<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM _________________TO
___________________
Commission File Number: 000-20719
PRINTRAK INTERNATIONAL INC.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-0070547
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1250 North Tustin Avenue Anaheim, California 92807
- --------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(714) 238-2000
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(Registrant's telephone number, including area code)
Not Applicable
--------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
X Yes No
----- ----
11,361,432 shares of the issuer's common stock, par value $0.0001 per
share, were outstanding as of January 31, 1999.
<PAGE>
FORM 10-Q
CONTENTS
<TABLE>
<CAPTION>
Page Number
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<S> <C>
PART I - FINANCIAL INFORMATION
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Item 1: Financial Statements
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Consolidated Balance Sheets at December 31, 1998 (unaudited)
and March 31, 1998................................................ 1
Unaudited Consolidated Statements of Operations for the three-month
period ended December 31, 1998 and 1997........................... 2
Unaudited Consolidated Statements of Operations for the nine-month
period ended December 31, 1998 and 1997............................. 3
Unaudited Consolidated Statements of Cash Flows for the nine-month
period ended December 31, 1998 and 1997............................. 4
Notes to the Unaudited Consolidated Financial Statements............ 6
Item 2: Management's Discussion and Analysis of Financial Condition
and Results of Operations............................................ 10
PART II - OTHER INFORMATION
-----------------
Item 1: Legal Proceedings............................................ 18
Item 2: Changes in Securities and Use of Proceeds.................... 18
Item 3: Defaults upon Senior Securities.............................. 18
Item 4: Submission of Matters to a Vote of Security Holders.......... 18
Item 5: Other Information............................................ 18
Item 6: Exhibits and Reports on Form 8-K............................. 19
Signature .......................................................... 20
</TABLE>
<PAGE>
PRINTRAK INTERNATIONAL INC.
CONSOLIDATED BALANCE SHEETS
AT DECEMBER 31, 1998 AND MARCH 31, 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
December 31, March 31,
1998 1998
(unaudited) (audited)
---------------- ---------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents......................................................... $ 1,637 $ 3,763
Short-term investments............................................................ - 1,101
Accounts receivable, net (Note 2)................................................. 27,151 28,129
Inventories, net (Note 3)......................................................... 7,156 8,229
Prepaid expenses and other current assets......................................... 1,605 2,413
Deferred income taxes............................................................. 4,056 1,763
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Total current assets.......................................................... 41,605 45,398
Notes receivable from related parties................................................. 70 558
Property, plant and equipment, net ................................................... 3,732 5,086
Deferred income taxes................................................................. 4,679 2,243
Other long-term assets................................................................ 3,196 2,475
Goodwill and other intangible assets, net............................................. 2,499 2,835
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TOTAL ASSETS $55,781 $58,595
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LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable................................................................. $4,828 $ 6,538
Accrued wages and employee benefits.............................................. 2,407 3,178
Other accrued liabilities........................................................ 7,067 7,194
Current portion of long-term debt (Note 4)....................................... 217 1,056
Deferred revenue................................................................. 9,518 8,640
Income taxes payable............................................................. 346 477
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Total current liabilities 24,383 27,083
Long-term debt, less current portion (Note 4)........................................ 948 10,960
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Total liabilities............................................................. 25,331 38,043
STOCKHOLDERS' EQUITY:
Common stock ($.0001 par value; 20,000,000 shares authorized;
11,361,382 and 11,269,203 shares issued and outstanding) ........................ 1 1
Additional paid-in capital....................................................... 18,151 17,850
Retained earnings................................................................ 12,589 3,052
Unrealized gain on short-term investments........................................ 20 11
Note receivable from stockholder................................................. (300) (300)
Cumulative foreign exchange translation adjustment............................... (11) (62)
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Total stockholders' equity.................................................... 30,450 20,552
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TOTAL LIABILITIES & STOCKHOLDER'S EQUITY $55,781 $ 58,595
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</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1
<PAGE>
PRINTRAK INTERNATIONAL INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three-month Three-month
period ended period ended
December 31, December 31,
1998 1997
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<S> <C> <C>
REVENUES:
System........................................................................ $19,280 $20,307
Maintenance................................................................... 4,439 3,473
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Total revenues ........................................................... 23,719 23,780
COST OF REVENUES:
System........................................................................ 11,979 11,030
Maintenance................................................................... 2,691 2,630
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Total cost of revenues ................................................... 14,670 13,660
Gross profit............................................................. 9,049 10,120
OPERATING EXPENSES:
Research, development and engineering......................................... 642 3,019
Selling, general and administrative .......................................... 5,788 6,178
Restructuring charges......................................................... - 663
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Total operating expenses.................................................. 6,430 9,860
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Operating income ......................................................... 2,619 260
Other expense................................................................. 209 142
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Income before provision for income taxes.................................. 2,410 118
Provision (benefit) for income taxes.......................................... (5,930) 43
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Net income ............................................................... $8,340 $75
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Net income per common share:
Basic..................................................................... $.73 $.01
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Diluted................................................................... $.70 $.01
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Number of shares used in the computation of earnings per share:
Basic..................................................................... 11,357,000 11,148,000
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Diluted................................................................... 11,865,000 11,530,000
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</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2
<PAGE>
PRINTRAK INTERNATIONAL INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Nine-month Nine-month
period ended period ended
December 31, December 31,
1998 1997
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<S> <C> <C>
REVENUES:
System........................................................................ $48,496 $48,603
Maintenance................................................................... 11,861 9,665
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Total revenues ........................................................... 60,357 58,268
COST OF REVENUES:
System........................................................................ 27,214 26,426
Maintenance................................................................... 8,301 6,448
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Total cost of revenues ................................................... 35,515 32,874
Gross profit.............................................................. 24,842 25,394
OPERATING EXPENSES:
Research, development and engineering......................................... 4,495 8,089
Selling, general and administrative .......................................... 15,726 15,448
In-process R & D expense...................................................... - 5,900
Merger expenses............................................................... - 874
Restructuring charges......................................................... - 663
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Total operating expenses.................................................. 20,221 30,974
Operating income (loss)................................................... 4,621 (5,580)
Other expense (income)........................................................ 370 (103)
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Income (loss) before provision for income taxes........................... 4,251 (5,477)
Provision (benefit) for income taxes.......................................... (5,286) 159
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Net income (loss)......................................................... $9,537 $ (5,636)
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Net income (loss) per common share:
Basic.................................................................... $.84 $ (.50)
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Diluted.................................................................. $.82 $ (.50)
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Number of shares used in the computation of earnings per share:
Basic.................................................................... 11,315,000 11,186,000
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Diluted.................................................................. 11,689,000 11,186,000
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</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
3
<PAGE>
PRINTRAK INTERNATIONAL INC.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine-month Nine-month
period ended period ended
December 31, December 31,
1998 1997
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<S> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................................... $9,537 $(5,636)
Adjustments to reconcile net income (loss) to net cash provided by
operating activities:
Depreciation and amortization............................................. 2,477 2,557
Write-off of In process R&D............................................... - 5,900
Loss on sale of fixed assets.............................................. 179 17
Deferred income taxes..................................................... (4,729) 103
Changes in operating assets and liabilities:
Accounts receivable, net............................................... 976 (5,462)
Inventories, net....................................................... 1,173 1,352
Prepaid expenses and other current assets.............................. 807 (1,214)
Other long-term assets................................................ (721) (239)
Accounts payable and other current liabilities......................... (1,841) (940)
Accrued wages and employee benefits.................................... (896) 2,996
Deferred revenue...................................................... 881 3,254
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Net cash provided by operating activities.................................. 7,843 2,688
Cash flows from investing activities:
Capital expenditures...................................................... (1,070) (2,603)
Proceeds from the sale of PPE............................................. 5 -
Net proceeds from notes receivable........................................ 488 (11)
Business acquisitions..................................................... - (9,606)
Proceeds from sale of short-term investments ............................. 1,110 2,983
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Net cash (used in) provided by investing activities....................... 533 (9,237)
Cash flows from financing activities:
Proceeds from long-term debt.............................................. - 3,331
Principal repayments on long-term debt.................................... (10,851) -
Proceeds from exercise of stock options................................... 301 793
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Net cash (used in) provided by financing activities..................... (10,550) 4,124
Effect of exchange rate changes on cash balances.............................. 48 5
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Net change in cash and cash equivalents...................................... (2,126) (2,420)
Cash and cash equivalents, beginning of year.................................. 3,763 3,832
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Cash and cash equivalents, end of period...................................... $1,637 $1,412
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4
<PAGE>
Nine-month Nine-month
period ended period ended
December 31, December 31,
1998 1997
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Non-cash transaction-transfer of inventory to (from) fixed assets (100) 770
Supplemental disclosure of cash flow information:
Interest paid ........................................................... $88 $389
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Income taxes paid........................................................ $197 $178
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</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
5
<PAGE>
PRINTRAK INTERNATIONAL INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. GENERAL
GENERAL BUSINESS
Printrak International Inc. ("the Company") is a worldwide supplier of
integrated identification and information systems used primarily in criminal
justice and public safety applications, as well as in emerging applications
in civil markets such as welfare and immigration control. The Company
provides networked fingerprint, photo imaging, computer-aided dispatch and
automated records management systems, as well as digital scanning devices.
The Company's integrated systems serve approximately 700 national, state,
county and municipal agencies in 36 countries.
BASIS OF PRESENTATION
The accompanying consolidated financial statements have been prepared
pursuant to the rules and regulations of the Securities and Exchange
Commission ("SEC"). The unaudited consolidated financial statements reflect
all adjustments, which are normal and recurring in nature, and which in the
opinion of management are necessary to a fair statement of the financial
position and results of operations as of December 31, 1998 and for the
three-month and nine-month periods ended December 31, 1998 and 1997,
respectively. The results of operations for the three-month and nine-month
periods ended December 31, 1998 are not necessarily indicative of the results
of operations for the entire fiscal year ending March 31, 1999. These
consolidated financial statements and related footnotes should be read in
conjunction with the consolidated financial statements and related footnotes
presented in the Company's 10-K.
NEW ACCOUNTING PRONOUNCEMENTS
REVENUE RECOGNITION - In October 1997, the AICPA issued SOP 97-2, "Software
Revenue Recognition" which later in part was amended by SOP 98-4, "Deferral
of the Effective Date of a Provision of SOP 97-2". These statements supersede
SOP 91-1 under which the Company has previously been recognizing revenue. The
Company adopted SOP 97-2 for transactions entered into beginning April 1,
1998.
Pursuant to SOP 97-2, the Company recognizes revenue on contracts which do
not require significant modification or customization of software when all of
the following conditions are met: a signed contract is obtained, delivery has
occurred, the fee is fixed and determinable, collectibility is probable, and
any uncertainties with regard to customer acceptance are insignificant. A
majority of the Company's contracts include a combination of the following
elements: hardware, software, license fees, installation, program
modifications, file conversion, training, and customer support. For such
contracts, revenue must be allocated to each component based on vendor
specific objective evidence of the components fair value. Revenue allocated
to undelivered products is recognized as the above criteria are met; revenue
for services is recognized as services are performed or, for maintenance
agreements, ratably over the life of the related contract. Cash payments for
systems sales or maintenance received in advance of revenue recognition are
accounted for as deferred revenue. For those contracts which have been
considered long-term contracts due to a significant amount of customization,
the Company recognizes revenue on a percentage of completion basis.
6
<PAGE>
COMPREHENSIVE INCOME - Effective April 1, 1998, the Company has adopted SFAS
No. 130, REPORTING COMPREHENSIVE Income. This statement establishes standards
for the reporting of comprehensive income and its components. Comprehensive
income, as defined, includes all changes in equity (net assets) during a
period from nonowner sources. For the three-month and nine-month periods
ended December 31, 1998, the difference between net income, as reported, and
comprehensive income was not significant.
2. ACCOUNTS RECEIVABLE
Accounts receivable consists of the following:
<TABLE>
<CAPTION>
December 31, March 31,
1998 1998
(unaudited) (audited)
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<S> <C> <C>
Billed receivables.................................................. $21,771 $18,641
Unbilled receivables................................................ 6,253 10,840
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28,024 29,481
Less allowance for doubtful accounts................................ (873) (1,352)
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$27,151 $28,129
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</TABLE>
Unbilled receivables consist of system and maintenance revenues which have been
earned but not invoiced because of contractual terms of the underlying
agreements.
3. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
December 31, March 31,
1998 1998
(unaudited) (audited)
------------ ---------
<S> <C> <C>
Raw materials....................................................... $ 4,444 $ 4,979
Work in progress.................................................... 4,126 4,657
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8,570 9,636
Less allowance for inventory obsolescence and revaluation........... (1,414) (1,407)
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$ 7,156 $ 8,229
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</TABLE>
4. DEBT
Debt consists of the following:
<TABLE>
<CAPTION>
December 31, March 31,
1998 1998
(unaudited) (audited)
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<S> <C> <C>
Revolving line of credits with bank:
Working capital line ............................................ $ 795 $ 7,488
Acquisition line................................................. - 4,000
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
Obligations under capital leases................................. 370 528
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Total debt.................................................. 1,165 12,016
Less current portion of long-term debt........................... (217) (1,056)
-------- ---------
$ 948 $ 10,960
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</TABLE>
During the third quarter of fiscal 1999, the Company repaid the outstanding
principal balance on its $4.0 million term loan and extended its revolving
credit facility to January 4, 2000. The revolving line of credit agreement
contains certain restrictive covenants, which restrict the Company's ability to
pay dividends and requires the Company to maintain minimum tangible net worth
and certain other financial ratios. The Company was in compliance with these
covenants as amended.
5. NET INCOME AND NET INCOME PER SHARE
SFAS No. 128 requires dual presentation of "basic" and "diluted" earnings per
share, thus replacing "primary" and "fully diluted" earnings per share required
under APB No. 15. Basic EPS excludes common stock equivalents and is computed by
dividing net income by the weighted average number of common shares outstanding
for the period. Diluted EPS reflects the inclusion of common stock equivalents
and their potential dilution. Diluted EPS is similar to fully diluted EPS;
however, it uses the average stock price during the period as part of the
computation. Common stock equivalents are excluded from the EPS calculation for
the nine-months ended December 31, 1997 because their effect would be
anti-dilutive.
The number of shares used in computing EPS is as follows for the three-month
period ended December 31:
<TABLE>
<CAPTION>
1998 1997
---------- ----------
<S> <C> <C>
Weighted average shares outstanding-basic........................... 11,357,000 11,148,000
Common Stock equivalents............................................ 508,000 382,000
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Weighted average shares outstanding - diluted....................... 11,865,000 11,530,000
---------- ----------
---------- ----------
</TABLE>
The number of shares used in computing EPS is as follows for the nine-month
period ended December 31:
<TABLE>
<CAPTION>
1998 1997
---------- ----------
<S> <C> <C>
Weighted average shares outstanding-basic........................... 11,315,000 11,186,000
Common Stock equivalents............................................ 374,000 -
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Weighted average shares outstanding - diluted....................... 11,689,000 11,186,000
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</TABLE>
8
<PAGE>
6. RESTRUCTURING CHARGES
In fiscal 1998, the Company announced a formal plan for restructuring both
its SunRise and TFP subsidiaries to realize cost savings and capitalize on
synergies by consolidating the subsidiaries into the Company's Anaheim
operations. The restructuring charges include lease termination and facility
closure costs, losses on the disposition of fixed assets and severance costs
for terminated employees. During the second quarter of fiscal 1998, the
Company substantially completed the restructuring activities, with the
exception of subleasing its Fremont, California facility, and actual costs
have not differed significantly from amounts previously accrued.
Approximately $155,000 of accrued restructuring costs are included in accrued
liabilities as of December 31, 1998, which principally relate to future lease
commitments and unpaid severance.
7. PROVISION (BENEFIT) FOR INCOME TAXES
The Company evaluates a variety of factors in determining the amount of
deferred income tax assets to be recognized pursuant to SFAS 109, "Accounting
for Income Taxes". As a result of numerous factors, including, but not
limited to the Company's earnings history, existing contracts, sales backlog,
the existence of taxable temporary differences, and near-term earnings
expectations, the Company believes that its net deferred tax asset is more
likely than not to be realized, and in the third quarter of 1999, released
its deferred tax valuation allowance totaling $6.155 million. Although
realization of the deferred tax assets is not assured, the Company believes
that it is more likely than not that all of the deferred tax assets will be
realized.
9
<PAGE>
PRINTRAK INTERNATIONAL INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
INTRODUCTORY NOTE
This Quarterly Report on Form 10-Q contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934 and the Company
intends that such forward-looking statements be subject to the safe harbors
created thereby. Words such as "anticipates", "expects", "intends", "plans",
"believes", "seeks", "estimates", variations of such words and similar
expressions are intended to identify such forward-looking statements, which
include (i) the existence and development of the Company's technical and
manufacturing capabilities, (ii) anticipated competition, (iii) potential
future growth in revenues and income, (iv) potential future decreases in
costs, and (v) the need for, and availability of, additional financing.
The forward-looking statements included herein are based on current
expectations that involve a number of risks and uncertainties. These
forward-looking statements are based on assumptions that the Company's
markets will continue to grow, that the Company's products will remain
accepted within their respective markets and will not be replaced by new
technology, that competitive conditions within the Company's markets will not
change materially or adversely, that the Company will retain key technical
and management personnel, that the Company's forecasts will accurately
anticipate market demand, and that there will be no material adverse change
in the Company's operations or business. Assumptions relating to the
foregoing involve judgments with respect to, among other things, future
economic, competitive and market conditions, and future business decisions,
all of which are difficult or impossible to predict accurately and many of
which are beyond the control of the Company. In light of the significant
uncertainties inherent in the forward-looking information included herein,
the inclusion of such information should not be regarded as a representation
by the Company or any other person that the objectives or plans of the
Company will be achieved.
