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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [FEE REQUIRED] For the Fiscal Year Ended December 31, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transaction period from _______________ to ______________.
Commission File Number: 0-21992
FOURTH SHIFT CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 41-1437794
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
Suite 800
Two Meridian Crossings
Minneapolis, Minnesota 55423
(Address of principal executive office)
(612) 851-1500
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock,
$.01 par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to the Form 10-K. [ ]
As of February 28, 1999, the aggregate market value of the registrant's
Common Stock, $.01 par value, held by nonaffiliates of the registrant was
$50,123,498 (based on the closing sale price of common stock as of February
28, 1999 as quoted on the Nasdaq National Market).
As of February 28, 1999, there were 10,293,777 shares of the registrant's
Common Stock, $.01 par value, issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
The responses to items 10, 11, 12 and 13 herein are incorporated by reference
to certain information in the Company's Definitive Proxy Statement for its
Annual Meeting of Shareholders to be held May 4, 1999.
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PART I
ITEM 1. BUSINESS.
GENERAL
Fourth Shift Corporation (the "Company") develops and markets
client/server-based application software for industrial planning and
management processes. The Company's principal product, the Fourth
Shift-Registered Trademark- Manufacturing Software System for OBJECTS
("MSS"), is a family of integrated manufacturing and financial management
applications for intermediate-sized sites of manufacturing and distribution
enterprises. The MSS system operates in a Windows NT and Novell open
computing environment. Founded in 1982, the Company reincorporated in
Minnesota in 1984. In 1985, the Company introduced the first modules of the
MSS product line.
The period from 1994 through 1998 was a period of steady growth for the
Company. The Company both expanded the range of services it offers with the
MSS product line and the geography it covers. In 1994, the Company worked to
expand sales both domestically and internationally, instituted new service
programs, introduced CD-Rom based training aids, and introduced a release
that combined the domestic and international versions of the MSS product into
a single version with increased functionality. Total revenue continued to
expand during 1995, as the breadth of the MSS product line continued to
expand and the Company's sales continued to grow internationally in Asia and
the Pacific Rim. The Company introduced a graphical user interface providing
Windows operability and released a version of MSS for the Windows NT
operating system in 1995, together with new modules designed to provide sales
order processing and cash management functions.
During this period, the Company's operations were impacted by the December
1992 acquisition of Just In Time Enterprise Resources ("JIT"). JIT is an ERP
system for the aerospace industry that functioned in the UNIX/Oracle
environment. The Company devoted substantial resources, including proceeds
from its initial public offering, to improve the JIT code and instituting
sales and development procedures designed to improve the profitability of the
product line. Because of the drain on Company resources, the JIT product line
was sold in 1995. The JIT operations are included in the Company's financial
statements as discontinued operations.
In 1996, the Company experienced another year of growth, both internationally
and domestically. This was accomplished through sales and marketing
expansion, new product offerings and continued expansion of its international
operations.
Total revenue expanded at a slower rate than the historical average during
1997. The revenue growth in North America and Europe was offset by decreased
revenue in Asia. The growth was achieved through sales and marketing
expansion and increased product and service offerings. New MSS product
offerings included the development of an enhanced graphical user interface,
an engineering module, a screen customizer module, and an enlarged database.
Revenues in Asia decreased primarily as a result of economic problems,
particularly in the last half of the year.
The Company's 1997 operations were also impacted by the development of the
Fourth Shift Objects technology ("OBJECTS"). Starting mid-1995, the Company
devoted substantial resources to the development of OBJECTS. The Company
completed a working model and introduced the first modules of this system in
1997, however absent the broad functionality of the established MSS product,
OBJECTS did not meet market expectations. As part of a restructuring plan
announced in December 1997, the Company reevaluated its OBJECTS development
activities and product strategy. As a result, the development operations of
MSS and OBJECTS were combined in 1998 reducing product development costs
absolutely and as a percentage of revenue.
In 1998, the Company returned to profitability by generating more than
$3,250,000 in operating income with total revenue growth of 30%. North
America and Europe revenue grew due to improved sales strategies, increased
sales headcount and expanded product and service offerings. Asia revenue
decreased slightly from 1997 to 1998. The decline is primarily attributable
to economic problems in Asia that have softened the demand for enterprise
software solutions.
The Company introduced eight new releases of MSS in 1998, as well as support
for Microsoft SQL Server, which will open new markets for the Company.
Additionally, customers trading with European Union countries were capable of
accommodating the new currency rules due to the Company's products being
Euro-ready.
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PRODUCTS - MSS FOR OBJECTS
The Company's principal product, the Fourth Shift-Registered Trademark-
Manufacturing Software System for OBJECTS ("MSS"), provides client/server
computing in the Windows/Windows NT/NetWare open system environments and an
integrated approach to the industrial planning and control processes known as
MRP II. A customer can combine any number of software modules within this
product line to provide on-line access to real-time information for MRP,
bills of material, capacity requirements planning, master production
scheduling and financial management. Information is communicated consistently
among the various functional modules of MSS through a common database,
facilitating the automatic updating of common information used by all
applications. Using this system, a customer can manage inventory to
significantly reduce carrying costs, manage material ordering to limit
manufacturing shortages, manage manufacturing to reduce finished goods
surpluses or shortages, immediately access information necessary to
communicate customer order scheduling on-line, monitor overall manufacturing
and problem areas to maximize efficiency and quickly produce financial
reports that are consistent with manufacturing records.
MSS is a family of more than 40 integrated manufacturing, accounting, sales
and information management applications and third party products designed to
support decision-making in an industrial company. MSS is designed for and
primarily licensed to intermediate-sized manufacturing and distribution
companies and remote sites of larger companies, that are in need of a broadly
functional but easily implemented, off-the-shelf application system for up to
and beyond 100 concurrent users. MSS is distributed with a shrink-wrap
license in standardized modules with extensive documentation and training
aids. MSS is modular, so users can begin with fundamental applications and
add more specialized functionality as their requirements evolve and grow.
The Company believes that the following features of MSS allow it to compete
successfully with other LAN-based products: (i) MSS is an integrated and
flexible system designed to allow fast, multi-user access to data; (ii) MSS
includes over 40 integrated application modules and third party products that
have been refined to provide broad, deep functionality in ERP applications,
including international features such as multiple currency and language
translation capabilities; (iii) MSS applications generally require fewer
keystrokes and screens per task than comparable products; (iv) MSS can be
rapidly and easily implemented through a standardized process using extensive
training aids, both interactive CD-ROM and classroom; (v) MSS is easy to use
and offers seamless integration with off-the-shelf word processing,
electronic mail, spreadsheet and other applications, (vi) MSS is offered with
a comprehensive support program with local, national and international
support organizations, (vii) MSS supports multiple currencies and is
available in most major languages, and (viii) MSS is designed to encourage
business process reengineering and efficiency in its customers' manufacturing
processes.
MSS also provides a means to interface MSS with third-party applications
through the MSS connectivity modules. The Company licenses a number of
third-party software products that have been designed to operate with MSS.
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The following is a list of current MSS product line offerings:
<TABLE>
<CAPTION>
MANUFACTURING MODULES FINANCIAL MODULES THIRD-PARTY PRODUCTS
- --------------------- ----------------- --------------------
<S> <C> <C>
Inventory Management Financial Management Data Net, data collection system
-Inventory Control -Accounts Payable VisiBar, collection system
-Shipping -Accounts Receivable & Integrated EDI System
-Lot Trace/Serialization Invoicing Advanced Planning (APS)
Manufacturing Operations -General Ledger Rules-Based Configurator
-Manufacturing Order Management Payroll Connection Cash Collection & Management
-Repetitive Manufacturing General Ledger Restructuring Package Cycle Counting/Inventory
Product Definition Multi-Currency Management Management
-Bill of Material Cash Management Manufacturing Variance Analysis
-Product Costing Message Analysis & Reporting
Planning and Scheduling SYSTEM-WIDE MODULES Formula Management
-Materials Requirements Planning ------------------- Remote Communications
Vendor Operations System Administration Customer Relationship Management
-Purchasing -Configuration (CRM)
-Approved Vendor Sourcing -System Control Paperless Document Management
Custom Products Manufacturing -CIM Data Import Electronic Business Forms
Co-Products Manufacturing -CIM Data Export Automated Timekeeping
Material Management/Analysis -Management Reports Quote Management
Operations Performance -Framework for Windows Engineering Change Order
Shop Floor Tracking and Reporting Executive Information System(EIS) Management
Engineering Module CIM Customizer Forecast Management System
Screen Customizer ISO9000 Implementation System
SALES ACTIVITY MODULES Bill of Material Analysis
- ---------------------- Store Front Cash Collections System
Customer Operations
-Order Entry
-Advanced Price Book
Sales Analysis
Rules Based Pricing
Sales Order Processing
</TABLE>
The MANUFACTURING MODULES provide on-line information enabling users to solve
material shortage, excess inventory and manufacturing efficiency problems.
The Inventory Management Module, which maintains and provides inventory
status information, is the basic building block for all other manufacturing
applications. It works with the Planning and Scheduling Module, which
calculates the optimum manufacturing plan based on continual updates from
other modules; with the Product Definition Module, which maintains
information relating to the materials, resources, costs, and tools necessary
to manufacture each product; and with the Manufacturing Operations Module,
which verifies component availability, picks materials and calculates
material usage variances.
The function of these modules can be further enhanced for use in specific
manufacturing environments with the Shop Floor Tracking and Reporting Module,
the Co-Products Manufacturing Module and the Custom Products Module. In
addition, the Vendor Operations Module helps buyers manage vendor
relationships and the Material Management/Analysis Module allows for
simulations and engineering-change control. The Engineering Module permits
engineering information to be integrated with bill of material information.
The SALES ACTIVITY MODULES address customer service issues. The Sales Order
Processing Module gives customer service representatives on-line support for
entering and tracking orders. Representatives can act on credit problems and
reschedule orders to meet changing delivery dates. The Rules Based Pricing
Module further extends order entry functionality to allow the user to create
pricing models for individual customers or buying groups. Sales Analysis
tracks detailed and summarized sales information by item, customer, and
order. Sales commissions are also captured and tracked with the Sales
Analysis Module.
The FINANCIAL MODULES are tightly integrated with the manufacturing and sales
activity modules so that financial transactions are automatically created as
a result of business activity. The Financial Management Module provides
comprehensive management of a company's financial position and generates
financial reports through the module's general ledger function. This module
also controls the processing of supplier invoices from invoice entry to check
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printing and reconciliation. Similarly, customer invoicing, cash application,
and accounts receivable management is supported by the Financial Management
Module. The Multi-Currency Management Module offers exchange rate tracking
and allows transactions to be stated in the trading partners' currency. The
Cash Management Module allows customers to track cash transactions and
banking activity while providing period-end reconciliations of cash activity.
The Payroll Connection permits outside payroll services to download payroll
information into the general ledger portion of the Financial Management
Module.
The SYSTEM-WIDE MODULES extend and enhance the manufacturing, sales activity
and financial modules. The System Administration Module is used to tailor the
MSS modules to each customer's needs, and contains key features such as audit
trails, multi-language support, VAT tax, system-wide security and Novell or
Windows NT support. The System Administration Module also provides CIM
connectivity to either commercial or user-developed third-party applications.
Open Database Connectivity (ODBC) is also provided under the System
Administration Module: this provides access to the MSS database via ODBC
enabled applications, i.e., MICROSOFT CORPORATION'S OFFICE SUITE OF PRODUCTS.
Additional system-wide modules such as Executive Information Systems (EIS),
CIM Customizer, and Screen Customizer complement the System Administration
Module by providing broader functionality. The EIS Module provides
decision-makers a key performance measurement tool that displays a quick
overview of the state of the entire business. The CIM Customizer Module
allows the user to extend the MSS applications by embedding other application
software into the processing flow of the MSS system. The Screen Customizer
permits the customers to configure certain screens to fit their business
application.
The typical customer licenses between $50,000 and $90,000 of MSS software.
MSS license revenue totaled $26,284,000 for the year ended December 31, 1998
or approximately 39% of the overall revenue of the Company.
THIRD-PARTY PRODUCTS. The Company also licenses, implements and supports
third-party software and hardware products, which are integrated to function
with the MSS software. These products extend the functionality of Fourth
Shift's software and provide a broader solution to Fourth Shift clients. At
December 31, 1998, the Company had 14 agreements with various third-party
software and hardware vendors to license third-party products. Third-party
products revenue totaled $3,957,000 during the year ended December 31, 1998.
SERVICES
The Company offers a broad range of services for its MSS product line,
including a comprehensive customer support program, implementation
consulting, network-related technical consulting, custom software development
and extensive training programs. Such services constituted 56%, 52% and 48%
of the Company's revenue from continuing operations during 1998, 1997 and
1996, respectively.
CUSTOMER SUPPORT PROGRAM. The Company offers a standardized customer support
program ("CSP") for MSS. CSP is a comprehensive, fee-based program designed
to help customers obtain the maximum benefit from their business management
software. CSP subscribers pay an annual fee of 15-18% of the current list
price of the modules licensed. Approximately 75% of the currently active
users of MSS products subscribe to CSP. The Company believes CSP is a stable
and reliable source of revenue, which the Company intends to continue to
emphasize to its new and existing customer base.
Included among the materials and services furnished through CSP are new
product releases, telephone technical and application support, a software
tool kit, an electronic bulletin board, and newsletter and application notes.
Updated and enhanced versions of the Company's software products are provided
to CSP subscribers as part of the annual subscription fee. Telephone support
calls are handled by manufacturing, financial and technical experts located
in Fourth Shift offices in the United States, Mexico, United Kingdom,
People's Republic of China, and Singapore. Additionally, certain distributors
handle support calls in Eastern Europe and the Middle East.
PROFESSIONAL SERVICES. The Company offers implementation consulting and
training for use of its MSS products, as well as custom software development
services. Implementation consulting services, available on a fee basis,
include implementation planning, project management and specialized custom
training. The Company offers a special implementation workshop designed to
ease the MSS implementation process, a readiness audit to identify problems
prior to using the system, business reviews to maximize the utility of the
system once installed and several benchmarking tests to measure performance
against competitors.
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The Company offers a series of classroom and individual on-site training
options. Training includes classroom instruction at the Company's offices in
the United States, United Kingdom and People's Republic of China and at
authorized training centers or at customer sites. Customers may also purchase
Mentor-TM-, the self-paced interactive CD-Rom training module, to supplement
standard training classes while serving as an update class for the occasional
user.
The Company also offers, on a limited basis, custom software development
services to meet specific customer requirements, and to integrate MSS with a
customer's existing computer systems and/or third-party software providers.
MARKETS
The Company targets the Tier 3 manufacturing market (Tier 3 is manufacturing
companies with revenues less than $150 million). MSS is licensed primarily to
mid-sized manufacturing companies, or business units of larger manufacturing
companies, that generate more than $5 million of revenue annually and require
up to approximately 100 concurrent users. In addition, MSS is licensed to
manufacturing sites of Fortune 500 companies. MSS is used by discrete
manufacturers (which assemble or machine parts into finished products) and by
process manufacturers (which mix, separate and otherwise combine or control
ingredients to create finished products). It has broad application and use in
the computer and electronics, machinery, consumer goods, automotive and
fabricated products industries.
SALES AND MARKETING
The Company distributes its products and services through a direct sales
force and value-added resellers in major markets, and through sales agents in
secondary markets. The Company maintains regional sales offices located in
San Diego, Los Angeles, and San Ramon, California; Atlanta, Georgia; Boston,
Massachusetts; Chicago, Illinois; Cleveland, Ohio; Dallas, Texas;
Philadelphia, Pennsylvania; and Phoenix, Arizona; in addition to its
headquarters located in Minneapolis, Minnesota. The Company sells directly
through wholly owned subsidiaries in the United Kingdom, Mexico, the People's
Republic of China, South Africa, Malaysia, and Singapore, and through
distributors in the Americas, Europe, Africa, the Middle-East, and Asia.
During 1998, approximately 93% of the Company's software license revenue was
generated through direct sales personnel and 7% was generated through
resellers and agents. Approximately 73% of software license revenue was
generated in North America and 27% was generated abroad (see Note 11 to the
Consolidated Financial Statements).
The Company's direct sales personnel are compensated on a salary plus
commission basis with commissions paid monthly. This monthly commission plan
assists the Company in managing the level of its sales activity throughout
the quarter. The Company's reseller agreements generally provide that sales
will be made by authorized resellers on a nonexclusive basis from offices
within a designated territory. The agreements obligate the Company to license
to the end-user through a value added reseller (VAR) at specified prices and
to provide training to each reseller. The Company also maintains a staff of
systems consultants who offer pre- and post-sales support to the sales force
and to customers.
The Company markets its products through advertising campaigns in national
trade periodicals, direct mail and telemarketing. These efforts are
supplemented by listings in relevant directories and trade show and
conference appearances. The Company also receives leads from its hardware and
services vendors, customers and various accounting and consulting firms.
Sales cycles for the Company's products vary substantially based on the
degree of integration, consulting and training required and also on the
status of the customer's implementation of a hardware system. The product
sales cycle is usually four to six months from the time an initial sales
presentation is made to a customer until the software is delivered and
licensed. The Company's products are typically shipped within 48 hours of
receipt of order. Generally 40-50% of the price is paid when the order is
made and the balance is due 30 days after delivery of the product.
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STRATEGIC ARRANGEMENTS
Part of the Company's sales and marketing strategy is to build and develop
relationships with companies that will play an important role in the
successful marketing of the Company's products. These companies include
system software suppliers (such as Microsoft Corporation) and database
companies (such as Micro Data Base Systems, Inc. and Microsoft Corporation).
The Company uses products from system software suppliers to develop the
Company's application software products. The suppliers also serve as
technical references for future prospects. Arrangements with database
companies allow the Company to sublicense database management systems with
its products and to provide fee-based support for licensees.
PRODUCT DEVELOPMENT
Historically, the Company has invested heavily in research and development.
During the years ended December 31, 1998, 1997 and 1996, the Company recorded
research and development expenses from continuing operations of $7,571,000,
$9,271,000 and $8,674,000, respectively. In addition, the Company capitalized
$1,023,000 and $3,819,000 in 1998 and 1997, respectively, of development
costs related to the development of MSS for OBJECTS functionality and related
modules that had reached technological feasibility. The Company begins
amortization of previously capitalized costs upon general distribution of the
product and uses a three-year economic life of the framework and modules.
Amortization expense totaled $625,000 and $720,000 in 1998 and 1997,
respectively.
In December 1997, the Company evaluated its cost structure and the future
marketability of its products and wrote off $1,630,000 of previously
capitalized development costs as a result in the change in product strategy.
This write off is included in the 1997 restructuring charge totaling
$2,566,000. In 1998, the Company wrote off $458,000 of previously capitalized
technology that was no longer aligned with the Company's product strategy.
In 1997, in addition to investing significant resources in the development of
OBJECTS, the Company continued to develop and enhance its MSS Product. New
modules, an expanded database, and additional third party product offerings
were added.
In 1998, the Company's product strategy was focused on providing solutions
for the Company's primary customer base. Future releases will incorporate
much of the OBJECTS technology including support for both Micro Data Base
Systems Inc. (MDBS) and Microsoft SQL Server databases, and multi-company,
multi-plant application functionality. Releases in 1998 provided an Internet
ready application software release targeted for small to mid-size
manufacturers.
The computer industry is characterized by rapid technological advances,
changes in customer requirements and frequent new product introductions and
enhancements. The Company's future success will depend upon its ability to
enhance its current products and to develop and introduce new products that
keep pace with technological developments, respond to evolving customer
requirements and achieve market acceptance. In particular, the Company
believes it must continue to respond quickly to users' needs for broad
functionality and multiplatform support and to advances in hardware and
operating systems. Failure to anticipate or respond adequately to
technological developments and customer requirements, or any significant
delays in product development or introduction, could result in a loss of
competitiveness and revenues. In the past, the Company has experienced delays
in the introduction of new products and product enhancements. These
development efforts are dependent upon the availability of adequate cash to
fund them. See "Item 7. Management's Discussion of Financial Condition and
Results of Operations." There can be no assurance that the Company will be
successful in developing and marketing new products or product enhancements
on a timely basis or that the Company will not experience significant delays
in the future, which could have a material adverse effect on the Company's
results of operations. In addition, there can be no assurance that new
products or product enhancements developed by the Company will achieve market
acceptance.
COMPETITION
The computer industry is intensely competitive and rapidly changing. Due to
the flexibility of the Company's products, the Company's competitors range
from providers of high-end industrial application software for use on
mainframes and minicomputers to providers of low-end application software for
use on PCs and LANs. Because of the wide functionality of the Company's
product line, competitors include providers of financial and business
application software as well as industrial and manufacturing resource
planning software. The Company competes generally on the basis of product
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features and functions, product architecture, the ability to run on a variety
of industry standard platforms, technical support and other related services,
ease of product integration with third-party application software and
price/performance. The ability to address thoroughly the requirements for
various forms of manufacturing (discrete, process, etc.), efficiency of the
user interfaces and commands, computational speed and responsiveness, ease of
implementation, support for application integration, extensive training
materials, and established local support and training are key competitive
factors with respect to MSS.
MSS currently competes primarily in the market for PC-based ERP software. The
Company's primary competitors in this market include Lilly Software
Associates, Made2Manage Systems, Inc., Micro MRP, Inc., Macola, Inc., Symix
Systems, Inc., Platinum Software, and QAD, Inc. In addition, there are a
number of smaller, regional companies that produce MRP II software for PCs.
The Company believes that purchases in this market are based primarily on
hardware platform and operating system (DOS/Windows/Windows NT/NetWare for
LANs versus UNIX systems), functionality, ease of implementation, application
integration and industry reviews. The Company believes that the MSS product
line competes favorably in the portion of this market intended for
DOS/Windows/Windows NT/NetWare operating systems and LANs.
The Company's products compete indirectly with providers of financial and
accounting software for PCs and other specialized applications in the markets
it serves. Competition from this market arises primarily when a customer is
seeking only a very narrow solution and the Company believes its products
compete favorably with such products on the basis of broad functionality and
complete vertical integration.
Many of the Company's competitors have greater financial, marketing and
technological resources than the Company. There can be no assurance that
other companies have not developed or marketed or will not develop or market
software products that are superior to those of the Company, that are offered
at substantially lower prices than those of the Company or that have achieved
or will achieve greater market acceptance than those of the Company.
INTELLECTUAL PROPERTY
The Company has registered its "FOURTH SHIFT", "FOURTH SHIFT OBJECTS
ENTERPRISE SOFTWARE", and "MENTOR" trademark for software services and
products with the United States Patent and Trademark Office and with the
equivalent offices of most foreign countries in which it does business. The
Company also registers the copyright on its MSS software products.
The Company regards its software as proprietary in that title to and
ownership of the software reside exclusively with the Company. The Company
attempts to protect its rights with a combination of trademark, copyright,
employee and third-party nondisclosure agreements. Despite these precautions,
it may be possible for unauthorized parties to copy or reverse-engineer
portions of the Company's products. While the Company's competitive position
could conceivably be threatened by its inability to protect its proprietary
information, the Company believes that copyright and trademark protection are
less important to the Company's success than other factors such as the
knowledge, ability and experience of the Company's personnel, name
recognition and ongoing product development and support.
The Company's software products are licensed to end users under a perpetual,
nontransferable, nonexclusive license that stipulates which modules can be
used and how many concurrent users may use them. The Company relies primarily
on "shrink wrap" licenses for the protection of MSS. A "shrink wrap" license
agreement is a printed license agreement included in the packaged MSS
software that sets forth the terms and conditions under which the licensee
can use the product, and binds the licensee by its acceptance and license of
MSS to such terms and conditions. Shrink wrap licenses typically are not
signed by the licensee and therefore may be unenforceable under the laws of
certain jurisdictions.
As the number of software products in the industry increases and the
functionality of these products further overlaps, the Company believes that
software programs could become increasingly the subject of infringement
claims. Although the Company's products have never been the subject of an
infringement claim, there can be no assurance that third parties will not
assert infringement claims against the Company in the future or that any such
assertion will not require the Company to enter into royalty arrangements or
result in costly litigation.
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PRODUCTION
The principal materials and components used in the Company's software
products include computer media, user manuals and training guides. The
Company prepares master software disks, user manuals and packaging. In some
cases, the Company uses third party vendors to duplicate disks containing its
software and to print the Company's user manuals, packaging and related
materials. To date, the Company has not experienced any material difficulties
or delays in the manufacture and assembly of its products, or material
returns due to product defects.
EMPLOYEES
As of December 31, 1998, the Company had 476 full-time employees, including
154 in sales and marketing, 86 in software programming and documentation, 173
in customer support services and 64 in finance and administration. The
Company's employees are not represented by any collective bargaining
organization and the Company has never experienced a work stoppage. The
Company believes that its relations with its employees are good.
ITEM 2. PROPERTIES
In 1998, the Company's corporate headquarters were located in Minneapolis,
Minnesota, in a leased facility consisting of roughly 58,000 square feet,
occupied under a lease which expired December 31, 1998. In conjunction with
the expiration of the lease, the Company relocated its corporate headquarters
in January 1999. A 10-year lease was signed for a new facility in Minneapolis
that consists of approximately 57,000 square feet. The Company also leases
15,400 square feet, approximately 8,700 square feet of which is subleased to
a third-party, of space for a second principal office in San Ramon,
California pursuant to leases expiring in August 1999. In conjunction with
the December 1997 restructuring plan, the Company's San Jose office, which
encompasses 4,561 square feet, has been vacated and the Company has subleased
to a third-party. (See Note 4 of Notes to Consolidated Financial Statements
for information on the Company's restructuring plan). The Company leases
additional facilities for domestic operations in San Diego and Los Angeles,
California; Atlanta, Georgia; Boston, Massachusetts; Chicago, Illinois;
Cleveland, Ohio; Dallas, Texas; Philadelphia, Pennsylvania; Nashua, New
Hampshire; and Phoenix, Arizona. The Company also leases facilities and
offices for its international operations in London, Paris, Mexico City,
Johannesburg, Port Elizabeth, Malaysia, Tokyo, Taiwan, Singapore and in
Beijing, Tianjin, Guangzhou, Quing Dao, Nanjing, and Shanghai of the People's
Republic of China. The Company believes that its existing facilities are
adequate to meet its current needs and that suitable additional or
alternative space will be available as needed to accommodate expansion of
corporate operations and for additional sales offices. See Note 8 of Notes to
Consolidated Financial Statements for information regarding the Company's
lease obligations.
