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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 SEPTEMBER 30,
1996.
Or
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO
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, 19 .
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Commission file number : 0-20937
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PHOENIX INTERNATIONAL LTD., INC.
(Exact name of registrant as specified in its charter)
Florida 59-3171810
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
900 Winderley Place, Suite 140, Maitland, Florida 32751
(Address of principal executive offices)
(407) 667-0033
(Registrant's telephone number including area code)
N/A
(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 (or for such shorter period that the
registrant was required to file such reports); and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at November 4, 1996
Common Stock, $0.01 par value 3,831,825
(No. of Shares)
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PHOENIX INTERNATIONAL LTD., INC.
INDEX TO FORM 10-Q
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
as of September 30, 1996 and
December 31, 1995 3
Condensed Consolidated Statements of
Operations for the Three Months and
Nine Months ended September 30, 1996
and 1995 4
Condensed Consolidated Statements of
Cash Flows for the Nine Months ended
September 30, 1996 and 1995 5
Notes to Condensed Consolidated
Financial Statements 6
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations 8
PART II OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 13
Item 3. Defaults upon Senior Securities 13
Item 4. Submission of Matters to a Vote of
Security Holders 13
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
</TABLE>
SIGNATURES
EXHIBIT
INDEX
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
PHOENIX INTERNATIONAL LTD., INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
------------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 3,613,068 $ 425,931
Investments 2,694,575 --
Accounts receivable, net of allowance
for doubtful accounts of $10,000 672,076 328,693
Unbilled accounts receivable 242,472 108,320
Interest receivable, related party -- 105,001
Prepaid expenses and other current assets 326,347 174,339
Deferred tax asset 42,445 390,769
------------ -----------
Total current assets 7,590,983 1,533,053
Property and equipment:
Computer equipment and purchased software 939,557 522,571
Furniture, office equipment and leasehold improvements 249,174 245,762
------------ -----------
1,188,731 768,333
Accumulated depreciation and amortization (336,667) (191,826)
------------ -----------
Total property and equipment 852,064 576,507
Capitalized software development costs, net of accumulated
amortization of $336,077 and $107,647 at September 30, 1996 and
December 31, 1995, respectively 1,742,102 1,118,729
------------ -----------
Total assets $ 10,185,149 $ 3,228,289
============ ===========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable $ 244,016 $ 264,274
Accrued expenses 637,411 279,521
Note payable, related party -- 35,203
Payable to vendor -- 140,000
Deferred revenue 922,082 3,077,393
------------ -----------
Total current liabilities 1,803,509 3,796,391
Shareholders' equity (deficit):
Common Stock, 3,831,825 issued at September 30, 1996 38,318 --
Class A through E common stock, 2,992,330 issued at December 31, 1995 -- 1,671,190
Additional paid-in capital 10,696,826 2,368,470
Stock subscription receivable (115,809) (1,318,524)
Accumulated deficit (2,237,695) (3,289,238)
------------ -----------
Total shareholders' equity (deficit) 8,381,640 (568,102)
------------ -----------
Total liabilities and shareholders' equity (deficit) $ 10,185,149 $ 3,228,289
============ ===========
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
3
<PAGE> 4
PHOENIX INTERNATIONAL LTD., INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------- ---------------------------
1996 1995 1996 1995
---------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Revenues:
License fees and other $1,779,341 $ 316,002 $4,184,753 $3,118,784
Implementation, customer and software
support and other service fees 1,105,839 472,765 2,583,464 960,580
---------- ---------- ---------- ----------
Total revenues 2,885,180 788,767 6,768,217 4,079,364
Expenses:
Cost of license fees and other 194,592 111,553 475,862 287,675
Cost of implementation, customer and 597,456 365,455 1,551,985 864,536
software support and other service fees
Sales and marketing 385,094 266,707 867,735 728,809
General and administrative 449,602 262,130 1,286,996 854,933
Product development 511,909 192,152 1,174,854 401,862
---------- ---------- ----------- ----------
Total expenses 2,138,653 1,197,997 5,357,432 3,137,815
Other income (expense):
Interest income 87,005 35,091 143,897 97,656
Interest expense (3,175) (1,082) (19,231) (13,025)
Other income (2,242) (2,216) (2,242) 73,054
---------- ---------- ----------- ----------
Income before income taxes 828,115 (377,437) 1,533,209 1,099,054
Income tax expense 269,548 -- 481,666 255,999
---------- ---------- ---------- ----------
Net income $ 558,567 $ (377,437) $1,051,543 $ 843,055
========== ========== ========== ==========
Net income per share $ 0.14 $ (0.12) $ 0.29 $ 0.26
========== ========== ========== ==========
Weighted average shares outstanding $4,116,868 3,146,234 3,603,617 3,214,315
========== ========== ========= ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
statements of operations.