The following is management's discussion and analysis of certain significant
factors which have affected the earnings and financial position of the
Company during the period included in the accompanying financial statements.
This discussion compares the three-month period ended December 31, 1998 with
the three-month period ended December 31, 1997, as well as the nine-month
period ended December 31, 1998 with the nine-month period ended December 31,
1997. This discussion should be read in conjunction with the financial
statements and associated notes.
10
<PAGE>
RESULTS OF OPERATIONS
THREE-MONTH PERIOD ENDED DECEMBER 31, 1998 COMPARED TO THE THREE-MONTH PERIOD
ENDED DECEMBER 31, 1997
TOTAL REVENUES
The Company's total revenues are comprised of system revenues, which include
products, file conversion, data mapping services and system installations,
and maintenance revenues related to hardware and software support.
Total revenues of $23.7 million for the three-month period ended December 31,
1998 decreased slightly from $23.8 million for the three-month period ended
December 31, 1997. The Company's AFIS product line contributed $15.1 million
to total revenues for the three-month period ended December 31, 1998 compared
to $14.8 million for the same period in the previous year. This increase was
partially offset by a decrease in revenue from the Mugshot product line. The
Company's Mugshot product line contributed $1.5 million to total revenues for
the three-month period ended December 31, 1998, a decrease of $1.4 million,
or 49.0%, from $2.9 million in total revenues for the same period in the
previous year. Management believes this reduction is primarily attributable
to the Company transitioning its sales efforts from smaller scale to larger
scale contracts.
System revenues of $19.3 million for the three-month period ended December
31, 1998 decreased $1.0 million, or 4.9%, from $20.3 million for the
three-month period ended December 31, 1997. This decrease is primarily
attributable to lower revenues from the Company's Mugshot and CAD/RMS product
lines.
Maintenance revenues of $4.4 million for the three-month period ended
December 31, 1998 increased $0.9 million, or 27.8%, from $3.5 million for the
three-month period ended December 31, 1997. This increase is primarily
attributable to an overall expansion of the customer base over the prior year.
GROSS PROFIT
Cost of revenues primarily consist of purchased materials procured for use in
the assembly of the Company's products, manufacturing or assembly labor and
overhead, file conversion costs and data mapping costs, as well as
maintenance expenses and estimated costs to complete system installations.
Overall gross profit of $9.0 million for the three-month period ended
December 31, 1998 decreased $1.1 million from $10.1 million for the
three-month period ended December 31, 1997. Overall gross margin was 38.2%
for the three-month period ended December 31, 1998, down from 42.6% for the
three-month period ended December 31, 1997. The gross profit for system
revenues of $7.3 million for the three-month period ended December 31, 1998
decreased $2.0 million from $9.3 million, which includes $632,000 of
restructuring reserve costs, for the three-month period ended December 31,
1997. System gross margin also decreased to 37.9% for the three-month period
ended December 31, 1998 from 45.7% for the three-month period ended December
31, 1997. Maintenance gross profit of $1.7 million for the three-month period
ended December 31, 1998 increased $0.9 million from $.8 million for the
three-month period ended December 31, 1997. Gross margin related to
maintenance revenue increased to 39.4% for the three-month period ended
December 31, 1998 from 24.3% for the three-month period ended December 31,
1997.
11
<PAGE>
The decrease in system gross margin reflects an additional provision of $2
million to accrue for additional costs related to larger contracts. The
decrease in system gross margin reflects the increased allocation of
resources to contract specific tasks, primarily due to increased
customization for certain contracts. The increase in the Company's
maintenance gross margin is partially due to renegotiations of several low
margin contracts the Company inherited from its TFP and Boulder acquisitions.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative (SG&A) expenses consist primarily of
compensation paid to sales, marketing, and administrative personnel, payments
to consultants, professional service fees, travel and related expenses, and
other marketing expenses.
For the three-month period ended December 31, 1998, SG&A expenses decreased
to $5.8 million from $6.2 million for the three-month period ended December
31, 1997. SG&A expenses, as a percentage of revenues, decreased to 24.4% for
the three-month period ended December 31, 1998 from 26.0% for the three-month
period ended December 31, 1997. The decrease primarily reflects cost savings
resulting from cost synergies associated with the SunRise and TFP
integrations into Anaheim.
RESEARCH, DEVELOPMENT AND ENGINEERING
Research, development and engineering expenses (RD&E) are comprised primarily
of compensation paid to personnel engaged in research, development and
engineering activities, amounts paid for outside services and the cost of
materials used in the development of hardware and software products.
RD&E expenses of $.6 million for the three-month period ended December 31,
1998, decreased 78.7% from $3.0 million for the three-month period ended
December 31, 1997. RD&E expenses, as a percentage of revenues, decreased to
2.7% for the three-month period ended December 31, 1998 from 12.7% for the
three-month period ended December 31, 1997. The decrease in RD&E expenses is
primarily attributable to the diversion of a large portion of the Company's R
& D effort to the performance of new contracts. The Company expects the RD&E
expense to increase next quarter.
PROVISION FOR INCOME TAXES
Income tax benefit for the three-month period ended December 31, 1998 equaled
$5.9 million compared to an income tax provision of $43,000 for the
three-month period ended December 31, 1997. The current quarter benefit
reflects the reversal of the valuation allowance against the Company's net
deferred tax asset.
The Company evaluates a variety of factors in determining the amount of
deferred income tax assets to be recognized pursuant to SFAS 109, "Accounting
for Income Taxes". As a result of numerous factors, including, but not
limited to the Company's earnings history, existing contracts, sales backlog,
the existence of taxable temporary differences, and near-term earnings
expectations, the Company believes that its net deferred tax asset is more
likely than not to be realized, and in the third quarter of 1999, released
its deferred tax valuation allowance totaling $6.155 million. Although
realization of the deferred tax assets is not assured, the Company believes
that it is more likely than not that all of the deferred tax assets will be
realized.
12
<PAGE>
NINE-MONTH PERIOD ENDED DECEMBER 31, 1998 COMPARED TO THE NINE-MONTH PERIOD
ENDED DECEMBER 31, 1997
TOTAL REVENUES
Total revenues of $60.4 million for the nine-month period ended December 31,
1998, increased $2.1 million, or 3.5, from $58.3 million for the nine-month
period ended December 31, 1997. This increase was primarily attributable to
the Company's acquisitions during fiscal year 1998. For the first nine months
of fiscal year 1999, the Company's acquired Boulder and SunRise divisions
together contributed an incremental $8.2 million to the increase in total
revenues. Offsetting this increase in revenue is a decline in the Company's
AFIS product line system revenue of $4.5 million primarily due to the timing
of completion of contract elements which drive revenue recognition. System
revenues for the mugshot product line decreased $4.1 million primarily
attributable to the Company transitioning its sales efforts from smaller
scale to larger scale contracts.
Maintenance revenue of $11.9 million for the nine-month period ended December
31, 1998, increased $2.2 million, or 22.7%, from $9.7 million for the
nine-month period ended December 31, 1997. The increase is primarily
attributable to an overall expansion of the customer base over the prior year.
GROSS PROFIT
Overall gross profit of $24.8 million for the nine-month period ended
December 31, 1998 decreased 2.2% from $25.4 million for nine-month period
ended December 31, 1997. Gross margin was 41.2% for the nine-month period
ended December 31, 1998, down from 43.6% for the nine-month period ended
December 31, 1997. Gross profit for system revenues decreased to $21.3
million for the nine-month period ended December 31, 1998 from $22.2 million
for the nine-month period ended December 31, 1997. System gross margin
decreased to 43.9% for the nine-month period ended December 31, 1998 from
45.6% from the nine-month period ended December 31, 1997. Overall maintenance
gross profit of $3.6 million for the nine-month period ended December 31,
1998 increased $.3 million from $3.2 million for the nine-month period ended
December 31, 1997. Gross margin related to maintenance revenues decreased to
30.0% for the nine-month period ended December 31, 1997 compared to 33.3% for
the nine-month period ended December 31, 1997.
The decrease in system margin is primarily attributable to increased
allocation of RD&E expenses to contract specific tasks, primarily due to
increased customization for certain contracts. The decrease in the Company's
maintenance margin is due in part to the duplicative resource costs incurred
between AFIS and TFP during the transition of TFP into Anaheim operations, as
well as the result of several low margin maintenance contracts the Company's
Boulder division inherited through acquisition.
SELLING, GENERAL AND ADMINISTRATIVE
SG&A expenses of $15.7 million for the nine-month period ended December 31,
1998, increased 1.8% from $15.4 million for the nine-month period ended
December 31, 1997. SG&A expenses, as a percentage of revenues, decreased
slightly to 26.1% for the nine-month period ended December 31, 1998 from
26.5% for the nine-month period ended December 31, 1997. The $.3 million
increase reflects additional costs related to the Company's Boulder and
SunRise divisions acquired in fiscal 1998.
13
<PAGE>
RESEARCH, DEVELOPMENT AND ENGINEERING
RD&E expenses of $4.5 million for the nine-month period ended December 31,
1998 decreased 44.4% from expenses of $8.1 million for the nine-month period
ended December 31, 1997. RD&E expenses, as a percentage of revenues,
decreased to 7.4% for the nine-month period ended December 31, 1998, down
from 13.9% for the nine-month period ended December 31, 1997. This $3.6
million decrease is primarily the result of increased allocation of resources
to contract specific tasks, primarily due to increased customization for
certain contracts, which are classified as cost of revenues, as well as a
reduction in contract labor. The Company is actively recruiting to backfill
the open RD&E positions.
OTHER (EXPENSE) INCOME
Other expense for the nine-month period ended December 31, 1998 equaled
$370,000 in comparison to other income of $103,000 for the nine-month period
ended December 31, 1997. Other expense for the nine-month period ended
December 31, 1998 reflects a decrease of approximately $300,000 in interest
income due to the liquidation of certain Company investments, as well as
additional interest expense on borrowings under the Company's line of credit.
PROVISION FOR INCOME TAXES
Income tax benefit for the nine-month period ended December 31, 1998 equaled
$5.3 million compared to expense of $159,000 for the nine-month period ended
December 31, 1997. The Company's current year tax benefit reflects the
reversal of the valuation allowance against the Company's net deferred tax
asset.
The Company evaluates a variety of factors in determining the amount of
deferred income tax assets to be recognized pursuant to SFAS 109, "Accounting
for Income Taxes". As a result of numerous factors, including, but not
limited to the Company's earnings history, existing contracts, sales backlog,
the existence of taxable temporary differences, and near-term earnings
expectations, the Company believes that its net deferred tax asset is more
likely than not to be realized, and in the third quarter of 1999, released
its deferred tax valuation allowance totaling $6.155 million. Although
realization of the deferred tax assets is not assured, the Company believes
that it is more likely than not that all of the deferred tax assets will be
realized.
BACKLOG
The Company measures its backlog of system revenues as orders for which
contracts or purchase orders have been signed, but for which revenues have
not been recognized. In those instances where revenue is recognized on a
percentage of completion basis, the Company includes in backlog contract
revenue not recognized at the period end. As of December 31, 1998, the
Company's system revenue backlog approximated $95 million, compared to $36
million as of September 30, 1998 and $31 million on December 31, 1997. In
addition, the Company's maintenance revenue backlog approximated $16 million
as of December 31, 1998. The increase in system revenue backlog reflects the
Company's $46 million contract with Siemens Argentina entered into in October
1998. The six year contract is to provide automated fingerprint technology to
the Argentina government as part of their national ID program.
Orders comprising the Company's system backlog may include requirements for
custom software development or file conversion that may require extensive
resources to be completed prior to shipment. Any failure of the Company to
meet an agreed upon schedule could lead to the cancellation of the related
14
<PAGE>
order. The Company believes that it is important for competitive reasons and
to better satisfy customer requirements to reduce order lead times.
Additionally, variations in the size, complexity and delivery requirements of
customer orders may result in substantial fluctuations in backlog on a
regular basis. Accordingly, the Company believes that backlog may not be a
meaningful indicator of future financial performance.
FINANCIAL CONDITION
Cash, cash equivalents and short-term investments declined from $4.9 million
at March 31, 1998 to $1.6 million at December 31, 1998 as a result of
paydowns on the Company's line of credit as well as the liquidation of short
term investments. Prepaid expenses and other current assets declined $.8
million during the period as a result of the reduction of a current non-trade
receivable.
The increase in deferred income taxes reflects the tax benefit to be realized
from anticipated future earnings.
During the first quarter, the Company's Chief Executive Officer and
President, Richard M. Giles, repaid a $500,000 note associated with the sale
of the building from the Company to a limited liability partnership
controlled by Mr. Giles. As a result, the notes receivable from related
parties declined from $558,000 to $70,000.
The decrease in the net balance of property, plant and equipment of $1.4
million from $5.1 million at March 31, 1998 to $3.7 million at December 31,
1998 reflects capital expenditures of approximately $1.1 million, capital
deletions of approximately $.4 million and depreciation expense of $2.1
million.
The decrease in accounts payable primarily reflects lower purchases of
inventory as of the end of the current quarter as well as the timing of
quarter end disbursements.
The decrease in accrued wages and employee benefits is primarily the result
of the number of days of accrued payroll at March 31, 1998 versus December
31, 1998.
The decline in long-term debt is a result of reduced borrowing levels on the
Company's revolving line of credit as the Company is better able to meet
liquidity needs through funds generated by operations, and also due to the
absence of acquisitions in the current fiscal year.
LIQUIDITY AND CAPITAL RESOURCES
The Company finances its operations through the cash provided by its
operations and the utilization of its revolving credit line. The Company's
operating activities provided cash of approximately $7.8 million for the
nine-months ended December 31, 1998 primarily through net earnings before
deferred tax adjustment and non-cash depreciation and amortization. The
Company's operating activities provided cash of $2.7 million for the
nine-months ended December 31, 1997.
The Company's investing activities provided net cash of $.5 million for the
period ended December 31, 1998 due primarily to the repayment of the $.5
million note receivable from RICOL, LLC and proceeds of $1.1 million on the
liquidation of the Company's short-term investments, offset by capital
expenditures
15
<PAGE>
of $1.1 million. For the period ended December 31, 1997, the Company's
investing activities used cash of approximately $9.2 million due primarily to
cash used to acquire the Boulder division and SunRise Imaging for $9.6
million and capital expenditures of $2.6 million, offset, in part, by the
sale of short-term investments which yielded approximately $3.0 million.
Financing activities used cash of $10.6 million during the nine-month period
ended December 31, 1998 as a result of the paydown on the Company's revolving
credit line. During the nine-month period ended December 31, 1997, financing
activities provided approximately $4.1 million, $3.3 million of which
reflects proceeds from long-term debt.
During the third quarter of fiscal 1999 the Company repaid the outstanding
principal balance on its $4.0 million term loan and extended its $15.0
million revolving credit facility to January 4, 2000. The revolving line of
credit agreement contains certain restrictive covenants, which restrict the
Company's ability to pay dividends and requires the Company to maintain
minimum tangible net worth and certain other financial ratios. The Company
was in compliance with these covenants as amended.
The Company believes that the cash generated from operations, as well as the
use of the revolving credit line will provide sufficient resources to fund
the Company through at least the end of fiscal year 1999.
YEAR 2000 COMPLIANCE
Many currently installed information technology ("IT") systems, such as
computer systems and software products, as well as non-IT systems that
include embedded technology, are coded to accept only two digit entries in
the date code field, and thus, were not designed to correctly process dates
after December 31, 1999. These date code fields will need to accept four
digit entries, or be modified in some fashion, to distinguish 21st century
dates from 20th century dates. As a result, in less than nine months,
computer systems and software used by many companies may need to be upgraded
or are being upgraded to comply with such "Year 2000" requirements.
The Company has assessed the impact of such "Year 2000" issues on its
products, its internal IT and non-IT systems, as well as on its customers,
suppliers and service providers. The Company has determined that certain of
its internal IT and non-IT systems are not Year 2000 compliant and is
currently in the process of purchasing upgrades or transitioning to systems
which the Company's vendors have represented as being Year 2000 compliant.
The Company believes that with modifications and conversions, the Year 2000
issue can be managed and the associated risks mitigated. The Company
anticipates that its internal systems will be Year 2000 compliant by June 30,
1999. With regard to the Company's products, the Company believes that the
current versions of all products are Year 2000 compliant. However, certain
older product versions are not Year 2000 compliant. The Company has notified
its customers of potential Year 2000 compliance problems and has offered such
customers the opportunity to purchase upgrades.
The Company is unable to control whether its suppliers and service providers
will be Year 2000 compliant. However, the Company has initiated
communications with its significant vendors to determine the extent to which
the Company's operations may be vulnerable to such parties' failure to
resolve their own Year 2000 issues. The Company's operations may be affected
to the extent that its vendors are unable to provide services or ship
products. Where practicable, the Company will assess and attempt to mitigate
its risks with respect to failure of those entities to be Year 2000 ready.
The Company has not received responses from all of its significant vendors,
and thus, the effect, if any, on the Company's results of operations from the
failure of such parties to be Year 2000 ready cannot be estimated. The
16
<PAGE>
inability of these third parties to remediate their Year 2000 problems could
have a material adverse effect on the Company.
Although the Company expects its internal systems to be Year 2000 compliant
as described above, the Company has prepared a contingency plan that
specifies what it plans to do if it or its significant vendors are not Year
2000 compliant in a timely manner. Even if these plans are put in place,
there can be no assurance that such plans will be sufficient to address any
third party failures or that unresolved or undetected internal and external
Year 2000 issues will not have a material adverse effect on the Company's
business, financial condition and results of operations.