ITEM 3. LEGAL PROCEEDINGS
From time to time the Company is involved in litigation relating to claims
arising from its operations in the normal course of business. As of the date
of this filing, neither the Company nor any of its subsidiaries is a party to
any legal proceedings, the adverse outcome of which, in management's opinion,
would have a material adverse effect on the Company's results of operations
or financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable
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EXECUTIVE OFFICERS
Marion Melvin Stuckey, age 60, is the founder of the Company and has been the
Chief Executive Officer and Chairman of the Company since 1982. Prior to
forming the Company, Mr. Stuckey was an executive officer of Control Data
Corporation ("CDC"), a multinational computer hardware, peripherals and
services company, from 1975 to 1982. Prior to that Mr. Stuckey served in
various sales, marketing and management positions at IBM from 1960 to 1975.
Jimmie H. Caldwell, age 59, has been President, Chief Operating Officer and a
Director of the Company since 1984. Prior to that time, Mr. Caldwell served
in various positions at CDC from 1964 to 1984 and held the position of Vice
President of Operations for CDC's Peripheral Products Company when he left to
join the Company.
David G. Latzke, age 39, has been Vice President and Chief Financial Officer
since April 1994. Mr. Latzke joined the Company as director of special
projects in April 1993. From 1982 until April 1993, Mr. Latzke was a manager
with the Audit and Business Advisory Division of Arthur Andersen LLP.
10
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
NASDAQ Symbol
The Company's common stock trades on the NASDAQ National Market tier of The
NASDAQ Stock Market under the symbol FSFT.
Price Range of Common Stock
The following table sets forth the high and low sales price of the Common
Stock as quoted by the NASDAQ National Market System for the periods
indicated. Such prices include inter-dealer prices, and may not include
retail markup, markdown or commissions.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
FISCAL 1997:
First Quarter 6 1/8 3 5/8
Second Quarter 5 2 3/4
Third Quarter 5 3/4 4
Fourth Quarter 4 5/8 2 5/8
FISCAL 1998:
First Quarter 3 1/8 2 1/4
Second Quarter 4 9/16 2 1/2
Third Quarter 5 9/16 3 1/8
Fourth Quarter 4 3/4 2 7/16
</TABLE>
As of December 31, 1998, there were 249 shareholders of record and, based on
the best available information, approximately 2,194 beneficial holders of the
Company's Common Stock. The Company has never paid cash dividends on its
Common Stock and currently intends to retain earnings for use in operations.
11
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Selected Consolidated Financial Data
(In Thousands, Except Per Share Data)
STATEMENT OF OPERATIONS DATA- 1998 1997 1996 1995 1994
---------- --------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C>
REVENUE:
Software license $ 26,284 $ 21,883 $ 22,947 $ 17,128 $ 13,956
Service 37,963 27,137 23,822 18,097 13,937
Third-party software and other 3,957 3,298 2,541 1,999 2,183
---------- --------- ----------- ----------- ----------
Total revenue 68,204 52,318 49,310 37,224 30,076
---------- --------- ----------- ----------- ----------
OPERATING EXPENSES:
Cost of licenses 4,577 2,767 2,601 1,708 1,455
Cost of services 18,274 13,209 11,747 8,868 6,356
Cost of third-party software and other 3,021 2,341 2,008 1,386 1,853
Selling, general and administrative 31,508 27,505 23,046 18,720 15,394
Product development 7,571 9,271 8,674 5,732 2,817
Restructuring charge - 2,566 - 149 -
---------- --------- ----------- ----------- ----------
Total operating expenses 64,951 57,659 48,076 36,563 27,875
---------- --------- ----------- ----------- ----------
Operating profit (loss) 3,253 (5,341) 1,234 661 2,201
Other income (expense), net (545) (432) (36) (158) 213
---------- --------- ----------- ----------- ----------
Income (loss) from continuing operations before 2,708 (5,773) 1,198 503 2,414
provision for income taxes
Provision for income taxes 465 328 189 298 159
---------- --------- ----------- ----------- ----------
Income (loss) from continuing operations 2,243 (6,101) 1,009 205 2,255
---------- --------- ----------- ----------- ----------
Discontinued operations:
Loss from discontinued operations - - - (7,642) (4,977)
Net gain on sale of discontinued operations 281 2,311 761 2,037 -
---------- --------- ----------- ----------- ----------
Total discontinued operations 281 2,311 761 (5,605) (4,977)
---------- --------- ----------- ----------- ----------
Net income (loss) $ 2,524 $ (3,790) $ 1,770 $ (5,400) $ (2,722)
---------- --------- ----------- ----------- ----------
---------- --------- ----------- ----------- ----------
Basic income (loss) per common share (1):
Continuing operations $ .22 $ (.63) $ .11 $ .02 $ .24
Discontinued operations .03 .24 .08 (.60) (.54)
---------- --------- ----------- ----------- ----------
Basic income (loss) per share $ .25 $ (.39) $ .19 $ (0.58) $ (0.30)
---------- --------- ----------- ----------- ----------
---------- --------- ----------- ----------- ----------
Diluted income (loss) per common share (1):
Continuing operations $ .22 $ (.63) $ .10 $ .02 $ .24
Discontinued operations .03 .24 .08 (.59) (.53)
---------- --------- ----------- ----------- ----------
Diluted income (loss) per share $ .25 $ (.39) $ .18 $ (.57) $ (.29)
---------- --------- ----------- ----------- ----------
---------- --------- ----------- ----------- ----------
BALANCE SHEET DATA -
Working capital surplus (deficit) $ (364) $ (4,161) $ 847 $ 1,810 $ 5,055
Total assets 33,401 31,429 31,172 24,494 23,066
Long-term obligations 835 1,299 2,304 275 269
Shareholders' equity 7,079 4,047 7,087 4,700 9,632
</TABLE>
(1) See Note 2 of notes to the Company's consolidated financial statements
for an explanation of the determination of shares used in the per common
share computation.
12
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
1998 Management's Discussion & Analysis of Financial Condition and Results of
Operations
The following discussion and analysis provides information which management
believes is relevant to an assessment and understanding of the Company's
consolidated results of operations and financial condition and should be read
in conjunction with the consolidated financial statements and notes thereto.
Cautionary statement for purposes of the "Safe Harbor" Provisions of the
Private Securities Litigation Reform Act of 1995. The following Management's
Discussion and Analysis contains various "forward looking statements" within
the meaning of federal securities laws which represent management's
expectations or beliefs concerning future events, including statements
regarding anticipated sales, marketing and research and development
expenditures, growth in revenue, capital requirements and the sufficiency of
cash to meet operating expenses. These and other forward looking statements
made by the Company, must be evaluated in the context of a number of factors
that may affect the Company's financial condition and results of operations,
including the following:
- - The ability of the Company to continually enhance the Manufacturing
Software System for OBJECTS (MSS) product to meet ever changing market
demands for both functionality and new technology;
- - Fluctuations in quarterly operating results caused by changes in the computer
industry, buying patterns and general economic conditions;
- - The ability of the Company to successfully develop its MSS product to meet
European Monetary Union requirements;
- - The dependence of the Company on revenue from licensing of its MSS product;
- - The effects of changes in technology and standards in the computer industry;
- - The significant competition among developers and marketers of industrial
software;
- - The ability of the Company to retain key employees;
- - The Company's international operations, particularly in Asia;
- - The ability of the Company to manage expansion of international
distribution channels;
- - The dependence of the MSS product line on a third-party database management
system; and
- - Evolving standards regarding intellectual property protection for software
products in general.
SALE OF JUST IN TIME ENTERPRISE SYSTEMS, INC.
In 1995, the Company sold all of the capital stock of Just In Time Enterprise
Systems, Inc. (JIT), a wholly owned subsidiary of the Company, along with
certain net assets related to the operations of JIT in the United Kingdom, to
Interactive Group, Inc. (IGI). The Company deferred recognition of the gain
associated with the note received in connection with the sale and recognized
the gain associated with this note, as well as additional amounts receivable
based on revenues generated from the JIT Enterprise System, as such amounts
were collected or are deemed collectible.
In 1996 the Company recognized a gain totaling $761,000 related to cash
received in 1996 and January 1997. In 1997 the Company recognized a gain of
$2,311,000 relating to cash received in 1997 and January 1998. In 1998 the
Company recognized a gain of $281,000 relating to cash received in 1998 and
January 1999 (see Note 3). All income taxes related to these transactions
have been offset through the utilization of net operating losses previously
generated by JIT.
13
<PAGE>
The gain on sales of JIT has been presented as discontinued operations in the
Company's consolidated financial statements. Accordingly, the discussion
contained herein relates to the continuing operations of the Company, unless
otherwise noted.
RESULTS OF OPERATIONS
REVENUE:
Total revenue for the year ended December 31, 1998 increased 30% to
$68,204,000 from $52,318,000 in 1997 and increased 6% to $52,318,000 from
$49,310,000 in 1996. The overall growth in total revenue over the three-year
period was achieved through increased market penetration in North America and
geographic expansion internationally. North American total revenue increased
34% from 1997 to 1998 and 10% from 1996 to 1997. Total revenue from the
Company's subsidiary in Asia decreased 3% from 1997 to 1998 and 19% from 1996
to 1997. The decrease in revenue was primarily a result of economic problems
in Asia, particularly in the last half of 1997, continuing through 1998.
Total revenue from the Company's European subsidiary grew 43% in 1998 and 18%
in 1997. The growth was the result of continued market penetration in
continental Europe. As a percentage of total revenue, sales outside of North
America accounted for 27% in 1998, 29% in 1997 and 32% in 1996.
Software license revenue are fees paid by customers for the right to use the
Company's software system. Software license revenue increased 20% to
$26,284,000 in 1998 from $21,883,000 in 1997 and decreased 5% to $21,883,000
in 1997 from $22,947,000 in 1996. In North America, license revenues
increased 32% from 1997 to 1998, and license revenue in Europe grew by 24%.
These increases resulted from increased penetration, an increase in the
direct sales force, increased marketing and lead-generating activities and
increased acceptance of client-server based manufacturing information
systems. As stated above, economic problems in Asia resulted in reduced
customer demand, particularly in new system licenses, as fewer new
manufacturing enterprises opened, and those in place delayed capital
expenditures. The overall decrease in license revenue in 1997 is primarily
attributable to reduced license revenues in Asia.
Service revenue includes customer support fees, training, consulting,
installation and project management. Service revenue increased 40% to
$37,963,000 in 1998 from $27,137,000 in 1997 and increased 14% to $27,137,000
in 1997 from $23,822,000 in 1996. The demand for services and support has
increased proportionately with the increase in the installed software license
base. In addition, the Company is strengthening its efforts to standardize
and promote its consulting and training offerings, as well as developing
additional value-added products and services for its customers. The Company
believes that services are an important component to the overall product line
offering and should grow in a manner consistent with the growth in the
installed software license base.
Third-party software and other revenue are derived principally from the
resale of third-party software licenses (complementary applications) along
with limited hardware sales. These complementary applications have been
integrated to function with the MSS software and extend the functionality of
MSS for OBJECTS. Third-party software and other revenue increased 20% to
$3,957,000 in 1998 from $3,298,000 in 1997 and increased 30% to $3,298,000 in
1997 from $2,541,000 in 1996. The increase in 1998 and 1997 resulted from
increased customer demand for broad ERP functionality, both among new
customers and in the Company's previously installed base. These increases are
also directly related to increases in MSS license revenue, since third-party
software is often licensed in conjunction with the licensing of the MSS
product.
14
<PAGE>
OPERATING EXPENSES:
Cost of licenses increased to $4,577,000 in 1998 from $2,767,000 in 1997 and
$2,601,000 in 1996 and increased as a percentage of total license revenue to
17% in 1998 from 13% in 1997 and 11% in 1996. The increase in the cost of
licenses as a percentage of license revenue in 1998 is primarily due to
one-time royalty costs paid to third party software suppliers whose products
are embedded in and distributed with the MSS product. In addition, a portion
of the increased cost of licenses relates to $350,000 of database software
inventory expensed in 1998 in connection with the execution of a long-term
contract with the supplier. The increase in these costs as a percent of
license revenue from 1996 to 1997 is due to increases in royalty costs paid
to third-party software suppliers whose products are embedded in and
distributed with the MSS product.
Cost of services increased to $18,274,000 in 1998 from $13,209,000 in 1997
and $11,747,000 in 1996 and decreased as a percentage of service revenue to
48% in 1998 from 49% in both 1997 and 1996. Margins were favorably impacted
by improved customer support margins due to productivity improvements and
high customer support renewal rates. This was partially offset by lower
margins in consulting and training services due to pricing pressures.
Cost of third-party software and other expenses as a percentage of
third-party software and other revenue was 76% in 1998, 71% in 1997 and 79%
in 1996. The increase in 1998 of cost of third-party software and other
expenses as a percentage of related revenues is due to headcount increases
related to the sale of third party products and the mix of products sold. The
decrease from 1996 to 1997 primarily resulted from the mix of products sold.
Selling, general and administrative expense increased to $31,508,000 in 1998
from $27,505,000 in 1997 and $23,046,000 in 1996. As a percentage of total
revenue, selling, general and administrative expense was 46% of total revenue
in 1998, 53% in 1997 and 47% in 1996. The increase in spending in 1998, 1997
and 1996 is due to the addition of sales and marketing personnel, and related
commissions earned, in connection with the Company's expanded market
penetration in North America and international markets. The rate of spending
as a percent of revenue increased by six percentage points from 1996 to 1997
and decreased seven percentage points from 1997 to 1998. The decrease of
selling, general and administrative expenses as a percent of revenue in 1998
reflects the Company's focused efforts to control expenses as revenues grow.
The increase in the spending rate from 1996 to 1997 is due primarily to
growth in selling and marketing expenses in the second half of 1997. During
the second half of 1997, the Company incurred additional costs to reorganize
and grow the sales organization, particularly in North America.
Product development expense decreased to $7,571,000 or 11% of total revenue
in 1998, compared to $9,271,000 or 18% of total revenue during 1997 and
compared to $8,674,000 or 18% of total revenue in 1996. The $1,700,000
reduction in product development from 1997 to 1998 resulted from the
execution of a product development restructuring plan to combine some of the
OBJECTS technology with the functionality of the current MSS product and to
redirect Company development activities. This plan was implemented in the
fourth quarter of 1997. The restructuring plan merged two development
operations into one, resulting in staff and contractor reductions and
allowing the Company to close its development office in San Jose. The
implementation of this plan has reduced the 1998 product development costs in
absolute dollars and as a percentage of revenue.
In 1998 and 1997, the Company capitalized $1,023,000 and $3,819,000 of
development costs respectively. Amortization expense for 1998 and 1997
totaled $625,000 and $720,000, respectively, and is included as a component
of product development expense. In 1998, the Company also wrote off $458,000
of previously capitalized technology that was no longer aligned with the
Company's current product strategy. In connection with its 1997
restructuring, the Company wrote off $1,630,000 of previously capitalized
costs relating to the OBJECTS products, net of accumulated amortization, to
restructuring expense (see following discussion).
The increased expense in 1997 over 1996 is a direct result of increased
headcount and support resources associated with the development of the
Company's object-oriented, communications-centric technology (OBJECTS). The
Company also completed several significant user enhancements associated with
the MSS product Release 6.0, including enhanced graphical user interface
features, an engineering module, a screen customizer module, and an enlarged
database.
The Company's research and development activities are conducted internally
and consist primarily of software development--the writing of code. The
Company does not have any material fixed commitments for capital expenditures
15
<PAGE>
in research and development. The Company believes that product development
spending is critical to the continuing success of the Company's products and
intends to continue to invest heavily in research and development.
The Company accounts for capitalized development costs and related
amortization under Statement of Financial Accounting Standards No. 86 ("SFAS
No. 86"), "Accounting for the Costs of Computer Software to Be Sold, Leased,
or Otherwise Marketed," capitalization of computer software development costs
is to begin upon the establishment of technological feasibility, limited to
the net realizable value of the software product, and cease when the software
is available for general release to customers.
Restructuring Charge recorded in 1997 is the result of an evaluation of the
Company's structure and organization, primarily in the product development
area. In December 1997, the Company's development operations were
restructured in conjunction with a change in product strategy. Specifically,
all North American development activities were combined into a single
operation - previously the Company maintained two development groups. The
restructuring charge totaled $2,566,000 and included $394,000 of severance
costs for employees and contractors, $392,000 to provide for the cost to exit
office space that was no longer needed as a result of the staff reductions,
and $150,000 of prepaid royalties relating to the OBJECTS product that had no
future value. In addition, $1,630,000 of previously capitalized development
costs was expensed as a result of the change in product strategy.
The reorganization of the development activities was completed during 1998
and has reduced 1998 product development costs and streamlined product
development. As of December 31, 1998, approximately $40,000 of the total
restructuring charge remains to be paid in cash.
Other income (expense), net is comprised principally of interest expense on
line-of-credit borrowings, equipment loans, and leases, net of interest
income.
Provision for income taxes totaled $465,000 in 1998 versus $328,000 in 1997
and $189,000 in 1996. The tax provision for 1998 is comprised of U.S.
federal, state and foreign income taxes and is comprised of state and foreign
taxes in 1997 and 1996. The Company's U.S. federal taxes are limited to
alternative minimum taxes due to utilization of net operating loss
carryforwards. The Company has not recognized any benefits related to
deferred taxes or net operating loss carryforwards.
OPERATING INCOME:
The Company reported operating income of $3,253,000 for 1998 compared to an
operating loss of $5,341,000 for 1997 and operating income of $1,234,000 for
1996. The operating income in 1998 is a result of increased selling and
marketing efforts, and the Company's focused efforts to control expenses as
revenues grow. In addition, the restructuring in December 1997 has yielded
reduced product development costs in 1998. The operating loss in 1997 is a
result of the restructuring charge and other increases in operating expenses
that were not entirely offset by increased revenue.
The Company has historically experienced higher revenue and gross margin in
its fourth quarter compared to the other quarters. The Company attributes
this primarily to customers' increased spending at the end of their calendar
year budgetary periods. The Company believes this pattern will continue.
FOREIGN CURRENCY EXCHANGE
Approximately 13% of the Company's total revenue in 1998, 16% in 1997 and 14%
in 1996, was derived from sales denominated in foreign currencies. These
sales were made through certain foreign subsidiaries and were denominated in
the subsidiaries' functional currencies. The effect of foreign currency
exchange rate fluctuations versus the U.S. Dollar on these revenues is
largely offset to the extent expenses of the foreign subsidiary are incurred
and paid for in that same currency. None of these foreign operations have
significant receivables, obligations or commitments denominated in currencies
other than these operations' functional currencies.
LIQUIDITY AND CAPITAL RESOURCES
Cash provided by continuing operating activities was $8,509,000 in 1998
compared to $1,775,000 in 1997 and $3,163,000 in 1996. In 1998, the net
income adjusted for discontinued operations and noncash items resulted in a
cash source of $5,887,000. Additional cash sources were decreases in accounts
receivable and inventory of $188,000 and
16
<PAGE>
$391,000, respectively, and increases in accrued expenses and deferred
revenue of $376,000 and $3,195,000, respectively. These sources were offset
by an increase in prepaid expenses of $65,000 and a decrease in accounts
payable of $1,463,000. The decrease in accounts receivable is a direct result
of increased collection efforts. The decrease in inventory resulted from
database software inventory expensed in connection with the execution of a
long-term contract with the supplier in 1998. The increased accrued expenses
results from increased accrued commissions and bonuses associated with the
increase in revenues and profits, and costs of third-party software
associated with fourth quarter growth. The increase in deferred revenue
results from the continued growth of the business and increases in the number
of annual customer support contracts.
Cash used for investing activities was $986,000 in 1998 compared to
$3,377,000 in 1997 and $5,916,000 in 1996. The decrease from 1996 to 1997
relates primarily to decreased capital spending offset by increased
capitalized software development costs. Specifically, 1998 cash used for
investing activities includes $1,023,000 of capitalized software development
costs and $1,094,000 for purchases of furniture, fixtures and equipment. This
is offset by the receipt of $881,000 related to the sale of JIT and a
decrease in restricted cash of $250,000.
Cash used in financing activities was $3,178,000 in 1998. In 1997 and 1996,
financing activities provided cash flow of $1,445,000 and $1,665,000. The
Company's financing activities in 1998 related primarily to repayment of line-
of-credit borrowings, capital leases, and equipment financing arrangements.
This was offset by the issuance of common stock under employee benefits plans.
As discussed in Note 5 of Notes to Consolidated Financial Statements, the
Company had a $5,000,000 line-of-credit agreement with a bank, which expired
March 2, 1999. In March 1999 the Company entered into a new line-of-credit
agreement with a different bank. Borrowings under this agreement shall not
exceed the lesser of $10,000,000 or a percentage of eligible accounts
receivable. Borrowings are collateralized by accounts receivable and other
assets of the Company and bear interest at the bank's base rate plus 1/2%.
The agreement expires March 2002.
On July 1, 1998, the Company entered into a four year $12,000,000 commitment
with a third-party database supplier whose product is embedded in and
distributed with the MSS product. The agreement also includes three
three-year renewal options. Payments will be made monthly. The Company does
not anticipate this commitment to materially impact historical margin levels.
In January 1999 the Company moved its corporate headquarters to a new leased
facility. The Company leased the majority of the capital assets associated
with the move and does not anticipate a material impact on the company's
financial condition or results of operations. The Company does not have any
material scheduled commitments for capital expenditures during 1999.
The Company believes that the $10,073,000 of cash and cash equivalents on
hand at December 31, 1998 together with anticipated cash flows from
operations and the Company's available line-of-credit will be sufficient to
fund operating cash needs for 1999. Beyond 1999, the Company plans to
consistently generate positive cash flows from operations; however, if this
does not occur, then the Company may need to seek additional funds through
equity or debt financing.
The Company has available net operating loss carryforwards of approximately
$14,201,000 and tax credit carryforwards of approximately $2,012,000 at
December 31, 1998. The Company has not recognized any of these benefits in
the related financial statements.
NEW ACCOUNTING PRONOUNCEMENTS
The Company adopted Statement of Position (SOP) 97-2, "Software Revenue
Recognition," effective January 1998. This statement supersedes SOP 91-1 and
provides guidance on applying generally accepted accounting principles in
recognizing revenue on software transactions. The implementation of SOP 97-2
did not have a material impact on the Company's financial condition or
results of operations.
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 130, "Reporting Comprehensive Income," which
established new rules for the reporting and presentation of comprehensive
income and its components in a full set of financial statements. The
Company's comprehensive income is comprised of net income and foreign
currency translation adjustments. The adoption of SFAS No. 130 had no impact
on the
17
<PAGE>
Company's net income or total shareholders' equity. Prior to the adoption of
SFAS 130, translation adjustments were reported separately in the statement
of shareholders' equity. The comprehensive income amounts in the prior fiscal
years' financial statements have been reclassified to conform to SFAS 130.
The Financial Accounting Standards Board also has released SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information,"
effective for fiscal years beginning after December 15, 1997. SFAS No. 131
requires disclosure of business and geographic segments in the consolidated
financial statements of the Company. The Company adopted SFAS No. 131 in
1998 and has disclosed this information in the attached Notes to
Consolidated Financial Statements.
OTHER
The Company began addressing year 2000 issues in April of 1997. The Company
utilizes both information technology ("IT") and non-IT systems and assets
throughout its worldwide operations.
The Company has three main IT systems that are year 2000 ready. The main
system is the Fourth Shift MSS for OBJECTS Software System. This product is
owned and developed by Fourth Shift and is the product the Company sells and
uses internally to run its business. The Company performed a complete review
of the system for year 2000 readiness in early 1998. Nine areas of concern
were discovered. These have been corrected and the process used to test for
year 2000 readiness has been certified by the Information Technology
Association of America to meet the information technology industry's best
software development practices for addressing the year 2000 issue. There has
been no material financial impact for the cost of corrections as these were
addressed in the normal course of development of the product. The Company's
Payroll and Human Resource systems were updated in the third quarter of 1998
and are currently year 2000 ready. The cost associated with this effort has
been immaterial and did not adversely impact the Company's operating results.
In addition, the Company's Customer Support Center's system is a third-party
product that is year 2000 ready. All other third-party IT systems sold by the
Company and used in its internal operations are year 2000 ready or have
committed to be year 2000 ready by January 1, 1999.
The Company has assessed the year 2000 impact on its non-IT systems and has
purchased a software package to use in testing the Company's hardware and
equipment. The Company will have tested all hardware by the end of the second
quarter of 1999 and will correct any issues in the third quarter of 1999.
The Company is in the process of assessing the impact of non-compliant
vendors. To date the Company has not identified any significant suppliers who
will not be year 2000 ready.
While the Company has exercised its best efforts to identify and remedy any
potential year 2000 issues, the primary remedy of the Company's contingency
plan is to use alternative vendors. Although the Company does not anticipate
a material impact on the Company's financial condition or results of
operations, it is uncertain as to the extent the Company may be affected by
such matters.
ITEM 7a. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company does not enter into financial instruments for trading or
speculative purposes and does not currently utilize derivative financial
instruments. Certain sales made through certain foreign subsidiaries are
denominated in the subsidiaries' functional currencies. The effect of foreign
currency exchange rate fluctuations versus the U.S. Dollar on these revenues
is largely offset to the extent expenses of the foreign subsidiary are
incurred and paid for in that same currency. None of these foreign operations
have significant receivables, obligations or commitments denominated in
currencies other than these operations' functional currencies. The Company
does not have any foreign currency swaps or derivatives and is not subject to
material foreign currency exchange risk.