4
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PHOENIX INTERNATIONAL LTD., INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
-------------------------
1996 1995
----------- ----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $1,051,543 $ 843,055
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation and amortization 373,271 143,956
Satisfaction of payable to vendor (100,000) --
Stock and stock options issued for compensation -- 2,500
Deferred taxes 348,324 68,101
Changes in operating assets and liabilities:
Accounts receivable (343,383) (279,893)
Unbilled accounts receivable (134,152) (520,101)
Interest receivable, related party 105,001 (75,861)
Prepaid expenses and other current assets (152,008) (139,678)
Accounts payable (20,258) 111,811
Accrued expenses 357,890 (15,096)
Deferred revenue (2,155,311) 855,239
---------- ----------
Net cash provided by (used in) operating (669,083) 994,033
activities
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (420,398) (253,141)
Increase in investments (2,694,575) --
Capitalized software development costs (851,803) (923,033)
---------- ----------
Net cash used in investing activities (3,966,776) (1,176,174)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from short-term debt 247,031 21,254
Net proceeds from issuance of common stock 6,577,204 502,555
Payment on short-term debt (322,234) (260,000)
Cash payments for stock subscription receivable 1,320,995 34,290
---------- ----------
Net cash provided by financing activities 7,822,996 289,099
Net increase in cash and cash equivalents 3,187,137 115,958
Cash and cash equivalents at beginning of the period 425,931 605,309
---------- ----------
Cash and cash equivalents at end of the period $3,613,068 $ 721,267
========== ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
statements of cash flows.
5
<PAGE> 6
PHOENIX INTERNATIONAL LTD., INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial
statements include all adjustments, consisting only of normal
recurring accruals, which the Company considers necessary for a fair
presentation of the financial position and the results of operations
for the interim periods presented. The condensed consolidated
financial statements have been prepared in accordance with the rules
and regulations of the Securities and Exchange Commission.
Accordingly, certain information and footnote disclosures usually
found in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted. The
condensed consolidated financial statements should be read in
conjunction with the consolidated financial statements and "Selected
Consolidated and Financial Operating Data" included in the Company's
Registration Statement (the "Registration Statement") on Form S-1
(Registration Number 33-03355), as amended, declared effective by the
Securities and Exchange Commission on July 1, 1996.
2. INITIAL PUBLIC OFFERING
On July 1, 1996, the Company's initial public offering of
670,000 shares of common stock was declared effective by the
Securities and Exchange Commission. On July 8, 1996, the Company
completed the initial public offering, issued the common stock and
received net proceeds of approximately $6.4 million (after deducting
underwriting discounts of $0.6 million and offering costs of $1.1
million). On July 8, 1996, the Company received $1,319,000 plus
accrued interest of $159,000 from its Chairman and CEO, Mr.
Yusefzadeh, for payment of stock subscriptions receivable due from Mr.
Yusefzadeh and his affiliate out of the proceeds of shares sold by Mr.
Yusefzadeh and his affiliate in the initial public offering.