While it is difficult to quantify the total cost to the Company of the Year
2000 compliance activities, the Company's best estimate of expenditures to
date is between $200,000 - $300,000. The total remaining cost is estimated to
be approximately $250,000. The Company is expensing as incurred all costs
related to the assessment and remediation of the Year 2000 issue. These costs
are being funded through operating cash flows. Notwithstanding the foregoing,
there can be no assurances (a) that the representations provided by its third
party vendors with respect to Year 2000 compliance will be accurate, or (b)
that the Company will have any recourse against such vendors if the
representations prove to be inaccurate. Furthermore, there can be no
assurances that Year 2000-related failure caused by third parties, such as
utility providers, transportation companies or others, will not have a
material adverse effect on the Company. There can be no guarantee that Year
2000 issues will not have a material impact on the Company's business,
operating results and financial condition.
17
<PAGE>
PRINTRAK INTERNATIONAL INC.
PART II-OTHER INFORMATION
Item 1 - LEGAL PROCEEDINGS
From time to time, the Company may be involved in litigation relating to claims
arising out of its operations in the normal course of business. As of the date
of this report, the Company is not a party to any legal proceedings, the adverse
outcome of which, in management's opinion, individually or in the aggregate,
would have a material adverse effect on the Company's results of operations or
financial position.
Item 2 - CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
Item 3 - DEFAULTS UPON SENIOR SECURITIES
None.
Item 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
Item 5 - OTHER INFORMATION
Any stockholder desiring to submit a proposal for action at the 1999 Annual
Meeting of Stockholders and presentation in the Company's proxy statement
with respect to such meeting should arrange for such proposal to be delivered
to the Company's offices, Attn: Secretary, Printrak International Inc., 1250
N. Tustin Avenue, Anaheim, California 92807, no later than April 15, 1999 in
order to be considered for inclusion in the Company's proxy statement
relating to the meeting. Matters pertaining to such proposals, including the
number and length thereof, eligibility of persons entitled to have such
proposals included and other aspects are regulated by the Securities Exchange
Act of 1934, Rules and Regulations of the Securities and Exchange Commission
and other laws and regulations to which interested persons should refer.
On May 21, 1998 the Securities and Exchange Commission adopted an amendment
to Rule 14a-4, as promulgated under the Securities and Exchange Act of 1934,
as amended. The amendment to Rule 14a-4(c)(1) governs the Company's use of
its discretionary proxy voting authority with respect to a stockholder
proposal which is not addressed in the Company's proxy statement. The new
amendment provides that if a proponent of a proposal fails to notify the
Company at least 45 days prior to the month and day of mailing of the prior
year's proxy statement, then the Company will be allowed to use its
discretionary voting authority when the proposal is raised at the meeting,
without any discussion of the matter in the proxy statement.
With respect to the Company's 1999 Annual Meeting of Stockholders, if the
Company is not provided notice of a stockholder proposal, which the
stockholder has not previously sought to include in the Company's proxy
statement, by June 30, 1999, the Company will be allowed to use its voting
authority as outlined.
18
<PAGE>
Item 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit Index:
10.1 Industrial Lease dated December 23, 1998 between
the Company and The Irvine Company.
27 Financial Data Schedule
(b) Reports on Form 8-K.
The Company did not file any current reports on Form 8-K during the
three-month period ended December 31, 1998.
19
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRINTRAK INTERNATIONAL INC.
(REGISTRANT)
By /s/ RICHARD M. GILES
----------------------------------
Name: Richard M. Giles
Title: Chief Executive Officer,
President and acting Chief
Financial Officer
February , 1998
20
<PAGE>
INDUSTRIAL LEASE
(SINGLE TENANT; NET)
BETWEEN
THE IRVINE COMPANY
AND
PRINTRAK INTERNATIONAL, INC.
<PAGE>
INDEX TO INDUSTRIAL LEASE
(Single Tenant; Net)
<TABLE>
<S> <C>
ARTICLE I. BASIC LEASE PROVISIONS
ARTICLE II. PREMISES
Section 2.1 Leased Premises
Section 2.2 Acceptance of Premises
Section 2.3 Building Name and Address
ARTICLE III. TERM
Section 3.1 General
Section 3.2 Delay in Possession
ARTICLE IV. RENT AND OPERATING EXPENSES
Section 4.1 Basic Rent
Section 4.2 Operating Expenses
Section 4.3 Security Deposit
ARTICLE V. USES
Section 5.1 Use
Section 5.2 Signs
Section 5.3 Hazardous Materials
ARTICLE VI. COMMON AREAS; SERVICES
Section 6.1 Utilities and Services
Section 6.2 Operation and Maintenance of Common Areas
Section 6.3 Use of Common Areas
Section 6.4 Parking
Section 6.5 Changes and Additions by Landlord
ARTICLE VII. MAINTAINING THE PREMISES
Section 7.1 Tenant's Maintenance and Repair
Section 7.2 Landlord's Maintenance and Repair
Section 7.3 Alterations
Section 7.4 Mechanic's Liens
Section 7.5 Entry and Inspection
Section 7.6 Tenant's Self-Help
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
ARTICLE IX. ASSIGNMENT AND SUBLETTING
Section 9.1 Rights of Parties
Section 9.2 Effect of Transfer
Section 9.3 Sublease Requirements
Section 9.4 Certain Transfers
ARTICLE X. INSURANCE AND INDEMNITY
Section 10.1 Tenant's Insurance
Section 10.2 Landlord's Insurance
Section 10.3 Joint Indemnity
Section 10.4 Landlord's Nonliability
Section 10.5 Waiver of Subrogation
ARTICLE XI. DAMAGE OR DESTRUCTION
Section 11.1 Restoration
Section 11.2 Lease Governs
ARTICLE XII. EMINENT DOMAIN
Section 12.1 Total or Partial Taking
Section 12.2 Temporary Taking
Section 12.3 Taking of Parking Area
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
Section 13.1 Subordination
Section 13.2 Estoppel Certificate
Section 13.3 Financials
(i)
<PAGE>
ARTICLE XIV. DEFAULTS AND REMEDIES
Section 14.1 Tenant's Defaults
Section 14.2 Landlord's Remedies
Section 14.3 Late Payments
Section 14.4 Right of Landlord to Perform
Section 14.5 Default by Landlord
Section 14.6 Expenses and Legal Fees
Section 14.7 Waiver of Jury Trial
Section 14.8 Satisfaction of Judgment
Section 14.9 Limitation of Actions Against Landlord
ARTICLE XV. END OF TERM
Section 15.1 Holding Over
Section 15.2 Merger on Termination
Section 15.3 Surrender of Premises; Removal of Property
ARTICLE XVI. PAYMENTS AND NOTICES
ARTICLE XVII. RULES AND REGULATIONS
ARTICLE XVIII. BROKER'S COMMISSION
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
ARTICLE XX. INTERPRETATION
Section 20.1 Gender and Number
Section 20.2 Headings
Section 20.3 Joint and Several Liability
Section 20.4 Successors
Section 20.5 Time of Essence
Section 20.6 Controlling Law
Section 20.7 Severability
Section 20.8 Waiver and Cumulative Remedies
Section 20.9 Inability to Perform
Section 20.10 Entire Agreement
Section 20.11 Quiet Enjoyment
Section 20.12 Survival
ARTICLE XXI. EXECUTION AND RECORDING
Section 21.1 Counterparts
Section 21.2 Corporate and Partnership Authority
Section 21.3 Execution of Lease; No Option or Offer
Section 21.4 Recording
Section 21.5 Amendments
Section 21.6 Executed Copy
Section 21.7 Attachments
ARTICLE XXII. MISCELLANEOUS
Section 22.1 Nondisclosure of Lease Terms
Section 22.2 Guaranty
Section 22.3 Changes Requested by Lender
Section 22.4 Mortgagee Protection
Section 22.5 Covenants and Conditions
Section 22.6 Security Measures
Section 22.7 JAMS
</TABLE>
EXHIBITS
Exhibit A Description of the Premises
Exhibit B Environmental Questionnaire
Exhibit C Landlord's Disclosures
Exhibit D Insurance Requirements
Exhibit E Rules and Regulations
Exhibit X Work Letter
Exhibit Y Project Site Plan
(ii)
<PAGE>
THIS LEASE is made as of the 23rd day of December 1998,
by and between THE IRVINE COMPANY, a Delaware corporation, hereafter called
"Landlord," and PRINTRAK INTERNATIONAL, INC., a Delaware corporation,
hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Premises: The Premises are more particularly described in Section 2.1.
Address of Building: 9 Technology Drive, Irvine, CA 92618
2. Project Description (if applicable): Alton\Technology II
3. Use of Premises: General administrative office, sales and marketing, and
product development.
4. Estimated Commencement Date: April 1, 1999
5. Lease Term: Eighty-Four (84) months, plus such additional days as may be
required to cause this Lease to terminate on the final day of the calendar
month.
6. Basic Rent: Thirty Six Thousand Four Hundred Eighty Dollars ($36,480.00)
per month, based on $1.52 per rentable square foot.
Basic Rent is subject to adjustment as follows:
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be Thirty- Eight Thousand Four Hundred Dollars
($38,400.00) per month, based on $1.60 per rentable square foot.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be Forty Thousand Three Hundred Twenty Dollars
($40,320.00) per month, based on $1.68 per rentable square foot.
Commencing seventy-two (72) months following the Commencement Date, the
Basic Rent shall be Forty-Two Thousand Two Hundred Forty Dollars
($42,240.00) per month, based on $1.76 per rentable square foot.
7. Guarantor(s): N/A
8. Floor Area of Premises: approximately 24,000 rentable square feet
9. Security Deposit: $46,464.00
10. Broker(s): CB Richard Ellis
11. Additional Insureds: Insignia\ESG of California, Inc.
1
<PAGE>
12. Address for Payments and Notices:
LANDLORD TENANT
INSIGNIA\ESG OF CALIFORNIA, INC. PRINTRAK INTERNATIONAL, INC.
1 Ada, Suite 270 9 Technology Drive
Irvine, CA 92618 Irvine, CA 92618
with a copy of notices to: with a copy of notices to:
IRVINE INDUSTRIAL COMPANY STRADLING, YOCCA, CARLSON & RAUTH
P.O. Box 6370 660 Newport Center Drive, Suite 1600
Newport Beach, CA 92658-6370 Newport Beach, CA 92660
Attn: Vice President, Industrial Attn: Bruce Feuchter, Esq.
Operations
13. Tenant's Liability Insurance Requirement: $2,000,000.00
14. Vehicle Parking Spaces: Ninety-six (96)
15. Plan Approval Date: January 15, 1999
2
<PAGE>
ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant
leases from Landlord the premises shown in EXHIBIT A (the "Premises"), including
the building identified in Item 1 of the Basic Lease Provisions (which together
with the underlying real property, is called the "Building"), and containing
approximately the floor area set forth in Item 8 of the Basic Lease Provisions.
The Premises is a portion of the project shown in EXHIBIT Y (the "Project").
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, including without limitation any
representations or warranties regarding zoning or other land use matters, and
that neither Landlord nor any representative of Landlord has made any
representations or warranties regarding (i) what other tenants or uses may be
permitted or intended in the Building and the Project, or (ii) any exclusivity
of use by Tenant with respect to its permitted use of the Premises as set forth
in Item 3 of the Basic Lease Provisions. Tenant further acknowledges that
neither Landlord nor any representative of Landlord has agreed to undertake any
alterations or additions or construct any improvements to the Premises except as
expressly provided in this Lease. The taking of possession or use of the
Premises by Tenant for any purpose other than construction shall conclusively
establish that the Premises and the Building were in satisfactory condition and
in conformity with the provisions of this Lease in all respects, except for
those matters which Tenant shall have brought to Landlord's attention on a
written punch list. The list shall be limited to any items required to be
accomplished by Landlord under the Work Letter attached as EXHIBIT X, and shall
be delivered to Landlord within thirty (30) days after the term ("Term") of this
Lease commences as provided in Article III below. If no items are required of
Landlord under the Work Letter, by taking possession of the Premises Tenant
accepts the improvements in their existing condition, and waives any right or
claim against Landlord arising out of the condition of the Premises. Nothing
contained in this Section shall affect the commencement of the Term or the
obligation of Tenant to pay rent. Landlord shall diligently complete all punch
list items of which it is notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any
name selected by Landlord from time to time for the Building and/or the Project
as any part of Tenant's corporate or trade name. Landlord shall have the right
to change the name, address, number or designation of the Building or Project
without liability to Tenant.
ARTICLE III. TERM
SECTION 3.1. GENERAL.
(a) The Term shall be for the period shown in Item 5 of the Basic
Lease Provisions. Subject to the provisions of Section 3.2 below, the Term
shall commence ("Commencement Date") on the earlier of (a) the date upon which
all relevant governmental authorities have approved the Tenant Improvements in
accordance with applicable building codes, as evidenced by written approval
thereof in accordance with the building permits issued for the Tenant
Improvements or issuance of a temporary or final certificate of occupancy for
the Premises, or (b) the date Tenant acquires possession or commences use of the
Premises for any purpose other than construction of Tenant Improvements by
Tenant under the Work Letter. Within ten (10) days after possession of the
Premises is tendered to Tenant, the parties shall memorialize on a form provided
by Landlord the actual Commencement Date and the expiration date ("Expiration
Date") of this Lease. Tenant's failure to execute that form shall not affect
the validity of Landlord's determination of those dates.
(b) Provided that Tenant is not in default under any provision of
this Lease, either at the time of exercise of the extension right granted herein
or at the time of the commencement of such extension, and provided further that
Tenant is occupying more than fifty percent (50%) of the floor area of the
Premise and/or has not assigned its interest in this Lease, Tenant shall have
one (1) option to extend the Term of this Lease for one (1) period of sixty (60)
months. Tenant shall exercise its right to extend the Term by and only by
delivering to Landlord, not less than nine (9) months or more than twelve (12)
months prior to the expiration date of the Term, Tenant's irrevocable written
notice of its commitment to extend (the "Commitment Notice"). The Basic Rent
payable under the Lease during the extension of the Term shall be at the fair
market rental, including subsequent adjustments, for comparable office/research
and development space being leased by Landlord in the Irvine Spectrum area;
provided that such rate shall in no event be less than the rate payable by
Tenant during the final month of the initial Term. In the event that the
parties are not able to agree on the fair market rental within one hundred
twenty (120) days prior to the expiration date of the Term, then either party
may elect, by written notice to the other party, to cause said rental, including
subsequent adjustments, to be determined by appraisal as follows.
Within ten (10) days following receipt of such appraisal
election, the parties shall attempt to agree on an appraiser to determine the
fair market rental. If the parties are unable to agree in that time, then each
party shall designate an appraiser within ten (10) days thereafter. Should
either party fail to so designate an appraiser within that time, then the
appraiser designated by the other party shall determine the fair rental value.
3
<PAGE>
Should each of the parties timely designate an appraiser, then the two
appraisers so designated shall appoint a third appraiser who shall, acting
alone, determine the fair rental value of the Premises. Any appraiser
designated hereunder shall have an M.A.I. certification with not less than five
(5) years experience in the valuation of commercial industrial buildings in
Orange County, California.
Within thirty (30) days following the selection of the appraiser,
such appraiser shall determine the fair market rental value, including
subsequent adjustments of the Premises. In determining such value, the
appraiser shall first consider rental comparables for the Project, provided that
if adequate comparables do not exist then the appraiser may consider
transactions involving similarly improved space in the Irvine Spectrum area with
appropriate adjustments for differences in location and quality of project. In
no event shall the appraiser attribute factors for brokerage commissions to
reduce said fair market rental. The fees of the appraiser(s) shall be shared
equally by both parties.
Within twenty (20) days after the determination of the fair
market rental, Landlord shall prepare a reasonably appropriate amendment to this
Lease for the extension period and Tenant shall execute and return same to
Landlord within ten (10) days. Should the fair market rental not be established
by the commencement of the extension period, then Tenant shall continue paying
rent at the rate in effect during the last month of the initial Term, and a lump
sum adjustment shall be made promptly upon the determination of such new rental.
If Tenant fails to timely comply with any of the provisions of
this paragraph, Tenant's right to extend the Term shall be extinguished and the
Lease shall automatically terminate as of the expiration date of the Term,
without any extension and without any liability to Landlord. Any attempt to
assign or transfer any right or interest created by this paragraph shall be void
from its inception. Tenant shall have no other right to extend the Term beyond
the single sixty (60) month extension created by this paragraph.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason
whatsoever, cannot deliver possession of the Premises to Tenant on or before the
Estimated Commencement Date, this Lease shall not be void or voidable nor shall
Landlord be liable to Tenant for any resulting loss or damage. However, Tenant
shall not be liable for any rent and the Commencement Date shall not occur until
Landlord delivers possession of the Premises and the Premises are in fact
available for Tenant's occupancy with any Tenant Improvements that have been
approved as per Section 3.1(a) above, except that if Landlord's failure to so
deliver possession on the Estimated Commencement Date is attributable to any
action or inaction by Tenant (including without limitation any Tenant Delay
described in the Work Letter, if any, attached to this Lease), then the
Commencement Date shall not be advanced to the date on which possession of the
Premises is tendered to Tenant, and Landlord shall be entitled to full
performance by Tenant (including the payment of rent) from the date Landlord
would have been able to deliver the Premises to Tenant but for Tenant's
delay(s). Notwithstanding anything to the contrary contained in this
Section 3.2, however, if for any reason other than "Tenant Delays" (as defined
in the Work Letter) or other matters beyond Landlord's reasonable control, the
Commencement Date has not occurred by the date that is one hundred eighty (180)
days following the Estimated Commencement Date, then Tenant may, by written
notice to Landlord given at any time thereafter but prior to the actual
occurrence of the Commencement Date, elect to terminate this Lease.