18
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
As of December 31
(In Thousands, Except Share and Per Share Data)
<TABLE>
<CAPTION>
1998 1997
ASSETS -------- -------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 10,073 $ 5,758
Accounts receivable, net 13,813 14,001
Inventories 91 482
Prepaid expenses 1,096 1,031
Royalty receivable 50 650
-------- -------
Total current assets 25,123 21,922
-------- -------
FURNITURE, FIXTURES AND EQUIPMENT, at cost:
Furniture and fixtures 2,529 2,644
Computer equipment 8,430 7,553
Leasehold improvements 1,481 1,150
Assets held under capital lease 3,312 2,784
Less- Accumulated depreciation and amortization (11,168) (8,628)
-------- -------
Net furniture, fixtures and equipment 4,584 5,503
RESTRICTED CASH 465 715
SOFTWARE DEVELOPMENT COSTS, net 3,229 3,289
-------- -------
Total assets $ 33,401 $31,429
-------- -------
-------- -------
</TABLE>
19
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
As of December 31
(In Thousands, Except Share and Per Share Data)
(Continued)
<TABLE>
<CAPTION>
1998 1997
LIABILITIES AND SHAREHOLDERS' EQUITY -------- -------
<S> <C> <C>
CURRENT LIABILITIES:
Current portion of long-term obligations $ 1,099 $ 1,803
Revolving credit facility - 2,000
Accounts payable 2,501 3,964
Accrued expenses 8,377 8,001
Deferred revenue 13,510 10,315
-------- --------
Total current liabilities 25,487 26,083
LONG-TERM OBLIGATIONS 835 1,299
COMMITMENTS AND CONTINGENCIES (Notes 7, 8 and 9)
SHAREHOLDERS' EQUITY:
Common stock, $.01 par value, 20,000,000 shares
authorized; 10,201,783 and 9,828,447
shares issued and outstanding 102 98
Additional paid-in capital 31,591 30,640
Deferred compensation (417) -
Accumulated other comprehensive losses (266) (236)
Accumulated deficit (23,931) (26,455)
-------- --------
Total shareholders' equity 7,079 4,047
-------- --------
Total liabilities and shareholders' equity $ 33,401 $ 31,429
-------- --------
-------- --------
</TABLE>
The accompanying notes are an integral part of these consolidated
balance sheets.
20
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
For the Years Ended December 31
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
REVENUE:
Software license $26,284 $21,883 $22,947
Service 37,963 27,137 23,822
Third-party software and other 3,957 3,298 2,541
------- ------- -------
Total revenue 68,204 52,318 49,310
------- ------- -------
OPERATING EXPENSES:
Cost of licenses 4,577 2,767 2,601
Cost of services 18,274 13,209 11,747
Cost of third-party software and other 3,021 2,341 2,008
Selling, general and administrative 31,508 27,505 23,046
Product development 7,571 9,271 8,674
Restructuring charge - 2,566 -
------- ------- -------
Total operating expenses 64,951 57,659 48,076
------- ------- -------
Operating profit (loss) 3,253 (5,341) 1,234
OTHER EXPENSE, net (545) (432) (36)
------- ------- -------
Income (loss) from continuing operations before
provision for income taxes 2,708 (5,773) 1,198
PROVISION FOR INCOME TAXES 465 328 189
------- ------- -------
INCOME (LOSS) FROM CONTINUING OPERATIONS 2,243 (6,101) 1,009
------- ------- -------
DISCONTINUED OPERATIONS:
Net gain on sale of discontinued operations 281 2,311 761
------- ------- -------
Total discontinued operations 281 2,311 761
------- ------- -------
NET INCOME (LOSS) $ 2,524 $(3,790) $ 1,770
------- ------- -------
------- ------- -------
BASIC INCOME (LOSS) PER COMMON SHARE:
Continuing operations $ .22 $ (.63) $ .11
Discontinued operations .03 .24 .08
------- ------- -------
Basic income (loss) per common share $ .25 $ (.39) $ .19
------- ------- -------
------- ------- -------
DILUTED INCOME (LOSS) PER COMMON SHARE:
Continuing operations $ .22 $ (.63) $ .10
Discontinued operations .03 .24 .08
------- ------- -------
Diluted income (loss) per common share $ .25 $ (.39) $ .18
------- ------- -------
------- ------- -------
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
21
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Shareholders' Equity
For the Years Ended December 31, 1998, 1997 and 1996
(In Thousands)
<TABLE>
<CAPTION>
Common Stock Accumulated
---------------- Other
Number of Par Additional Deferred Comprehensive Accumulated Comprehensive
Shares Value Paid-In Capital Compensation Losses Deficit Income
--------- ----- --------------- ------------ ------------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1995 9,366 $ 94 $29,222 $ - $(181) $(24,435)
Common stock issued 234 2 591 - - -
Issuance of restricted shares 5 - 59 - - -
Net income - - - - - 1,770 $ 1,770
Foreign currency translation - - - - (35) - (35)
-------
Comprehensive income $ 1,735
------ ---- ------- ----- ----- -------- -------
BALANCE, December 31, 1996 9,605 96 29,872 - (216) (22,665) -------
Common stock issued 223 2 758 - - -
Issuance of restricted shares - - 10 - - -
Net loss - - - - - (3,790) $(3,790)
Foreign currency translation - - - - (20) - (20)
-------
Comprehensive income $(3,810)
------ ---- ------- ----- ----- -------- -------
BALANCE, December 31, 1997 9,828 98 30,640 - (236) (26,455) -------
Common stock issued 194 2 513 - - -
Issuance of restricted shares 180 2 438 (438) - -
Amortization of deferred compensation - - - 21 - -
Net income - - - - - 2,524 $ 2,524
Foreign currency translation - - - - (30) - (30)
-------
Comprehensive income $ 2,494
------ ---- ------- ----- ----- -------- -------
BALANCE, December 31, 1998 10,202 $102 $31,591 $(417) $(266) $(23,931) -------
------ ---- ------- ----- ----- --------
------ ---- ------- ----- ----- --------
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
22
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
For the Years Ended December 31
(In Thousands)
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ 2,524 $(3,790) $ 1,770
Adjustments to reconcile net income (loss) to net cash provided by
continuing operating activities-
Noncash items:
Depreciation and amortization 3,165 3,339 2,065
Net gain on sale of discontinued operations (281) (2,311) (761)
Deferred Compensation 21 - -
Restructuring charge - 2,566 -
Capitalized development written off 458 - -
Other - 10 60
Change in current operating items:
Accounts receivable, net 188 (994) (2,878)
Inventories 391 114 182
Prepaid expenses (65) (25) (292)
Accounts payable (1,463) (319) 2,158
Accrued expenses 376 1,730 272
Deferred revenue 3,195 1,455 587
------- ------- -------
Net cash provided by continuing operating activities 8,509 1,775 3,163
------- ------- -------
INVESTING ACTIVITIES:
Purchases of furniture, fixtures and equipment (1,094) (1,200) (4,162)
(Increase) decrease in restricted cash 250 (215) (500)
Capitalized software development costs (1,023) (3,819) (1,820)
Proceeds from sale of discontinued operations 881 1,857 566
------- ------- -------
Net cash used for investing activities (986) (3,377) (5,916)
------- ------- -------
</TABLE>
23
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
For the Years Ended December 31
(In Thousands)
(Continued)
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
FINANCING ACTIVITIES:
Payments of long-term obligations $(1,695) $ (963) $ (512)
Proceeds from equipment loans and capital leases - 195 2,004
Borrowings on line-of-credit 500 2,000 1,350
Payments on line-of-credit borrowings (2,500) - (1,350)
Proceeds on issuance of common stock, net 517 213 173
------- ------- -------
Net cash provided by (used in) financing activities (3,178) 1,445 1,665
EFFECT OF EXCHANGE RATE ON FOREIGN CASH BALANCES (30) (20) (35)
------- ------- -------
Change in cash and cash equivalents 4,315 (177) (1,123)
CASH AND CASH EQUIVALENTS:
Beginning of year 5,758 5,935 7,058
------- ------- -------
End of year $10,073 $5,758 $ 5,935
------- ------- -------
------- ------- -------
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during each period for-
Interest $720 $ 566 $ 338
Income taxes $27 $ 149 $ 140
Noncash investing and financing activity
Capital leases $527 $ 698 $ 961
------- ------- -------
------- ------- -------
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
24
<PAGE>
FOURTH SHIFT CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 1998 and 1997
1. NATURE OF BUSINESS AND COMPANY OPERATIONS:
Fourth Shift Corporation (a Minnesota corporation) and its subsidiaries
(collectively referred to as the Company) engage principally in the
development, marketing, licensing and support of integrated client/server
application software used for industrial planning and management processes,
primarily for use in the manufacturing industry. The Company's principal
product, the Fourth Shift Manufacturing Software System for OBJECTS (MSS), is
a family of integrated manufacturing and financial management applications
for intermediate-sized sites of manufacturing and distribution enterprises.
The MSS system operates in a Windows NT open computing environment.
The Fourth Shift JIT Enterprise System (JIT Enterprise System), which was
offered through Just In Time Enterprise Systems, Inc. (JIT), a subsidiary of
the Company, is an information management system for industrial companies
involved in aerospace, defense and contract manufacturing which operates in
the UNIX/Oracle environment. Effective December 31, 1995, the Company sold
the common stock of JIT (see Note 3.). The gain on the sale of JIT has been
presented as discontinued operations in the accompanying consolidated
financial statements. Accordingly, the disclosures presented herein relate to
the continuing operations of the Company, unless otherwise noted.
Although the Company had a working capital deficit at December 31, 1998, the
Company believes that cash on hand, cash generated from operations and cash
available under the Company's credit facility will be adequate to fund the
Company's operations through 1999.
The consolidated financial statements include the accounts of Fourth Shift
Corporation (Fourth Shift) and all of its subsidiaries. All significant
intercompany balances and transactions have been eliminated in consolidation.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
REVENUE RECOGNITION
Software license revenues derived from software license fees with standard
acceptance periods are recognized upon shipment of software if there are no
significant post delivery obligations and collectibility is reasonably
assured. Insignificant contractual obligations are accrued at the time of
revenue recognition. For fixed-fee software arrangements, the Company
recognizes revenue on payments due within one year once all significant
obligations have been met and defers the portion of the total fee which is
attributable to insignificant undelivered services or products and recognizes
this revenue as the associated services or products are delivered.
Service revenue includes customer support fees, training, consulting,
installation and project management. Revenue from customer support agreements
for maintaining, supporting and providing periodic upgrades is recognized
ratably over the maintenance period, which in most cases is one year. Revenue
is recognized for other services at the time the service is performed.
Third-party software and other revenue is derived from the resale of
third-party licenses and hardware. Revenue is recognized upon delivery of the
product.
SOFTWARE DEVELOPMENT COSTS
Capitalization of computer software development costs begins upon the
establishment of technological feasibility, limited to the net realizable
value of the software product, and ceases when the software product is
available for general release to customers. Amortization is computed on each
product based upon the greater of the amount
25
<PAGE>
computed on a units sold basis (ratio of gross product revenue to anticipated
future gross revenue for that product) or straight-line basis over the
remaining estimated economic life of the product. Costs of maintenance and
customer support are to be charged to expense when related revenue is
recognized or when those costs are incurred, whichever occurs first.
The Company capitalized $1,023,000 and $3,819,000 of development costs in
1998 and 1997, respectively. These costs are amortized assuming a three-year
economic life for the framework and modules. Amortization expense for 1998
and 1997 totaled $625,000 and $720,000, respectively, and is included as a
component of product development expense. In 1998, the Company also wrote off
$458,000 of previously capitalized technology that was no longer aligned with
the Company's current product strategy. This charge is included in product
development expense. In connection with its 1997 restructuring (see Note 4),
the Company wrote off $1,630,000 of previously capitalized costs relating to
the OBJECTS products, net of accumulated amortization, to restructuring
expense.
CASH EQUIVALENTS
The Company considers all highly liquid and short-term investments purchased
with a maturity of three months or less to be cash equivalents. Short-term
investments consist principally of government securities and mutual funds and
are stated at cost, which approximates market.
ACCOUNTS RECEIVABLE
Accounts Receivable are stated net of allowances for uncollectible accounts.
At December 31, 1998 and 1997, this allowance was $1,257,000 and $773,000
respectively.
INVENTORIES
Inventories consist of third-party software held for resale, computer
software media, instruction material and packaging, and are stated at the
lower of first-in, first-out cost or market.
PREPAID EXPENSES
Prepaid expenses consist principally of prepaid rents and rental deposits,
prepaid insurance premiums and deposits on capital leases.
FURNITURE, FIXTURES AND EQUIPMENT
Furniture, fixtures and equipment are recorded at cost and are depreciated
principally under the straight-line method for financial and income tax
reporting purposes over estimated useful lives that range from three to five
years.
RESTRICTED CASH
Restricted cash consists of cash pledged to support certain facilities
leases. These restrictions will decrease over time ending in 2006.
FOREIGN CURRENCY TRANSLATION
For the Company's foreign operations, assets and liabilities are translated
at year-end exchange rates, and terms included in the consolidated statements
of operations are translated at average exchange rates prevailing during the
year. Translation adjustments are included in accumulated other comprehensive
losses in the accompanying consolidated balance sheets.
OTHER COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 130, "Reporting Comprehensive Income," which
established new rules for the reporting and presentation of comprehensive
income and its components in a full set of financial statements. The
Company's comprehensive income is comprised of net income and foreign
currency translation adjustments. The adoption of SFAS No. 130
26
<PAGE>
had no impact on the Company's net income or total shareholders' equity.
Prior to the adoption of SFAS 130, translation adjustments were reported
separately in the statement of shareholders' equity. The comprehensive income
amounts in the prior fiscal years' financial statements have been
reclassified to conform to SFAS No. 130.
DEFERRED REVENUE
Deferred revenue primarily consists of customer support and other services
for which cash has been received but services have not been provided.
Services that must be provided relate to normal operations of the Company.
INCOME TAXES
The Company accounts for income taxes under the liability method of
accounting. Deferred tax assets and liabilities are determined based on the
difference between the financial statement and tax bases of assets and
liabilities using currently enacted tax rates.
NET INCOME (LOSS) PER COMMON SHARE
Basic earnings per share was computed by dividing net income by the number of
weighted average common shares outstanding during the year. Diluted earnings
per share was computed similar to the computation of basic earnings per
share, except that the denominator is increased for the assumed dilutive
stock options and other dilutive securities (including nonvested restricted
stock), using the treasury stock method.
Reconciliation of weighted average shares used in computing income (loss) per
share are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Weighted average common shares outstanding 9,956 9,738 9,567
Dilutive effect of stock options and other dilutive
securities outstanding, using the treasury stock method 183 - 298
------ ----- -----
Shares used in computing diluted income (loss) per share 10,139 9,738 9,865
------ ----- -----
------ ----- -----
</TABLE>
RECLASSIFICATIONS
Certain amounts previously reported in the 1997 financial statements have
been reclassified to conform to the 1998 presentation. These
reclassifications had no effect on previously reported net income or
shareholders' equity.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
The ultimate results could differ from those estimates.
3. SALE OF JUST IN TIME ENTERPRISE SYSTEMS, INC.:
Effective December 31, 1995, the Company sold all of the capital stock of JIT
to Interactive Group, Inc. (IGI). The Company deferred recognition of the
gain associated with the note received from the sale and recognized the gain
associated with this note, as well as the additional amounts receivable based
on revenues generated from the JIT Enterprise System, as such amounts were
collected or are deemed collectible.
Substantially all income taxes related to this transaction have been offset
by operating losses previously generated by JIT. In addition, all previously
generated net operating loss carryforwards related to JIT will continue to be
available to offset future taxable income of the Company, subject to the
limitations discussed in Note 7. The gain on the sale of JIT has been
reported separately as discontinued operations in the accompanying
consolidated financial statements.
27
<PAGE>
4. RESTRUCTURING CHARGES:
In the fourth quarter of 1997, the Company evaluated its structure and
organization, primarily in the product development area. This resulted in a
restructuring of the development operations and an associated change in
product strategy. All North American development activities were combined
into a single operation--previously the Company maintained two development
groups. The restructuring charge totaled $2,566,000 and included $394,000 of
severance costs for employees and contractors, $392,000 to provide for the
cost to exit office space that was no longer needed as a result of the staff
reductions and $150,000 of prepaid royalties relating to the OBJECTS product
that had no future value. In addition, $1,630,000 of previously capitalized
development costs were expensed as a result of the change in product strategy
(See Note 2). As of December 31, 1998, approximately $40,000 of the total
restructuring charge remains to be paid in cash.
5. REVOLVING CREDIT FACILITY:
At December 31, 1998, the Company had a $5,000,000 line-of-credit agreement
with the Company's principal bank. Actual borrowings were limited to a
percentage of eligible accounts receivable, with a deduction for the amounts
outstanding under the long-term equipment facility (See Note 6). Borrowings
were collateralized by the Company's accounts receivable and all other assets
of the Company and bear interest at prime plus 2%. The agreement expired on
March 2, 1999. Maximum borrowings in 1998 under this facility were
$2,500,000, with no outstanding borrowings at December 31, 1998.
In March 1999 the Company entered into a new line-of-credit agreement with a
different bank. Borrowings under this agreement shall not exceed the lesser
of $10,000,000 or a percentage of eligible accounts receivable. Borrowings
are collateralized by accounts receivable and other assets of the Company and
bear interest at the bank's base rate plus 1/2%. The agreement expires in
March 2002.
6. LONG-TERM OBLIGATIONS:
Long-term obligations consisted of the following at December 31 (in
thousands):
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Capital lease obligations, varying interest rates,
due in various monthly installments through 2001 $ 1,267 $ 1,335
Bank equipment financing 667 1,767
Less current portion (1,099) (1,803)
-------- --------
Long-term obligations $ 835 $ 1,299
-------- --------
-------- --------
</TABLE>
Future minimum payments under noncancelable capital leases, net of amounts
representing interest are $599,000 in 1999, $435,000 in 2000, $204,000 in
2001 and $29,000 in 2002.
In April 1996, the Company entered into a $1,500,000 long-term equipment
facility with a bank to finance the purchase of capital equipment. The
facility bears interest at 9.25% and is payable monthly. Principal payments
are due in 36 equal monthly installments starting in May 1997 through April
2000. This facility is governed by restrictive covenants that include
maintenance of minimum net worth. Future minimum payments under this facility
are $500,000 in 1999 and $167,000 in 2000. The carrying value of the
Company's long-term obligations approximates fair value.
7. INCOME TAXES:
At December 31, 1998, the Company had available net operating loss
carryforwards of approximately $14,201,000 and tax credit carryforwards of
approximately $2,012,000. These net operating losses and tax credit
carryforwards will expire from 2001 to 2012.
28
<PAGE>
The utilization of a portion of these net operating loss carryforwards may be
subject to Internal Revenue Code section 382 if certain significant investors
sell or purchase ownership interests. If an ownership change does occur, the
Company's ability to utilize its tax net operating loss carryforwards to
offset any future federal taxable income would be limited to a maximum amount
in any one year.
The provision for income taxes is comprised of the following for the years
ended December 31 (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
----- ----- -----
<S> <C> <C> <C>
Current tax provision:
Federal $ 121 $ - $ -
State 83 105 43
Foreign 261 223 146
----- ----- -----
$ 465 $ 328 $ 189
----- ----- -----
----- ----- -----
</TABLE>
The Company records deferred taxes for the difference between the financial
reporting and income tax bases of certain assets and liabilities, computed in
accordance with tax laws in effect currently. The principal differences which
give rise to deferred taxes are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Net operating loss and tax credit carryforwards $ 7,409 $ 8,890
Accruals and reserves not currently deductible
for tax purposes 1,571 887
Capitalized R&D costs (1,227) (1,304)
Other (97) (159)
Less valuation allowance (7,656) (8,314)
-------- --------
Net deferred taxes $ - $ -
-------- --------
-------- --------
</TABLE>
The Company has provided a valuation allowance for the net deferred tax
benefit resulting from net operating loss carryforwards and other differences
between the reported book and tax bases of certain assets and liabilities, as
the realizability of this net deferred tax benefit is not reasonably assured.
The Company's effective tax rate related to continuing operations differs
from the statutory federal income tax rate of 34% as a result of state and
foreign taxes.
29
<PAGE>
8. COMMITMENTS AND CONTINGENCIES:
OPERATING LEASES
The Company has operating leases for its corporate headquarters, additional
office space and certain office equipment. The aggregate future minimum
rental payments under these leases, net of amounts to be received related to
the sublease of certain office space, are as follows (in thousands):
<TABLE>
<CAPTION>
Year Amount
- ---- -----------
<S> <C>
1999 $ 2,627
2000 1,545
2001 1,301
2002 1,220
2003 1,220
Thereafter 5,528
-------
$13,441
-------
-------
</TABLE>
Rent expense, including amounts paid under short-term arrangements, was
approximately $2,423,000, $2,935,000 and $2,340,000, in 1998, 1997 and 1996,
respectively.
SIGNIFICANT CONTRACTS
On July 1, 1998, the Company entered into a four-year $12,000,000 commitment
with a third-party database supplier whose product is embedded in and
distributed with the MSS product. The agreement also includes three
three-year renewal options. Payments are made monthly. In 1998, the Company
recognized $1,500,000 of expense under this agreement that is included in the
cost of licenses.
LITIGATION
The Company is subject to litigation in the normal course of business. In the
opinion of management, the resolution of these matters will not have a
material adverse effect on the Company's consolidated results of operations
or financial position.
9. OPTIONS AND COMPENSATION PLANS:
STOCK OPTIONS
Under the terms of the Company's 1989 stock option plan (the 1989 Plan),
options granted to employees expire no later than ten years after the date of
grant, and the exercise price must be at least 100% of the fair market value
of the shares at the date of grant. The 1989 Plan covers both incentive and
nonqualified stock options and is limited to 200,000 total shares. Incentive
stock options granted to employees, who immediately before such grant owned
stock directly or indirectly representing more than 10% of the voting power
of all classes of the stock of the Company, may not be exercisable more than
five years after the date of grant and the exercise price per share must be
at least 110% of the fair market value of the shares at the date of grant.
Options vest over varying periods not to exceed five years. This plan is to
remain in effect until October 17, 1999.
In June 1993, the Company's board of directors approved a new stock option
plan (the 1993 Plan). The 1993 Plan covers both incentive and nonqualified
stock options and is limited to 2,250,000 shares. The 1993 Plan terminates in
June 2003.
30
<PAGE>
Stock option plan activity is summarized as follows:
<TABLE>
<CAPTION>
Option Price
1989 Plan 1993 Plan Total Per Share
--------- --------- --------- ------------
<S> <C> <C> <C> <C>
Option shares outstanding at December 31, 1995 165,138 916,057 1,081,195 $2.00-$8.25
Options granted 4,000 210,000 214,000 $3.75-$7.625
Options exercised (77,375) (3,250) (80,625) $2.00-$5.00
Options forfeited (400) (77,000) (77,400) $2.00-$8.25
--------- --------- --------- ------------
Option shares outstanding at December 31, 1996 91,363 1,045,807 1,137,170 $2.00-$8.25
Options granted - 383,000 383,000 $3.25-$5.50
Options exercised (84,063) (14,375) (98,438) $2.00-$3.25
Options forfeited (3,300) (211,691) (214,991) $2.00-$8.25
--------- --------- --------- ------------
Option shares outstanding at December 31, 1997 4,000 1,202,741 1,206,741 $2.63-$8.25
Options granted - 1,132,900 1,132,900 $2.44-$4.06
Options exercised - (46,125) (46,125) $2.63-$3.38
Options forfeited - (492,866) (492,866) $2.56-$8.25
--------- --------- --------- ------------
Option shares outstanding at December 31, 1998 4,000 1,796,650 1,800,650 $2.44-$8.25
--------- --------- --------- ------------
--------- --------- --------- ------------
</TABLE>
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Options exercisable at year-end 409,148 524,586 379,172
Weighted average price of options exercisable at year-end $5.07 $5.31 $4.79
Weighted average fair market value of options granted $2.67 $3.96 $4.03
</TABLE>
The Company accounts for these stock option plans under APB Opinion No. 25,
under which no compensation cost has been recognized. Had compensation cost
for these plans been determined consistent with FASB Statement No. 123, the
Company's net income (loss) and earnings (loss) per share would have been as
follows:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Net income (loss): As reported $ 2,524 $ (3,790) $ 1,770
Pro forma $ 1,408 $ (4,917) $ 984
Basic income (loss) per common share: As reported $ .25 $ (.39) $ .19
Pro forma $ .14 $ (.50) $ .10
Diluted income (loss) per common share: As reported $ .25 $ (.39) $ .18
Pro forma $ .14 $ (.50) $ .10
</TABLE>
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following assumptions:
risk-free interest rate of 5.0% and expected life of 7.7 years for 1998,
1997, and 1996; expected annualized volatility of .99, 1.03, and .85 for
1998, 1997 and 1996, respectively.
31
<PAGE>
OTHER EMPLOYEE COMPENSATION PLANS
The Company has a 401(k) plan that covers substantially all domestic
employees over 21 years of age with at least six months of continuous
service. The Company may make discretionary matching contributions to the
plan based upon employee contributions. The Company made matching
contributions to this plan of approximately $363,000 in 1998, none in 1997
and $353,000 1996.
The Company has an employee stock purchase plan (the Stock Purchase Plan).
Under the Stock Purchase Plan, participating full-time employees and
directors of the Company are able to purchase shares of the Company's common
stock at 85% of market value, as defined. A total of up to 900,000 shares of
the Company's common stock has been reserved under the Stock Purchase Plan.