The Company used $334,000 of the net proceeds to repay debt
and accrued interest including bank term and line of credit loans, an
equipment note to Mr. Yusefzadeh and funds payable to a vendor.
3. RESTRICTED CASH AND INVESTMENTS
Cash and cash equivalents as of September 30, 1996
include $190,000 which is restricted and secures a letter of credit.
In October 1996, the Company received $190,000 from a government
municipality under a job growth incentive economic development
agreement, and the letter of credit secures the grant until the
Company completes its obligations.
The Company has funds invested in short-term interest bearing
investment grade securities. The Company considers all highly liquid
investments, with a maturity of three months or less as cash
equivalents and considers investments with a maturity of one year or
less as short-term investments. Short-term investments are stated at
cost plus accrued interest which approximates fair value.
6
<PAGE> 7
4. COMMON STOCK SPLIT AND CONVERSION
On May 6, 1996, the Board of Directors approved a
2.321-for-one share split of the Company's capital stock (classes A
through E). In addition, the Company amended its articles of
incorporation effective May 8 to reduce the par value of each of the
Company's capital stock (Classes A through E) in accordance with the
stock split and to increase the number of authorized shares of Class A
Common Stock to 1,500,000 shares. All share and per share amounts
related to common stock have been retroactively restated to reflect
the stock split for all periods presented.
On July 8, 1996, all outstanding shares of the Company's
capital stock (classes A through E common stock) converted into common
stock, $0.01 par value, on a share for share basis as approved on June
12, 1996 by the shareholders of the Company. This recapitalization
did not change total shareholders' equity (deficit).
5. NET INCOME PER SHARE
Net income per share is based on the weighted average number
of common shares outstanding and dilutive common stock equivalents
outstanding, using the treasury stock method, during the periods
presented. Pursuant to Securities and Exchange Commission Staff
Accounting Bulletin No. 83, common stock issued for consideration
below the public offering price and stock options issued with exercise
prices below the public offering price during the twelve-month period
preceding the initial filing and through the effective date of the
Registration Statement have been included in the calculation of
weighted average shares outstanding, using the treasury stock method,
as if they were outstanding for all periods presented through March
31, 1996.
7
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
The following discussion contains forward-looking statements that
involve risks and uncertainties. The Company's actual results may differ
materially from the results discussed in the forward-looking statements, and
the Company's operating performance each quarter is subject to various risks
and uncertainties that are discussed in detail in the Company's filings with
the Securities and Exchange Commission, including the "Risk Factors" section in
the Company's Registration Statement (the "Registration Statement") on Form S-1
(Registration Number 33-03355), as amended, declared effective by the
Securities and Exchange Commission on July 1, 1996
OVERVIEW
Phoenix designs, develops, markets and supports highly adaptable,
enterprise-wide client/server application software for the financial services
industry, with a primary focus on middle market banks. Phoenix was founded in
January 1993 and made its initial nondevelopment stage product shipments in
June 1995. During its development stage, the Company's business focused
primarily on the development of its software and marketing of the Phoenix
Retail Banking System (the "Phoenix System") to certain development stage
customers.
The Company's revenues are derived from two primary sources: (i)
license fees for software products and other revenues and commissions from the
sale and delivery of software and hardware products of third party vendors; and
(ii) fees for a full range of services complementing its products, including
implementation, conversion and installation services, training, interface
services for tying the Phoenix System to third-party application software, and
customer and software support services. License fees for the Company's
software products are charged separately from fees for the Company's services
and are recognized upon delivery, when no significant vendor obligations remain
and collection of the resulting receivables is deemed probable. Revenues for
implementation, conversion, installation, training and interface services are
recognized when the services are performed. Service revenues for ongoing
customer and software support and product updates provide recurring revenues as
they are recognized ratably over each year of the license agreement, the term
of which is typically five years.