Notwithstanding the foregoing, if at any time during the construction period,
Landlord reasonably believes that the Commencement Date will not occur on or
before one hundred eighty (180) days following the Estimated Commencement Date,
Landlord may notify Tenant in writing of such fact and of a new outside date on
or before which the Commencement Date will occur, and Tenant must elect within
ten (10) days of receipt of such notice to either terminate this Lease or waive
its right to terminate this Lease provided the Commencement Date occurs on or
prior to the new outside date established by Landlord in such notice to Tenant.
Tenant's failure to elect to terminate this Lease within such ten (10) day
period shall be deemed Tenant's waiver of its right to terminate this Lease as
provided in this paragraph as to the previous outside date, but not as to the
new outside date established by said notice. Notwithstanding anything to the
contrary contained in this Section 3.2, however, if for any reason other than
"Tenant Delays" (as defined in the Work Letter), the Commencement Date has not
occurred by that date that is one (1) year following the Estimated Commencement
Date, then Tenant may, by written notice to Landlord given within twenty (20)
business days thereafter but prior to the actual Commencement Date, elect to
terminate this Lease.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset, Basic Rent for the Premises
in the total amount shown (including subsequent adjustments, if any) in Item 6
of the Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be
deemed to occur on the specified monthly anniversary of the Commencement Date,
whether or not that date occurs at the end of a calendar month. The rent shall
be due and payable in advance commencing on the Commencement Date (as prorated
for any partial month) and continuing thereafter on the first day of each
successive calendar month of the Term. No demand, notice or invoice shall be
required for the payment of Basic Rent. An installment of rent in the amount of
one (1) full month's Basic Rent at the initial rate specified in Item 6 of the
Basic Lease Provisions shall be delivered to Landlord concurrently with Tenant's
execution of this Lease and shall be applied against the Basic Rent first due
hereunder.
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SECTION 4.2. OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as additional rent, "Building
Costs" and "Property Taxes," as those terms are defined below, incurred by
Landlord in the operation of the Building and Project. For convenience of
reference, Property Taxes and Building Costs shall be referred to collectively
as "Operating Expenses".
(b) Commencing prior to the start of the first full "Expense Recovery
Period" (as defined below) of the Lease, and prior to the start of each full or
partial Expense Recovery Period thereafter, Landlord shall give Tenant a written
estimate of the amount of Operating Expenses for the Expense Recovery Period.
Tenant shall pay the estimated amounts to Landlord in equal monthly
installments, in advance, with Basic Rent. If Landlord has not furnished its
written estimate for any Expense Recovery Period by the time set forth above,
Tenant shall continue to pay cost reimbursements at the rates established for
the prior Expense Recovery Period, if any; provided that when the new estimate
is delivered to Tenant, Tenant shall, at the next monthly payment date, pay any
accrued cost reimbursements based upon the new estimate. For purposes hereof,
"Expense Recovery Period" shall mean every twelve month period during the Term
(or portion thereof for the first and last lease years) commencing July 1 and
ending June 30.
(c) Within one hundred twenty (120) days after the end of each
Expense Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Operating Expenses incurred by Landlord
during the period, and the parties shall within thirty (30) days thereafter make
any payment or allowance necessary to adjust Tenant's estimated payments, if
any, to Tenant's actual owed amounts as shown by the annual statement. Any
delay or failure by Landlord in delivering any statement hereunder shall not
constitute a waiver of Landlord's right to require Tenant to pay Operating
Expenses pursuant hereto. Any amount due Tenant shall be credited against
installments next coming due under this Section 4.2, and any deficiency shall be
paid by Tenant together with the next installment. If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in accordance
with Article XVI. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within sixty (60) days following
delivery of Landlord's expense statement, Landlord's determination of actual
Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties and any future claims to the contrary
shall be barred.
Landlord agrees that it will maintain complete and accurate
records of all costs, expenses and disbursements paid or incurred by Landlord,
its employees, agents and/or contractors, with respect to the Operating
Expenses. Provided Tenant is not then in default under this Lease, Tenant shall
have the right to have Tenant's financial officer, a trained accountant (which
may be an employee of Tenant) or a certified public accountant to audit
Landlord's Operating Expenses, subject to the terms and conditions hereof. In
no event, however, shall such auditor be compensated by Tenant on a
"contingency" basis, or on any other basis tied to the results of said audit.
Tenant shall give notice to Landlord of Tenant's intent to audit within
sixty (60) days following delivery of Landlord's expense statement for each of
the Expense Recovery Periods. Following reasonable notice to Landlord, such
audit shall be conducted at a mutually agreeable time during normal business
hours at the office of Landlord or its management agent where the records are
maintained. If Tenant's audit determines that actual Operating Expenses have
been overstated by more than five percent (5%), then subject to Landlord's right
to review and/or contest the audit results, Landlord shall reimburse Tenant for
the reasonable out-of-pocket costs of such audit. Tenant's rent shall be
appropriately adjusted to reflect any overstatement in Operating Expenses. In
the event of a dispute between Landlord and Tenant regarding the results of such
audit, either party may elect to submit the matter for binding arbitration with
JAMS/ENDISPUTE, as provided in Section 22.7 of this Lease.
All of the information obtained by Tenant and/or its auditor in
connection with such audit, as well as any compromise, settlement, or adjustment
reached between Landlord and Tenant as a result thereof, shall be held in strict
confidence and, except as may be required pursuant to litigation and except for
inadvertent disclosures despite Tenant's reasonable efforts to keep the
disclosed information confidential, shall not be disclosed to any third party,
directly or indirectly, by Tenant or its auditor or any of their officers,
agents or employees. Landlord may require Tenant's auditor to execute a
separate confidentiality agreement affirming the foregoing as a condition
precedent to any audit.
(d) Even though the Lease has terminated and the Tenant has vacated
the Premises, when the final determination is made of Operating Expenses for the
Expense Recovery Period in which the Lease terminates, Tenant shall upon notice
pay the entire increase due over the estimated expenses paid. Conversely, any
overpayment made in the event expenses decrease shall be rebated by Landlord to
Tenant.
(e) If, at any time during any Expense Recovery Period, any one or
more of the Operating Expenses are increased to a rate(s) or amount(s) in excess
of the rate(s) or amount(s) used in calculating the estimated expenses for the
year, then the estimate of Operating Expenses shall be increased for the month
in which such rate(s) or amount(s) becomes effective and for all succeeding
months by an amount equal to the increase. Landlord shall give Tenant written
notice of the amount or estimated amount of the increase, the month in which the
increase will become effective, and the month for which the payments are due.
Tenant shall pay the increase to Landlord as a part of Tenant's monthly payments
of estimated expenses as provided in paragraph (b) above, commencing from and
after Landlord's notice to Tenant with the month in which such increase shall be
in effect.
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(f) The term "Building Costs" shall include all expenses of operation
and maintenance of the Building and of the Building's proportionate share of the
Project, if applicable (determined as the rentable square footage of the
Building divided by the rentable square footage of all space in the Project), to
the extent such expenses are not billed to and paid directly by Tenant, and
shall include the following charges by way of illustration but not limitation:
water and sewer charges; insurance premiums or reasonable premium equivalents
should Landlord elect to self-insure any risk that Landlord is authorized to
insure hereunder; license, permit, and inspection fees; heat; light; power; air
conditioning; supplies; materials; equipment; tools; the cost of any
environmental, insurance, tax or other consultant utilized by Landlord in
connection with the Building and/or Project; establishment of reasonable
reserves for replacements and/or repair of Common Area improvements (if
applicable), equipment and supplies; costs incurred in connection with
compliance of any laws or changes in laws applicable to the Building or the
Project; the cost of any capital investments (other than tenant improvements for
specific tenants) to the extent of the amortized amount thereof over the useful
life of such capital investments calculated at a market cost of funds, all as
reasonably determined by Landlord, for each such year of useful life during the
Term; costs associated with the procurement and maintenance of an intrabuilding
network cable service agreement for any intrabuilding network cable
telecommunications lines within the Project, and any other installation,
maintenance, repair and replacement costs associated with such lines; labor;
reasonably allocated wages and salaries, fringe benefits, and payroll taxes for
administrative and other personnel directly applicable to the Building and/or
Project, including both Landlord's personnel and outside personnel; any expense
incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and areasonable
overhead/management fee for the professional operation of the Building and
Project. Notwithstanding anything to the contrary contained herein, the amount
of such overhead/management fee to be charged to Tenant shall be determined by
multiplying the actual fee charged (which from time to time may be with respect
to the entire Project, a portion of the Project only, the Building only, or the
Project together with other properties owned by Landlord and/or its affiliates)
by a fraction, the numerator of which is the floor area of the Premises (as set
forth in Item No. 8 of the Basic Lease Provisions) and the denominator of which
is the total square footage of space charged with such fee actually leased to
tenants (including Tenant). It is understood that Building Costs shall include
competitive charges for direct services provided by any subsidiary or division
of Landlord.
(g) The term "Property Taxes" as used herein shall include the
following: (i) all real estate taxes or personal property taxes, as such
property taxes may be reassessed from time to time; and (ii) other taxes,
charges and assessments which are levied with respect to this Lease or to the
Building and/or the Project, and any improvements, fixtures and equipment and
other property of Landlord located in the Building and/or the Project, except
that general net income and franchise taxes imposed against Landlord shall be
excluded; and (iii) all assessments and fees for public improvements, services,
and facilities and impacts thereon, including without limitation arising out of
any Community Facilities Districts, "Mello Roos" districts, similar assessment
districts, and any traffic impact mitigation assessments or fees; (iv) any tax,
surcharge or assessment which shall be levied in addition to or in lieu of real
estate or personal property taxes, other than taxes covered by Article VIII; and
(v) costs and expenses incurred in contesting the amount or validity of any
Property Tax by appropriate proceedings.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of
this Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9
of the Basic Lease Provisions, to be held by Landlord as security for the full
and faithful performance of Tenant's obligations under this Lease (the "Security
Deposit"). Subject to the last sentence of this Section, the Security Deposit
shall be understood and agreed to be the property of Landlord upon Landlord's
receipt thereof, and may be utilized by Landlord in its discretion towards the
payment of all prepaid expenses by Landlord for which Tenant would be required
to reimburse Landlord under this Lease, including without limitation brokerage
commissions and Tenant Improvement costs. Upon any default by Tenant, including
specifically Tenant's failure to pay rent or to abide by its obligations under
Sections 7.1 and 15.3 below, whether or not Landlord is informed of or has
knowledge of the default, the Security Deposit shall be deemed to be
automatically and immediately applied, without waiver of any rights Landlord may
have under this Lease or at law or in equity as a result of the default, as a
set off for full or partial compensation for Landlord's damages arising from
that default. If any portion of the Security Deposit is applied after a default
by Tenant, Tenant shall within five (5) days after written demand by Landlord
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit or any balance thereof shall
be returned to Tenant (or, at Landlord's option, and unless otherwise expressly
agreed to in the applicable consent to assignment agreement, to the last
assignee of Tenant's interest in this Lease) after the expiration of the Term,
provided that Landlord may retain the Security Deposit to te extent and until
such time as all amounts due from Tenant in accordance with this Lease have been
determined and paid in full.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions, all in accordance with
applicable laws and restrictions and pursuant to approvals to be obtained by
Tenant from all relevant and required governmental agencies and authorities.
The parties agree that any contrary use shall be deemed to cause material and
irreparable harm to Landlord and shall entitle Landlord to injunctive relief in
addition to any other available remedy. Tenant, at its expense, shall procure,
maintain and make available
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for Landlord's inspection throughout the Term, all governmental approvals,
licenses and permits required for the proper and lawful conduct of Tenant's
permitted use of the Premises. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way interfere with the rights of
other occupants of the Building or the Project, or use or allow the Premises to
be used for any unlawful purpose, nor shall Tenant permit any nuisance or commit
any waste in the Premises or the Project. Tenant shall not do or permit to be
done anything which will invalidate or increase the cost of any insurance
policy(ies) covering the Building, the Project and/or their contents, and shall
comply with all applicable insurance underwriters rules and the requirements of
the Pacific Fire Rating Bureau or any other organization performing a similar
function. Tenant shall comply at its expense with all present and future laws,
ordinances, restrictions, regulations, orders, rules and requirements of all
governmental authorities that pertain to Tenant or its use of the Premises,
including without limitation all federal and state occupational health and
safety requirements, whether or not Tenant's compliance will necessitate
expenditures or interfere with its use and enjoyment of the Premises. Tenant
shall comply at its expense with all present and future covenants, conditions,
easements or restrictions now or hereafter affecting or encumbering the Building
and/or Project, and an amendments or modifications thereto, including without
limitation the payment by Tenant of any periodic or special dues or assessments
charged against the Premises or Tenant which may be allocated to the Premises or
Tenant in accordance with the provisions thereof. Tenant shall promptly upon
demand reimburse Landlord for any additional insurance premium charged by reason
of Tenant's failure to comply with the provisions of this Section, and shall
indemnify Landlord from any liability and/or expense resulting from Tenant's
noncompliance. As used in this Section 5.1, the term "permit" shall be deemed
to mean "knowingly permit" in connection with anything that Tenant permits to be
done on or about the Common Areas of the Project, as opposed to the Premises
itself. Notwithstanding anything to the contrary contained in this Section 5.1,
in the event Tenant's obligation for compliance with all future and present
laws, ordinances, restrictions, regulations, orders, rules and requirements of
all governmental authorities, and with all present and future covenants,
conditions, easements or restrictions now or hereafter affecting or encumbering
the Building and/or the Project, results in a capital improvement on Tenant's
part (or Tenant's being obligated to reimburse Landlord for a capital
improvement), Tenant shall only be responsible for the amortized cost of such
capital improvement (amortized at a market cost of funds as reasonably
determined by Landlord) over the useful life of said improvement during the Term
except in the event each obligation for Capital improvement is required due to
Tenant's particular use of the Premises, (in which case Tenants shall be fully
responsible for the entire cost and installation of each capital investment).
SECTION 5.2 SIGNS. Provided Tenant continues to occupy the entire floor
area of the Premises, Tenant shall have the exclusive right to install one (1)
building top exterior sign on the Building, subject to Landlord's right of prior
approval that such exterior signage is in compliance with the Signage Criteria
(defined below). Except as provided in the foregoing or as otherwise approved in
writing by Landlord, in its sole discretion, Tenant shall have no right to
maintain identification signs in any location in, on or about the Premises, the
Building or the Project and shall not place or erect any signs, displays or
other advertising materials that are visible from the exterior of the Building.
The size, design, graphics, material, style, color and other physical aspects of
any permitted sign shall be subject to Landlord's written approval prior to
installation (which approval may be withheld in Landlord's discretion), any
covenants, conditions or restrictions encumbering the Premises, Landlord's
signage program for the Project, as in effect from time to time and approved by
the City of Irvine ("Signage Criteria"), and any applicable municipal or other
governmental permits and approvals. Tenant acknowledges having received and
reviewed a copy of the current Signage Criteria for the Project. Tenant shall
be responsible for the cost of any permitted sign, including the fabrication,
installation, maintenance and removal thereof. If Tenant fails to maintain its
sign, or if Tenant fails to remove same upon termination of this Lease and
repair any damage caused by such removal, Landlord may do so at Tenant's
expense.
SECTION 5.3 HAZARDOUS MATERIALS.
(a) For purposes of this Lease, the term "Hazardous Materials"
includes (i) any "hazardous materials" as defined in Section 25501(k) of the
California Health and Safety Code, (ii) any other substance or matter which
results in liability to any person or entity from exposure to such substance or
matter under any statutory or common law theory, and (iii) any substance or
matter which is in excess of permitted levels set forth in any federal,
California or local law or regulation pertaining to any hazardous or toxic
substance, material or waste.