In 1996, the Company issued 150,000, shares of which 100,000 were purchased
in 1995 and 50,000 through June of 1996. In 1997, the Company issued 125,000
shares, of which 50,000 were purchased in 1996 and 75,000 through June of
1997. In 1998, the Company issued 147,000 shares, of which 72,000 were
purchased in 1997 and 75,000 were purchased through June 1998. The fair value
of shares purchased was $423,000 in 1998, $644,000 in 1997 and $706,000 in
1996.
BOARD OF DIRECTORS' COMPENSATION PLAN
The board of directors has approved a compensation plan whereby certain
directors may receive cash compensation for each directors' meeting attended
or, in lieu of cash payment, shares of common stock through the Company's
Stock Purchase Plan. The number of shares issued in lieu of cash fees is
adjusted to reflect the fair market value of the common stock in accordance
with the Company's Stock Purchase Plan. Total shares of approximately 18,000,
26,000 and 14,000 were issued under this plan in 1998, 1997 and 1996,
respectively. The expenses recognized in connection with shares issued to
nonemployee directors was approximately $53,000, $78,000 and $55,000, in
1998, 1997 and 1996, respectively. In addition, nonemployee directors are
entitled to receive options to purchase shares of the Company's common stock
under this plan.
10. SHAREHOLDERS' EQUITY:
SHAREHOLDER RIGHTS PLAN
In December 1998, the Company adopted a new Shareholder Rights Plan (Rights
Plan). Under the Rights Plan, a dividend of one preferred share purchase
right (a Right) per share for each outstanding share of common stock was
granted to shareholders of record. The Rights issued under the plan will
become exercisable by shareholders other than a potential acquiror only
following an acquisition by the acquiror without prior approval by the
Company's board of directors, of 20% or more of the common stock, or the
announcement of a tender offer for 20% or more of common stock. The rights
will expire in December 2008.
RESTRICTED STOCK
In October 1998, the Company issued 180,000 shares of restricted stock and
540,000 options under the terms of the 1993 Plan to certain employees. The
restricted stock vests five years from the date of grant and is subject to
forfeiture upon termination of employment. The options vest in lump sum eight
years and expire ten years from the date of grant and have an exercise price
equal to the fair market value on the date of grant. The vesting of both the
restricted stock and the options are accelerated if certain Company
performance criteria are met in any of the three calendar years in the period
ended December 31, 2001. In 1998, the Company recognized compensation expense
of $21,000 related to the restricted stock. The remaining deferred
compensation of $417,000 will be recognized over the remainder of the
five-year service period.
11. SEGMENT REPORTING:
The Company adopted SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information," in the fourth quarter of 1998. SFAS No.
131 established standards for disclosure of financial information related to
operating segments of the Company as well as disclosure requirements for
customer and geographic information. SFAS No. 131 defines an operating
segment as a component of a company for which operating results are reviewed
regularly by the chief operating decision-maker to determine resource
allocation and assess performance. The
32
<PAGE>
Company has three operating segments under the guidelines of SFAS No. 131:
North America, Asia and Europe. Each operating segment derives its revenues
from licensing its proprietary software system, providing customer support,
training, consulting and installation services related to its software, and
through the resale of complementary third-party software licenses and
hardware.
The accounting policies of the segments are the same as those described in
the summary of significant accounting policies (see Note 1). Financial
information by geographical segment is as follows (in thousands):
<TABLE>
<CAPTION>
North
America Europe Asia Eliminations Consolidated
------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C>
1998:
Revenue $49,635 $11,657 $ 6,912 $ - $ 68,204
Depreciation and amortization 2,356 390 419 - 3,165
Interest income (expense) (1) (538) 50 - - (488)
Income tax expense 204 278 (17) - 465
Net income (loss) 2,841 112 (429) - 2,524
Segment assets 28,340 4,841 3,001 (2,781) 33,401
Capital expenditures 553 458 83 - 1,094
1997:
Revenue $37,050 $ 8,175 $ 7,093 $ - $ 52,318
Depreciation and amortization 2,564 375 400 - 3,339
Interest income (expense) (1) (427) 30 - - (397)
Income tax expense 105 91 132 - 328
Net income (loss) (1,857) (542) (1,391) - (3,790)
Segment assets 26,511 4,168 3,531 (2,781) 31,429
Capital expenditures 542 355 303 - 1,200
1996:
Revenue $33,588 $ 6,936 $ 8,786 $ - $ 49,310
Depreciation and amortization 1,433 337 295 - 2,065
Interest income (expense) (1) (54) 18 - - (36)
Income tax expense 42 147 - - 189
Net income (loss) 1,029 93 648 - 1,770
Segment assets 24,788 4,678 6,236 (4,530) 31,172
Capital expenditures 2,177 1,263 722 - 4,162
</TABLE>
(1) In the consolidated statements of operations, interest income (expense)
is reported net of other income (expense) of $(57,000), $(35,000), and
$0 in 1998, 1997 and 1996, respectively.
33
<PAGE>
The Company had no customers from whom it generated 10% or more of
consolidated revenues. The only country that the Company generated revenues
exceeding 10% of consolidated revenues was the United States. Following is
information regarding operations in the United States (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
Long-lived Long-lived Long-lived
Revenue Assets Revenue Assets Revenue Assets
------- ---------- ------- ----------- ------- ----------
<S> <C> <C> <C> <C> <C> <C>
United States $47,638 $5,823 $35,688 $6,576 $32,458 $3,902
</TABLE>
34
<PAGE>
12. QUARTERLY FINANCIAL DATA (UNAUDITED):
The following is a condensed summary of actual quarterly results of operations
for 1998 and 1997 (in thousands, except per share data):
<TABLE>
<CAPTION>
1998
--------------------------------------------------------
First Second (1) Third Fourth Total
------- --------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Revenue $14,430 $17,328 $17,278 $19,168 $68,204
Operating profit (loss) (96) 671 1,018 1,660 3,253
Income (loss) from continuing operations (311) 323 657 1,574 2,243
Results of discontinued operations 68 88 50 75 281
------- ------- ------- ------- -------
Net income (loss) $ (243) $ 411 $ 707 $ 1,649 $ 2,524
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Basic income (loss) per common share:
Continuing operations $ (.03) $ .03 $ .06 $ .15 $ .22
Discontinued operations .01 .01 .01 .01 .03
------- ------- ------- ------- -------
Basic income (loss) per common share $ (.02) $ .04 $ .07 $ .16 $ .25
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Diluted income (loss) per common share:
Continuing operations $ (.03) $ .03 $ .06 $ .15 $ .22
Discontinued operations .01 .01 .01 .01 .03
------- ------- ------- ------- -------
Diluted income (loss) per common share $ (.02) $ .04 $ .07 $ .16 $ .25
------- ------- ------- ------- -------
------- ------- ------- ------- -------
<CAPTION>
1997
--------------------------------------------------------
First Second Third Fourth Total
------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Revenue $10,805 $12,876 $13,433 $15,204 $52,318
Operating profit (loss) (1,450) (61) (219) (3,611) (5,341)
Income (loss) from continuing operations (1,496) (145) (394) (4,066) (6,101)
Results of discontinued operations 201 205 1,255 650 2,311
------- ------- ------- ------- -------
Net income (loss) $(1,295) $ 60 $ 861 $(3,416) $(3,790)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Basic income (loss) per common share:
Continuing operations $ (.15) $ (.01) $ (.04) $ (.43) $ (.63)
Discontinued operations .02 .02 .13 .07 .24
------- ------- ------- ------- -------
Basic income (loss) per common share $ (.13) $ .01 $ .09 $ (.36) $ (.39)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Diluted income (loss) per common share:
Continuing operations $ (.15) $ (.01) $ (.04) $ (.43) $ (.63)
Discontinued operations .02 .02 .13 .07 .24
------- ------- ------- ------- -------
Diluted income (loss) per common share $ (.13) $ .01 $ .09 $ (.36) $ (.39)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
</TABLE>
(1) Reflects reclassifications from amounts reported in the Company's report
on Form 10-Q. These reclassifications have no effect on previously reported net
income (loss).
35
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Fourth Shift Corporation:
We have audited the accompanying consolidated balance sheets of Fourth Shift
Corporation (a Minnesota corporation) and Subsidiaries as of December 31,
1998 and 1997, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1998. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Fourth Shift Corporation and
Subsidiaries as of December 31, 1998 and 1997, and the results of their
operations and their cash flows for each of the three years in the period
ended December 31, 1998, in conformity with generally accepted accounting
principles.
/s/ ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
January 15, 1999
36
<PAGE>
ITEM 9. CHANGE IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
37
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by Item 10 with respect to executive officers is
included under a separate caption entitled "Executive Officers" in Part I of
the Form 10-K. The information with respect to directors is incorporated by
reference to the information under the caption "Election of
Directors-Nominees" of the Company's definitive proxy statement for its
May 4, 1999 Annual Meeting of Shareholders.
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 11 is incorporated by reference to the
information under the captions "Election of Directors-Director Compensation,"
"Executive Compensation - Summary Compensation Table," "Executive
Compensation -Stock Options," and "Executive Compensation - Long-Term
Incentive Plan Awards" of the Company's definitive proxy statement for its
May 4, 1999 Annual Meeting of Shareholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by Item 12 is incorporated by reference to the
information under caption "Security Ownership of Certain Beneficial Owners
and Management" of the Company's definitive proxy statement for its May 4,
1999 Annual Meeting of Shareholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 13 is incorporated by reference to the
information under the caption "Election of Directors-Director Compensation"
of the Company's definitive proxy statement for its May 4, 1999 Annual
Meeting of Shareholders.
38
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
a. Financial Statements
1. See the Financial Statement information contained in Item 8 of
this Form 10-K
2. Financial Statement Schedules
No Financial Statement Schedules are required
b. Reports on Form 8-K:
The Company filed a current report on Form 8-K on December 17, 1998
reporting the adoption of a shareholder rights plan and a dividend of
one right for each share outstanding.
c. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Restated Articles of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 4.1 of the Company's
10-Q for the quarter ended March 31, 1994).
3.2 Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3.2 to the Company's annual report on Form 10-Q for the
quarter ended September 30, 1998).
4.1 Form of Certificate for Common Stock (incorporated by reference
to Exhibit 4.1 of Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed June 28, 1993 (File No. 33-63012)).
4.2 Shareholder Rights Plan dated as of December 16, 1998
(incorporated by reference to Exhibit 4 to the Company's
Current Report on Form 8-K filed December 17, 1998).
10.1 1989 Stock Option Plan (incorporated by reference to Exhibit
10.4 of the Company's Registration Statement of Form S-1 filed
May 19, 1993 (File No. 33-63012)).
10.2 Fourth Shift Corporation 1994 Employee Stock Purchase Plan, as
amended (incorporated by reference to Exhibit 10.5 to the
Company's 10-K for the year ended December 31, 1994).
10.3 Fourth Shift Corporation 1993 Stock Incentive Plan, as amended
(incorporated by reference to Exhibit 10.6 to the Company's
10-K for the year ended December 31, 1994).
*10.4 Severance Pay Agreement dated October 21, 1997 between the
Company and Marion Melvin Stuckey (incorporated by reference to
Exhibit 10.8 to the Company's Form 10-K for the year ended
December 31, 1997).
*10.5 Severance Pay Agreement dated October 21, 1997 between the
Company and Jimmie H. Caldwell (incorporated by reference to
Exhibit 10.9 to the Company's Form 10-K for the year ended
December 31, 1997).
</TABLE>
39
<PAGE>
<TABLE>
<S> <C>
*10.6 Severance Pay Agreement dated October 21, 1997 between the
Company and David Latzke (incorporated by reference to Exhibit
10.10 to the Company's Form 10-K for the year ended
December 31, 1997).
10.7 Loan and Security Agreement dated March 2, 1998 as amended
between Fourth Shift Corporation and Silicon Valley Bank
(incorporated by reference to Exhibit 10.15 to the Company's
Form 10-K for the year ended December 31, 1997).
10.8 Agreement dated July 1, 1998 between the Company and Micro Data
Base Systems, Inc. (incorporated by reference to Exhibit 10.1
to the Company's quarterly report on Form 10-Q for the quarter
ended September 30, 1998).
10.9 Restated and Amended Office Lease dated May 1, 1998 between Fourth
Shift Corporation and Meridian Crossings LLC.
23.1 Consent of Arthur Andersen LLP.
27.0 Financial Data Schedule (For SEC use only).
</TABLE>
- ------------------
* Management contract or compensatory plan.
40
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized on March 30, 1999.
Fourth Shift Corporation
By: /s/ MARION MELVIN STUCKEY
---------------------------
Marion Melvin Stuckey
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated.
<TABLE>
<CAPTION>
Name Position Date
---- -------- ----
<S> <C> <C>
/s/ MARION MELVIN STUCKEY Chairman, Chief Executive Officer, March 30, 1999
- ----------------------------- (principal executive officer) and Director
Marion Melvin Stuckey
/s/ JIMMIE H. CALDWELL President, Chief Operating Officer and March 30, 1999
- ----------------------------- Director
Jimmie H. Caldwell
/s/ DAVID G. LATZKE Vice President and Chief Financial March 30, 1999
- ----------------------------- Officer, Treasurer and Secretary
David G. Latzke (principal financial officer)
/s/ CRAIG A. THOMPSON Controller March 30, 1999
- ----------------------------- (principal accounting officer)
Craig A. Thompson
/s/ MICHAEL J. ADAMS Director March 30, 1999
- -----------------------------
Michael J. Adams
/s/ TONY J. CHRISTIANSON Director March 30, 1999
- -----------------------------
Tony J. Christianson
/s/ STEVE J. LAIR Director March 30, 1999
- -----------------------------
Steve J. Lair
/s/ ROBERT M. PRICE Director March 30, 1999
- -----------------------------
Robert M. Price
/s/ MARK W. SHEFFERT Director March 30, 1999
- -----------------------------
Mark W. Sheffert
</TABLE>
41
<PAGE>
_____ RESTATED AND AMENDED
LEASE
6.19.98 TWO MERIDIAN CROSSINGS
THIS RESTATED AND AMENDED LEASE dated as of May 1, 1998, by and between
MERIDIAN CROSSINGS II LLC, a Minnesota limited liability company (d/b/a TOLD
Development Company) ("Landlord"), and FOURTH SHIFT CORPORATION, a Minnesota
corporation ("Tenant").
WITNESSETH:
A. Tenant previously executed a Lease ("Phase I Lease") dated
November 12, 1997 with Meridian Crossings LLC, for certain Premises in One
Meridian Crossings, Richfield, Minnesota which was amended by a certain
Amendment to Lease dated February 2, 1998 (herein referred to as "Amendment to
Lease Phase I" attached hereto as Exhibit "J" and made a part hereof);
B. Tenant agreed to relocate to Two Meridian Crossings as evidenced
by a certain Amendment to Lease dated February 2, 1998;
C. To that effect, certain Lease clarifications were necessary such
that Tenant and the Landlord agreed to amend and restate the Lease in its
entirety; and
D. This Restated and Amended Lease implements Article XXVII of the
Phase I Lease in the manner contemplated by said Article XXVII (upon exercise by
Landlord of Landlord's right to relocate Tenant), and is and shall constitute
the same lease as the Phase I Lease as herein amended. Accordingly, the Letter
of Credit furnished pursuant to Article XXIX of the Phase I Lease in the form of
Exhibit H to the Phase I Lease shall, upon execution and delivery hereof,
continue to constitute security for the Phase I Lease as herein amended and
restated.
FOR AND IN CONSIDERATION of the rents and covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
DATA SHEET
The following terms shall have the meanings set forth in this section,
unless otherwise specifically modified by provisions of this Lease:
(a) "FACILITY" OR "PROJECT": The Building and the Property
including all appurtenant easements and personal property used in connection
with the Building or Property located therein and thereon.
(b) "BUILDING": The approximately 190,506 rentable square
foot building which is located on the Property, the floor plan of which is
attached hereto as Exhibit A.
(c) "PROPERTY": The real property, known as Two Meridian
Crossings, Richfield, Minnesota 55423, more particularly described on Exhibit
"B".
(d) "PREMISES": The areas outlined on Exhibit A. For
purposes of this Lease, Landlord and Tenant agree that the Premises shall be
deemed to contain approximately 57,000 rentable square feet of space located as
follows:
7,766 rentable square feet on Floor 6;
1
<PAGE>
24,617 rentable square feet on Floor 7; and
24,617 rentable square feet located on Floor 8.
Landlord and Tenant agree that upon completion by Tenant of its
space planning, Landlord's architect will reasonably determine and certify the
actual area of the Premises, pursuant to the standard set forth in Article
XXXIII hereto and it shall be deemed the area of the Premises.
(e) "COMMENCEMENT DATE": January 1, 1999, subject to Article
IV.
(f) "EXPIRATION DATE": December 31, 2009, or (10)
full years from the Commencement Date.
(g) "TERM": Ten (10) full years, from
the Commencement Date.
(h) "BASE RENT":
<TABLE>
<CAPTION>
With respect to the follow- Annual Base Rent shall Payable in advance in equal
ing years of the term: be as follows: monthly installments as follows:
<S> <C> <C>
Years 1 - 5 $14.50 per rentable square 1/12 of Annual Base Rent
foot of Premises
Years 6 - 10 $15.95 per rentable square 1/12 of Annual Base Rent
foot of Premises
</TABLE>
(i) "ADDITIONAL RENT": Tenant's Share of Operating Expenses,
Tenant's Share of Taxes, Service Charges and other payments to be made by Tenant
to Landlord pursuant to this Lease.
(j) "TENANT'S PERCENTAGE": Twenty-nine and ninety-two
hundredths percent (29.92%). Tenant's Percentage shall be adjusted in the event
of a change in the number of rentable square feet of space in the Building or
Premises and as set forth in Article 2 herein.
(k) "GUARANTOR": Not applicable.
(l) "SECURITY DEPOSIT": $500,000.00 Letter of credit.
(m) "PERMITTED USE": For general office and related purposes
(including, for purposes of illustration and not limitation, vending machines
for non-public use, employee lunchroom (with microwave oven) and a computer room
and for no other purpose. Tenant understands that Landlord has granted a tenant
the exclusive right in the Facility to operate an office suites business and
Tenant agrees it will not operate the Premises, or allow the operation by others
claiming through Tenant, as an office suites business.
(n) NOTICE AND PAYMENT ADDRESSES:
Landlord: Meridian Crossings II LLC
c/o TOLD Development Company
2
<PAGE>
6900 Wedgwood Road, Suite #100
Maple Grove, MN 55311
Ph: #(612)420-9000
Attn: Law Department
Tenant:
PRIOR TO COMMENCEMENT DATE: Fourth Shift Corporation
7900 International Drive
Minneapolis, MN 55425
Attn: Chief Financial Officer
w/ a copy to: Fourth Shift Corporation
3000 Executive Parkway, Suite #140
San Ramone, CA 94583
Attn:
AFTER COMMENCEMENT DATE: Fourth Shift Corporation
Two Meridian Crossings, Suite 800
Richfield, MN 55423
Attn: Chief Financial Officer
w/ a copy to: Fourth Shift Corporation
3000 Executive Parkway, Suite #140
San Ramone, CA 94583
Attn:
(o) "LEASE YEAR": The twelve-month period commencing January
1 and ending December 31, adjusted for partial Lease Years during which the Term
commences and terminates.
(p) "LANDLORD'S IMPROVEMENTS": Improvements to the Premises
to be performed by Landlord as set forth in Exhibit D.
(q) "BROKER OR TENANT REPRESENTATIVE": Welsh Companies and
CB Commercial, which receive no additional compensation for this Restated and
Amended Lease.
(r) EXHIBITS: the following exhibits are attached to this
Lease and are incorporated herein by reference:
<TABLE>
<S> <C> <C> <C>
Rider to Lease
Exhibit A - Premises Exhibit D - Landlord's Improvements
Exhibit B - Legal Description & Exhibit E - Services
Site Plan Exhibit E-1 - Janitorial Specifications
Exhibit C - Rules and Regulations Exhibit F - Reserved Parking Lease
Exhibit G - Estoppel Certificate
Exhibit H - Letter of Credit Form
Exhibit I - Open Stairwell
Exhibit J - "Amendment to Lease Phase I"
</TABLE>
3
<PAGE>
ARTICLE I
BASE RENT
1.01 Rent Reserved and Monthly Payments. In consideration of the
leasing of the Premises, Tenant agrees to pay to Landlord without setoff,
deduction or demand, unless specifically provided for herein, at the address set
forth in the Data Sheet, or at such other place as Landlord from time to time
may designate in writing, Base Rent as set forth in Article 2, commencing on the
Commencement Date and continuing on the first day of each and every month
thereafter for the next succeeding months during the balance of the Term. If
the Term commences on a date other than the first day of a calendar month or
ends on a date other than on the last day of a calendar month, monthly rent for
such partial month, as the case may be, shall be obtained by multiplying the
number of days in the term within such month by a fraction, the numerator of
which is the annual Base Rent and the denominator of which is 365.
ARTICLE II
ADDITIONAL RENT
2.01 Additions to Base Rent. In addition to the Base Rent payable by
Tenant under the provisions of Article 1 hereof, Tenant shall pay to Landlord
"Additional Rent" as hereinafter provided.
2.02 Definitions. For purposes of this Article 2, the parties hereto
agree upon the following definitions:
A. The term "Taxes" shall mean and include all personal
property taxes of Landlord relating to Landlord's personal property located in
the Facility and used or useful in connection with the operation and maintenance
thereof, real estate taxes and installments of special assessments, including
interest thereon (excluding penalties or penalty interest except to the extent
resulting from late payments of Tenant), relating to the Property and Facility,
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, that is levied or assessed by the
United States of America or the state in which the Facility is located or any
political subdivision thereof, against Landlord or all or any part of the
Facility as a result of Landlord's ownership of the Property or Facility, and
due and payable during the respective Lease Year. It shall not include any
gross receipts or income tax, estate tax, capital gains, or inheritance tax of
Landlord.
B. (1) The term "Operating Expenses" shall mean and
include all expenses incurred with respect to the maintenance and operation of
the Property and Facility, including without limitation the parking areas and
parking structures, as reasonably determined by Landlord'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, janitorial services, trash and rubbish removal; wages
payable to employees of Landlord whose duties are related directly to the
operation and maintenance of the Property and Facility pro rated for time
actually spent at the Property and excluding any personnel above the rank of
building superintendent; amounts paid to contractors or subcontractors for work
or services performed related directly to the operation and maintenance of the
Property and Facility; all costs of uniforms, supplies and materials used in
direct support of the operation and maintenance of the Property and Facility;
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; and
any other expense imposed on Landlord, pursuant to law or pursuant to any
collective bargaining agreement covering such employees; reasonable attorney's
4
<PAGE>
fees, and costs in connection with appeal or contest of real estate taxes or
valuation or other taxes or levies, and such other expenses as may be ordinarily
incurred in the operation and maintenance of an office complex, including
reasonable management fees not to exceed three percent (3%) of gross rental
income from the Facility (for the purpose of this calculation, any free or
abated rent shall be included as if rent was being paid at the amount due
immediately after expiration of said free rent period), the cost of a management
office, and assessments reasonably attributable to the Facility on account of
costs incurred by any business park association for the business park in which
the Facility is located. Operating Expenses shall also be deemed to include
expenses incurred by Landlord in connection with city sidewalks adjacent to the
Property or other public facility to which Landlord or the Facility is from time
to time subject in connection with operations of the Property and Facility.
(2) The term "Operating Expenses" shall not include
any capital improvement to the Facility, nor shall it include repairs,
restoration or other work occasioned by fire, windstorm or other insured
casualty, expenses incurred in leasing to or procuring tenants, costs that are
separately billed to tenants or any other expenses for which Landlord receives
reimbursement, leasing commissions, expenses for renovating space for new
tenants, legal expenses incident to enforcement by Landlord of the terms of any
lease, interest or principal payments on any mortgage or other indebtedness,
depreciation allowance or expense other than depreciation on Building equipment
to the extent expressly permitted in paragraph 2.02(B)(3) of this Lease.
(3) Notwithstanding the foregoing, in the event
Landlord installs equipment in or makes improvements or alterations to the
Facility that are for the purpose of reducing energy costs, maintenance costs or
other Operating Expenses or that are required under any governmental laws,
regulations, or ordinances which were not required at the date of commencement
of the term of this Lease, Landlord 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 provided, however,
the annual amount added to Operating Expenses for equipment, improvements or
alterations ("Equipment") for the purpose of reducing energy costs, maintenance
costs or other Operating Expenses shall not exceed Landlord's reasonable
estimate (at the time of installation, improvement, or alteration) of the annual
savings resulting from such Equipment.
C. The terms "Tenant's Share of Taxes" and "Tenant's Share
of Operating Expenses", unless specifically otherwise defined herein, shall each
mean the percentage that the rentable area of Tenant's Premises is of the total
rentable area in the Facility, subject to adjustment as set forth in Paragraph
D. If said percentage shall change during a Lease Year, it shall be averaged
by applicable days, and the average shall be Tenant's Share for that year.
D. Notwithstanding anything herein to the contrary, it is
agreed that (i) in the event the Facility is not fully occupied during any Lease
Year, a reasonable and equitable adjustment shall be made by Landlord to those
charges only which vary with the occupancy of the Facility in computing the
Operating Expenses for such year so that the Operating Expenses shall be
adjusted to the amount that would have been incurred had the Facility been fully
occupied during such year, and (ii) Tenant's share shall be amended for each
Lease Year to the percentage that the average rentable area of the Premises
bears to the greater of (y) ninety-five percent (95%) of the total rentable area
of the Facility for such Lease Year, or (z) to the total average rentable area
leased (pursuant to leases under which the term has commenced) in the Facility
for such Lease Year.
E. The term "Service Charge" shall mean any fee or other
charge for service specified in this Lease as payable by Tenant.