Future operating results will depend on many factors, including,
without limitation, the demand for the Company's products, the level of product
and price competition, the Company's success in expanding its direct sales
force and indirect distribution channels, the mix of direct and indirect sales,
the mix of foreign and domestic sales, the ability of the Company to develop
and market new products, the ability of the Company to control operating
expenses, changes in Company strategy, personnel changes, changes in
legislation and regulation, foreign currency exchange rates and general
economic factors.
8
<PAGE> 9
RESULTS OF OPERATIONS
Three Months Ended September 30, 1996 Compared to Three Months Ended September
30, 1995
Revenues. Total revenues were $2.9 million and $789,000 for the
quarters ended September 30, 1996 and 1995, respectively. Revenues from
license fees and other increased $1.5 million or 463% to $1.8 million for the
quarter ended September 30, 1996 from $316,000 in the quarter ended September
30, 1995 due to increased customers and larger license fees. License fees and
other revenue included $880,000 from a single foreign customer. Revenues from
implementation, customer and software support and other service fees increased
$633,000 or 134% to $1.1 million in the quarter ended September 30, 1996 from
$473,000 in the quarter ended September 30, 1995.
Expenses. Cost of license fees and other was $195,000 and $112,000 in
the quarters ended September 30, 1996 and 1995, respectively. These costs
consisted of amortization of capitalized software development costs and third
party software royalties which relate to software which is sold and installed
with the Company's products. Amortization of software development costs
increased in the quarter ended September 30, 1996 compared to the quarter ended
September 30, 1995 because: (i) amortization costs were only first recorded in
June 1995 after general release of the Phoenix System; and (ii) the amount of
monthly amortization increased as the Company capitalized additional software
development costs. Third party software royalties increased in the quarter
ended September 30, 1996 from the quarter ended September 30, 1995 due to
higher sales of third party software licenses.
Cost of implementation, customer and software support and other
service fees consists primarily of personnel related costs incurred in
providing implementation, conversion and installation services, training and
customer support. Cost of implementation, customer and software support and
other service fees increased $232,000 or 63.5% to $597,000 in the quarter ended
September 30, 1996 from $365,000 in the quarter ended September 30, 1995 as a
result of additional personnel costs related to increased Phoenix System
implementation activity.
Sales and marketing expenses increased $118,000 or 44.4% to $385,000
in the quarter ended September 30, 1996 from $267,000 in the quarter ended
September 30, 1995 as a result of an expansion of sales and marketing staffing
and personnel related costs.
General and administration expenses increased $188,000 or 71.5% to
$450,000 in the quarter ended September 30, 1996 from $262,000 in the quarter
ended September 30, 1995. The increase was primarily the result of increased
personnel costs, professional services and public company related expenses.
Product development expenses increased $320,000 or 166% to $512,000 in
the quarter ended September 30, 1996 from $192,000 in the quarter ended
September 30, 1995. As the Company continued to expand and enhance the Phoenix
System, product development expenses increased as a result of increased
staffing and personnel related costs.
Other Income (Expense). Interest income was $87,000 and $35,000 in
the quarters ended September 30, 1996 and 1995, respectively. Interest income
increased primarily due to the increase in interest bearing funds from the
initial public offering of the Company's common stock in July 1996.
9
<PAGE> 10
Income Tax Expense. Income tax expense was $270,000 and $0 in the
quarters ended September 30, 1996 and 1995, respectively. These income tax
expenses represent withholding taxes which relate to the license of the
Company's products to foreign customers and which are contractually payable by
those customers. The Company has a net operating loss carry forward and tax
credits that should limit the Company's United States income tax liability
during the remainder of 1996.
Net Income. Net income increased $936,000 to $559,000 in the quarter
ended September 30, 1996 from a loss of $377,000 in the quarter ended September
30, 1995.
Nine Months Ended September 30, 1996 Compared to Nine Months Ended September
30, 1995
General. The Company changed its fiscal year end to December 31
during 1995. However, the nine months ended September 30, 1995 includes
operating results for the month of January 1995 which were included in
financial statements for the year ended January 1, 1995.