(b) Tenant shall not cause or permit any Hazardous Materials to be
brought upon, stored, used, generated, released or disposed of on, under, from
or about the Premises (including without limitation the soil and groundwater
thereunder) without the prior written consent of Landlord. Notwithstanding the
foregoing, Tenant shall have the right, without obtaining prior written consent
of Landlord, to utilize within the Premises standard household cleaning products
and office products that may contain Hazardous Materials (such as photocopy
toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant shall
maintain such products in their original retail packaging, shall follow all
instructions on such packaging with respect to the storage, use and disposal of
such products, and shall otherwise comply with all applicable laws with respect
to such products, and (ii) all of the other terms and provisions of this
Section 5.3 shall apply with respect to Tenant's storage, use and disposal of
all such products. Landlord may, in its sole discretion, place such conditions
as Landlord deems appropriate with respect to any such Hazardous Materials, and
may further require that Tenant demonstrate that any such Hazardous Materials
are necessary or useful to Tenant's business and will be generated, stored, used
and disposed of in a manner that complies with all applicable laws and
regulations pertaining thereto and with good business practices. Tenant
understands that Landlord may utilize an environmental consultant to assist in
determining conditions of approval in connection with the storage, generation,
release, disposal or use of Hazardous Materials by Tenant on or about the
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Premises, and/or to conduct periodic inspections of the storage, generation,
use, release and/or disposal of such Hazardous Materials by Tenant on and from
the Premises, and Tenant agrees that any costs incurred by Landlord in
connection therewith, to the extent of a violation by Tenant of the provisions
of this Section 5.3 of the Lease, shall be reimbursed by Tenant to Landlord as
additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant shall complete,
execute and deliver to Landlord an Environmental Questionnaire and Disclosure
Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached
hereto. Landlord hereby consents to the use by Tenant of the kinds and
quantities of Hazardous Materials shown in the foregoing-delivered Environmental
Questionnaire, provided Tenant shall comply with all applicable laws and
regulations pertaining to the generation, storage, use and disposal of such
Hazardous Materials. The completed Environmental Questionnaire shall be deemed
incorporated into this Lease for all purposes, and Landlord shall be entitled to
rely fully on the information contained therein. On each anniversary of the
Commencement Date until the expiration or sooner termination of this Lease,
Tenant shall disclose to Landlord in writing the names and amounts of all
Hazardous Materials which were stored, generated, used, released and/or disposed
of on, under or about the Premises for the twelve-month period prior thereto,
and which Tenant desires to store, generate, use, release and/or dispose of on,
under or about the Premises for the succeeding twelve-month period. In
addition, to the extent Tenant is permitted to utilize Hazardous Materials upon
the Premises, Tenant shall promptly provide Landlord with complete and legible
copies of all the following environmental documents relating thereto: reports
filed pursuant to any self-reporting requirements; permit applications, permits,
monitoring reports, workplace exposure and community exposure warnings or
notices and all other reports, disclosures, plans or documents (even those which
may be characterized as confidential) relating to water discharges, air
pollution, waste generation or disposal, and underground storage tanks for
Hazardous Materials; orders, reports, notices, listings and correspondence (even
those which may be considered confidential) of or concerning the release,
investigation of, compliance, cleanup, remedial and corrective actions, and
abatement of Hazardous Materials; and all complaints, pleadings and other legal
documents filed by or against Tenant related to Tenant's use, handling, storage,
release and/or disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the
obligation, to inspect, sample and/or monitor the Premises and/or the soil or
groundwater thereunder at any time to determine whether Tenant is complying with
the terms of this Section 5.3, and in connection therewith Tenant shall provide
Landlord with full access to all relevant facilities, records and personnel. If
Tenant is not in compliance with any of the provisions of this Section 5.3, or
in the event of a release of any Hazardous Material on, under or about the
Premises caused or permitted by Tenant, its agents, employees, contractors,
licensees or invitees, Landlord and its agents shall have the right, but not the
obligation, without limitation upon any of Landlord's other rights and remedies
under this Lease, to immediately enter upon the Premises without notice and to
discharge Tenant's obligations under this Section 5.3 at Tenant's expense,
including without limitation the taking of emergency or long-term remedial
action. Landlord and its agents shall endeavor to minimize interference with
Tenant's business in connection therewith, but shall not be liable for any such
interference. In addition, Landlord, at Tenant's expense, shall have the right,
but not the obligation, to join and participate in any legal proceedings or
actions initiated in connection with any claims arising out of the storage,
generation, use, release and/or disposal by Tenant or its agents, employees,
contractors, licensees or invitees of Hazardous Materials on, under, from or
about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or
about the Premises or the Project caused or permitted by Tenant or its agents,
employees, contractors, licensees or invitees results in (i) injury to any
person, (ii) injury to or any contamination of the Premises or the Project, or
(iii) injury to or contamination of any real or personal property wherever
situated, Tenant, at its expense, shall promptly take all actions necessary to
return the Premises and the Project and any other affected real or personal
property owned by Landlord to the condition existing prior to the introduction
of such Hazardous Materials and to remedy or repair any such injury or
contamination, including without limitation, any cleanup, remediation, removal,
disposal, neutralization or other treatment of any such Hazardous Materials.
Notwithstanding the foregoing, Tenant shall not, without Landlord's prior
written consent, take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord or enter into any similar
agreement, consent, decree or other compromise with any governmental agency with
respect to any Hazardous Materials claims; provided however, Landlord's prior
written consent shall not be necessary in the event that the presence of
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord (i) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of such a
nature that an immediate remedial response is necessary and it is not possible
to obtain Landlord's consent before taking such action. To the fullest extent
permitted by law, Tenant shall indemnify, hold harmless, protect and defend
(with attorneys acceptable to Landlord) Landlord and any successors to all or
any portion of Landlord's interest in the Premises and the Project and any other
real or personal property owned by Landlord from and against any and all
liabilities, losses, damages, diminution in value, judgments, fines, demands,
claims, recoveries, deficiencies, costs and expenses (including without
limitation attorneys' fees, court costs and other professional expenses),
whether foreseeable or unforeseeable, arising directly or indirectly out of the
use, generation, storage, treatment, release, on- or off-site disposal or
transportation of Hazardous Materials on, into, from, under or about the
Premises, the Building and the Project and any other real or personal property
owned by Landlord caused or permitted by Tenant, its agents, employees,
contractors, licensees or invitees, specifically including without limitation
the cost of any required or necessary repair, restoration, cleanup or
detoxification of the Premises, the Building and the Project and any other real
or personal property owned by Landlord, and the preparation of any closure or
other required plans, whether or not such action is required or necessary during
the
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Term or after the expiration of this Lease. If Landlord at any time discovers
that Tenant or its agents, employees, contractors, licensees or invitees may
have caused or permitted the release of a Hazardous Material on, under, from or
about the Premises or the Project or any other real or personal property owned
by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit
to Landlord a comprehensive plan, subject to Landlord's approval, specifying the
actions to be taken by Tenant to return the Premises or the Project or any other
real or personal property owned by Landlord to the condition existing prior to
the introduction of such Hazardous Materials. Upon Landlord's approval of such
cleanup plan, Tenant shall, at its expense, and without limitation of any rights
and remedies of Landlord under this Lease or at law or in equity, immediately
implement such plan and proceed to cleanup such Hazardous Materials in
accordance with all applicable laws and as required by such plan and this Lease.
The provisions of this subsection (e) shall expressly survive the expiration or
sooner termination of this Lease. As used in this Section 5.3(e), the terms
"permit" and "permitted" shall be deemed to mean "knowingly permit" and
"knowingly permitted" in connection with anything that Tenant permits, or has
permitted, to be done on or about the Common Areas of the Project, as opposed to
the Premises itself.
(f) Landlord hereby discloses to Tenant, and Tenant hereby
acknowledges, certain facts relating to Hazardous Materials at the Project known
by Landlord to exist as of the date of this Lease, as more particularly
described in EXHIBIT C attached hereto. Tenant shall have no liability or
responsibility with respect to the Hazardous Materials conditions described in
EXHIBIT C, nor with respect to any Hazardous Materials which Tenant proves:
(i) were not caused or permitted by Tenant, its agents, employees, contractors,
licensees or invitees; (ii) were the result of violations of any "Hazardous
Materials Laws" (as hereinafter defined) relating to the Premises, the Building,
or the Project (the Premises, the Building, and the Project shall be
collectively referred to herein as the "Property") which violations existed as
of the Commencement Date, or (iii) were present in, on, under or about any part
of the Property as of the Commencement Date, or that were brought into, onto,
about, or under any part of the Property by anyone other than Tenant or its
agents, employees, contractors, licensees or invitees. "Hazardous Materials
Laws" shall mean and include all federal, state, and local laws relating to the
environment or to Hazardous Materials, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. Section 9601 ET SEQ.), each as amended from time to time.
Notwithstanding the foregoing, Tenant agrees to notify its agents, employees,
contractors, licensees, and invitees of any exposure or potential exposure to
Hazardous Materials at the Premises that Landlord brings to Tenant's attention.
(g) To "Landlord's knowledge" (as hereinafter defined), Landlord has
complied, and the Property is in compliance as of the date of this Lease, with
all Hazardous Materials Laws, and no notice of violation of any Hazardous
Materials Law with respect thereto, or any permit, license or other
authorization relating thereto has been received, nor is any such notice pending
or, to Landlord's knowledge, threatened. To Landlord's knowledge, no
underground or above-ground storage tanks or surface impoundments are located on
or under any part of the Property. Except in compliance with Hazardous
Materials Laws, neither Landlord, nor to Landlord's knowledge, any prior owner,
operator, tenant or occupant of any part of the Property, has generated, used,
treated, spilled, stored, transferred, disposed, released or caused a threatened
release in, at, under, into, from, to or on any part of the Property of any
Hazardous Materials. Except as disclosed to Tenant, Landlord has not received
any notice or claim to the effect that either Landlord or any part of the
Property is or may be liable to any governmental authority or private party as a
result of the release or threatened release of any Hazardous Materials. As used
herein, "Landlord's knowledge" shall mean the actual knowledge, as of the
Commencement Date of this Lease, of the current employees of Landlord charged
with responsibility for the environmental compliance of the Property with
Hazardous Materials Laws, but without obligation whatsoever for on- or off-site
inquiry, investigation or inspection.
(h) Landlord shall take responsibility, at its sole cost and expense,
for any governmentally-ordered clean-up, remediation, removal, disposal,
neutralization, monitoring or other treatment of the Hazardous Materials
conditions disclosed on EXHIBIT C attached hereto, and in connection with other
Hazardous Materials which were present in, on under or about any part of the
Property as of the Commencement Date. The foregoing obligation on the part of
Landlord shall include the reasonable costs (including, without limitation,
reasonable attorney's fees) of defending Tenant (with attorneys reasonably
acceptable to Tenant) from and against any legal action or proceeding instituted
by any governmental agency in connection with such clean-up, remediation,
removal, disposal, neutralization or other treatment of such conditions,
provided that Tenant promptly tenders such defense to Landlord. The obligation
on the part of Landlord contained in this Section 5.3(h) is personal to The
Irvine Company and shall not be binding on, nor inure against any successor in
interest to The Irvine Company as of the owner of the Premises, including
without limitation, any lender acquiring the Premises by foreclosure of its
mortgage or deed of trust or deed in lieu of foreclosure.
ARTICLE VI. COMMON AREAS; SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Tenant shall be responsible for and
shall pay promptly, directly to the appropriate supplier, all charges for water,
gas, electricity, sewer, heat, light, power, telephone, refuse pickup,
janitorial service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises or used by
Tenant in, on or about the Premises during the Term, together with any taxes
thereon. Landlord shall not be liable for damages or otherwise for any failure
or interruption of any utility or other service furnished to the Premises, and
no such failure or interruption shall be deemed an eviction or entitle
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Tenant to terminate this Lease or withhold or abate any rent due hereunder.
Notwithstanding the foregoing, if as a result of the actions of Landlord, its
agents, contractors or employees, for more than three (3) consecutive business
days following written notice to Landlord, there is no HVAC or electricity
services to the Premises, or such an interruption of other essential utilities
and building services, such as fire protection or water, so that the Premises
cannot be used by Tenant, in Tenant's judgment reasonably exercised, then
Tenant's Basic Rent shall thereafter be abated until the Premises are again
usable by Tenant; provided, however, that if Landlord is diligently pursuing the
repair of such utilities or services and Landlord provides substitute services
reasonably suitable for Tenant's purposes, as for example, bringing in portable
air-conditioning equipment, then there shall not be an abatement of Basic Rent.
Any disputes concerning the foregoing shall be resolved by JAMS arbitration
pursuant to Section 22.7 of this Lease. The foregoing provisions shall not
apply in case of damage to, or destruction of, the Premises, which shall be
governed by the provisions of Article XI of the Lease. Landlord shall, upon at
least 24 hours prior notice to Tenant and during normal business hours (except
in cases of emergency), have free access to all electrical and mechanical
installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate and maintain in a first-class condition all Common Areas
within the Project. The term "Common Areas" shall mean all areas which are not
held for exclusive use by persons entitled to occupy space, and all other
appurtenant areas and improvements provided by Landlord for the common use of
Landlord and tenants and their respective employees and invitees, including
without limitation parking areas and structures, driveways, sidewalks,
landscaped and planted areas, hallways and interior stairwells not located
within the premises of any tenant, common electrical rooms and roof access
entries, common entrances and lobbies, elevators, and restrooms not located
within the premises of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the
Premises shall include the use of the Common Areas in common with Landlord and
with all others for whose convenience and use the Common Areas may be provided
by Landlord, subject, however, to compliance with all rules and regulations as
are prescribed from time to time by Landlord. Landlord shall operate and
maintain the Common Areas in the manner Landlord may determine to be
appropriate. All costs incurred by Landlord for the maintenance and operation
of the Common Areas shall be included in Building Costs unless any particular
cost incurred can be charged to a specific tenant of the Project. Landlord
shall at all times during the Term have exclusive control of the Common Areas,
and may restrain any use or occupancy, except as authorized by Landlord's rules
and regulations. Tenant shall keep the Common Areas clear of any obstruction or
unauthorized use related to Tenant's operations. Except as expressly provided
in Section 10.3(b) of this Lease, nothing in this Lease shall be deemed to
impose liability upon Landlord for any damage to or loss of the property of, or
for any injury to, Tenant, its invitees or employees. Landlord may temporarily
close any portion of the Common Areas for repairs, remodeling and/or
alterations, to prevent a public dedication or the accrual of prescriptive
rights, or for any other reason deemed sufficient by Landlord, without liability
to Landlord.
SECTION 6.4. PARKING. Tenant shall be entitled to the number of vehicle
parking spaces set forth in Item 14 of the Basic Lease Provisions, which spaces
shall be unreserved and unassigned, on those portions of the Common Areas
designated by Landlord for parking. Tenant shall not use more parking spaces
than such number. All parking spaces shall be used only for parking by vehicles
no larger than full size passenger automobiles or pickup trucks. Tenant shall
not permit or allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. If Tenant permits or allows any of the prohibited activities
described above, then Landlord shall have the right, without notice, in addition
to such other rights and remedies that Landlord may have, to remove or tow away
the vehicle involved and charge the costs to Tenant. Parking within the Common
Areas shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, access ways or in any area which would prohibit or
impede the free flow of traffic within the Common Areas. There shall be no
overnight parking of any vehicles of any kind unless otherwise authorized by
Landlord, and vehicles which have been abandoned or parked in violation of the
terms hereof may be towed away at the owner's expense. Except as expressly
provided in Section 10.3(b) of this Lease, nothing contained in this Lease shall
be deemed to create liability upon Landlord for any damage to motor vehicles of
visitors or employees, for any loss of property from within those motor
vehicles, or for any injury to Tenant, its visitors or employees. Landlord
shall have the right to establish, and from time to time amend, and to enforce
against all users all reasonable rules and regulations (including the
designation of areas for employee parking) that Landlord may deem necessary and
advisable for the proper and efficient operation and maintenance of parking
within the Common Areas. Landlord shall have the right to construct, maintain
and operate lighting facilities within the parking areas; to change the area,
level, location and arrangement of the parking areas and improvements therein;
to restrict parking by tenants, their officers, agents and employees to employee
parking areas; to enforce parking charges (by operation of meters or otherwise);
and to do and perform such other acts in and to the parking areas and
improvements therein as, in the use of good business judgment, Landlord shall
determine to be advisable. Notwithstanding the foregoing, in no event shall
Landlord enforce additional parking charges against Tenant during the initial
Term of this Lease. Any person using the parking area shall observe all
directional signs and arrows and any posted speed limits. In no event shall
Tenant interfere with the use and enjoyment of the parking area by other tenants
of the Project or their employees or invitees. Parking areas shall be used only
for parking vehicles. Washing, waxing, cleaning or servicing of vehicles, or
the storage of vehicles for 24-hour periods, is prohibited unless otherwise
authorized by Landlord. Tenant shall be liable for any damage to the parking
areas caused by Tenant or Tenant's employees, suppliers, shippers, customers or
invitees, including without limitation damage from excess oil leakage. Tenant
shall have no right to
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install any fixtures, equipment or personal property in the parking areas.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the
right to make alterations or additions to the Project, or to the attendant
fixtures, equipment and Common Areas. Landlord may at any time relocate or
remove any of the various buildings (other than the Building), parking areas,
and other Common Areas, and may add buildings and areas to the Project from time
to time. No change shall entitle Tenant to any abatement of rent or other claim
against Landlord, provided that the change does not deprive Tenant of reasonable
access to or use of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole expense
shall comply with all applicable laws and governmental regulations governing the
Premises and make all repairs necessary to keep the Premises in the condition as
existed on the Commencement Date (or on any later date that the improvements may
have been installed), excepting ordinary wear and tear, including without
limitation the electrical and mechanical systems, any air conditioning,
ventilating or heating equipment which serves the Premises, all walls, glass,
windows, doors, door closures, hardware, fixtures, electrical, plumbing, fire
extinguisher equipment and other equipment. Any damage or deterioration of the
Premises shall not be deemed ordinary wear and tear if the same could have been
prevented by good maintenance practices by Tenant. As part of its maintenance
obligations hereunder, Tenant shall, at Landlord's request, provide Landlord
with copies of all maintenance schedules, reports and notices prepared by, for
or on behalf of Tenant. Tenant shall obtain preventive maintenance contracts
from a licensed heating and air conditioning contractor to provide for regular
inspection and maintenance of the heating, ventilating and air conditioning
systems servicing the Premises, all subject to Landlord's approval. All repairs
shall be at least equal in quality to the original work, shall be made only by a
licensed contractor approved in writing in advance by Landlord (which approval
shall not be unreasonably withheld), and shall be made only at the time or times
approved by Landlord. Any contractor utilized by Tenant shall be subject to
Landlord's standard requirements for contractors, as modified from time to time.
Landlord shall have the right at all times (upon at least 24 hours' prior
notice) to inspect Tenant's maintenance of all equipment (including without
limitation air conditioning, ventilating and heating equipment), and may impose
reasonable restrictions and requirements with respect to repairs, as provided in
Section 7.3, and the provisions of Section 7.4 shall aply to all repairs.