5
<PAGE>
2.03 Additional Rent Estimates: As to each Lease Year after the
initial Lease Year, Landlord shall estimate for each such Lease Year (i) the
total amount of Taxes; (ii) the total amount of Operating Expenses; (iii)
Tenant's Share of Taxes; (iv) Tenant's Share of Operating Expenses; (v) the
computation of the annual and monthly rental payable during such Lease Year as a
result of increases or decreases in Tenant's Share of Taxes and Tenant's Share
of Operating Expenses. Said estimate shall be in writing and Landlord shall use
reasonable efforts to deliver or mail same to Tenant at the Premises within
ninety (90) days of the close of each Lease Year. Landlord may adjust such
estimates from time to time during the Lease Year.
2.04 Payment of Additional Rent Estimates. Tenant shall pay the
Additional Rent 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 Tenant 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.
2.05 Annual Determination of Additional Rent. Upon completion of each
Lease Year, Landlord shall determine the actual amount of Taxes and Operating
Expenses for such Lease Year and Tenant's Share thereof and deliver a written,
itemized certification of the amounts thereof to Tenant. If Tenant has paid
less than its Share of Taxes or its Share of Operating Expenses for any Lease
Year, Tenant shall pay the balance of its Share of the same within twenty (20)
days after the receipt of such statement. If Tenant has paid more than its
Share of Taxes or its share of Operating Expenses for any Lease Year, Landlord
shall, at Tenant's option, either (i) promptly refund such excess, or (ii)
credit such excess against the most current monthly installment or installments
due Landlord for Base Rent and Additional Rent estimates. 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 Tenant or credits due
Tenant as a result of the provisions of this Article 2 shall be adjusted
accordingly.
2.06 Rental Taxes. Further, Tenant 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 Facility is located or any political subdivision thereafter, against
Landlord in respect to the Base Rent, Additional Rent, or other charges reserved
under this Lease or as a result of Landlord's receipt of such rents or other
charges accruing under this Lease, all of which shall herein be termed "Rental
Taxes"; provided, however, Tenant shall have no obligation to pay income or
capital gains taxes of Landlord.
2.07 Tenant's Taxes. Tenant 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 Tenant
located in the Premises, and when possible, Tenant shall cause such trade
fixtures, furnishing, equipment and other personal property to be assessed and
billed separately from the property of Landlord. In the event any or all of
Tenant's trade fixtures, furnishings, equipment or other personal property, or
Tenant's occupancy of the Premises, shall be assessed and taxed with the
property of Landlord, Tenant shall pay to Landlord its share of such taxes
within ten (10) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to Tenant's personal
property.
ARTICLE III
OVERDUE AMOUNTS; RENT INDEPENDENT
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3.01 Payment of Rent. Any installment of Base Rent, Additional Rent,
or any other charges to be paid by Tenant accruing under the provisions of this
Lease that shall not be paid when due, shall bear interest at the rate of two
(2) points over the quoted prime rate of interest charged by Norwest Bank
Minnesota, N.A. (or its successor) 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. Landlord agrees that it will waive the initial twenty
(20) days interest accrued in any twelve (12) consecutive month period.
Tenant's covenants to pay the Base Rent and the Additional Rent are independent
of any other covenant, condition, provision or agreement herein contained.
3.02 No Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Base Rent, Additional Rent, Service Charge
or other charges ("Rent") stipulated herein shall be deemed to be other than on
account of the earliest stipulated Rent, nor shall any endorsement or statement
on any check or letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord shall accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy in this Lease.
ARTICLE IV
TERM AND COMMENCEMENT
4.01 Demise. Landlord hereby demises and leases to Tenant and Tenant
hereby rents and takes from Landlord the Premises for the Term and subject to
and with the benefit of the terms, covenants and conditions of this Lease to be
occupied and used by Tenant solely for the purposes stated on the Data Sheet and
for no other purpose. Landlord shall have the right to grant exclusive rights
to parties in the Facility to conduct service businesses serving the Property
but in no event shall this conflict with Tenant's use as set forth on the Data
Sheet.
4.02 Commencement Date. Tenant shall have and hold the same Premises,
without any liability or obligation on the part of Landlord to make any
alterations, improvements or repairs of any kind in or about the Premises,
except as expressly provided herein, for the Term set forth on the Data Sheet,
unless sooner terminated in the manner provided herein. The Term hereof shall
commence on the Commencement Date. Except as specifically set forth in Section
27.2 hereinafter, if Landlord is unable to give possession of the Premises on
the Commencement Date because the construction of the Facility or the completion
of the Premises has not been sufficiently completed to make the Premises ready
for occupancy, or for any reason, Landlord shall not be subject to any claims,
damages or liabilities for the failure to give possession on said date.
Substantial completion of the Premises shall be evidenced by the issuance of a
certificate of occupancy (whether full or partial, temporary or permanent) for
the Premises, provided, however this provision shall not limit Tenant's right to
require Landlord to correct incomplete or defective work pursuant to Section
4.03, in the Building or Premises. Under said circumstances, the Rent reserved
and covenant to pay same shall not commence until possession of the Premises is
given and the Premises are ready for occupancy, whichever is earlier, and
failure to give possession on the Commencement Date shall in no way affect the
validity of this Lease or the obligations of Tenant hereunder, except that
Tenant's obligation to make rental and other required payments (other than
pursuant to Article XXIII herein) shall be deferred and there shall be a
corresponding extension of the Expiration Date.
4.03 Acceptance of Premises. The acceptance of possession by Tenant
shall be deemed conclusively to establish that the Premises and all other
improvements of the Facility required to be constructed by Landlord for use
thereof by Tenant have been completed unless Tenant notifies Landlord in writing
within thirty (30) days after commencement of the term as to any items not
completed. Tenant waives any claim as
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to matters not listed in said notice other than latent defects for which
Tenant provides Landlord notice within twelve (12) months from substantial
completion of the Premises.
ARTICLE V
SERVICES
5.01 Landlord's Services. Subject to including the cost thereof in
Article 2, Landlord shall provide services as stated in Exhibit "E", without
further charge except as expressly stated otherwise.
5.02 Interruption of Services. 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 shall be deemed an eviction
or disturbance of Tenant's use and possession, or render Landlord liable for
damages, by abatement of rent or otherwise or relieve Tenant from any obligation
herein set forth. In no event shall Landlord be required to provide any heat,
air conditioning, electricity or other service in excess of that permitted by
involuntary guidelines or laws, ordinances or regulations of governmental
authority.
5.03 Anything in this Lease to the contrary notwithstanding, Landlord
shall have the right to specially assess Tenant a Service Charge for additional
services specially requested by Tenant or other items of Operating Expenses (and
shall reduce the total of Operating Expenses accordingly) to the extent Landlord
can reasonably demonstrate Tenant's use or consumption thereof due to hours of
operation, equipment operated from the Premises, or other reasons, warrant such
assessment.
ARTICLE VI
INSURANCE
6.01 Landlord's Insurance.
A. Landlord's Casualty Insurance. Landlord shall, as a
portion of Operating Expenses, keep the Facility insured for the benefit of
Landlord in an amount equivalent to the full replacement value thereof
(excluding foundation, grading and excavation costs) against (a) loss or damage
by fire; 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 Facility, including, but without limiting, the generality of the
foregoing, windstorms, hail, explosions, vandalism, theft, malicious mischief,
civil commotion, law and ordinance, and such other coverage as may be deemed
necessary by Landlord, provided such additional coverage is obtainable and
provided 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 Facility.
B. Landlord's Liability Insurance. Landlord shall, as a
portion of the Operating Expenses, maintain, for its benefit and the benefit of
its managing agent and lender, commercial general liability insurance against
claims for personal injury, death or property damage occurring upon, in or about
the Facility.
These insurance provisions shall in no way limit or modify any of
the obligations of Tenant under any provision of this Lease.
6.02 Tenant's Insurance.
(a) Tenant's Casualty Insurance. Tenant shall keep all of its
machinery, equipment, furniture, fixtures, personal property (including also
property under the care, custody, or control of Tenant) and business interests
that may be located in, upon, or
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about the Premises insured for the benefit of Tenant in an amount equivalent
to the full replacement value or insurable value thereof against (a) loss or
damage by fire; 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 a tenant's machinery, equipment, furniture, fixtures, personal property
and business located in a building similar in construction, general location,
use, occupancy and design to the Facility, including, but without limiting
the generality of the foregoing, windstorms, hail, explosions, vandalism,
theft, malicious mischief, civil commotion, and such other coverage as Tenant
may deem appropriate or necessary. Tenant shall have the right to provide
this coverage by means of blanket coverage.
(b) Tenant's Liability Insurance. Tenant shall, at Tenant's
sole cost and expense maintain commercial general liability insurance against
claims for bodily and personal injury, death or property damage occurring upon,
in or about the Premises, such insurance to afford protection to the limit of
not less than One Million and No/100 Dollars ($1,000,000.00) per each
occurrence, and to the amount of not less than Two Million and No/100 Dollars
($2,000,000.00) in general aggregate. Such policies of insurance shall be
written in companies reasonably satisfactory to Landlord, naming Landlord, its
lender and Landlord's managing agent as additional insureds thereunder, and
certificate of such insurance shall be delivered to Landlord by the company or
agency issuing the same. Tenant agrees to include in such policy contractual
liability coverage insuring Tenant's indemnification obligations provided for
herein. Tenant shall have the right to provide this coverage by means of
blanket coverage.
6.03 Releases and Indemnity.
(a) Tenant's Indemnification. Tenant agrees to indemnify and
save Landlord and its managing agent harmless against and from any and all
claims, loss, damage and expense by or on behalf of any person or persons, firm
or firms, corporation or corporations, arising from any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed, pursuant to the terms of this Lease, or arising from any
act or negligence on the part of Tenant or its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage to the
extent caused by Tenant, 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 Project, and from and against all costs, reasonable
counsel fees, expenses and liabilities incurred in or about any such claim or
action or proceeding which may be brought thereon; and in case any action or
proceeding be brought against Landlord or its managing agent by reason of any
such claim, Tenant, upon notice from Landlord, covenants to resist or defend
such action or proceeding by counsel reasonably satisfactory to Landlord.
(b) Landlord's Indemnification. Landlord agrees to indemnify
and save Tenant harmless against and from any and all claims, loss, damage and
expense by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord to be
performed, pursuant to the terms of this Lease, or arising from any act or
negligence on the part of Landlord or its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage to the
extent caused by Landlord, 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 Project, and from and against all costs, reasonable
counsel fees, expenses and liabilities incurred in or about any such claims,
actions or proceeding brought thereon; and in case any action or proceeding is
brought against Tenant by reason of any such claim, Landlord, upon notice from
Tenant, covenants to resist or defend such action or proceeding with competent
counsel.
(c) Tenant's Waiver. Tenant agrees, to the extent not expressly
prohibited by law, that Landlord, its agents, employees and servants shall not
be liable,
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and Tenant waives all claims for damage to property and business sustained
during the term of this Lease by Tenant occurring in or about the Facility,
resulting directly or indirectly from any existing or future condition,
defect, matter or thing in the Premises, the Facility, 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 Landlord, its agents, employees
or servants, or any tenant or occupant of the Building or any other person
unless caused by the negligence or intentional act of Landlord, its agents or
employees. 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 Facility 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.
(d) Tenant's Liability. All property in the Facility or on the
Premises belonging to Tenant, its agents, employees, invitees or otherwise
located at the Premises, shall be at the risk of Tenant only, and Landlord shall
not be liable for damage thereto or theft, misappropriation or loss thereof
unless caused by the gross negligence or willful misconduct of Landlord, it
agents, or employees and Tenant agrees to defend and hold Landlord, its agents,
employees and servants harmless and indemnify them against claims and liability
for injuries to such property other than that caused by the gross negligence or
willful misconduct of Landlord, its agents, or employees.
(e) Releases. Landlord and Tenant each agree that such
policy or policies of insurance for loss or damage by fire or other risks shall
permit releases of liability as herein provided and include a waiver of
subrogation clause as to Tenant and Landlord respectively. Each party hereto
waives, releases and discharges the other party from all claims or demands
whatsoever which the waiving party may have arising out of damage to or
destruction of the waiving party's property or loss of use thereof occasioned by
fire of other casualty, which such claim or demand may arise because of the
negligence or fault of the other party, its agents, employees, customers or
business invitees, or otherwise and the waiving party agrees to look to its
insurance coverage only in the event of such loss.
ARTICLE VII
CERTAIN RIGHTS RESERVED BY LANDLORD
7.01 Rights Reserved. Landlord reserves the following rights
exercisable without notice unless otherwise noted and without liability to
Tenant and without affecting an eviction, constructive or actual, or disturbance
of Tenant's use of possession, or giving rise to any claim for setoff or
abatement of rent:
A. To control, install, affix and maintain any and all signs on
the Property, or on the exterior of the Facility and in the corridors, entrances
and other common areas thereof, except as provided in Article XXX hereof, and
except those signs within the Premises not visible from outside the Premises.
B. To reasonably designate, limit, restrict and control any
service in or to the Facility, including but not limited to the designation of
sources from which Tenant may obtain sign painting and lettering. Any
restriction, designation, limitation or control imposed by reason of this
subparagraph shall be imposed uniformly on Tenant and other tenants in the
Facility.
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C. To retain at all times and to use in appropriate instances,
keys or other means of access to all doors within and into the Premises. No
locks shall be changed without prior written consent of Landlord. This
provision shall not apply to Tenant's safes, or other areas maintained by Tenant
for the safety and security of monies, securities, negotiable instruments or
like items.
D. To make repairs, alterations, additions, or improvements,
whether structural or otherwise, in and about the Facility, or any part thereof,
and 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 Facility and to temporarily interrupt or temporarily suspend
services and facilities.
E. To restrict or prohibit vending or dispensing machines of any
kind in or about the Premises for use by the general public (as opposed to
Tenant's employees and business invitees).
F. To approve the weight, size and location of safes and other
heavy equipment and articles in and about the Premises and the Facility and to
require all such items to be moved into and out of the Facility and the Premises
only at such times and in such manner as Landlord shall direct in writing.
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.01 Alterations. Tenant shall not make any improvements, alterations,
additions or installations in or to the Premises (hereinafter referred to as the
"Work") without Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Along with any request for
Landlord's consent and before commencement of the Work or delivery of any
materials to be used in the Work to the Premises or into the Facility, Tenant
shall furnish Landlord with plans and specifications, names and addresses of
contractors, copies of contracts, necessary permits and licenses, and except
when Landlord, its agent or affiliate is contractor, an indemnification in such
form and amount as may be reasonably satisfactory to Landlord. Tenant agree to
defend and hold Landlord harmless from any and all claims and liabilities of any
kind and description that may arise out of or be connected in any way with said
improvements, alterations, additions or installations. All work done by Tenant,
its agents, employees, or contractors shall be done in such a manner as to avoid
labor disputes. Tenant 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 Facility occasioned by such
improvements, alterations, additions or installations. Upon completion of the
Work, Tenant shall furnish Landlord with contractor's sworn affidavits and full
and final waivers of liens, or receipted bills covering all labor and materials
expended and used. The 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. Tenant shall permit
Landlord to inspect construction operations in connection with the Work. Tenant
shall not be allowed, without Landlord's reasonable approval, to perform such
Work if such action results or would result in a labor dispute or otherwise
would materially interfere withLandlord's operation of the Facility.
ARTICLE IX
REPAIRS
9.01 Tenant's Duty of Repair. Tenant shall, during the term of this
Lease, at Tenant's expense, keep the Premises in as good order, condition and
repair as they
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were at the time Tenant took possession of the same, reasonable wear and tear
and damage from fire and other casualties excepted. Tenant 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 Facility, throw foreign
substances in the plumbing facilities, or waste any of the utilities
furnished by the Landlord. All uninsured damage or injury to the Premises,
or to the Facility caused by Tenant moving furniture, fixtures, equipment, or
other devices in or out of the Premises or Facility or by installation or
removal of furniture, fixtures, equipment, devices or other property of
Tenant, its agents, contractors, servants or employees, due to carelessness,
omission, neglect, improper conduct, or other cause of Tenant, its servants,
employees, agents, visitors, or licensees, shall be repaired, restored and
replaced promptly by Tenant at its sole cost and expense to the reasonable
satisfaction of Landlord. All repairs, restorations and replacements shall be
in quality and class equal to the original work.
9.02 Right of Entry. Landlord or its employees or agents shall have
the right to enter the Premises at any reasonable time or times for the
purpose of inspection, cleaning, repairs, altering, or improving the same but
nothing contained herein shall be construed as imposing any obligation on
Landlord to make any repairs, alterations or improvements that are the
obligation of Tenant. See Rider Article XXX.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.01 Assignment by Tenant. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld
delayed or conditioned, (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 regular use of the Premise by any parties other than
Tenant, its agents and employees. Tenant shall seek such written consent of
Landlord by a written request therefore, setting forth such information as
Landlord may reasonably deem necessary. Tenant shall, by notice in writing,
advise Landlord of its intention from, on and after a stated date which shall
not be less than thirty (30) days after date of Tenant's notice, to assign this
Lease or sublet any part or all of the Premises for the balance of the Term.
Tenant'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 Landlord with Tenant's notice along with any consideration
therefor. Landlord will not unreasonably withhold, delay, or condition its
consent to Tenant's assignment of the Lease or subletting of such space and
incidental rights to the party identified in Tenant's notice.
10.02 Payment to Landlord.
A. Landlord will not unreasonably withhold, delay, or
condition its consent to Tenant's assignment of the Lease or subletting of such
space and incidental rights to the party identified in Tenant's notice,
provided, however, in the event Landlord consents to any such assignment or
subletting, and as a condition thereto, Tenant shall pay to Landlord, fifty
percent (50%) of all net profit derived by Tenant from such assignment or
subletting other than to affiliates of Tenant. For purposes of the foregoing,
net profit shall be deemed to include, but not be limited to, the amount of all
rent payable by such assignee or sublessee in excess of the Base Rent and rent
adjustments payable by Tenant under this Lease, net of all reasonable expenses
(including new tenant improvements, commissions, rent abatement and similar
costs of subleasing) incurred by Tenant in obtaining said assignee or sublessee.
If a part of the consideration for such assignment or
subletting shall be payable other than in cash, the payment to Landlord shall be
in cash for its share of any non-cash consideration based upon the fair market
value thereof.
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B. Tenant shall furnish to Landlord upon request a complete
statement, certified by an independent certified public accountant, setting
forth in detail the computation of all profit, pursuant to generally accepted
accounting principles. Tenant agrees that Landlord shall have the right to
review its books and records used to determine profit for the assignment or
sublease. Any profit shall be paid to Landlord within fifteen (15) days of
receipt by Tenant of all payments made from time to time by such assignee or
sublessee to Tenant.
10.03 Terms of Sublease. Any subletting or assignment hereunder shall
not release or discharge Tenant of or from any liability, whether past, present
or future, under this Lease, and Tenant shall continue fully liable thereunder
unless Landlord shall agree otherwise in writing. The subtenant or assignee
shall agree in a form satisfactory to Landlord to comply with and be bound by
all of the terms, covenants, conditions, provisions and agreements of this Lease
to the extent of the space sublet or assigned, and Tenant shall deliver to
Landlord 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 Landlord to any assignment of this Lease or to any subletting of the
Premises shall not be a waiver of Landlord's rights under this Article as to any
subsequent assignment or subletting.
10.04 As long as Tenant remains a publicly-held corporation, a transfer
of any shares in Tenant shall not be deemed an assignment under this Lease.
10.05 Miscellaneous. Any sale, assignment, mortgage, transfer, or
subletting of this Lease which is not in compliance with the provisions of this
Article 10 shall be of no effect and void. Landlord's right to assign its
interest in this Lease shall remain unqualified.
ARTICLE XI
DAMAGE BY FIRE OR OTHER CASUALTY
11.01 Premises Destruction. If fire or other casualty shall render the
whole or any material portion of the Premises untenantable, then:
A. If the Premises can reasonably be expected to be made
tenantable within two hundred ten (210) days from the date of such event,
Landlord shall repair and restore the Premises and the Facility to as near their
condition prior to the fire or other casualty as is reasonably possible within
such two hundred ten (210) day period (subject to delays for causes beyond
Landlord's reasonable control) and notify Tenant 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).
B. If the Premises cannot reasonably be expected to be made
tenantable within two hundred ten (210) days from the date of such event, either
Landlord or Tenant by notice in writing to the other mailed within forty-five
(45) 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.
11.02 Complex Destruction. In the event that more than fifty percent
(50%) of the value of the Facility is damaged or destroyed by fire or other
casualty, and irrespective of whether damage or destruction can be made
tenantable within two hundred ten (210) days thereafter, then at Landlord's
option, by written notice to Tenant, mailed within thirty (30) days from the
date of such damage or destruction, Landlord may terminate this Lease effective
upon a date within ninety (90) days from the date of such notice to Tenant. In
the event of a termination of this Lease pursuant to this Article 11, Rent shall
be apportioned on a per diem basis to the date of the fire or casualty. If
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fifty percent (50%) or more of the value of the Facility is damaged and
destroyed by fire or other casualty during the last year of the Lease Term
and Tenant's Premises are substantially damaged and made untenantable,
Tenant may, upon thirty (30) days written notice to Landlord mailed within
thirty (30) days from the date of such damage or destruction, terminate this
Lease effective upon the date of notice.
11.03 Duty to Repair; Rent Abatement. If fire or other casualty shall
render the whole or any part of the Premises untenantable and the Premises
cannot reasonably be expected to be made tenantable within two hundred ten (210)
days from the date of such event and neither Landlord nor Tenant terminates this
Lease pursuant to its right herein; or in the event that more than fifty percent
(50%) of the value of the Facility is damaged or destroyed by fire or other
casualty, and neither party hereto terminates this Lease pursuant to the options
granted herein, or in the event that fifty percent (50%) or less of the value of
the Facility is damaged or destroyed by fire or other casualty and neither the
whole nor any material portion of the Premises is rendered untenantable, then
Landlord shall repair and restore the Premises and the Facility to as near their
condition prior to the fire or other casualty as is reasonably possible, the
work to be commenced and prosecuted with all due diligence and speed (subject to
delays for causes beyond Landlord'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 that is untenantable). In no event
shall Landlord be obligated to repair or restore any special equipment or
improvements installed by Tenant at Tenant's expense.
ARTICLE XII
EMINENT DOMAIN
12.01 Public Taking. If the whole of or any substantial part of the
Premises is taken 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
Tenant'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 Landlord 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 Landlord, Tenant hereby assigning to Landlord its interest, if
any, in said award. In the event that fifty percent (50%) or more of the
building area or fifty percent (50%) or more of the value of the Facility is
taken by public authority under the power of eminent domain, then, at Landlord's
option, by written notice to Tenant, mailed within sixty (60) days from the date
possession shall be taken by such public authority, Landlord may terminate this
Lease effective upon a date within ninety (90) days from the date of such notice
to Tenant.
12.02 Tenant's Election. Further, if the whole or any material part of
the Premises is taken by public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render the
remaining portion of the Premises unsuitable in Tenant's reasonable opinion, for
the purposes intended hereunder, upon delivery of possession to the condemning
authority pursuant to the proceedings, Tenant may, at its option, terminate this
Lease as to the remainder of the Premises by written notice to Landlord, such
notice to be given to Landlord within sixty (60) days after Tenant receives
notice of the taking. Tenant shall not have the right to terminate this Lease
pursuant to the preceding sentence unless (i) the business of Tenant conducted
in the portion of the Premises taken cannot, in Tenant's reasonable judgment, be
carried on with substantially the same utility and efficiency in the remainder
of the Premises [or any substitute space securable by Tenant pursuant to clause
(ii) hereof]; and (ii) Tenant cannot secure substantially similar (in Tenant's
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Landlord in the Facility. Any
notice of termination
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shall specify a date no more than one hundred sixty (160) days after the
giving of such notice as the date for such termination.
12.03 Tenant's Damages. Anything in this Article 12 to the contrary
notwithstanding, Tenant 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 Tenant's movable trade fixtures and equipment and for moving
expenses; provided, however, Tenant shall in no event have any right to receive
any award for its interest in this Lease or for loss of leasehold.
12.04 Restoration and Rent. Anything in this Article 12 to the
contrary notwithstanding, in the event of a partial condemnation of the Facility
or the Premises and this Lease is not terminated, Landlord shall, at its sole
cost and expense, expeditiously restore the Premises and Facility 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 the area of the Premises restored
after the condemnation.
ARTICLE XIII
SURRENDER OF PREMISES
13.01 Surrender by Tenant. On the last day of this Lease, or on the
sooner termination thereof, Tenant shall peaceably surrender the Premises in
good condition and repair consistent with Tenant'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, Tenant 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. Tenant hereby appoints
Landlord its agent to remove all property of Tenant from the Premises upon
termination of this Lease and to cause its transportation and storage for
Tenant's benefit, all at the sole cost and risk of Tenant, and Landlord shall
not be liable for damage, theft, misappropriation or loss thereof, and Landlord
shall not be liable in any manner in respect thereto. Tenant shall pay all
costs and expenses of such removal, transportation and storage. Tenant shall
leave the Premises in good order, condition and repair, reasonable wear and tear
and damage from fire and other casualty excepted. Tenant shall reimburse
Landlord upon demand for any expenses incurred by Landlord with respect to
removal, transportation, or storage of abandoned property and with respect to
restoring said Premises to good order, condition and repair. All alterations,
additions and fixtures, other than Tenant's trade fixtures and equipment, that
have been made or installed by either Landlord or Tenant upon the Premises,
shall remain the property of Landlord and shall be surrendered with the Premises
as a part thereof. Tenant shall promptly surrender all keys for the Premises to
Landlord at the place then fixed for the payment of Rent and shall inform
Landlord of combinations on any vaults, locks and safes left on the Premises.