Revenues. Total revenues were $6.8 million and $4.1 million for the
nine months ended September 30, 1996 and 1995, respectively. Revenues from
license fees and other increased $1.1 million or 34.2% to $4.2 million for
the nine months ended September 30, 1996 from $3.1 million in the nine months
ended September 30, 1995. Phoenix first recognized revenue from licensing of
its software upon introduction of its initial nondevelopmental stage product in
June 1995. Revenues from license fees and other of $3.1 million in the nine
months ended September 30, 1995 included license fees of $2.1 million from a
single foreign customer. Revenues from implementation, support and other
service fees increased $1.6 million or 169% to $2.6 million in the nine months
ended September 30, 1996 from $961,000 in the nine months ended September 30,
1995 due to increased implementation and support fees.
Expenses. Cost of license fees and other increased to $476,000 in the
nine months ended September 30, 1996 from $288,000 in the nine months ended
September 30,1995 as result of higher amortization of software development
costs. These costs increased in the nine months ended September 30, 1996
compared to the nine months ended September 30, 1995 because: (i) amortization
costs were only first recorded in June 1995 after general release of the
Phoenix System; and (ii) the amount of monthly amortization increased as the
Company capitalized additional software development costs.
Cost of implementation, customer and software support and other
service fees consists primarily of personnel related costs incurred in
providing implementation, conversion and installation services, training and
customer support. Cost of implementation, customer and software support and
other service fees increased $687,000 or 79.5% from $865,000 in the nine months
ended September 30, 1995 to $1.6 million in the nine months ended September 30,
1996 as a result of additional personnel costs related to increased Phoenix
System implementation activity.
Sales and marketing expenses increased $139,000 or 19.1% to $868,000
in the nine months ended September 30, 1996 from $729,000 in the nine months
ended September 30, 1995 as a result of an expansion of sales and marketing
staffing and personnel related costs.
10
<PAGE> 11
General and administrative expenses increased $432,000 or 50.5% to
$1.3 million in the nine months ended September 30, 1996 from $855,000 in the
nine months ended September 30, 1995. The increase was primarily the result of
increased personnel costs, professional services and public company related
expenses.
Product development expenses increased $773,000 or 192% to $1.2
million in the nine months ended September 30, 1996 from $402,000 in the nine
months ended September 30, 1995. As the Company continued to expand and enhance
the Phoenix System, product development expenses increased as a result of
increased staffing and personnel related costs.
Other Income (Expense). Interest income, was $144,000 and $98,000 in
the nine months ended September 30, 1996 and 1995, respectively. Interest
income increased primarily due to the increase in interest bearing funds from
the initial public offering of the Company's common stock in July 1996.
Interest expense increased to $19,000 in the nine months ended September 30,
1996 compared to $13,000 in the nine months ended September 30, 1995 as a
result of increased interest from bank equipment and line of credit loans in
the nine months ended September 30, 1996. Other income of $73,000 in the nine
months ended September 30, 1995 consisted principally of the fair market value
of computer equipment given to Phoenix by a computer company to enable Phoenix
to develop and test the Phoenix System on such company's equipment.
Income Tax Expense. Income tax expense was $482,000 and $256,000 in
the nine months ended September 30, 1996 and 1995, respectively. These income
tax expenses represent withholding taxes which relate to the license of the
Company's products to foreign customers and which are contractually payable by
those customers. The Company has a net operating loss carry forward and tax
credits that should limit the Company's United States income tax liability
during the remainder of 1996.
Net Income. Net income increased $208,000 or 24.7% to $1.1 million in
the nine months ended September 30, 1996 from $843,000 in the nine months ended
September 30, 1995.
LIQUIDITY AND CAPITAL RESOURCES
On July 8, 1996, the Company received net proceeds of $6.4 million
from the sale of 670,000 shares of common stock in its initial public offering.
