. If Forfeitures for a Plan Year
exceed the total Matching Contributions due from the Company for that
year, the excess Forfeitures shall be allocated as additional Matching
Contributions for that year by proportionately increasing the
allocations under subsection (a) to the extent necessary to consume
the Forfeiture.
-2-
<PAGE>
EXHIBIT 11
HUTCHINSON TECHNOLOGY INCORPORATED
STATEMENT REGARDING COMPUTATION
OF NET INCOME PER SHARE - UNAUDITED
(In thousands, except per share data)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-Six Weeks Ended
------------------------ ------------------------
March 24, March 26, March 24, March 26,
1996 1995 1996 1995
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET INCOME $4,332 $4,084 $7,194 $6,429
------- ------- ------- -------
------- ------- ------- -------
NET INCOME PER SHARE -
PRIMARY:
Weighted average common
shares outstanding 5,448 5,336 5,448 5,335
Dilutive effect of stock options
outstanding after application
of treasury stock method 148 110 158 105
------- ------- ------- -------
5,596 5,446 5,606 5,440
------- ------- ------- -------
------- ------- ------- -------
PRIMARY
NET INCOME PER SHARE $0.77 $0.75 $1.28 $1.18
------- ------- ------- -------
------- ------- ------- -------
NET INCOME PER SHARE -
FULLY DILUTED:
Weighted average common
shares outstanding 5,448 5,336 5,448 5,335
Dilutive effect of stock options
outstanding after application
of treasury stock method 148 133 158 133
------- ------- ------- -------
5,596 5,469 5,606 5,468
------- ------- ------- -------
------- ------- ------- -------
FULLY DILUTED
NET INCOME PER SHARE $0.77 $0.75 $1.28 $1.18
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND CONSOLIDATED STATEMENT OF OPERATIONS OF
HUTCHINSON TECHNOLOGY INCORPORATED FOR THE TWENTY-SIX WEEKS ENDED
MARCH 24, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-29-1996
<PERIOD-START> SEP-25-1995
<PERIOD-END> MAR-24-1996
<CASH> 18,535,000
<SECURITIES> 2,061,000
<RECEIVABLES> 46,180,000
<ALLOWANCES> 2,161,000
<INVENTORY> 18,789,000
<CURRENT-ASSETS> 89,632,000
<PP&E> 242,916,000
<DEPRECIATION> 128,211,000
<TOTAL-ASSETS> 212,372,000
<CURRENT-LIABILITIES> 50,197,000
<BONDS> 30,680,000
0
0
<COMMON> 109,000
<OTHER-SE> 126,886,000
<TOTAL-LIABILITY-AND-EQUITY> 212,372,000
<SALES> 169,878,000
<TOTAL-REVENUES> 169,878,000
<CGS> 130,555,000
<TOTAL-COSTS> 130,555,000
<OTHER-EXPENSES> 12,803,000<F1>
<LOSS-PROVISION> 986,000
<INTEREST-EXPENSE> 887,000
<INCOME-PRETAX> 9,222,000
<INCOME-TAX> 2,028,000
<INCOME-CONTINUING> 7,194,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,194,000
<EPS-PRIMARY> 1.28
<EPS-DILUTED> 1.28
<FN>
<F1>Other Expenses reflect Research and Development expenses.
</FN>
</TABLE>