13.02 Holding Over. In the event Tenant remains in possession of the
Premises after expiration of this Lease, and without the execution of a new
lease, but with Landlord'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
Landlord's then current Base Rent for the Premises according to Landlord's then
current rental rate schedule for prospective tenants. In the event Tenant
remains in possession of the Premises after expiration of this Lease and without
the execution of a new lease and without Landlord's written consent, Tenant
shall be deemed to be occupying the Premises without claim of right and Tenant
shall pay a charge for each day of occupancy an amount equal to one hundred
fifty percent (150%) of the Base Rent and Additional Rent (on a daily basis)
then currently being charged by Landlord on new leases in the Facility for space
similar to the Premises.
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ARTICLE XIV
DEFAULT
14.01 Remedies Cumulative. All rights and remedies of Landlord herein
enumerated shall be cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord may lawfully be entitled in case
of any breach or threatened breach of Tenant of any provision of this Lease.
The failure of Landlord 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 Landlord 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 Landlord or Tenant of any provisions of this Lease shall be deemed
to have been made unless expressed in writing and signed by Landlord or Tenant,
as the case may be. In addition to the other remedies in this Lease provided,
Landlord or Tenant 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.
14.02 Tenant Change in Status. If, during the term of this Lease or
any renewal term, (i) Tenant shall make an assignment for the benefit of
creditors, or (ii) a voluntary petition be filed by Tenant under any law having
for its purpose the adjudication of Tenant a bankrupt, or Tenant be adjudged a
bankrupt pursuant to an involuntary petition in bankruptcy and the same not be
dismissed or stayed within sixty (60) days of its filing, or (iii) a receiver be
appointed for the property of Tenant by reason of the insolvency of Tenant, 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 Tenant by
reason of the insolvency of Tenant and such action not be stayed or terminated
within sixty (60) days thereafter, then, 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 Tenant will then quit and surrender the Premises, but Tenant shall
remain liable as hereinafter provided. As used in this paragraph, the term
"Tenant" shall also mean any guarantor of Tenant's obligations under this Lease.
14.03 Tenant Breach. If, during the initial term of this Lease or any
renewal term, (i) Tenant defaults in any payment of the Rent expressly reserved
hereunder for ten (10) days after receipt of written notice thereof, or any part
of the same; (ii) Tenant 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 Tenant hereunder), or (iii) this Lease, without the
prior written consent of Landlord or except as expressly permitted, shall be
assigned, pledged, mortgaged, transferred, or sublet in any manner, and such
default in (ii) shall continue for thirty (30) days after service of notice of
the default by Landlord, or in the event of a default or contingency set forth
in (ii) hereinabove cannot with due diligence be cured within a period of thirty
(30) days, if Tenant 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 Tenant is to cure the same shall
be extended for such period as may be reasonably necessary to complete the same
with all due diligence], Landlord, at its option, may pursue the remedies as set
forth hereinafter.
14.04 Remedies upon Default. In the event of a default by Tenant as
set forth hereinabove, Landlord, at its option, may (i) terminate this Lease and
upon such
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termination Tenant will quit and surrender the Premises to Landlord but
Tenant shall remain liable as hereinafter provided, or (ii) without
terminating the Lease, Landlord or Landlord's agent or servant may re-enter
the Premises and remove all persons and all or any property therefrom, either
by summary dispossession proceedings or otherwise, without being liable to
indictment, prosecution, or damage therefore 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 Tenant during the full term of
this Lease.
A. Reletting.
(1) Upon termination of this Lease or expiration of Tenant's
right to occupy the Premises by reason of the happening of any of the foregoing
events, or in any other manner or circumstances whatsoever, 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 Tenant, Landlord 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 Tenant or otherwise, and receive and collect
the rent therefore, applying the same first to the payment of such expenses as
Landlord may have incurred in recovering possession of the Premises, including
the 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 Landlord
deems necessary or desirable and all other commercially reasonable expenses,
commissions and charges paid, assumed or incurred by Landlord in or about
reletting the Premises and then to the fulfillment of the covenants of Tenant
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; Landlord shall have the right to change the
character and use made of the Premises, and Landlord shall not be required to
accept any substitute tenant offered by Tenant or to observe any instructions
given by Tenant about reletting.
(2) In any such case, and whether or not the Premises or any
part thereof be relet, Tenant shall pay to Landlord the Base Rent and all
Additional Rent and other charges required to be paid by Tenant up to the later
of the time of such termination of the Lease or of such recovery of possession
of the Premises by Landlord, as the case may be, and thereafter, except in a
case in which liability of Tenant (as hereinafter provided), arises by reason of
the happening of the insolvency of Tenant, Tenant covenants and agrees, if
required by Landlord, to pay to Landlord until the end of the initial term of
this Lease, 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 Tenant, less the net proceeds of reletting, if any. Landlord shall have the
election in place of holding Tenant so liable forthwith to recover against
Tenant 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 or of such recovery of
possession of the Premises by Landlord, as the case may be, represents the then
present worth of the excess, if any, of the aggregate of the Rent and all other
charges payable by Tenant hereunder that would have accrued for the balance of
the initial term, 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.
14.05 Remedies Upon Insolvency. If this Lease shall terminate by
reason of the bankruptcy or insolvency of Tenant, as above set forth, Landlord
shall be entitled, notwithstanding any other provisions of this Lease or any
present or future law, to
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recover from Tenant or Tenant's estate (in lieu or 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
Tenant hereunder that would have accrued for the balance of the initial term
and/or 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 or 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, Landlord shall be entitled to prove, as damages by reason of such
breach and termination, the maximum amount allowed by law or statute.
Nothing herein contained shall limit or prejudice Landlord'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 present worth of the rent and all other charges reserved herein over
the then present worth of the fair market rents and all other charges,
referred to above.
14.06 Fees and Expenses. Tenant shall pay, upon demand, all of
Landlord's costs, charges and expenses, including reasonable attorney's fees and
fees of agents and others retained by Landlord, for the enforcement of Tenant's
obligations hereunder or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord without Landlord's fault to become
involved or concerned. The prevailing party in any litigation concerning this
Lease shall recover all reasonable attorney's fees and other expenses in
addition to costs taxable at law.
ARTICLE XV
SUBORDINATION AND ESTOPPEL
15.01 Subordination of Lease. This Lease shall be subject and
subordinate to any mortgage, deed of trust or ground lease now or hereafter
placed upon the Premises, the Facility, the Property, or any portion thereof by
Landlord, its successors or assigns, and to amendments, replacements, renewals
and extensions thereof, provided that any holder of any mortgage or deed of
trust shall, as a condition for such subordination, agree not to disturb
Tenant's Lease or occupancy of the premises provided Tenant is not in default
beyond the period allowed for cure hereunder.
A. Subject to the foregoing provision of this Section 15.01,
Tenant agrees at any time hereafter, upon demand, to execute and deliver any
instruments, releases, or other documents reasonably acceptable to Tenant that
may reasonably be 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. The above subordination shall be effective without the necessity
of the execution and delivery of any further instruments on the part of Tenant
to effectuate such subordination. Notwithstanding anything hereinabove
contained in this Article 15, in the event the holder of any mortgage, deed of
trust or ground lease, shall so elect, then, and in such event, upon any such
holder or landlord notifying Tenant to that effect in writing, this lease shall
be deemed prior and superior in lien to such mortgage, deed of trust, ground
lease, whether this Lease is dated prior to or subsequent to the date of such
mortgage, deed of trust or ground lease and Tenant shall execute such attornment
agreement as may be reasonably requested by said holder.
B. Provided that the mortgagee, ground lessor or trust deed
holder under any first mortgage, ground lease, first deed of trust or other
security instrument shall have notified Tenant in writing (by the way of a
notice of assignment of lease or otherwise) of its address, Tenant shall give
such mortgagee, ground lessor or trust deed holder, or other secured party
("Mortgagee"), simultaneously with delivery of notice to
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Landlord, by registered or certified mail, a copy of any such notice of
default served upon Landlord. Tenant further agrees that said Mortgagee shall
have the right to cure any alleged default during the same period that
Landlord has to cure such default.
C. Tenant agrees from time to time upon not less than ten
(10) days prior written request by Landlord to deliver to Landlord a statement
in writing certifying in the form set forth on Exhibit "G" attached hereto and
made a part hereof by reference (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 dates to which
the rent and other charges have been paid; (iii) Landlord is not 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 Tenant; (v) the
amount of any prepaid rent, and (vi) such other matters as may reasonably be
requested by Landlord or any Mortgagee or prospective purchaser of the Facility.
ARTICLE XVI
HAZARDOUS MATERIALS
16.01 Landlord warrants and represents to Tenant, that, to the best of
Landlord's knowledge and after reasonable inquiry, the Premises and Landlord's
Improvements will be in compliance with all applicable environmental laws,
rules, requirements, orders, directives, ordinances and regulations of the
United States of America or any state, city or municipal government or lawful
authority having jurisdiction or affecting the Premises (collectively
"Environmental Laws") and that none of the insulation materials or any other
materials within the Premises are or contain asbestos, or any other known
Regulated Material as defined below. Except as set forth in Sections 16.03 and
16.05, Landlord shall, at its expense, take all action necessary to ensure that
the Facility complies with all Environmental Laws and that the Facility is, and
remains at all times, safe for use and occupancy.
16.02 Except as set forth in Sections 16.03 and 16.05, Landlord shall
defend, indemnify and save Tenant, its officers, directors, agents and
employees, harmless from and against all claims, obligations, demands, actions,
proceedings and judgments, loss, damage, liability and expense (including
reasonable attorneys' fees and expenses) which any one or more of them may
sustain in connection with any non-compliance with any environmental condition
affecting the Facility resulting from violation of environmental laws which are
not caused by or resulting from Tenant's use and occupancy of the Premises or
Facility. This indemnity shall not apply to Landlord's Mortgagee,
successors-in-interest to Mortgagee or anyone acquiring the Premises through
Landlord's Mortgagee.
16.03 Tenant shall at Tenant's own cost and expense, timely comply with
all applicable, rules, requirements, orders, directives, ordinances and
regulations arising from Tenant's use and occupancy of the Premises, including
but not limited to the Environmental Laws, and shall indemnify, defend, save and
hold harmless Landlord, its directors, officers, agents and employees from and
against any and all claims, demands, losses and liabilities (including
reasonable attorneys' fees) resulting from any violation of the Environmental
Laws when caused by or results from Tenant's use and occupancy of the Premises.
16.04 The provisions of this Article 16 shall survive the expiration or
earlier termination of this Lease.
16.05 A. The following terms and conditions regarding
environmental matters and the Premises are included in this Lease:
(1) For the purpose of this Lease, the phrase
"Regulated Materials" shall include, but shall not be
limited to, those materials or
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substances defined as "hazardous substances",
"hazardous materials", "hazardous waste", "toxic
substances", "toxic pollutant" or other similar
designations under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. 9601, ET SEQ., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C.
6901, ET SEQ., the Hazardous Materials Transportation
Act, 49 U.S. C. 1801, ET SEQ., or regulations
promulgated pursuant thereto (herein "Environmental
Laws"). "Tenant's Regulated Materials" shall mean those
Regulated Materials, brought onto, created, stored at,
handled, or generated at the Premises by or on behalf
of Tenant, its agents, employees, contractors (other
than Landlord), subtenants, assignees, suppliers or
other invitees. "Landlord's Regulated Materials" shall
mean all other "Regulated Materials" including those
brought onto, created, stored at, handled or generated
at the Premises by Landlord, its agents, employees,
contractors, subtenants, assignees, suppliers or other
invitees. Also the phrase "Governmental Agency or
Agencies" means any federal, state, local or foreign
government, political subdivision, court, agency or
other entity, body, organization or group exercising
any executive, legislative, judicial, quasi-judicial,
regulatory or administrative function of government.
B. Tenant hereby covenants to Landlord and its Mortgagee
that:
(1) Except for the obligations of Landlord pursuant to
Section 16.01 and 16.02, Tenant shall (x) comply and
shall instruct all occupants of the Premises to comply
with all federal, state and local laws, rules,
regulations and orders with respect to the discharge,
generation, removal, transportation, storage and handling
of Tenant's Regulated Materials, (y) remove any Tenant's
Regulated Materials immediately upon discovery of the
same, and (z) pay or cause to be paid all costs
associated with such removal;
(2) Tenant shall keep the Premises free of any lien
imposed pursuant to any state or federal law, rule
regulation or order in connection with the existence of
Tenant's Regulated Materials on the Premises;
(3) Tenant shall not install or permit to be installed
on the Premises any Tenant's Regulated Material
including, but not limited to, asbestos,
asbestos-containing materials, urea formaldehyde
insulation or any other chemical or substance which has
been determined to be a hazard to health and environment
other than supplies and materials used in the ordinary
course of its business and for which use all applicable
laws, ordinances, rules and regulations are complied
with;
(4) Tenant shall not cause or permit to exist as a
result of an intentional or unintentional act or omission
on the part of Tenant or any occupant of the Premises, a
releasing, spilling, leaking, pumping, emitting, poring,
emptying or dumping of any Tenant's Regulated Materials
onto the Premises or into surrounding waters or other
lands; and
(5) Tenant shall promptly provide a copy of any
summons, citation, directive, letter or other
communication which it receives from any
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Government Agency or Agencies concerning any Regulated
Matters on the Premises.
C. It shall constitute a Default hereunder and either party
shall be entitled to exercise all remedies available to it hereunder if:
(1) Tenant or Landlord shall fail to comply with the
covenants contained in this Article 16 within thirty (30)
days after notice or fails to commence such compliance
within such time and diligently continues such compliance
to completion;
(2) any Tenant's or Landlord's Regulated Materials are
hereafter found to exist on the Premises or in its soil
or groundwater and such Regulated Materials come to be on
the Premises because of the act, omission or breach of
this Lease by Landlord or Tenant, or any of their agents,
employees, contractors, subtenants or assignees, as to
Tenant, on or after the date Tenant takes possession or
enters the Premises to commence work, and either party
shall fail within seventy-five (75) days after notice
thereof, to commence and diligently pursue such actions
as are necessary to remove the same from the Premises or
Facility or obtain any and all necessary no action or no
association letters for the Premises or Facility and
Landlord or Tenant such that no further action need be
taken to satisfy the applicable environmental agency; or
(3) any summons, citation, directive, letter or other
communication, written or oral, shall be issued by any
Governmental Agency or Agencies concerning the matters
described in Subparagraph 16.05A(1) above and Landlord or
Tenant fail to cure the condition occasioning the same
within the time limit set forth in this Section 16.05C.
In the event Landlord or Tenant fails to comply with the terms of
this Article 16, each party hereby grants the other and its employees and agents
an irrevocable and non-exclusive license to enter the Premises in order to
inspect, conduct testing and remove Tenant or Landlord's Regulated Materials.
All costs of such inspection, testing and removal related to Tenant's Regulated
Materials shall be due and payable from Tenant as Additional Rent hereunder upon
demand, and all costs relating to Landlord's Regulated Materials incurred by
Tenant shall be paid by Landlord to Tenant upon demand.
16.06 The representations, covenants and indemnifications given by
Tenant to Landlord and Landlord to Tenant in this Article 16 shall be a separate
agreement between the parties, and shall survive any termination of the Lease.
16.07 Landlord warrants and represents that it is not otherwise aware
of any violation of the statutes, rules and regulations set forth in Section
16.05A(i) above as it relates to the Premises or Facility except, however, that
Landlord has received an off-site source and no association letter from the
Minnesota Pollution Control Agency dealing with apparent groundwater
contamination affecting the Facility resulting from dry-cleaning solvent
released by a former dry-cleaning operation previously located adjacent to the
Facility.
16.08 Landlord hereby covenants to Tenant that Landlord shall comply
with all federal, state and local laws, rules, regulations and orders with
respect to the discharge, generation, removal, transportation, storage and
handling of Landlord's Regulated Materials, (y) remove any Landlord's Regulated
Materials required by said laws to be removed immediately upon discovery
thereof; and (z) pay or cause to be paid all costs
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associated with such removal. It shall constitute a default by Landlord if
Landlord fails to comply with this covenant within seventy-five (75) days
after Tenant mails notice to Landlord hereof or fails to commence such
compliance within such time and diligently continue such compliance to
completion.
ARTICLE XVII
MISCELLANEOUS
17.01 Further Terms. The parties also agree:
A. Tenant represents that Tenant has dealt directly with and
only with the broker or tenant representative set forth on the Data Sheet, in
connection with this Lease and that insofar as Tenant knows, no other broker or
tenant representative negotiated or participated in negotiations of this Lease
or submitted or showed the Premises or is entitled to any commission in
connection therewith. Landlord shall be responsible for payment of Welsh
Companies and CB Commercial arising from this Lease.
B. All notices, demands and requests shall be in writing,
and shall be effectively served by forwarding such notice, demand or request by
certified or registered mail, postage prepaid, addressed to the respective party
at the address set forth on the Data Sheet, or at such other address as such
party may hereafter designate by written notice to the other party, in which
case said notice shall be effective at the time of mailing such notice.
C. All rights and remedies of Landlord under this Lease or
that may be provided by law may be executed by Landlord in its own name,
individually, or by its agent of whose appointment Tenant shall have written
notice in the name of Landlord, and all legal proceedings for the enforcement of
any such rights or remedies, including those set forth in Article 14, may be
commenced and prosecuted to final judgment and execution by Landlord or its
agent.
D. Landlord covenants and agrees that Tenant, 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.
E. The covenants and agreements herein contained shall bind
and inure to the benefit of the Landlord, its successors and assigns, and Tenant
and its permitted successors and assigns.
F. 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 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.
G. (1) Subsequent to the Commencement Date and payment by
Landlord of the allowances set forth in Section 22.0 (a) and (b) and any signage
allowance (as opposed to the refurbishment allowance) due to Tenant under
Section 22.0(c) for exterior Building signage initially installed by Tenant, the
term "Landlord" as used in this Lease so far as covenants or obligations on the
part of Landlord are concerned shall be limited to mean and include only the
owner or owners of the Facility at the time in question, and in the event of any
transfer or transfers or conveyances in which the transferee assumes all
obligations of Landlord under the Lease accruing after said transfer, the then
grantor shall be automatically freed and released from all personal
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liability accruing from and after the date of such transfer or conveyance as
respects the performance of any conveyance or obligation on the part of
Landlord contained in this Lease to be performed, it being intended hereby
that the covenants and obligations contained in this Lease on the part of
Landlord shall be binding on the Landlord, its successors and assigns, only
during and in respect to their respective successive periods of ownership.
(2) In the event of a sale or conveyance by Landlord
of the Facility or any part of the Facility, the same shall operate to release
Landlord from any future liability upon any of the covenants or conditions
herein contained and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the purchaser or grantee, which shall be personally
obligated on this Lease only so long as it is the owner of Landlord's interest
in and to this Lease.
H. The marginal or topical headings of the several Articles
and sections are for convenience only and do not define, limit or construe the
contents of said Articles and sections.
I. All preliminary negotiations and written commitments are
merged into and incorporated in this Lease, except for written collateral
agreements executed contemporaneously herewith.
J. This Lease can only be modified or amended by an
agreement in writing signed by the parties hereto. No receipt of money by
Landlord from Tenant 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 consent for any action for which Landlord's consent is required, unless
specifically agreed to in writing by Landlord. Any amounts received by Landlord
may be allocated to any specific amounts due from Tenant to Landlord as Landlord
determines.
K. Landlord shall have the right to close any portion of the
building area or land area to the extent as may, in Landlord's reasonable
opinion, be necessary to prevent a dedication thereof or the accrual of any
rights to any person or the public therein. Landlord shall at all times have
full control, management and direction of the Facility, subject to the rights of
Tenant in the Premises, and Landlord 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 Facility and the other
tenancies, premises and buildings included in the Facility, 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 Facility, and upon reasonable advance written notice to
Tenant to change the name, address, number or designation by which the Facility
is commonly known. In the event the notice of name change is less than nine (9)
months in advance of the effective date, Landlord shall pay the reasonable costs
of replacement stationery, business cards and similar items on which the name of
the Building is utilized. Landlord will not name the Building after a direct
competitor of Tenant. No implied easements are granted by this Lease. Tenant
shall have the nonexclusive right in common with Landlord and tenants and
occupants of the Facility, to ingress and egress to and through the common areas
of the Facility.
L. Tenant shall permit Landlord (or its designees) to erect,
use, maintain, replace and repair pipes, cables, conduits, plumbing, vents, and
telephone, and other wires or other items, in, to and through the Premises in
chases, floors or above the dropped ceiling, as and to the extent that Landlord
may now or hereafter deem necessary or appropriate for the proper operation and
maintenance of the Facility.
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M. Employees or agents of Landlord have no authority to make
or agree to make a lease or other agreement or undertaking in connection
herewith. 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 execution and delivery hereof
by the proper officers of Landlord and by Tenant. Tenant confirms that Landlord
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
Tenant against Landlord for, and Landlord 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 "N" of this Article shall prevail, can be modified or altered only
by agreement in writing between Landlord and Tenant, and no act or omission of
any employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
N. Tenant shall perform, observe and comply with the
Building Rules and Regulations of the Facility, as set forth in Exhibit C
attached hereto, with respect to the safety, care and cleanliness of the
Premises and the Facility, and the preservation of good order thereon, and, upon
written notice thereof to Tenant, Tenant shall perform, observe, and comply with
any reasonable changes, amendments or additions thereto consistent with Tenant's
rights under this Lease as from time to time shall be established and deemed
advisable by Landlord for tenants of the Facility. Landlord shall not be liable
to Tenant for any failure of any other tenant or tenants of the Facility to
comply with such Building Rules and Regulations.
O. All rights and occupancy of Tenant herein shall be
subject to all governmental laws, ordinances and regulations, and Tenant shall
comply with the same.
P. All obligations of Tenant 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.
Q. Subsequent to delivering occupancy of the Premises to
Tenant substantially completed and all improvements paid in full including
payment to Tenant by Landlord of the allowances set forth in Section 22.0 (a)
and (b) hereof, and any signage allowance (as opposed to the refurbishment
allowance) due to Tenant under Section 22.0(c) for exterior Building signage
initially installed by Tenant, Tenant agrees to look solely to Landlord's
interest in the Facility for the recovery of any judgment from Landlord, it
being agreed that Landlord, or if Landlord is a partnership, its 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.
R. The Tenant, if any, shall furnish to Landlord promptly
upon demand, a corporate resolution, proof of due authorization of partners, or
other appropriate documentation reasonably requested by Landlord evidencing the
due authorization of Tenant to enter into this Lease.
ARTICLE XVIII
OTHER PROVISIONS
18.01 Addenda. The provisions set forth in the Exhibits attached to
this Lease are hereby incorporated by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective on the day and year first above written.
LANDLORD: MERIDIAN CROSSINGS II LLC, A MINNESOTA
LIMITED LIABILITY COMPANY
By: Meridian Properties Real Estate
Development LLC, a Minnesota limited
liability company, its manager
By: Bryant J. Wangard
------------------
Its: Manager
TENANT: FOURTH SHIFT CORPORATION, A MINNESOTA
CORPORATION
By:
Its:
ACKNOWLEDGMENT: Meridian Properties Real Estate
Development LLC has executed the Lease
solely for purposes of Section 27.2 of
the Lease and for no other purpose.
MERIDIAN PROPERTIES REAL ESTATE
DEVELOPMENT LLC, a Minnesota limited
liability company
By: Bryant J. Wangard
-------------------------------
Its: Manager
Meridian Crossings LLC has executed this
Lease solely for purpose of Article 35
of the Rider and for no other purpose.
MERIDIAN CROSSINGS LLC, a Minnesota
limited liability company
By: Bryant J. Wangard
------------------------------
Its: Manager
<PAGE>
RIDER TO LEASE
ARTICLE XIX
OPTION TO RENEW
Section 19.0 Tenant shall have the right, subject to the provisions
hereinafter provided, to extend the term of this Lease for one (1) period of
five (5) years each on the terms and provisions of this Article provided
hereafter, such five (5) year renewal period being sometimes herein referred to
as a "Renewal Term". The conditions to such renewal shall be as follows:
(a) That this Lease is in full force and effect and Tenant is not in
default in the performance of any of the terms, covenants and
conditions herein contained, in respect to which notice of default has
been given hereunder which has not been or is not being remedied in
the time limited in this Lease, at the time of exercise of the right
of renewal, but Landlord shall have the right at its sole discretion
to waive the non-default conditions herein;
(b) That such Renewal Term shall be on the same terms, covenants and
conditions as in this Lease provided; provided, however, that annual
Base Rent for each such renewal space on the date such renewal term
shall commence in relation to comparable (in quality and location)
office space located in the relevant market area which shall be deemed
to be the Southwest Minneapolis 494 corridor. The fair market Base
Rent of the Premises shall be determined as of the date six (6) months
prior to commencement of the Renewal Term. Provided Tenant has
properly elected to renew the term of this Lease, and if Landlord and
Tenant fail to agree at 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 20 hereof. The fair market Base Rent of the Premises shall
be based upon the highest and best use of the Premises and shall be
determined separately on a per square foot basis for the initial
Premises and each separate additional space added to the Premises, if
any, pursuant to Tenant's options to expand herein. In no event shall
the Base Rent of the Premises for the Renewal Term be less than the
Base Rent payable by Tenant under the terms of this Lease immediately
prior to commencement of such applicable Renewal Term.
(c) That Tenant shall exercise its right to a Renewal Term provided
herein, if at all, by notifying Landlord in writing of its election to
exercise the right to renew the term of this Lease no later than the
date two hundred seventy (270) days prior to the date of commencement
of the applicable Renewal Term. 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 such renewal term. Any agreement
reached by the parties hereto with respect to such fair market Base
Rent of the Premises for such renewal term shall be expressed in
writing and shall be executed by the parties hereto, and a copy
thereof delivered to each of the parties. In the event that Landlord
and Tenant fail to agree within the thirty (30) day time prior set
forth in this subparagraph (c), the fair market Base Rent for the
Premises for such Renewal Term shall be determined by arbitration in
the manner set forth in Article 20 ("Arbitration") hereof. However,
such arbitrators shall be directed to determine the fair market Base
Rent for the Premises as above provided and in determining same said
appraisers shall be instructed to make said appraisal independently,
without consulting with each other. Upon 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
Landlord and Tenant. 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 closets 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).