On July 8, 1996, the Company received $1.3 million plus accrued interest of
$159,000 from its Chairman and CEO, Mr. Yusefzadeh, for payment of stock
subscriptions receivable due from Mr. Yusefzadeh and his affiliate out of the
proceeds of shares sold by Mr. Yusefzadeh and his affiliate in the initial
public offering.
The Company used $334,000 of the net proceeds to repay debt and
accrued interest including bank term and line of credit loans, an equipment
note to Mr. Yusefzadeh and funds payable to a vendor.
Cash and cash equivalents were $3.6 million and $426,000 at September
30, 1996 and December 31, 1995, respectively. Short-term investments were $2.7
million and $0 at September 30, 1996 and December 31, 1995, respectively. For
the nine months ended September 30, 1996, cash used by operations was $669,000.
Reduction of deferred revenue of $1,428,000 and $2,155,000 in the three and
nine months ended September 30, 1996, respectively, were significant uses of
cash in operating activities. Deferred revenue balances
11
<PAGE> 12
declined as license fee and service revenues were recognized during the periods
without net offsetting additions from new contracts. Investing activities used
cash of $4.0 million, including $2.7 million for short term investments and
$852,000 for capitalized software development costs. Financing activities
provided $7.8 million in cash, including $6.4 million in net proceeds from the
initial public offering and $1.3 million from the payment of stock
subscriptions receivable.
Working capital increased to $5.8 million at September 30, 1996 from a
deficit of $2.3 million at December 31, 1995. Excluding deferred revenue,
which represent advance payments for license fees and services, and related
deferred tax assets, adjusted working capital was $6.7 million at September 30,
1996 and $423,000 at December 31, 1995.
The Company believes that cash balances, investments and cash flow
from operations will be sufficient to meet its working capital, capital
expenditure and capitalized software development requirements for the
foreseeable future. Cash flows from operating activities are dependent on
continued advance payments from customers, and there is no assurance that the
Company will continue to receive these payments from customers or that it will
continue to receive these payments in advance on the same terms as it has in
the past. The Company anticipates that its operating and investing activities
may use cash in the future, particularly from growth in operations and
development activities. Consequently, any such future growth may require the
Company to obtain additional equity or debt financing.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
--- -----------
<S> <C>
3.1 Amended and Restated Articles of Incorporation, as filed with the
Secretary of State of the State of Florida on July 8, 1996
(incorporated by reference to Exhibit 3.1 of the Company's Form 10-Q,
dated August 14, 1996, File No. 0-20937).
3.2 Amended and Restated Bylaws, effective July 8, 1996, (incorporated by
reference to Exhibit 3.2 of the Company's Form 10-Q, dated August 14,
1996, File No. 0-20937).
4.1 See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws defining
the rights of the holders of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 of the Company's Form 10-Q,
dated August 14, 1996, File No. 0-20937).
10.1 Lease Agreement, dated September 11, 1996, between 500 International
Parkway Development Company and the Company.
11.1 Statement re: Computation of Earnings Per Share.
27.1 Financial Data Schedule.
</TABLE>
b) Reports on Form 8-K
None.
13
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934,the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
PHOENIX INTERNATIONAL LTD., INC.
November 5, 1996 /s/ Bahram Yusefzadeh
- ---------------- -------------------------------------------------
Date Bahram Yusefzadeh
Chairman of the Board and Chief Executive Officer
November 5, 1996 /s/ Clay E. Scarborough
- ---------------- -------------------------------------------------
Date Clay E. Scarborough
Senior Vice President and Chief Financial Officer
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Page
--- ----------- ----
<S> <C> <C>
3.1 Amended and Restated Articles of Incorporation, as filed with the
Secretary of State of the State of Florida on July 8, 1996
(incorporated by reference to Exhibit 3.1 of the Company's Form 10-Q,
dated August 14, 1996, File No. 0-20937) ...............................