Alternatively, Landlord may elect to make any repair or maintenance required
hereunder on behalf of Tenant and at Tenant's expense, and Tenant shall promptly
reimburse Landlord for all costs incurred upon submission of an invoice.
Notwithstanding anything to the contrary contained in this Section 7.1, in the
event Tenant's obligation for compliance with all applicable laws and
governmental regulations, or making repairs, results in a capital improvement on
Tenant's part (or Tenant's being obligated to reimburse Landlord for a capital
improvement), Tenant shall only be responsible for the amortized cost of such
capital improvement (amortized at a market cost of funds as reasonably
determined by Landlord) over the useful life of such improvements during the
Term (except in the event obligation for any such capital improvement is
required due to Tenant's particular use of the Premises, in which case Tenant
shall be fully reponsible for the entire cost and installation of such capital
improvement).
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR. Subject to Section 7.1
and Article XI, Landlord shall provide service, maintenance and repair with
respect to the roof, foundations, and footings of the Building, all landscaping,
walkways, parking areas, Common Areas, exterior lighting, and the exterior
surfaces of the exterior walls of the Building, except that Tenant at its
expense shall make all repairs which Landlord deems reasonably necessary as a
result of the act or negligence of Tenant, its agents, employees, invitees,
subtenants or contractors. Landlord shall have the right to employ or designate
any reputable person or firm, including any employee or agent of Landlord or any
of Landlord's affiliates or divisions, to perform any service, repair or
maintenance function. Landlord need not make any other improvements or repairs
except as specifically required under this Lease, and nothing contained in this
Section shall limit Landlord's right to reimbursement from Tenant for
maintenance, repair costs and replacement costs as provided elsewhere in this
Lease. Except as expressly provided in Section 7.6 of this Lease, Tenant
understands that it shall not make repairs at Landlord's expense nor, in any
event, by rental offset. Tenant further understands that Landlord shall not be
required to make any repairs to the roof, foundations or footings unless and
until Tenant has notified Landlord in writing of the need for such repair and
Landlord shall have a reasonable period of time thereafter to commence and
complete said repair, if warranted. All costs of any maintenance and repairs on
the part of Landlord provided hereunder shall be considered part of Building
Costs.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to any alterations, additions or improvements to the Premises which cost
less than One Dollar ($1.00) per square foot of the improved portions of the
Premises (excluding warehouse square footage) and do not (i) affect the exterior
of the Building or outside areas (or be visible from adjoining sites), or
(ii) affect or penetrate any of the structural portions of the Building,
including but not limited to the roof, or (iii) require any change to the basic
floor plan of the Premises, any change to any structural or mechanical systems
of the Premises, or any governmental permit as a prerequisite to the
construction thereof, or (iv) interfere in any manner with the proper
functioning of or Landlord's access to any mechanical, electrical, plumbing or
HVAC systems, facilities or equipment located in or serving the Building, or
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(v) diminish the value of the Premises. Landlord may impose, as a condition to
its consent, any requirements that Landlord in its discretion may deem
reasonable or desirable, including but not limited to a requirement that all
work be covered by a lien and completion bond satisfactory to Landlord and
requirements as to the manner, time, and contractor for performance of the work.
Tenant shall obtain all required permits for the work and shall perform the work
in compliance with all applicable laws, regulations and ordinances, all
covenants, conditions and restrictions affecting the Project, and the Rules and
Regulations (hereafter defined) Tenant understands and agrees that Landlord
shall be entitled to a supervision fee in the amount of five percent (5%) of the
cost of any such work requiring a permit from the City of Irvine. If any
governmental entity requires, as a condition to any proposed alterations,
additions or improvements to the Premises by Tenant, that improvements be made
to the Common Areas, and if Landlord consents to such improvements to the Common
Areas, then Tenant shall, at Tenant's sole expense, make such required
improvements to the Common Areas in such manner, utilizing such materials, and
with such contractors (including, if required by Landlord, Landlord's
contractors) as Landlord may require in its sole discretion. Under no
circumstances shall Tenant make any improvement which incorporates any Hazardous
Materials, including without limitation asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made
in writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise requires in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term,
except that Landlord may, by notice to Tenant, require Tenant to remove by the
Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request, and any
"Non-Standard Improvements" installed by Landlord pursuant to the Work Letter
attached hereto, and to repair any damage to the Premises arising from that
removal. Any notice to Tenant pursuant to the foregoing shall be given by
Landlord concurrently with its consent (following tenant's request for such
consent) for all or any alterations, decorations, fixtures or additions and the
like, and concurrently with Landlord's consent (following Tenant's request for
such consent) for any Non-Standard Improvements installed by Landlord pursuant
to the Work Letter. If such consent for such alterations decorations, fixtures,
additions or Non-Standard Improvements is either not requested by Tenant or is
not given by Landlord , then any such notice of removal may be given at any time
prior to sixty (60) days following the expiration or earlier termination of the
Term of this Lease. Except as otherwise provided in this Lease or in any Exhibit
to this Lease, should Landlord make any alteration or improvement to the
Premises for Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly
cause any such lien to be released by posting a bond in accordance with
California Civil Code Section 3143 or any successor statute. In the event that
Tenant shall not, within thirty (30) days following the imposition of any lien,
cause the lien to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other available remedies, the right to
cause the lien to be released by any means it deems proper, including payment of
or defense against the claim giving rise to the lien. All expenses so incurred
by Landlord, including Landlord's attorneys' fees, shall be reimbursed by Tenant
promptly following Landlord's demand, together with interest from the date of
payment by Landlord at the maximum rate permitted by law until paid. Tenant
shall give Landlord no less than twenty (20) days' prior notice in writing
before commencing construction of any kind on the Premises so that Landlord may
post and maintain notices of nonresponsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall during normal business
hours, upon at least 24 hours' written or oral notice and with a Tenant escort
if Tenant so chooses (except in emergencies, when no notice or escort shall be
required) have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Landlord shall have the
right, if desired, but subject to Tenant's reasonable security requirements, to
retain a key which unlocks all of the doors in the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open the doors in an emergency in order to
obtain entry to the Premises, and any entry to the Premises obtained by Landlord
shall not under any circumstances be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or any eviction of Tenant from the
Premises.
7.6 TENANT'S SELF-HELP. If Landlord shall fail to perform any repair
obligations required under this Lease within thirty (30) days following Tenant's
written request for such repairs, or if Landlord shall fail to perform any
repairs required under this Lease of an emergency condition within 24 hours'
written notice from Tenant, then Tenant may elect to make such repairs at
Landlord's expense by complying with the following provisions of this Section
7.6. Before making any such repair, Tenant shall deliver to Landlord a notice
for the need for such repair ("Self-Help Notice"), which notice shall
specifically advise Landlord that Tenant intends to exercise its self-help right
hereunder. Should Landlord fail, within ten (10) days following receipt of the
Self-Help Notice (or within 24 hours following notice in the event of necessary
emergency repairs), to commence the necessary repair or to make other
arrangements reasonably satisfactory to Tenant, then Tenant shall have the right
to make such repair on behalf of Landlord. Landlord shall promptly reimburse
Tenant for the reasonable costs of such repairs, but in no event shall Tenant
have the right to offset rent against such costs. In the event that the work
could affect the Building's structural, mechanical, electrical, heating,
ventilating, air conditioning, life safety or plumbing components or
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systems, then Tenant shall use only those contractors used by Landlord in the
Project for such work. If those contractors are unwilling or unable to perform
the work, Tenant may retain the services of qualified, reputable and licensed,
bonded contractors with like experience in similar building systems. Tenant
shall be responsible for obtaining any necessary governmental permits before
commencing the repair work, and Tenant shall assume the risk of any damage, loss
or injury resulting from such work.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, before delinquency, all taxes and
assessments levied against all personal property of Tenant located in the
Premises, against all improvements to the Premises made by Landlord or Tenant
which are above Landlord's Project standard in quality and/or quantity for
comparable space within the Project ("Above Standard Improvements"), and against
any alterations, additions or like improvements made to the Premises by or on
behalf of Tenant. When possible Tenant shall cause its personal property, Above
Standard Improvements and alterations to be assessed and billed separately from
the real property of which the Premises form a part. If any taxes on Tenant's
personal property, Above Standard Improvements and/or alterations are levied
against Landlord or Landlord's property and if Landlord pays the same, or if the
assessed value of Landlord's property is increased by the inclusion of a value
placed upon the personal property, Above Standard Improvements and/or
alterations of Tenant and if Landlord pays the taxes based upon the increased
assessment, Tenant shall pay to Landlord the taxes so levied against Landlord or
the proportion of the taxes resulting from the increase in the assessment. In
calculating what portion of any tax bill which is assessed against Landlord
separately, or Landlord and Tenant jointly, is attributable to Tenant's Above
Standard Improvements, alterations and personal property, Landlord's reasonable
determination shall be conclusive.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary,
Tenant will not, either voluntarily or by operation of law, assign, sublet,
encumber, or otherwise transfer all or any part of Tenant's interest in this
lease, or permit the Premises to be occupied by anyone other than Tenant,
without Landlord's prior written consent, which consent shall not unreasonably
be withheld in accordance with the provisions of Section 9.1.(b). No assignment
(whether voluntary, involuntary or by operation of law) and no subletting shall
be valid or effective without Landlord's prior written consent and, at
Landlord's election, any such assignment or subletting or attempted assignment
or subletting shall constitute a material default of this Lease. Landlord shall
not be deemed to have given its consent to any assignment or subletting by any
other course of action, including its acceptance of any name for listing in the
Building directory. To the extent not prohibited by provisions of the
Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"),
including Section 365(f)(1), Tenant on behalf of itself and its creditors,
administrators and assigns waives the applicability of Section 365(e) of the
Bankruptcy Code unless the proposed assignee of the Trustee for the estate of
the bankrupt meets Landlord's standard for consent as set forth in Section
9.1(b) of this Lease. If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies or other
considerations to be delivered in connection with the assignment shall be
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed to
have assumed all of the obligations arising under this Lease on and after the
date of the assignment, and shall upon demand execute and deiver to Landlord an
instrument confirming that assumption.
(b) If Tenant desires to transfer an interest in this Lease, it shall
first notify Landlord of its desire and shall submit in writing to Landlord:
(i) the name and address of the proposed transferee; (ii) the nature of any
proposed subtenant's or assignee's business to be carried on in the Premises;
(iii) the terms and provisions of any proposed sublease or assignment, including
a copy of the proposed assignment or sublease form; (iv) evidence of insurance
of the proposed assignee or subtenant complying with the requirements of
EXHIBIT D hereto; (v) a completed Environmental Questionnaire from the proposed
assignee or subtenant; and (vi) any other information requested by Landlord and
reasonably related to the transfer. Except as provided in Subsection (e) of
this Section, Landlord shall not unreasonably withhold its consent, provided:
(1) the use of the Premises will be consistent with the provisions of this Lease
and with Landlord's commitment to other tenants of the Project; (2) the proposed
assignee or subtenant is not currently subject to any enforcement order issued
by any governmental authority in connection with the use, disposal or storage of
a Hazardous Material; (3) at Landlord's election, insurance requirements shall
be brought into conformity with Landlord's then current leasing practice; (4)
any proposed subtenant or assignee demonstrates that it is financially
responsible by submission to Landlord of all reasonable information as Landlord
may request concerning the proposed subtenant or assignee, including, but not
limited to, a balance sheet of the proposed subtenant or assignee as of a date
within ninety (90) days of the request for Landlord's consent and statements of
income or profit and loss of the proposed subtenant or assignee for the two-year
period preceding the request for Landlord's consent, and/or a certification
signed by the proposed subtenant or assignee that it has not been evicted or
been in arrears in rent at any other leased premises for the 3-year period
preceding the request for Landlord's consent; (5) the proposed assignee or
subtenant is not an existing tenant of the Project or a
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prospect with whom Landlord is negotiating to become a tenant at the Project;
and (6) the proposed transfer will not impose additional burdens or adverse tax
effects on Landlord. If Tenant has any exterior sign rights under this Lease,
such rights are personal to Tenant and may not be assigned or transferred to any
assignee of this Lease or subtenant of the Premises without Landlord's prior
written consent, which may be withheld in Landlords reasonable discretion,
provided that such signage complies with the provision of Section 5.2 of this
Lease and that Landlord's sole and absolute consent shall apply to the
assignee's or sublessee's name on said signage.
If Landlord consents to the proposed transfer, Tenant may within
ninety (90) days after the date of the consent effect the transfer upon the
terms described in the information furnished to Landlord; provided that any
material change in the terms shall be subject to Landlord's consent as set forth
in this Section. Landlord shall approve or disapprove any requested transfer
within thirty (30) days following receipt of Tenant's written request, the
information set forth above, and the fee set forth below.
(c) Notwithstanding the provisions of Subsection (b) above, in lieu
of consenting to a proposed assignment or any subletting (or sublettings) in
excess of fifty percent (50%) of the floor area of the Premises in the
aggregate, Landlord may elect to (i) sublease the Premises (or the portion
proposed to be subleased), or take an assignment of Tenant's interest in this
Lease, upon the same terms as offered to the proposed subtenant or assignee
(excluding terms relating to the purchase of personal property, the use of
Tenant's name or the continuation of Tenant's business), or (ii) terminate this
Lease as to the portion of the Premises proposed to be subleased or assigned
with a proportionate abatement in the rent payable under this Lease, effective
on the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any space
so recaptured to any third party, including without limitation the proposed
transferee of Tenant.
(d) Tenant agrees that fifty percent (50%) of any amounts paid by the
assignee or subtenant, however described, in excess of (i) the Basic Rent
payable by Tenant hereunder, or in the case of a sublease of a portion of the
Premises, in excess of the Basic Rent reasonably allocable to such portion, plus
(ii) Tenant's direct out-of-pocket costs which Tenant certifies to Landlord have
been paid to provide occupancy related services to such assignee or subtenant of
a nature commonly provided by landlords of similar space, shall be the property
of Landlord and such amounts shall be payable directly to Landlord by the
assignee or subtenant or, at Landlord's option, by Tenant. At Landlord's
request, a written agreement shall be entered into by and among Tenant, Landlord
and the proposed assignee or subtenant confirming the requirements of this
subsection.
(e) Tenant shall pay to Landlord a fee of Five Hundred Dollars
($500.00) if and when any transfer hereunder is requested by Tenant. Such fee
is hereby acknowledged as a reasonable amount to reimburse Landlord for its
costs of review and evaluation of a proposed assignee/sublessee, and Landlord
shall not be obligated to commence such review and evaluation unless and until
such fee is paid.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with
the consent of Landlord, shall relieve Tenant of its obligation to pay rent and
to perform all its other obligations under this Lease, including, without
limitation, the obligations contained in Section 10.3 of this Lease. Each
assignee, other than Landlord, shall be deemed to assume all obligations of
Tenant under this Lease and shall be liable jointly and severally with Tenant
for the payment of all rent, and for the due performance of all of Tenant's
obligations, under this Lease. No transfer shall be binding on Landlord unless
any document memorializing the transfer is delivered to Landlord and both the
assignee/subtenant and Tenant deliver to Landlord an executed consent to
transfer instrument prepared by Landlord and consistent with the requirements of
this Article. The acceptance by Landlord of any payment due under this Lease
from any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any transfer. Consent by Landlord
to one or more transfers shall not operate as a waiver or estoppel to the future
enforcement by Landlord of its rights under this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be deemed included in each sublease:
(a) Each and every provision contained in this Lease (other than with
respect to the payment of rent hereunder) is incorporated by reference into and
made a part of such sublease, with "Landlord" hereunder meaning the sublandlord
therein and "Tenant" hereunder meaning the subtenant therein.
(b) Tenant hereby irrevocably assigns to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of the Premises,
and Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that unless and until a default
occurs in the performance of Tenant's obligations under this Lease, Tenant shall
have the right to receive and collect the sublease rentals. Landlord shall not,
by reason of this assignment or the collection of sublease rentals, be deemed
liable to the subtenant for the performance of any of Tenant's obligations under
the sublease. Tenant hereby irrevocably authorizes and directs any subtenant,
upon receipt of a written notice from Landlord stating that an uncured default
exists in the performance of Tenant's obligations under this Lease, to pay to
Landlord all sums then and thereafter due under the sublease. Tenant agrees
that the subtenant may rely on that notice without any duty of further inquiry
and notwithstanding any notice or claim by Tenant to the contrary. Tenant shall
have no right or claim against the subtenant or Landlord for any rentals so paid
to Landlord.
(c) In the event of the termination of this Lease, Landlord may, at
its sole option, take over Tenant's entire interest in any sublease and, upon
notice from Landlord, the subtenant shall attorn to Landlord. In
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no event, however, shall Landlord be liable for any previous act or omission by
Tenant under the sublease or for the return of any advance rental payments or
deposits under the sublease that have not been actually delivered to Landlord,
nor shall Landlord be bound by any sublease modification executed without
Landlord's consent or for any advance rental payment by the subtenant in excess
of one month's rent. The general provisions of this Lease, including without
limitation those pertaining to insurance and indemnification, shall be deemed
incorporated by reference into the sublease despite the termination of this
Lease.