ARTICLE XX
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ARBITRATION
Section 20.0 Any disagreement, dispute or determination required by or arising
under the provisions of Article XIX ("Option to Renew"), 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, Minnesota 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. In determining fair market Base Rent the
arbitrators shall consider the status of tenant improvements in the
Premises in comparison to leasehold improvements in market comparables
and shall take into consideration that no leasing commission is
payable in respect to any leasing by Tenant or Landlord as compared to
market comparables where such commissions may be payable, unless a
commission is payable by Landlord as a result of the proposed renewal,
in which case it shall be considered by the Arbitrators.
(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 within the time above
specified, 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.
ARTICLE XXI
RIGHT OF NOTICE
Section 21.0 Landlord agrees, from time to time, upon written request of
Tenant to advise Tenant as to space available on the sixth floor (6th) of the
Facility ("Notice Space"), provided Tenant treats such information as
confidential and does not disclose said information. If during the initial or
any renewal term of this Lease any occupied area on the sixth (6th) floor of the
Facility is vacated or to be vacated by the present tenant, its successors and
assigns, and Landlord desires to lease any of such space (subject to the terms
of Article XXV herein), Landlord shall deliver a notice of such intent to lease
in writing to Tenant offering to lease such space to Tenant upon the terms and
conditions (including rent) as set forth in the Lease for the Premises initially
demised except that (i) if the space was previously unimproved Tenant shall
receive an "Allowance" per rentable square foot of the as leased Notice Space
(as determined as set forth below) for tenant improvements pro rated for the
number of years remaining in the initial Term from the date the
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term commences on the Notice Space so leased, and (ii) if the space was
previously improved, the Tenant shall accept the Premises in "as-is"
condition without contribution from Landlord for tenant improvements. For
purposes of this Section 21.0, "Allowance" shall be determined as follows:
Upon completion of Landlord's Improvements, Landlord shall determine an
"Allowance" number to be used for purposes of Section 21.0 hereof based
upon the cost to Landlord of all Landlord's Improvements to the Premises
below the finished ceiling, specifically excluding from such costs (i) any
amounts reimbursed by Tenant, and (ii) the amount of the Construction
Allowance set forth in Section 23.1; and including an amount equal to the
upgrade cost set forth in Section 23.1 (b)(8) for the executive offices, if
any, added in the to be leased Notice Space. Said net amount shall be
divided by the rentable area of the Premises and said amount shall be the
Allowance per rentable square foot utilized in this Section 21.0. Landlord
shall provide reasonable evidence documenting said costs if requested by
Tenant. In addition to the Allowance, the allowance described in Section
22.0(b) shall be provided to Tenant for each rentable square foot of space
so taken under this Section 21.0.
Tenant shall have ten (10) business days from receipt of such notice to deliver
Landlord notice that Tenant desires to execute the lease amendment with Landlord
for such proposed space upon the conforming terms and conditions specified in
Landlord's notice. If Tenant fails to deliver such notice to Landlord within
such ten (10) business day period or fails to execute an amendment as above
provided within an additional ten (10) business day period, Landlord may lease
such space to a third party. These rights of Tenant herein shall become
inoperative as to any space in respect to which the Tenant does not exercise its
rights to lease as set forth herein or in respect to space for which Tenant does
not execute the lease amendment within the above required ten (10) day period.
The Term shall commence on the Notice Space to be leased the first date that
said space is available for Tenant to take possession, if the space has
previously been fit-up or thirty (30) days after the space is made available to
Tenant if said space has not previously been improved.
Landlord agrees, that Tenant shall have the right, until July 1, 1998 to expand
the Premises initially demised by up to 5,000 rentable square feet and Landlord
agrees that it will retain at a minimum approximately 5,000 rentable square feet
adjacent to the Premises (in a location acceptable to Landlord which results in
a readily leasable configuration for the balance of the sixth (6th) floor not
leased to Tenant). Said space shall be leased to Tenant upon all of the terms,
conditions and rent set forth herein for the Premises initially intended to be
demised hereunder, except that there shall be no Section 23.1 Construction
Allowance other than for item (b) (8), to the extent executive offices are
included in such additional space and there shall be included the Space Planning
Allowance set forth in Section 22.0(b).
Section 21.1 Landlord agrees that all office space on the sixth (6th) floor of
the Building shall be subject to the provisions of this Article 21.1. Landlord
agrees that without the written consent of Tenant it will not initially lease
any office space on the sixth (6th) floor of the Building either (i) that is
larger than 5,000 rentable square feet, or (ii) for a term that terminates after
January 1, 2004 (including all options to renew or extend the term of said
lease) or in the alternative does not allow Landlord to relocate said premises.
The term "initially lease" refers to the first lease of said space to a tenant.
ARTICLE XXII
TENANT ALLOWANCES
Section 22.0 Provided Tenant is not in default under the terms of the Lease,
has taken possession of the Premises and paid the Base Rent due for the initial
one (1) month of the Term, Landlord shall provide and pay to Tenant the
following allowances:
(a) Moving Allowance: Three Hundred Thousand dollars ($300,000.00),
payable thirty (30) days after the Commencement Date, irrespective of
actual moving costs.
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(b) Space Planning Allowance: Eighty-five cents ($ .85) per rentable
square foot of Premises initially demised for space planning performed
by Tenant's space planner and all costs associated with Tenant's jet
plan previously completed by Tenant's architect, irrespective of the
actual costs of said space planning.
(c) Signage and Refurbishment Allowance: Collectively in the amount of
One Hundred Fifty Thousand and NO/100 Dollars ($150,000.00). Tenant
shall have the right to utilize said allowance for the actual,
demonstrable costs of designing, manufacturing, and installing the
exterior building sign more particularly described in Article XXX
hereof. Any amount used for said signage shall be deducted from the
One Hundred Fifty Thousand and NO/100 Dollars ($150,000.00) and the
balance shall be utilized by Tenant for refurbishment of the Premises
and be due and payable to Tenant at the end of the fifth full year of
the Lease Term.
ARTICLE XXIII
LANDLORD'S IMPROVEMENTS
Section 23.0 Landlord, in addition to the payment of the allowance set forth
in Section 23.1, and Section 22.0, at its sole cost and expense, shall construct
and improve the Building and Premises in accordance with the outline plans and
specifications which are indicated and specified on Exhibit "D" attached hereto
and incorporated herein by reference ("Outline Plans and Specifications").
Prior to or simultaneously with the execution and delivery of this Lease,
Landlord has furnished Tenant, for information purposes only, with copies of all
available plans and specifications for the Base Building requested by Tenant.
Thereafter, Landlord agrees upon request to provide from time to time, any plan
or specification modifications which affect Tenant's Premises. Tenant shall
provide, at its sole cost and expense, complete construction plans and
specifications ("Construction Documents") for all improvements to the Premises
based on the Outline Plans and Specifications, in the following detail at the
time set forth hereinafter:
(a) An issue package of mechanical, electrical and plumbing plans, along
with all dimensioned construction plans, reflective ceiling plans,
lighting plans and power and data plans sufficient such that Landlord
can obtain MEP bids on such matters ("MEP SET"), no later than July 7,
1998; and
(b) Complete Construction Documents sufficient for Landlord to bid the
entire tenant improvement package, no later than July 21, 1998.
Upon receipt of the MEP SET Landlord shall submit same to its contractor for
development of mechanical electrical and plumbing ("MEP") plans and
specifications based upon said Construction Documents. Landlord shall have ten
(10) business days to review the Construction Documents and provide Tenant with
detailed comments and recommendations. Upon receipt of the MEP plans and
specifications, Landlord shall provide copies of same to Tenant for Tenant's
review and comment, which shall occur within ten (10) business days of said
delivery. In the event Landlord and Tenant are unable to agree as to the final
Construction Documents (including MEP plans and specifications) on or before
August 15, 1998, either party, upon ten (10) days' written notice to the other,
may request arbitration of said dispute. If arbitration is requested, the
procedure described in Article XIX (c) and Article XX shall be utilized, except
the arbitrators shall be design professionals (architects or engineers) with at
least ten (10) years experience in design and construction of office buildings
in the Minneapolis-St. Paul metropolitan area, all licensed to do business in
Minnesota. Landlord shall not be required to install any improvements to the
Premises except those specified on Exhibit "D", or such changes required by the
municipalities in its review and approval of the Construction Documents as to
their compliance with local building codes unless the timing, price and all
other matters relating to such other improvements have been agreed upon in
writing between Landlord and Tenant. Anything herein to the contrary
notwithstanding, in the event Tenant desires any improvements in excess of those
set forth on Exhibit "D", on improvements which are the result of changes in
Tenant plans subsequent to delivery of the MEP SET, or any change orders after
final approval of Construction Documents, Landlord shall provide same [not to
exceed the final amount of (i) the
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Construction Allowance described below, and (ii) the Moving Allowance set
forth in Article XXII hereof], and the costs of such excess improvements
shall be charged against Tenant by reducing the Construction Allowance and
Moving Allowance amounts provided for in Article XXII herein on a
"dollar-for-dollar" basis. Landlord will agree to additional improvements
costing in excess of the Construction Allowance and Moving Allowing provided
Tenant shall be responsible for timely payment of Landlord's increased costs
therefor pursuant to a standard construction draw process (monthly). Landlord
agrees that the charge to Tenant for change orders shall be a direct pass
through of the cost charged Landlord by its General Contractor. Further, and
anything herein to the contrary notwithstanding, in the event of a delay in
delivery to Landlord of complete Construction Documents for the improvements
in the Premises in accordance herewith, which results in delay in
construction of the Landlord's Improvements due to Tenant's failure to
deliver its Construction Documents complete in all manners (including
selection of all finishes) in accordance with the above requirements or
requires changes to improvements after delivery of MEP SET which affect the
improvements covered by the MEP SET, the Lease shall in any event commence
January 1, 1999, subject to extension for any portion of such delay not
caused by such delay by Tenant. Tenant shall, in any event, be responsible
at its sole costs and expense to provide all cabling, wiring and furniture
and equipment necessary for its business, provided any cabling and wiring in
the Building or Premises shall be removed by Tenant at its sole cost and
expense upon expiration of the Term or earlier termination of the Lease.
Tenant's rights to enter the Premises are as set forth in Article XXVI. In
the event of a delay in delivery of the Premises after January 1, 1999, any
portion of the delay caused independently by Landlord (not resulting from a
delay caused by Tenant) shall not act to excuse Landlord for the penalties
set forth in Section 27.2 hereof and Landlord shall be excused from such
penalties only to the extent the delay was the result of the action or
inaction of Tenant.
Section 23.1 Construction Allowance. Landlord shall provide to Tenant a
Construction Allowance of Sixty Thousand and NO/100 Dollars ($60,000.00) to be
used by Tenant solely for the purpose of providing upgrades to Landlord's
Improvements from those specified on Exhibit "D" in the following areas:
(a) WOOD AND PLASTIC -
2. Reception desk;
3. Boardroom A\V cabinets; and
4. CIM Center.
(b) FINISHES -
6. Upgrade specialty carpet in reception, elevators, lobby, CIM
Center and Boardroom;
7. Stone or wood accent flooring in elevator lobby and reception;
8. Upgrade carpet in executive offices;
9. EDS floor in computer room; and
10. Upgrade ceiling tile in CIM Center and Boardroom.
(c) ELECTRICAL -
3. Upgrade lighting in lobby, reception, CIM Center, Boardroom,
Training Rooms and Customer Conference Rooms.
Landlord's contractor shall provide all such upgraded finishes as selected
by Tenant, subject to the Sixty Thousand and NO/100 Dollars ($60,000.00)
allowance limitation. Tenant may elect to exceed any allowance amount at its
sole cost and expense provided that no delays result in Landlord's construction
and Tenant provides Landlord with acceptable means of payment for said excess
improvements. Any improvements to be paid by Tenant by utilization of an
allowance or otherwise, shall be performed on an open book basis and to the
extent feasible considering schedule, market conditions and construction
coordination, bid out to the trades by Landlord's general contractor; Landlord's
general contractor shall use reasonable efforts under the circumstances
described above to bid all material portions of the job to three (3) separate,
responsible bidders. Tenant may add subcontractors to the bid list, if done in
a timely,
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responsible manner. Said improvements shall be performed by Landlord's
general contractor at cost plus five percent (5%) without any additional
upcharge by Landlord.
ARTICLE XXIV
PARKING RIGHTS OF TENANT
Section 24.0 Facility Parking. Tenant shall have the right in common with
other tenants to have the use for its employees and invitees of the common
parking facilities at the Facility other than 226 stalls designated for the
specific use by others in the parking ramp, such use to be in common with the
other tenants in the Facility. Landlord reserves the right to designate and
redesignate areas of the appurtenant common parking facilities where Tenant, its
agents, employees and invitees shall park and may exclude Tenant, its agents,
employees and invitees from parking in other areas as designated and
redesignated by Landlord; provided, however, Landlord shall not be liable to
Tenant for the failure of any tenant, its invitees, employees, agents and
customers to abide by Landlord's designations or restrictions. Landlord shall
have the right to designate, and Tenant shall thereupon have the right to use as
the exclusive parking spaces to be used by Tenant, its agents, employees and
invitees, only that percentage that the rentable office area of the Premises
bears to the rentable office area of the Facility. Tenant, its agents,
employees and invitees shall not use more (in absolute numbers) of the common
parking facilities (less said 226 designated stalls) at the Facility (exclusive
of the underground garage) than Tenant could use if Landlord made the
designations permitted herein. Anything in this Lease to the contrary
notwithstanding, 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 G hereof. The Facility
contains 745 stalls excluding the 226 excluded stalls.
Section 24.1 Reserved Parking. In addition thereto, Landlord hereby leases to
Tenant and Tenant leases from Landlord three (3) contract executive reserved
parking stalls on the lower level of the Facility for the Term of this Lease.
Tenant agrees to execute the reserved stall parking lease attached hereto as
Exhibit "F" upon execution of this Lease. The rental for said reserved stalls
shall be $95.00 per stall per month during the initial ten (10) year Term of
this Lease. Tenant, upon request, may lease up to seven (7) additional stalls
at the same initial rate, and Landlord shall provide same if available at the
time of request.
ARTICLE XXV
INITIAL EXPANSION RIGHT
Section 25.0 On or before July 1, 1998, Tenant shall have the right to
increase the area of the Premises by 5,700 rentable square feet upon written
notice to Landlord, said additional area to be located on the sixth floor of the
Building.
ARTICLE XXVI
INSTALLATION OF TENANT'S TRADE FIXTURES
Section 26.0 Tenant shall be allowed to install its fixtures and furniture and
equipment in the Premises during the final sixty (60) days of construction of
Landlord's Improvements provided that Tenant does not thereby interfere with the
completion of Landlord's Improvements or occasion any labor dispute as a result
of such installation and provided further that Tenant does hereby agree to
assume all risk of loss or damage to such property and other personal property
of Tenant, and to indemnify, defend and hold harmless Landlord from any loss or
damage to such property and other personal property of Tenant, and to indemnify,
defend and hold harmless Landlord from any loss or damage to such trade fixtures
and improvements and property, and from all liability, loss or damage arising
from any injury to the property of Landlord, or its contractors, subcontractors
or material men and any death or personal injury to any person or persons
arising out of such installations. Tenant shall be responsible for loss or
damage (including loss of rents from Tenant) arising out of delays caused by
interference with Landlord's Improvements.
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ARTICLE XXVII
DELIVERY OF PREMISES
27.1 Landlord agrees that in the event Landlord fails to deliver possession of
the Premises substantially completed and ready for Tenant's occupancy (other
than for delays resulting from the failure of Tenant to perform its covenants
and obligations under this Lease within the timetable required herein including
delays due to changes to MEP SET and/or Construction Documents after the July
7th and July 21st dates respectively set forth in Article XXIII hereinbefore) on
or before December 31, 1998, Landlord shall be responsible to reimburse Tenant
for all costs and damages resulting from Landlord's failure to deliver
possession of the Premises to Tenant on or before December 31, 1998 including
but not limited to holdover rent and other lease charges and liabilities in
excess of the amount due from Tenant under its existing lease immediately prior
to November 1, 1998 ("Holdover Costs"). Failure to give possession of the
Premises on or before December 31, 1998 shall in no way affect the validity of
this Lease or the obligations of Tenant hereunder. Tenant agrees to use all
reasonable efforts to minimize and mitigate the Holdover Costs. Meridian
Properties Real Estate Development LLC acknowledges that it shall be liable to
Tenant for any costs, damages or liabilities arising under this Section 27.1.
ARTICLE XXVIII
REAL ESTATE TAX REBATE
Section 28.0 During the initial ten (10) year Term of the Lease only, provided
Tenant is not in default beyond the notice and cure period set forth herein,
Landlord agrees to pay and rebate to Tenant two (2) times per Lease Year
(approximately in April and November), ten percent (10%) of the amount of real
estate taxes only (excluding special assessments included within the real estate
tax bill issued by the taxing authority and paid or payable by Tenant) actually
paid by Tenant to Landlord pursuant to Article II hereof. The initial payment
would occur in 2000.
ARTICLE XXIX
SECURITY DEPOSIT
Section 29.0 Within ten (10) business days of full execution hereof, Tenant
shall deposit with Landlord the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) in the form of an irrevocable sight draft Letter of Credit in
form attached hereto as Exhibit "H", and issued by a Silicon Valley Bank as
and for a security deposit for the full and faithful performance by Tenant of
each and every term, provision, covenant and condition of this Lease. Said
Letter of Credit shall be automatically increased to the sum of Five Hundred
Thousand Dollars ($500,000.00) upon the date thirty (30) days prior to the
scheduled commencement of tenant improvement work in the Premises by
Landlord. Such Letter of Credit shall be issued in the name of Landlord in
the form attached hereto as Exhibit "H" shall be held by Landlord. In the
event that Tenant defaults in respect to any of the terms, provisions,
covenants and conditions of this Lease, including, but not limited to, the
payment of any rentals or other charges or items to be paid or provided for
by Tenant, Landlord may use, apply or retain the whole or any part of the
security so deposited for the payment of any such rentals in default or for
any other sum which Landlord may expend or be required to expend by reason of
Tenant's default, including, but not limited to, any damages or deficiency in
the reletting of the Premises, whether such damages or deficiency may accrue
before or after re-entry by Landlord. It is expressly understood and agreed
that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon application of any part
of the deposit by Landlord as provided herein, Tenant shall pay to Landlord
on demand the amount so applied in order to restore the security deposit to
its original amount. Any application of the deposit by Landlord shall not be
deemed to have cured Tenant's default except to the extent of payment
resulting from such application provided the security deposit is immediately
restored to the full amount held prior to said application. Landlord agrees,
for the period prior to January 1, 1999, to provide Tenant with an allowance,
to be paid upon the Commencement Date, equal to one-half (1/2) of the fee
charged by the Bank for issuance of the Letter of Credit. Tenant shall
provide Landlord with evidence of the fee charged by the
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issuing bank, and Tenant agrees it will negotiate the best available fee from
said bank for issuance.
In the event of a bona fide sale of the Building of which the Premises
are a part, Landlord shall have the right to transfer the security deposit to
its vendee for the benefit of Tenant, and thereafter Landlord shall be released
of all liability for the return of such deposit and Tenant agrees to look to
said vendee for the return of its security deposit. Upon request, Tenant will
re-issue the Letter of Credit in the name of vendee, subject to payment by
Landlord of reasonable administrative and legal costs of reissuance. It is
agreed that this Article XXIX shall apply to every transfer or assignment made
of the security deposit to any new landlord.
This security deposit shall not be assigned or encumbered by Tenant.
It is expressly understood that the re-entry of the Premises by Landlord for any
default on the part of Tenant prior to the expiration of the term of this Lease
shall not be deemed a termination of this Lease so as to entitle Tenant to
recover the security deposit, and the security deposit shall be retained and
remain in the possession of Landlord until the end of the term of this Lease,
except as set forth below.
Actions by Landlord against Tenant for breach of this Lease shall in
no way be limited or restricted by the amount of this security deposit and
resort to such deposit shall not waive any other rights or constitute an
election of remedies which Landlord may have.
Notwithstanding the foregoing provisions, if , as of January 1, 2000,
there have been no uncured defaults by Tenant under this Lease, and the Lease is
then in full force and effect, the amount of the security deposit held by
Landlord shall be reduced to Four Hundred Thousand and NO/100 Dollars
($400,000.00) and a replacement Letter of Credit supplied evidencing the new
amount shall be substituted for the above Letter of Credit; and, if, as of
January 1, 2001, there have been no uncured defaults by Tenant under this Lease,
and the Lease is then in full force and effect, the amount of the security
deposit held by Landlord shall be reduced to Three Hundred Thousand and NO/100
Dollars ($300,000.00) and a replacement Letter of Credit supplied evidencing the
new amount shall be substituted for the above Letter of Credit; and, if, as of
January 1, 2002, there have been no uncured defaults by Tenant under this Lease,
and the Lease is then in full force and effect, the amount of the security
deposit shall be reduced to Two Hundred Thousand and NO/100 Dollars
($200,000.00) and a replacement Letter of Credit supplied evidencing the new
amount shall be substituted for the above Letter of Credit; and, if, as of
January 1, 2003 there have been no uncured defaults by Tenant and the Lease
remains in full force and effect, the amount of the security deposit shall be
reduced to One Hundred Thousand and NO/100 Dollars ($100,000.00) and a
replacement Letter of Credit supplied evidencing the new amount shall be
substituted for the above Letter of Credit; and, if, as of January 1, 2004 there
have been no uncured defaults by Tenant under this Lease and the Lease is then
in full force and effect, the requirement for a security deposit hereunder shall
be terminated, and the security deposit then held by Landlord shall be returned
to Tenant.
ARTICLE XXX
EXTERIOR BUILDING SIGNAGE
Section 30.0 Landlord shall allow Tenant the non-exclusive right to erect a
sign on the exterior of the Facility, which sign shall be Tenant's name and/or
"logo", all at Tenant's sole cost and expense. Tenant shall pay all costs of
maintenance thereof and shall keep same in good condition, order and repair at
its sole cost and expense and shall remove same prior to termination of the Term
of this Lease and shall repair and restore any damage to the Facility 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. Landlord (at its cost) has
designed the Building such that the brackets and connectors, including electric
feeds, are existing in the curtain wall and curtain wall system to support
exterior signage.
ARTICLE XXXI
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NOTICE UPON ENTRY
Section 31.0 Anything in this Lease to the contrary notwithstanding, Landlord
shall give Tenant reasonable notice, written or oral, in the event Landlord
intends to enter the Premises for purposes of inspection, repair, maintenance or
alterations of the Facility 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 routine janitorial services or an emergency. Landlord 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 Tenant as
little as reasonably possible under the circumstances; provided, however,
nothing herein shall require Landlord to perform any necessary work during other
than normal business hours.
ARTICLE XXXII
INTERRUPTION OF SERVICE
Section 32.0 Interruption of Services. 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 beyond Landlord's
reasonable control shall be deemed an eviction or disturbance of Tenant's use
and possession, or render Landlord liable for damages, by abatement of rent or
otherwise or relieve Tenant from any obligation herein set forth. In no event
shall Landlord be required to provide any heat, air conditioning, electricity or
other service in excess of that permitted by voluntary or involuntary guidelines
or laws, ordinances or regulations of governmental authority.
ARTICLE XXXIII
COMMUNICATION ANTENNA
Section 33.0 Landlord licenses Tenant to use up to 100 square feet of the
rooftop area of the Facility in a location reasonably designated by Landlord for
the purpose of installing an antenna (if such dish is not larger than ten feet
(10') in diameter and the top of such dish is not more than six feet (6') above
the roof) and for the use and operation of that antenna and the area reasonably
necessary to connect the antenna by cable to the Premises. Said installation
shall be in accordance with plans and specifications approved by Landlord (which
approval shall not unreasonably be withheld) to include the means of attaching
the portion of such equipment to the roof of the Facility or improvements
located thereon and to include painting or screening reasonably acceptable to
Landlord. Tenant shall have the responsibility to secure all necessary
approvals from State, Federal and other governmental authorities to construct,
operate and maintain such equipment. All such equipment shall be operated,
constructed and maintained by Tenant in accordance with applicable laws,
ordinances, rules and regulations in compliance with the requirements of the
insurers of the Facility and in accordance with reasonable rules and regulations
of Landlord relating to use of the roof. Tenant shall indemnify and defend
Landlord from and against all loss, claim damage and expense arising out of the
construction, maintenance and operation of such equipment. Said antenna may be
used solely for internal business purposes of Tenant and shall in no event be
used for any commercial purpose. All work in connection with such equipment
shall be done by Tenant as an alteration or improvement under Article VIII
hereof; provided, no such action shall materially interfere with work being
performed by Landlord or cause a labor dispute. Tenant shall give to Landlord
notice of any notices which Tenant receives from third parties that any of the
equipment is or may be in violation of any law, ordinance, or regulation.
Tenant shall pay all taxes of any kind or ature 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. Landlord shall provide
reasonable access for Tenant to the roof. Tenant 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 Facility which comply with U.S.
Government regulations. Nothing herein shall prevent Landlord from licensing
others to use the roof in other areas of the Facility for development,
installation and operation of
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electromagnetic radiation and reception facilities or FM broadcasting and
two-way radio and microwave transmission. Landlord agrees that in any other
leases or licenses of antenna on the Facility roof, that such leases and
licenses will contain similar language prohibiting interference with other
rooftop antenna as is contained herein.
ARTICLE XXXIV
MEASUREMENT OF RENTABLE AREA
Section 34.0 In respect to measurement of rentable area of the Building or
Premises or any expansion area added to the Premises, if any, pursuant to the
terms of this Lease, Landlord shall first determine the useable area and
rentable area of each floor (using the BOMA measurement standard ANSI-BOMA 265.1
- - 1996). The Landlord shall add the (i) total rentable area of the Building,
and (ii) the total useable area as determined for each floor measured using the
aforementioned standard and then divide (i) by (ii) to determine the building
rentable/useable factor ("Factor"). Finally, for each floor of the Premises,
Landlord shall multiply Tenant's useable area by the Factor to determine
Tenant's rentable square foot area for each floor. The total of said rentable
square foot area for each floor of the Premises shall be deemed to be the
rentable square foot area of the Premises, subject to change pursuant to Section
2.02 D herein. The same methodology shall be utilized to determine and/or
adjust the total Building rentable area and usable area.
ARTICLE XXXV
TERMINATION OF PHASE I LEASE; SURVIVAL OF CERTAIN OBLIGATIONS
Section 35.0 Upon full execution of this Restated and Amended Lease by
Landlord and Tenant, the Phase I Lease shall terminate ab initio, without
further action of the Landlord thereunder or Tenant. The terms and provisions
of Section 2a and 5 of that certain Amendment to Lease Phase I, shall survive
the termination of the Phase I Lease.
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EXHIBIT "B"
LEGAL DESCRIPTION
Lot 2, Block 3, Cloverleaf Addition, according to the recorded plat thereof, and
situate in Hennepin County, Minnesota.
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EXHIBIT "B"
SITE PLAN
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EXHIBIT C
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or
in any part of the Premises and visible from the exterior of the Facility, or
visible from the exterior of the Premises, shall be installed at Tenant's sole
cost and expense, and in such manner, character and style as Landlord may
approve in writing. Anything herein to the contrary notwithstanding, approval
as to signs shall be subject to Landlord's approval which may be withheld in
Landlord's sole discretion. In the event of a violation of the foregoing by
Tenant, Landlord may remove the same without any liability and may charge the
expense incurred by such removal to Tenant. See Article XXXIV as to Tenant's
exterior Building signage.
2. No awning or other projection shall be attached to the outside walls
of the Facility. No curtains, blinds, shades or screens visible from the
exterior of the Facility 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 Landlord. Such curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color,
and attached in the manner approved by Landlord.
3. Tenant, its servants, employees, customers, invitees and guests shall
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in and about the Facility 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 Tenant. Tenant shall not place objects against glass
partitions or doors or windows which would be unsightly from the Facility
corridors or from the exterior of the Facility and will promptly remove any such
objects upon notice from Landlord.
4. Tenant 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, any of
which may be offensive to the other tenants and occupants of the Facility, or
that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Facility or elsewhere
and shall not place or install any projections, antennas, aerials or similar
devices inside or outside of the Premises or on the Facility. SEE RIDER ARTICLE
XXXII.
5. Tenant shall not waste electricity, water or air conditioning
furnished by Landlord, if any, and shall cooperate fully with Landlord to insure
the most effective operation of the Facility's heating and air conditioning
systems.
6. Tenant 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. In no event shall Tenant bring into the Facility inflammables, such as
gasoline, kerosene, naphtha and benzine, or explosives or any other article of
intrinsically dangerous nature. If, by reason of the failure of Tenant to
comply with the provisions of this subparagraph, any insurance premium for all
or any part of the Facility shall at any time be increased, Tenant shall make
immediate Payment of the whole of the increased insurance premium, without
waiver of any of Landlord's other rights at law or in equity for Tenant's breach
of this Lease.
8. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or require additional insurance coverage.
9. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Facility, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising. SEE ARTICLE XXXIV AS TO TENANT'S SIGNAGE.
10. The Premises shall not be used for lodging, sleeping or for any
immoral or illegal purpose.
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11. Tenant and Tenant's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the foregoing rules
and regulations and such other and further reasonable and appropriate rules and
regulations consistent with the provisions of this Lease as Landlord or
Landlord's agent may from time to time adopt. Reasonable notice of any
additional rules and regulations shall be given in such manner as Landlord may
reasonably elect.
12. Unless expressly permitted by the Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by the Landlord shall be made for any door. If more than two
keys for one lock are desired by the Tenant, the Landlord may provide the same
upon payment by the Tenant. Upon termination of this Lease or of the Tenant's
possession, the Tenant shall surrender all keys of the Premises and shall
explain to the Landlord all combination locks on safes, cabinets and vaults.
13. Any carpeting cemented down by Tenant shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Tenant,
Landlord may charge the expense incurred by such removal to Tenant.
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 the Tenant 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. No pipe, conduit, cable, line or the like for water, gas, sewage,
drainage, steam, electricity, or any other energy or service shall be installed
or maintained on the Premises, except with the prior written permission of
Landlord. Tenant shall not overload any utilities serving the Premises.
16. No dog or other animal shall be allowed in the Facility.
17. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryway provided for
such purposes. Tenant shall be responsible for any damage to the Facility or
the property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
Premises, and shall make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such articles.
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
Landlord, and Landlord shall in all cases have the right to specify the proper
position of any such safe, equipment or other heavy article, which shall only be
used by Tenant in a manner which will not interfere with or cause damage to the
Premises or the Facility in which they are located, or to the other tenants or
occupants of said Facility. Tenant shall be responsible for any damage to the
Facility or the property of its employees or others and injuries sustained by
any person whomsoever resulting from the use or moving of such articles in or
out of the Premises, and shall make all repairs and improvements required by
Landlord or governmental authorities in connection with the use or moving of
such articles.
19. Canvassing, soliciting, and peddling in or about the Facility is
prohibited and each Tenant shall cooperate to prevent the same.
20. Tenant shall not use, generate, transport, store, treat or dispose of
any hazardous substances, toxic chemical, pollutant or other material regulated
by the Comprehensive Environmental Response, Compensation and Liability Act of
1985 or in the so-called Minnesota Superfund Bill or any similar law or
regulation without Landlord's written approval of each such substance. Landlord
shall not unreasonably withhold its approval of use by Tenant of such substances
needed in Tenant's business operations so long as Landlord is satisfied that
Tenant will use appropriate measures to avoid release thereof.
Exhibit C - Page 2 of 3
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21. No on-street parking shall be allowed anywhere on the Premises, either
on public streets or private roads. No overnight parking of trucks or cars
shall be permitted anywhere on the Premises, unless such trucks or cars are
parked inside buildings. Tenant shall have the right on a temporary basis, from
time to time, to park employee vehicles overnight in the parking areas of the
Project.
22. The Premises shall not be used for any of the following purposes:
full service laundry; taxidermy; mobile home and prefabricated home sales and
rentals; the sales, repair and servicing of motor vehicles, construction
equipment and farm equipment; clubs, lodges and/or community halls; sawmills;
storage of school or recreational vehicles; truck terminals, moving and storage
establishments; drive-in theaters; golf driving ranges; asphalt or asphalt
products manufacture; automobile, truck, construction equipment or farm
equipment assembly plants; coal storage, milling and processing; and kennels and
animal hospitals (commercial and noncommercial); heavy machinery manufacture and
repair; livestock slaughtering or preparation for packing; manufacturing of
metal alloys or foils; and railroad manufacture and repair.
23. Tenant shall maintain the Premises in a safe, clean, neat and sanitary
condition and in a first-class commercial manner.
24. Wherever in these Building Rules and Regulations the word "Tenant"
occurs, it is understood and agreed that it shall mean Tenant's associates,
employees, agents, clerks, servants, invitees and visitors. Wherever the word
"Landlord" occurs, it is understood and agreed that it shall mean Landlord's
assigns, agents, clerks, servants, and visitors.
25. Landlord shall have the right to enter upon the Premises at all
reasonable hours upon reasonable notice to Tenant except in case of emergency,
for the purpose of inspecting the same.
26. Landlord shall have the right to enter the Premises upon reasonable
notice to Tenant except in case of emergency, at hours convenient to the Tenant
for the purpose of exhibiting the same to prospective tenants within the one
hundred twenty (120) day 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 hundred twenty (120) day period. SEE RIDER ARTICLE
XXXIV.
27. Tenant, its servants, employees, customers, invitee and guests shall,
when using the common parking facilities, if any, in and around the Facility,
observe and obey all signs regarding fire lanes and no parking zones, and when
parking always park between the designated lines. Landlord 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 Landlord assumes no responsibility for any damage to or loss
of vehicles.
28. In case of invasion, mob, riot, public excitement, or other commotion,
Landlord reserves the right to prevent access to the Facility during the
continuance of the same by closing the doors or otherwise, for the safety of the
tenants or the protection of the Facility and the property therein. Landlord
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 Facility of any person.
29. 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 Facility is operating so as to
prevent overload thereon.
30. Landlord reserves the right at any time and from time to time to
reasonably rescind, alter or waive, in whole or in part, any of these Rules and
Regulations when it is deemed necessary, desirable, or proper, in Landlord's
judgment, for its best interest or for the best interest of the tenants of the
Facility provided any such changes are consistent with and do not conflict with
the Lease terms.
Exhibit C - Page 3 of 3
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EXHIBIT D
ADDITIONAL LEASEHOLD IMPROVEMENT SPECIFICATIONS
In addition to the preliminary plan, Landlord will incorporate the following
items into its turnkey proposal.
CONCRETE
1. An open stair from floors 7 and 8 and an enclosed stair from floors 6
and 7. The design of the open stairs is subject to Landlord's
reasonable approval (see Exhibit "I").
WOOD AND PLASTIC
1. Upper and lower cabinets in all coffee stations and break room area.
FINISHES
1. Acoustical insulation at interior partitions of executive offices and
internal conference rooms.
2. Slab to slab partitions (CIM Center, Boardroom, training rooms, large
conference room, computer rooms).
3. Fabric wallcovering at reception, elevator lobby, CIM Center, and
Boardroom.
4. Vinyl wall covering providing on 25% of the walls within the space.
5. Upgrade upon area carpet quality over building standard (28 to 30
ounce level loop, not to exceed 25% of the space).
10. Drywall ceiling in upgrade areas in reception area, elevator lobby and
stairs.
MECHANICAL
1. Separate mechanical zones in computer areas, large conference rooms,
and training rooms.
2. Water taps at coffee bars.
3. Sink at eight (8) coffee locations.
ELECTRICAL
1. Additional capacity on electrical panels and supply for load.
2. Electrical outlets and wiring per plan dated April 2, 1997.
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EXHIBIT "E"
OFFICE SERVICES
A. Landlord Services:
1. Landlord, subject to including the costs thereof in Article II, shall
provide the following services during the term of this lease:
(a) Air conditioning and heating service for normal purposes shall be
provided in Landlord's good business judgment for comfortable
occupancy Monday through Friday during the hours of 7:00 a.m.
through 6:00 p.m., and on Saturday during the hours of 8:00 a.m.
through 1:00 p.m., except recognized holidays. Tenant agrees not
to use any apparatus or device, in or upon or about the Premises
which in any way may increase the amount of such service usually
consumed therein when the Premises are occupied, and will not
connect any apparatus or device to the cooling or heating system
of the Building for the purpose of using additional or unusual
amounts of such services, without written consent of Landlord,
which consent may be conditioned upon payment of additional
charges by Tenant. The HVAC shall be designed to meet the
following criteria and Landlord shall use all reasonable efforts
to operate the HVAC to meet said design criteria:
(1) Summer - Outdoor conditions 92DEG. Fahrenheit dry bulb,
75DEG. Fahrenheit wet bulb (21/2" coincidence); indoor
conditions 75DEG. Fahrenheit dry bulb, 50% relative
humidity maximum.
(2) Winter - Outdoor conditions minimum 19DEG. Fahrenheit dry
bulb; 72DEG. Fahrenheit dry bulb, inside, minimum relative
humidity 20%. Landlord will take appropriate corrective
action using existing Building equipment and prudent
operating standards should minimum relative humidity drop
below 20%.
(b) Electricity only for building standard lighting, typewriters,
adding machines, calculators, personal computers, small
reproduction machines and other similar small office equipment,
it being expressly understood that to the extent the electricity
is used for any other purpose or if Tenant's use shall exceed
normal and customary usage levels for office purposes, additional
charges shall be payable by Tenant to Landlord in such amounts as
Landlord may reasonably determine necessary to cover the costs of
such increased use, or, at Landlord's option, Landlord may
require Tenant to install a separate electrical meter at
Landlord's sole expense. Any separate computer room will be
separately metered and such costs shall be a Service Charge to
Tenant.
(c) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures
installed by Landlord (or by Tenant with Landlord's written
consent).
(d) Standard interior janitorial and cleaning services in the common
areas of the Building and the Premises five (5) days per week
pursuant to the janitorial specifications attached as Exhibit
E-1. Tenant shall not procure any janitorial or cleaning
services for the Premises without Landlord's prior written
consent and then only subject to supervision by Landlord and by
janitorial or cleaning contractors or employees at all times
reasonably satisfactory to Landlord.
(e) Window washing of all windows in the premises, both inside and
out, at such times as Landlord shall deem necessary, but in no
event less than twice per year.
(f) Lawn and shrub care, snow plowing and removal, maintenance of the
structure, roof, mechanical and electrical equipment of the
Building, excluding those items specifically excepted elsewhere
in this Lease.
(g) Passenger elevator service will be provided 24 hours per day,
seven days per week, in common with other tenants by operatorless
automatic elevators. During Tenant move-in, the
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freight elevator shall be available for Tenant's exclusive use.
After business hours, additional elevator(s) will be made
available for Tenant's exclusive use during move-in. Landlord
shall have the right to restrict the number of elevators to be
in operation during evenings, Saturdays, Sundays and holidays.
(h) Landlord shall initially supply card keys for access to the
Facility at no cost; replacements for lost or damaged card keys
shall be made available at reasonable cost to Tenant. The card
keys will access the main doors to the Building and the
elevators. Landlord will use all reasonable efforts to allow
Tenant to utilize Landlord's card keys to access the Premises
provided any such Tenant Premises' system shall be provided and
installed by Tenant at its sole cost and expense.
(i) Landlord shall provide a building directory in the lobby of the
Building. Tenant may list its name and suite numbers in said
directory. In the elevator lobbies on full floors occupied by
Tenant, Tenant may place identification signage, subject to
approval of design, location and attachment method by Landlord.
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EXHIBIT "F"
RESERVED PARKING LEASE
RESERVED SPACE
PARKING GARAGE LEASE
THIS PARKING LEASE, made this ________ day of ________________________,
1998, between MERIDIAN CROSSINGS II LLC, A MINNESOTA LIMITED LIABILITY COMPANY,
Lessor, and FOURTH SHIFT CORPORATION, A MINNESOTA CORPORATION, Lessee, whose
address is Two Meridian Crossings, Richfield, MN 55423.
1. Lessor hereby leases Lessee the right to park three (3) automobile(s)
in the lower level Parking Garage at the Facility known and described as
Meridian Crossings II, located at Two Meridian Crossings, Richfield, MN 55423
for a ten (10) year term beginning on the Rental Commencement Date, as
hereinafter described, and ending December 31, 2009.
2. Anything herein to the contrary notwithstanding, this Parking Lease
shall in any event terminate no earlier or later than the date of termination of
the term (including any renewal terms or extensions) of the Lease between
Landlord as, Lessor and Lessee, as Tenant, for space in said Facility, such
Lease dated _____________________________________, 1998. Upon a breach
of this Agreement notice given in accordance with the terms of such Lease and
failure of the breaching party to cure within thirty (30) days of such notice,
the non-breaching party shall have all remedies available herein and under the
Lease.
3. Lessee agrees to pay as a monthly fee for such Parking Lease the sum
of Two Hundred and Eighty-five Dollars and NO/100 ($285.00) for the total of
three (3) stalls leased payable on or before the first day of each month in
advance. The monthly fee may be changed by Lessor as of the first day of the
Renewal Term by giving not less than thirty (30) days advance written notice
thereof to Lessee. In the event Lessee objects to the revised fee as
established by Lessor, it may cancel this Parking Lease effective upon the
adjustment date, as to all or any portion of the spaces leased hereunder, by
written notice to Lessor provided such written notice is given to Lessor within
fifteen (15) days after receipt by Lessee of the notice of the escalation by
Lessor. Lessor agrees to charge Lessee the same fee charged other Lessees
entering into Parking Leases at or about the same time period as the revised fee
is charged hereunder.
4. In the event any of the fee is not paid when due or Lessee is
otherwise in default hereunder, Lessor may, at its option, cancel this agreement
by written notice to Lessee if Lessee fails to cure such default within thirty
(30) days after written notice by Lessor to Lessee.
5. This Parking Lease is for the Reserved Parking Space(s) designated as
follows:
Only vehicles designated by Lessee to Lessor may be parked or stored
thereon, provided, however, that Lessee may change its automobile designation at
any time upon written notice to Lessor or for temporary use upon notification
given to the ramp attendant, if any. No more than one (1) automobile per space
leased hereunder shall be parked or stored under Lessee's rights hereunder at
any one time.
6. This Parking Lease is for self-service storage or parking only and
does not include the rights to any additional services, which services.
7. Except for same resulting solely from the willful act of Lessor, it
is understood that Lessor and its agent and employees shall not be liable for
loss or damage to any vehicle parked or stored by Lessee or under Lessee's
rights herein and/or to the contents thereof caused by fire, theft, explosion,
freezing of circulation system of any automobile, strikes, riots, or by any
other causes and Lessee (1) waives any claim against Lessor for and in respect
thereto, and (2) hereby agrees to indemnify and defend Lessor against all
claims for any loss or damage to any such vehicle or its contents from any cause
whatsoever, whether or not caused by Lessor's act or omission. It is further
expressly understood that the relationship between Lessor and Lessee
1
<PAGE>
constitutes a Parking Lease to use said Parking Garage subject to the terms
and conditions herein only and that neither such relationship nor the storage
or parking of any automobile thereunder shall constitute a bailment nor
create the relationship of bailor and bailee.
8. Lessee shall not assign any of its rights under this agreement
separately from the Lease in any manner whatsoever without the prior written
consent of Lessor, which shall not unreasonably be withheld provided such
assignment is collateral to an assignment of the Lease referred to in Paragraph
2 hereof.
9. All notices hereunder shall be given as set forth in the Lease. The
addresses of either party may be changed at any time by written notice by the
party to be notified in the manner above specified.
10. In the event the Parking Ramp above-referenced shall be damaged by
fire or other casualty, rendering the Ramp unusable by Lessee, the fee provided
for herein shall be abated (pro rata based on the portion of Lessee's stalls
which are unusable) from the date the Parking Garage becomes unusable until it
again becomes useable. Further, if all of any part of the Parking Garage is
taken by eminent domain proceedings, Lessor shall be entitled to all of the
award in the proceedings and may terminate this agreement in the event of a
total taking or reduce the number of stalls leased hereunder in preparation to
the extent of any partial taking upon written notice to Lessor. If the Parking
Garage is damaged by fire or other casualty, Lessor will cause the it to be
repaired with all due diligence and the fee will abate until repaired.
11. This Parking Lease shall be subject and subordinate to any mortgage,
deed of trust or ground lease now or hereafter placed on the above described
Facility or any portion thereof and to replacements, renewals and extensions
thereof, and Lessee upon request by Lessor shall execute reasonable instruments
(in form reasonably satisfactory to Lessor) acknowledging such subordination.
It is agreed so long as Lessee be not in default in payment of fee provided for
herein and performance of all covenants, agreements and conditions by it to be
performed under this agreement, such subordination shall not interfere with,
hinder or molest Lessee's rights to continue to lease the stalls leased
hereunder in accordance with the terms of this agreement as against mortgagee,
trustee or ground lessor or their successors or assigns. The mortgagee, trustee
or ground lessor shall, issue its non-disturbance agreement to Lessee. Further,
if any mortgagee shall succeed to the rights of Lessor under this agreement, or
to ownership of the Parking Garage, whether through possession or foreclosure
or the delivery of a deed to the Parking Garage, then, upon the written request
of such mortgagee so succeeding to Lessor's rights hereunder, Lessee shall
attorn to and recognize such mortgagee as Lessee's lessor under this agreement,
and shall promptly execute and deliver any instrument that such mortgagee may
reasonably request to evidence such attornment (whether before or after making
of the mortgage). In the event of any other transfer of Lessor's interest
hereunder, upon the written request of the transferee and Lessor, Lessee shall
attorn to and recognize such transferee as Lessee's lessor under this agreement
and shall promptly execute and deliver any instrument that such transferee and
Lessor may reasonably request to evidence such attornment.
12. Lessee covenants not to suffer any waste or damage or disfigurement or
injury to the Parking Garage or the Facility.
13. Subject to the abatement provided for in Paragraph 10 hereof, Lessor
shall have the right to temporarily close any portion of the Parking Garage and
deny access thereto in connection with any repairs or in an emergency, as it may
require, without liability, cost, or abatement of fee, but except for damage,
destruction or condemnation, the closure shall not exceed fourteen (14)
consecutive business days.
14. Lessee shall perform, observe and comply with such Parking Garage
rules of the Facility as may be reasonably adopted by Lessor in respect to the
use and operation of said Parking Garage.
2
<PAGE>
15. Lessee shall, when using the parking facilities of said Ramp, observe
and obey all signs regarding fire lanes and no-parking zones, and when parking
always park between designated lines. The property manager for the Facility
shall have the right to tow away, or otherwise impound, at the expense of the
owner or operator, any vehicle which is improperly parked or parked in a
no-parking zone. Overnight parking shall be allowed only as reasonably
acceptable to Lessor. Lessor agrees to provide, except in the case of an
emergency, ten (10) business days prior written notice, to Lessee prior to any
prohibition on overnight parking.
16. In the event a key or other access device is supplied by Lessor to
Lessee in connection with the rights granted herein, Lessee will surrender such
key or access device to Lessor upon termination of this agreement.
17. Lessor covenants and agrees that Lessee, upon paying the charges
herein provided for and observing and keeping the covenants, agreements and
conditions of this Parking Lease Agreement on its part to be kept and
performed, shall lawfully hold, occupy and enjoy all the rights and privileges
granted herein during the term of this agreement without hindrance or
molestation by Lessor, its agents, servants, employees, guests, invitees or any
other persons claiming under Lessor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MERIDIAN CROSSINGS II LLC, A FOURTH SHIFT CORPORATION, A
MINNESOTA LIABILITY COMPANY MINNESOTA CORPORATION
By________________________ By_________________________
Bryant J. Wangard
Its: Manager Its _______________________
3
<PAGE>
EXHIBIT "G"
ESTOPPEL CERTIFICATE
4
<PAGE>
EXHIBIT "H"
LETTER OF CREDIT
NON-NEGOTIABLE
IRREVOCABLE STANDBY LETTER OF CREDIT NO. _____________
Date: (ISSUE DATE) ___________
BENEFICIARY: APPLICANT:
Meridian Crossings LLC Fourth Shift Corporation
c/o TOLD Development Company 7900 International Drive
6900 Wedgwood Road, Suite #100 Minneapolis, MN 55425
Maple Grove, MN 55311 Attn: Chief Financial Officer
Attn: Law Department
AS "LANDLORD" AS "TENANT"
Amount: $250,000.00
Expiration date/Location _____________
Gentlemen: At our counter at the above address
We, hereby establish our Irrevocable Standby Letter of Credit
No.______ in your favor available by your drafts drawn on us at SIGHT and
accompanied by the following required documents:
1 - The original of this letter of credit and amendments if any.
2 - A signed certification from the beneficiary stating the following:
(a). "An event of default has occurred by Applicant (Fourth Shift
Corporation) as Tenant under that certain Lease Agreement dated
________________, 1997 between Tenant, and Beneficiary (Meridian
Crossings LLC) as Landlord.
Further more this is to certify that Landlord has given notice to
Tenant to cure the default, and such default has not been cured
up to this date of drawing under this letter of credit ."
Additional condition: Partial drawings are allowed.
Draft(s) must indicate the number and date of this letter of credit.
Each draft presented hereunder must be accompanied by this original letter of
credit for our endorsement thereon of the amount of such draft.
IRREVOCABLE STANDBY LETTER OF CREDIT NO. _____________ DATED _____________, 1997
PAGE 2 OF 2
Documents must be forwarded to us in one parcel and must be mailed, sent by
overnight delivery service, or presented in person:
Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95054
1
<PAGE>
Attn: International Division
We hereby agree with the drawers, endorsers and bonafide holders that the drafts
drawn under and in accordance with the terms and conditions of this credit shall
be duly honored upon presentation to the drawee, if negotiated on or before the
expiration date of this credit.
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce , Publication No.
500.
- --------------------------------------------------------------------------------
Authorized Signature Authorized Signature
2
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our report included in this Form 10-K into the Company's previously filed
Registration Statement files No. 33-68894, 33-80480, 33-93756, 33-08507 and
333-59677.
/s/ ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
March 30, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF OPERATIONS INCLUDED IN THE
COMPANY'S FORM 10-K AS OF AND FOR THE YEAR ENDED DECEMBER 31, 1998 AND IS
QUALIFIED IN ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1998
<CASH> 10,073
<SECURITIES> 0
<RECEIVABLES> 13,813<F1>
<ALLOWANCES> 0
<INVENTORY> 91
<CURRENT-ASSETS> 25,123
<PP&E> 15,752
<DEPRECIATION> (11,168)
<TOTAL-ASSETS> 33,401
<CURRENT-LIABILITIES> 25,487
<BONDS> 0
0
0
<COMMON> 102
<OTHER-SE> 6,977
<TOTAL-LIABILITY-AND-EQUITY> 33,401
<SALES> 30,244
<TOTAL-REVENUES> 68,204
<CGS> 7,598
<TOTAL-COSTS> 25,872
<OTHER-EXPENSES> 545
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 2,708
<INCOME-TAX> 465
<INCOME-CONTINUING> 2,243
<DISCONTINUED> 281
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,524
<EPS-PRIMARY> .25
<EPS-DILUTED> .25
<FN>
<F1>THESE ASSETS REPRESENT AMOUNTS NET OF ALLOWANCE FOR DOUBTFUL ACCOUNTS.
</FN>
</TABLE>