SECTION 9.4. CERTAIN TRANSFERS. The sale of all or substantially all of
Tenant's assets (other than bulk sales in the ordinary course of business) or,
if Tenant is a corporation, an unincorporated association, or a partnership, the
transfer, assignment or hypothecation of any stock or interest in such
corporation, association, or partnership in the aggregate of fifty percent
(50%)(except for publicly traded shares of stock) shall be deemed an assignment
within the meaning and provisions of this Article. Notwithstanding the
foregoing, Landlord's consent shall not be required for the assignment of this
Lease as a result of a merger by Tenant with or into another entity, as the
result of a transfer of all or substantially all of Tenant's assets, or as the
result of the acquisition of Tenant's shares of the stock, so long as (i) the
net worth of the successor entity after such transfer or merger is at least
equal to the greater of the net worth of Tenant as of the execution of this
Lease by Landlord or the net worth of Tenant immediately prior to the date of
such transfer or merger, evidence of which, satisfactory to Landlord, shall be
presented to Landlord prior to such transfer or merger, (ii) Tenant shall
provide to Landlord, prior to such transfer or merger, written notice of such
transfer or merger and such assignment documentation and other information as
Landlord may request in connection therewith, and (iii) all of the other terms
and requirements of this Article shall apply with respect to such assignment,
except for the provisions of Section 9.1 which shall not apply.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in EXHIBIT D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord shall provide the following
types of insurance, with or without deductible and in amounts and coverages as
may be determined by Landlord in its discretion: "all risk" property insurance,
subject to standard exclusions, covering the Building or Project. Landlord may,
at its election, obtain insurance for such other risks as Landlord or its
mortgagees may from time to time deem appropriate, including, without
limitation, leasehold improvements made by Landlord, earthquake, flood and
commercial general liability coverage (provided that, for purposes of the
"pass-through" provisions of Section 4.2(f) of this Lease, such earthquake and
flood coverage shall cover all or substantially all of Landlord's industrial
lease portfolio). Landlord shall not be required to carry insurance of any kind
on Tenant's property, including leasehold improvements, trade fixtures,
furnishings, equipment, plate glass, signs and all other items of personal
property, and shall not be obligated to repair or replace that property should
damage occur. All proceeds of insurance maintained by Landlord upon the
Building and Project shall be the property of Landlord, whether or not Landlord
is obligated to or elects to make any repairs. In no event shall the limits of
such policy be considered as limiting the liability of Landlord under this
Lease. At Landlord's option, Landlord may self-insure all or any portion of the
risks for which Landlord elects to, or is obligated to, provide insurance
hereunder.
SECTION 10.3. JOINT INDEMNITY.
(a) TENANT'S INDEMNITY. To the fullest extent permitted by law,
Tenant shall defend, indemnify, protect, save and hold harmless Landlord, its
agents, and any and all affiliates of Landlord, including, without limitation,
any corporations or other entities controlling, controlled by or under common
control with Landlord, from and against any and all claims, liabilities, costs
or expenses arising either before or after the Commencement Date from Tenant's
use or occupancy of the Premises or the Building, or from the conduct of its
business, or from any activity, work, or thing done, permitted or suffered by
Tenant or its agents, employees, invitees or licensees in or about the Premises
or the Building, or from any default in the performance of any obligation on
Tenant's part to be performed under this Lease, or from any act or negligence of
Tenant or its agents, employees, visitors, patrons, guests, invitees or
licensees; provided Tenant does not indemnify Landlord for any claims,
liabilities, costs or expenses to the extent the same is caused by the
negligence or willful misconduct on the part of Landlord, or its agents or
employees, or for which Tenant is otherwise indemnified hereunder. In cases of
alleged negligence asserted by third parties against Landlord which arise out
of, are occasioned by, or in any way attributable to Tenant's, its agents,
employees, contractors, licensees or invitees use and occupancy of the Premises
or the Building, or from the conduct of its business or from any activity, work
or thing done, permitted or suffered by Tenant or its agents, employees,
invitees or licensees on Tenant's part to be performed under this Lease, or from
any act of negligence of Tenant, its agents, employees, licensees or invitees,
Tenant shall accept any tender of defense for Landlord and shall,
notwithstanding any allegation of negligence or willful misconduct on the part
of the Landlord, defend Landlord and protect and hold Landlord harmless and pay
all costs, expenses and attorneys' fees incurred in connection with such
litigaion, provided that Tenant shall not be liable for any such injury or
damage, and Landlord shall reimburse Tenant for the reasonable attorney's fees
and costs for the attorney representing both parties, all to the extent and in
the proportion that such injury or damage is ultimately determined by a court of
competent jurisdiction (or in connection with any negotiated settlement agreed
to by Landlord) to be attributable to the negligence or willful misconduct of
Landlord. Upon Landlord's request, Tenant shall at Tenant's
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sole cost and expense, retain a separate attorney selected by Landlord to
represent Landlord in any such suit if Landlord determines that the
representation of both Tenant and Landlord by the same attorney would cause a
conflict of interest; provided, however, that to the extent and in the
proportion that the injury or damage which is the subject of the suit is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Landlord) to be attributable to the
negligence or willful misconduct of Landlord, Landlord shall reimburse Tenant
for the reasonable legal fees and costs of the separate attorney retained by
Tenant. The provisions of this Subsection 10.3(a) shall expressly survive the
expiration or sooner termination of this Lease.
(b) LANDLORD'S INDEMNITY. To the fullest extent permitted by law,
but subject to the express limitations on liability contained in this Lease
(including, without limitation, the provisions of Sections 10.4, 10.5 and 14.8
of this Lease), Landlord shall defend, indemnify, protect, save and hold
harmless Tenant, its agents and any and all affiliates of Tenant, including,
without limitation, any corporations, or other entities controlling, controlled
by or under common control with Tenant, from and against any and all claims,
liabilities, costs or expenses arising either before or after the Commencement
Date from the maintenance or repair of the Common Areas, the Project and/or the
Building by Landlord or its employees, authorized agents or contractors;
provided that Landlord does not indemnify Tenant for any claims, liabilities,
costs or expenses to the extent the same is caused by the negligence or willful
misconduct on the part of Tenant, or its agents, employees, licensees or
invitees, or for which Landlord is otherwise indemnified hereunder. In cases of
alleged negligence asserted by third parties against Tenant which arise out of,
are occasioned by, or in any way attributable to the maintenance or repair of
the Common Areas, the Project or the Building by Landlord or its contractors,
authorized agents or employees, Landlord shall accept any tender defense for
Tenant and shall, notwithstanding any allegation of negligence or willful
misconduct on the part of Tenant, defend Tenant and protect and hold Tenant
harmless and pay all cost, expense and attorneys' fees incurred in connection
with such litigation, provided that Landlord shall not be liable for any such
injury or damage, and Tenant shall reimburse Landlord for the reasonable
attorney's fees and costs for the attorney representing both parties, all to the
extent and in the proportion that such injury or damage is ultimately determined
by a court of competent jurisdiction (or in connection with any negotiated
settlement agreed to by Tenant) to be attributable to the negligence or willful
misconduct of Tenant. Upon Tenant's request, Landlord shall at Landlord's sole
cost and expense, retain a separate attorney selected by Tenant to represent
Tenant in ny such suit if Tenant determines that the representation of both
Tenant and Landlord by the same attorney would cause conflict of interest;
provided, however, that to the extent and the proportion that the injury or
damage which is the subject of the suit is ultimately determined by a court of
competent jurisdiction (or in connection with any negotiated settlement agreed
to by Tenant) to be attributable to the negligence or willful misconduct of
Tenant, Tenant shall reimburse Landlord for the reasonable legal fees and costs
of the separate attorney retained by Landlord. The provisions of this
Subsection 10.3(b) shall expressly survive the expiration or sooner termination
of this Lease.
SECTION 10.4. LANDLORD'S NONLIABILITY. Subject to the express indemnity
obligations contained in Section 10.3(b) of this Lease, Landlord shall not be
liable to Tenant, its employees, agents and invitees, and Tenant hereby waives
all claims against Landlord, for loss of or damage to any property, or any
injury to any person, or any other loss, cost, damage, injury or liability
whatsoever resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak or flow from or into any part of the
Building or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning, electrical
works or other fixtures in the Building, whether the damage or injury results
from conditions arising in the Premises or in other portions of the Project.
Notwithstanding any provision of this Lease to the contrary, including, without
limitation, the provisions of Section 10.3(b) of this Lease, Landlord shall in
no event be liable to Tenant, its employees, agents, and invitees, and Tenant
hereby waives all claims against Landlord, for loss or interruption of Tenant's
business or income (including, without limitation, any consequential damages and
lost profit or opportunity costs), or any other loss, cost, damage, injury or
liability resulting from, but not limited to, Acts of God, acts of civil
disobedience or insurrection, acts of omissions (criminal or otherwise) of any
third parties, including without limitation, any other tenants within the
Project or their agents, employees, contractors, guests or invitees. It is
understood that any such conditions may require the temporary evacuation or
closure of all or a portion of the Building. Except as provided in Sections
6.1, 11.1 and 12.1 below, there shall be no abatement of rent and no liability
of Landlord by reason of any injury to or interference with Tenant's business
(including without limitation consequential damages and lost profit or
opportunity costs) arising from the making of any repairs, alterations or
improvements to any portion of the Building, including repairs to the Premises,
nor shall any related activity by Landlord constitute an actual or constructive
eviction; provided, however, that in making repairs, alterations or
improvements, Landlord shall interfere as little as reasonably practicable with
the conduct of Tenant's business in the Premises. Neither Landlord nor its
agents shall be liable for interference with light or other similar intangible
interests. Tenant shall immediately notify Landlord in case of fire or accident
in the Premises, the Building or the Project and of defects in any improvements
or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Landlord and Tenant each hereby
waives all rights of recovery against the other and the other's agents on
account of loss and damage occasioned to the property of such waiving party to
the extent only that such loss or damage is required to be insured against under
any "all risk" property insurance policies required by this Article X; provided
however, that (i) the foregoing waiver shall not apply to the extent of Tenant's
obligations to pay deductibles under any such policies and this Lease, and
(ii) if any loss is due to the act, omission or negligence or willful misconduct
of Tenant or its agents, employees, contractors, guests or invitees, Tenant's
liability insurance shall be primary and shall cover all losses and damages
prior to any other insurance hereunder. By this waiver it is the intent of the
parties that neither Landlord nor Tenant shall be liable to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or
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damage insured against under any "all-risk" property insurance policies required
by this Article, even though such loss or damage might be occasioned by the
negligence of such party, its agents, employees, contractors, guests or
invitees. The provisions of this Section shall not limit the indemnification
provisions elsewhere contained in this Lease.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building is damaged, Landlord shall proceed diligently and
in good faith to obtain all required permits and to repair that damage as soon
as reasonably possible, at its expense, unless: (i) Landlord reasonably
determines that the cost of repair is not covered by Landlord's fire and
extended coverage insurance plus such additional amounts Tenant elects, at its
option, to contribute, excluding however the deductible (for which Tenant shall
be responsible for Tenant's proportionate share); (ii) Landlord reasonably
determines that the Premises cannot, with reasonable diligence, be fully
repaired by Landlord (or cannot be safely repaired because of the presence of
hazardous factors, including without limitation Hazardous Materials, earthquake
faults, and other similar dangers) within two hundred seventy (270) days after
the date of the damage; (iii) an event of default by Tenant has occurred and is
continuing at the time of such damage; or (iv) the damage occurs during the
final twelve (12) months of the Term. Should Landlord elect not to repair the
damage for one of the preceding reasons, Landlord shall so notify Tenant in
writing within thirty (30) days after the damage occurs and this Lease shall
terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that so long as Tenant is not in default under this Lease, if
the damage is so extensive that Landlord reasonably determines that the Premises
cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely
repaired because of the presence of hazardous factors, earthquake faults, and
other similar dangers) so as to allow Tenant's substantial use and enjoyment of
the Premises within two hundred seventy (270) days after the date of damage,
then Tenant may elect to terminate this Lease by written notice to Landlord
within the thirty (30) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending
on the sooner of the date the damage is repaired or the date this Lease is
terminated, the rental to be paid under this Lease shall be abated in the same
proportion that the floor area of the Building that is rendered unusable by the
damage from time to time bears to the total floor area of the Building, provided
that Tenant is then carrying the required business interruption insurance
described in EXHIBIT D.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of
this Section, and subject to the provisions of Section 10.5 above, the cost of
any repairs shall be borne by Tenant, and Tenant shall not be entitled to rental
abatement or termination rights, if the damage is due to the negligence of
Tenant or its employees, subtenants, invitees or representatives. In addition,
the provisions of this Section shall not be deemed to require Landlord to repair
any improvements or fixtures that Tenant is obligated to repair or insure
pursuant to any other provision of this Lease.
(e) Tenant shall fully cooperate with Landlord in removing Tenant's
personal property and any debris from the Premises to facilitate all inspections
of the Premises and the making of any repairs. Notwithstanding anything to the
contrary contained in this Lease, if Landlord in good faith believes there is a
risk of injury to persons or damage to property from entry into the Building or
Premises following any damage or destruction thereto, Landlord may restrict
entry into the Building or the Premises by Tenant, its employees, agents and
contractors in a non-discriminatory manner, without being deemed to have
violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of,
or evicted Tenant from, the Premises. Upon request, Landlord shall consult with
Tenant to determine if there are safe methods of entry into the Building or the
Premises solely in order to allow Tenant to retrieve files, data in computers,
and necessary inventory, subject however to all indemnities and waivers of
liability from Tenant to Landlord contained in this Lease and any additional
indemnities and waivers of liability which Landlord may require.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of
the Premises is taken by any lawful authority by exercise of the right of
eminent domain, or sold to prevent a taking, either Tenant or Landlord may
terminate this Lease effective as of the date possession is required to be
surrendered to the authority. In the event title to a portion of the Premises
is taken or sold in lieu of taking, and if Landlord elects to restore the
Premises in such a way as to alter the Premises materially, either party may
terminate this Lease, by written notice
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to the other party, effective on the date of vesting of title. In the event
neither party has elected to terminate this Lease as provided above, then
Landlord shall promptly, after receipt of a sufficient condemnation award,
proceed to restore the Premises to substantially their condition prior to the
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of the taking and restoration. In the
event of a taking, Landlord shall be entitled to the entire amount of the
condemnation award without deduction for any estate or interest of Tenant;
provided that nothing in this Section shall be deemed to give Landlord any
interest in, or prevent Tenant from seeking any award against the taking
authority for, the taking of personal property and fixtures belonging to Tenant,
the amortized value of the Tenant Improvements funded by Tenant, or for
relocation or business interruption expenses recoverable from the taking
authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed ninety (90)
days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a
taking of the parking area such that Landlord can no longer provide sufficient
parking to comply with this Lease, Landlord may substitute reasonably equivalent
parking in a location reasonably close to the Building; provided that if
Landlord fails to make that substitution within ninety (90) days following the
taking and if the taking materially impairs Tenant's use and enjoyment of the
Premises, Tenant may, at its option, terminate this Lease by written notice to
Landlord. If this Lease is not so terminated by Tenant, there shall be no
abatement of rent and this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
SECTION 13.1. SUBORDINATION. At the option of Landlord, this Lease shall
be either superior or subordinate to all ground or underlying leases, mortgages
and deeds of trust, if any, which may hereafter affect the Premises, and to all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, that so long as Tenant is not in default under this Lease, this Lease
shall not be terminated or Tenant's quiet enjoyment of the Premises disturbed in
the event of termination of any such ground or underlying lease, or the
foreclosure of any such mortgage or deed of trust, to which Tenant has
subordinated this Lease pursuant to this Section. In the event of a termination
or foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall execute any instrument reasonably required by
Landlord's successor for that purpose. Tenant shall also, upon written request
of Landlord, execute and deliver all instruments as may be required from time to
time to subordinate the rights of Tenant under this Lease to any ground or
underlying lease or to the lien of any mortgage or deed of trust (provided that
such instruments include the nondisturbance and attornment provisions set forth
above), or, if requested by Landlord, to subordinate, in whole or in part, any
ground or underlying lease or the lien of any mortgage or deed of trust to this
Lease.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than ten (10) days prior
written notice from Landlord, execute, acknowledge and deliver to Landlord, in
any form that Landlord may reasonably require, a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of the modification and certifying that this Lease,
as modified, is in full force and effect) and the dates to which the rental,
additional rent and other charges have been paid in advance, if any, and (ii)
acknowledging that, to Tenant's knowledge, there are no uncured defaults on the
part of Landlord, or specifying each default if any are claimed, and (iii)
setting forth all further information that Landlord may reasonably require.
Tenant's statement may be relied upon by any prospective purchaser or
encumbrancer of the Premises.
(b) Notwithstanding any other rights and remedies of Landlord,
Tenant's failure to deliver any estoppel statement within the provided time
shall be conclusive upon Tenant that (i) this Lease is in full force and effect,
without modification except as may be accurately represented by Landlord, (ii)
there are no uncured defaults in Landlord's performance, and (iii) not more than
one month's rental has been paid in advance.
SECTION 13.3 FINANCIALS.
(a) Tenant shall deliver to Landlord, prior to the execution of this
Lease and thereafter at any time upon Landlord's request, Tenant's current tax
returns and regularly-prepared financial statements, certified true, accurate
and complete by the chief financial officer of Tenant, including a balance sheet
and profit and loss statement for the most recent prior year (collectively, the
"Statements"), which Statements shall accurately and completely reflect the
financial condition of Tenant. Landlord agrees that it will keep the Statements
confidential, except that Landlord shall have the right to deliver the same to
any proposed purchaser or encumbrancer of the Premises.
(b) Tenant acknowledges that Landlord is relying on the Statements in
its determination to enter into this Lease, and Tenant represents to Landlord,
which representation shall be deemed made on the date of this Lease and again on
the Commencement Date, that no material change in the financial condition of
Tenant, as
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reflected in the Statements, has occurred since the date Tenant delivered the
Statements to Landlord. The Statements are represented and warranted by Tenant
to be materially correct and to accurately and fully reflect Tenant's true
financial condition in all material respects as of the date of submission by any
Statements to Landlord.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of
default set forth in this Lease, the occurrence of any one or more of the
following events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional
rent required to be made by Tenant, as and when due, where the failure continues
for a period of five (5) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended. For purposes of these default and remedies provisions,
the term "additional rent" shall be deemed to include all amounts of any type
whatsoever other than Basic Rent to be paid by Tenant pursuant to the terms of
this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease
by Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
written consent of Landlord.
(c) The discovery by Landlord that any financial statement provided
by Tenant, or by any affiliate, successor or guarantor of Tenant, was materially
false.
(d) The failure of Tenant to timely and fully provide any
subordination agreement, estoppel certificate or financial statements in
accordance with the requirements of Article XIII.
(e) The failure or inability by Tenant to observe or perform any of
the express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in any other subsection of this
Section, where the failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant or such shorter period as is specified in
any other provision of this Lease; provided, however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California Code
of Civil Procedure Section 1161 and 1161(a) as amended. However, if the nature
of the failure is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
commences the cure within thirty (30) days, and thereafter diligently pursues
the cure to completion.
(f) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within thirty (30) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; (iv) the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event
described in this subsection unless notification in writing is received by
Landlord, nor shall there be any presumption attributable to Landlord of
Tenant's insolvency. In the event that any provision of this subsection is
contrary to applicable law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, or in the event of the
abandonment of the Premises by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination, Landlord shall have the right to reenter the Premises and
remove all persons and property. Landlord shall also be entitled to recover
from Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which
the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Tenant
proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by which
the unpaid rent and additional rent for the balance of the Term after the time
of award exceeds the amount of such loss that Tenant
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proves could be reasonably avoided;
(4) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result from Tenant's default, including, but not limited to, the cost
of recovering possession of the Premises, marketing costs, commissions and other
reasonable expenses of reletting, including necessary repair, the unamortized
portion of any tenant improvements and brokerage commissions funded by Landlord
in connection with this Lease, reasonable attorneys' fees, and any other
reasonable costs; and
(5) At Landlord's election, all other amounts in addition
to or in lieu of the foregoing as may be permitted by law. The term "rent" as
used in this Lease shall be deemed to mean the Basic Rent and all other sums
required to be paid by Tenant to Landlord pursuant to the terms of this Lease.
Any sum, other than Basic Rent, shall be computed on the basis of the average
monthly amount accruing during the twenty-four (24) month period immediately
prior to default, except that if it becomes necessary to compute such rental
before the twenty-four (24) month period has occurred, then the computation
shall be on the basis of the average monthly amount during the shorter period.
As used in subparagraphs (1) and (2) above, the "worth at the time of award"
shall be computed by allowing interest at the rate of ten percent (10%) per
annum. As used in subparagraph (3) above, the "worth at the time of award"
shall be computed by discounting the amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease, including the right to collect all
rent as it becomes due. Efforts by the Landlord to maintain, preserve or relet
the Premises, or the appointment of a receiver to protect the Landlord's
interests under this Lease, shall not constitute a termination of the Tenant's
right to possession of the Premises. In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the Premises
subject to the reasonable standards for Landlord's consent as are contained in
this Lease.
(b) Landlord shall be under no obligation to observe or perform any
covenant of this Lease on its part to be observed or performed which accrues
after the date of any default by Tenant unless and until the default is cured by
Tenant, it being understood and agreed that the performance by Landlord of its
obligations under this Lease are expressly conditioned upon Tenant's full and
timely performance of its obligations under this Lease. The various rights and
remedies reserved to Landlord in this Lease or otherwise shall be cumulative
and, except as otherwise provided by California law, Landlord may pursue any or
all of its rights and remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person
acting on behalf of Tenant or Tenant's estate shall not waive or cure a default
under Section 14.1. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent required by this Lease shall be deemed to be other than a
partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
available to it. No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys to the Premises prior to the termination of this Lease, and
the delivery of the keys to any employee shall not operate as a termination of
the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not received by Landlord
within ten (10) days of the date when due shall bear interest at the "maximum
rate permitted by law" from the date due until fully paid. The payment of
interest shall not cure any default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Those
costs may include, but are not limited to, administrative, processing and
accounting charges, and late charges which may be imposed on Landlord by the
terms of any ground lease, mortgage or trust deed covering the Premises.
Accordingly, if any rent due from Tenant shall not be received by Landlord or
Landlord's designee within ten (10) days after the date due, then Tenant shall
pay to Landlord, in addition to the interest provided above, a late charge in a
sum equal to the greater of five percent (5%) of the amount overdue or Two
Hundred Fifty Dollars ($250.00) for each delinquent payment. Acceptance of a
late charge by Landlord shall not constitute a waiver of Tenant's default with
respect to the overdue amount, nor shall it prevent Landlord from exercising any
of its other rights and remedies. The parties agree that, as used herein and in
Section 14.4, the "maximum rate allowed by law" shall mean the federal discount
rate, as announced by the San Francisco Federal Reserve, plus five percent (5%).
The initial late charge for any initial delinquent payment by Tenant shall be
waived by Landlord.
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(b) Following each second consecutive installment of rent that is not
paid within ten (10) days following notice of nonpayment from Landlord, Landlord
shall have the option (i) to require that beginning with the first payment of
rent next due, rent shall no longer be paid in monthly installments but shall be
payable quarterly three (3) months in advance and/or (ii) to require that Tenant
increase the amount, if any, of the Security Deposit by one hundred percent
(100%). Should Tenant deliver to Landlord, at any time during the Term, two (2)
or more insufficient checks, the Landlord may require that all monies then and
thereafter due from Tenant be paid to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements
to be performed by Tenant under this Lease shall be performed at Tenant's sole
cost and expense and without any abatement of rent or right of set-off. If
Tenant fails to pay any sum of money, other than rent, or fails to perform any
other act on its part to be performed under this Lease, and the failure
continues beyond any applicable grace period set forth in Section 14.1, then in
addition to any other available remedies, Landlord may, at its election make the
payment or perform the other act on Tenant's part. Landlord's election to make
the payment or perform the act on Tenant's part shall not give rise to any
responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs, together with interest at the maximum rate permitted by law
from the date of the payment by Landlord. Landlord shall have the same rights
and remedies if Tenant fails to pay those amounts as Landlord would have in the
event of a default by Tenant in the payment of rent.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within thirty (30) days after written
notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by
Landlord in connection with any event of default by Tenant under this Lease or
holding over of possession by Tenant after the expiration or earlier termination
of this Lease, including without limitation all costs, expenses and actual
accountants, appraisers, attorneys and other professional fees, and any
collection agency or other collection charges, shall be due and payable by
Tenant to Landlord on demand, and shall bear interest at the rate of ten percent
(10%) per annum. Should either Landlord or Tenant bring any action in
connection with this Lease, the prevailing party shall be entitled to recover as
a part of the action its reasonable attorneys' fees, and all other costs. The
prevailing party for the purpose of this paragraph shall be determined by the
trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY
CLAIM OF INJURY OR DAMAGE.
SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord do
not constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent partners.
Should Tenant recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Project and out of the rent or other income from such property receivable by
Landlord or out of consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title or interest in the
Project, and no action for any deficiency may be sought or obtained by Tenant.
SECTION 14.9. LIMITATION OF ACTIONS AGAINST LANDLORD. Any claim, demand
or right of any kind by Tenant which is based upon or arises in connection with
this Lease shall be barred unless Tenant commences an action thereon within six
(6) months after the date that Tenant has actual knowledge of the act,
omission, event or default upon which the claim, demand or right arises, has
occurred. Nothing contained in this Section 14.9, however, shall extend the
operation of any applicable statute of limitaitons binding on Tenant.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term without the prior written consent of Landlord, such
possession shall constitute a tenancy at sufferance only; such holding over with
the prior
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written consent of Landlord shall constitute a month-to-month tenancy commencing
on the first (1st) day following the termination of this Lease. In either of
such events, possession shall be subject to all of the terms of this Lease,
except that the monthly Basic Rent shall be the greater of (a) one hundred
seventy-five percent (175%) of the Basic Rent for the month immediately
preceding the date of termination or (b) the then currently scheduled Basic Rent
for comparable space in the Project. If Tenant fails to surrender the Premises
upon the expiration of this Lease despite demand to do so by Landlord, Tenant
shall be liable in damages for all loss or liability, including without
limitation, any claims made by any succeeding tenant relating to such failure to
surrender. Acceptance by Landlord of rent after the termination shall not
constitute a consent to a holdover or result in a renewal of this Lease. The
foregoing provisions of this Section are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord under this Lease or
at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
from the Premises all personal property and debris, except for any items that
Landlord may by written authorization allow to remain. Tenant shall repair all
damage to the Premises resulting from the removal, which repair shall include
the patching and filling of holes and repair of structural damage, provided that
Landlord may instead elect to repair any structural damage at Tenant's expense.
If Tenant shall fail to comply with the provisions of this Section, Landlord may
effect the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If Tenant fails to remove
Tenant's personal property from the Premises upon the expiration of the Term,
Landlord may remove, store, dispose of and/or retain such personal property, at
Landlord's option, in accordance with then applicable laws, all at the expense
of Tenant. If requested by Landlord, Tenant shall execute, acknowledge and
deliver to Landlord an instrument in writing releasing and quitclaiming to
Landlord all right, title and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset, in lawful money of the United States to Landlord at its address set
forth in Item 12 of the Basic Lease Provisions, or at any other place as
Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of rent pursuant to Section 4.1, all
payments shall be due and payable within five (5) days after demand. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month and a three hundred sixty (360) day year. Any notice, election, demand,
consent, approval or other communication to be given or other document to be
delivered by either party to the other may be delivered in person or by courier
or overnight delivery service to the other party, or may be deposited in the
United States mail, duly registered or certified, postage prepaid, return
receipt requested, and addressed to the other party at the address set forth in
Item 12 of the Basic Lease Provisions, or if to Tenant, at that address or, from
and after the Commencement Date, at the Premises (whether or not Tenant has
departed from, abandoned or vacated the Premises), or may be delivered by
telegram, telex or telecopy, provided that receipt thereof is telephonically
confirmed. Either party may, by written notice to the other, served in the
manner provided in this Article, designate a different address. If any notice
or other document is sent by mail, it shall be deemed served or delivered
twenty-four (24) hours after mailing. If more than one person or entity is
named as Tenant under this Lease, service of any notice upon any one of them
shall be deemed as service upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as EXHIBIT E, and any reasonable and nondiscriminatory
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good
order, or cleanliness of the Premises, and Project and Common Areas (if
applicable). Landlord shall not be liable to Tenant for any violation of the
Rules and Regulations or the breach of any covenant or condition in any lease by
any other tenant or such tenant's agents, employees, contractors, quests or
invitees. One or more waivers by Landlord of any breach of the Rules and
Regulations by Tenant or by any other tenant(s) shall not be a waiver of any
subsequent breach of that rule or any other. Tenant's failure to keep and
observe the Rules and Regulations shall constitute a default under this Lease.
In the case of any conflict between the Rules and Regulations and this Lease,
this Lease shall be controlling.
ARTICLE XVIII. BROKER'S COMMISSION
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The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Tenant warrants that it has had no dealings with any other real estate
broker or agent in connection with the negotiation of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by Tenant in connection with
the negotiation of this Lease. The foregoing agreement shall survive the
termination of this Lease. If Tenant fails to take possession of the Premises
or if this Lease otherwise terminates prior to the Expiration Date as the result
of failure of performance by Tenant, Landlord shall be entitled to recover from
Tenant the unamortized portion of any brokerage commission funded by Landlord in
addition to any other damages to which Landlord may be entitled.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor in which Tenant has an interest
shall be turned over, subject to that interest, to the transferee and Tenant is
notified of the transfer as required by law. No holder of a mortgage and/or
deed of trust to which this Lease is or may be subordinate, and no landlord
under a so-called sale-leaseback, shall be responsible in connection with the
Security Deposit, unless the mortgagee or holder of the deed of trust or the
landlord actually receives the Security Deposit. It is intended that the
covenants and obligations contained in this Lease on the part of Landlord shall,
subject to the foregoing, be binding on Landlord, its successors and assigns,
only during and in respect to their respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to
have been waived by Landlord unless the waiver is in a writing signed by
Landlord. The rights and remedies of Landlord under this Lease shall be
cumulative and in addition to any and all other rights and remedies which
Landlord may have.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of
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the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or from the timely performance of any other
obligation under this Lease within Tenant's reasonable control.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement
or implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall
be effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors in interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.
SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and
agrees that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Project, either directly or indirectly,
without the prior written consent of Landlord, provided, however, that Tenant
may disclose the terms to prospective subtenants or assignees under this Lease.
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SECTION 22.2. GUARANTY. As a condition to the execution of this Lease by
Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in Item 7 of
the Basic Lease Provisions, if any, on a form of guaranty provided by Landlord.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Project, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not materially increase the obligations of Tenant or materially and adversely
affect the leasehold interest created by this Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Premises
whose address has been furnished to Tenant and (b) such beneficiary is afforded
a reasonable opportunity to cure the default by Landlord (which in no event
shall be less than sixty (60) days), including, if necessary to effect the cure,
time to obtain possession of the Premises by power of sale or judicial
foreclosure provided that such foreclosure remedy is diligently pursued. Tenant
agrees that each beneficiary of a deed of trust or mortgage covering the
Premises is an express third party beneficiary hereof, Tenant shall have no
right or claim for the collection of any deposit from such beneficiary or from
any purchaser at a foreclosure sale unless such beneficiary or purchaser shall
have actually received and not refunded the deposit, and Tenant shall comply
with any written directions by any beneficiary to pay rent due hereunder
directly to such beneficiary without determining whether an event of default
exists under such beneficiary's deed of trust.
SECTION 22.5. COVENANTS AND CONDITIONS. All of the provisions of this
Lease shall be construed to be conditions as well as covenants as though the
words specifically expressing or imparting covenants and conditions were used in
each separate provision.
SECTION 22.6. SECURITY MEASURES. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, invitees and property
from acts of third parties. Nothing herein contained shall prevent Landlord, at
its sole option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Building Costs. Subject to the provisions in this Lease, including without
limitation, the provisions of Section 7.3 hereof, Tenant shall have the right to
install such security devices on the interior of the Premises as Tenant deems
reasonably necessary.
SECTION 22.7. JAMS.
(a) All claims or disputes between Landlord and Tenant arising out
of, or relating to, the Lease which either party is expressly authorized by a
provision hereof to submit to arbitration, shall be decided by the
JAMS/Endispute, or its successor, in Orange, California ("JAMS"), unless the
parties mutually agree otherwise. Within ten (10) business days following
submission to JAMS, JAMS shall designate three arbitrators and each party may,
within five (5) business days thereafter, veto one of the three persons so
designated. If two different designated arbitrators have been vetoed, the third
arbitrator shall hear and decide the matter. Any arbitration pursuant to this
Section 22.7 shall be decided within thirty (30) days of submission of JAMS.
The decision of the arbitrator shall be final and binding on the parties. All
costs associated with arbitration shall be awarded to the prevailing party as
determined by the arbitrator.
(b) Notice of the demand for arbitration by either party to the Lease
shall be filed in writing with the other party to the Lease and with JAMS and
shall be made within a reasonable time after the dispute has arisen. The award
rendered by the arbitrators shall be final, and judgment may be entered upon it
in accordance with applicable law in any court having jurisdiction thereof.
Except by written consent of the person or entity sought to be joined, no
arbitration arising out of or relating to the Lease shall include, by
consolidation, joinder or in any other manner, any person or entity not a party
to the Lease under which such arbitration is filed if (1) such person or entity
is substantially involved in a common question of fact or law, (2) the presence
of such person or entity is required if complete relief is to be accorded in the
arbitration, or (3) the interest or responsibility of such person or entity in
the matter is not insubstantial.
(c) The agreement herein among the parties to the Lease and any other
written agreement to arbitrate referred to herein shall be specifically
enforceable under prevailing law."
[Signatures on following page.]
25
<PAGE>
LANDLORD: TENANT:
THE IRVINE COMPANY PRINTRAK INTERNATIONAL, INC.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
By: By:
-------------------------------- --------------------------------
Clarence W. Barker, Name:
------------------------------
President, Irvine Industrial Company Title:
-----------------------------
A division of The Irvine Company
By: By:
-------------------------------- --------------------------------
Nancy Trujillo, Name:
------------------------------
Asst. Secretary Title:
-----------------------------
26
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<PAGE>
<ARTICLE> 5
<RESTATED>
<CIK> 0001013050
<NAME> PRINTRAK INTERNATIONAL
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 1,637
<SECURITIES> 0
<RECEIVABLES> 28,024
<ALLOWANCES> (873)
<INVENTORY> 8,570
<CURRENT-ASSETS> (1,414)
<PP&E> 11,452
<DEPRECIATION> (7,720)
<TOTAL-ASSETS> 55,781
<CURRENT-LIABILITIES> 24,383
<BONDS> 948
0
0
<COMMON> 1
<OTHER-SE> 30,449
<TOTAL-LIABILITY-AND-EQUITY> 55,781
<SALES> 60,357
<TOTAL-REVENUES> 60,610
<CGS> 35,515
<TOTAL-COSTS> 20,451
<OTHER-EXPENSES> 356
<LOSS-PROVISION> (230)
<INTEREST-EXPENSE> 516
<INCOME-PRETAX> 4,251
<INCOME-TAX> (5,286)
<INCOME-CONTINUING> 9,537
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,537
<EPS-PRIMARY> .84
<EPS-DILUTED> .82
</TABLE>