3.2 Amended and Restated Bylaws, effective July 8, 1996 (incorporated by
reference to Exhibit 3.2 of the Company's Form 10-Q, dated August 14,
1996, File No. 0-20937) ................................................
4.1 See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws defining
the rights of the holders of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 of the Company's Form 10-Q,
dated August 14, 1996, File No. 0-20937) ...............................
10.1 Lease Agreement, dated September 11, 1996, between 500 International
Parkway Development Company and the Company ............................
11.1 Statement re: Computation of Earnings Per Share .......................
27.1 Financial Data Schedule ................................................
</TABLE>
<PAGE> 1
EXHIBIT 10.1
9/11/96
HEATHROW
500 INTERNATIONAL PARKWAY
________________________________________________________________________________
LEASE AGREEMENT
Between
500 International Parkway Development Company
("Landlord")
and
Phoenix International Ltd., Inc.
("Tenant")
________________________________________________________________________________
<PAGE> 2
LEASE SUMMARY
A. Date of Execution of Lease: September 11, 1996
B. Landlord: 500 International Parkway
Development Company, a
Florida general partnership
C. Address of Landlord: c/o Pizzuti Management Inc.
Suite 1350
255 South Orange Avenue
Orlando, Florida 32801
D. Tenant: Phoenix International Ltd.,
Inc.
E. Address of Tenant: 900 Winderley Place, Suite
140, Maitland, Florida 32751
500 International Parkway,
Heathrow, Florida 32746
F. Building: The three-story office
building to be located at 500
International Parkway,
Florida. Heathrow, Seminole
County, The Building contains
approximately 75,860 square
feet of rentable space, as
measured in accordance with
the standards of the Building
Owners and Managers
Association International
("BOMA") and as modified to
allocate space contained
within the first floor lobby
and atrium proportionately
among all space in the
building. The Landlord
covenants, warrants and
represents that the Building
is being constructed at a
cost of at least Nine Million
Dollars ($9,000,000.00).
G. Leased Premises: That portion of the first and
second floors of the Building
outlined on Exhibit A. The
Leased Premises contain
37,259 square feet of
rentable space, as measured
in accordance with the BOMA
standards and as modified to
allocate space contained
within the first floor lobby
and atrium proportionately
among all space in the
building.
H. Permitted Use: General office use.
I. Lease Term: Ten years commencing on the
Commencement Date and
terminating on the
Termination Date.
<PAGE> 3
J. Commencement Date: April 1, 1997, unless the
Commencement Date is changed
or the Lease is terminated as
provided herein. In the
event that the Leased
Premises cannot be delivered
to Tenant for occupancy on or
before March 1, 1997, the
Commencement Date shall be
thirty days after the later
to occur of (A) Substantial
Completion of the Leased
Premises (as hereinafter
defined in Section 9(e)), or
(B) the date the Landlord has
delivered possession of the
Leased Premises to Tenant,
free of all tenants and
occupants. Tenant may occupy
the Leased Premises for the
30-day period prior to the
Commencement Date, without
any obligation to pay any
Base Rent hereunder;
provided, however, that
Tenant will otherwise be
required throughout the
period of its occupancy prior
to the Commencement Date to
perform all of its other
duties and obligations under
this Lease.
The Term of this Lease shall
commence on the Commencement
Date and, unless extended
or sooner terminated as
hereinafter provided, shall
end on the Termination Date,
as such dates are respectively
defined herein. Tenant
may elect to accept delivery
of a portion of the Leased
Premises when such portion is
Substantially Complete (as
that term is defined in
Section 9(e)) without
accepting delivery of all of
the Leased Premises, and the
Commencement Date for such
portion shall be deemed the
date of such acceptance of
all of the Leased Premises;
provided, however, that if
Tenant elects to so accept
delivery of a portion of the
Leased Premises, then
commencing on the date which
is 30 days after such
acceptance, it will be
obligated to pay Base Rent on
the occupied portion of the
Leased Premises in an amount
equal to the Base Rent
specified in Exhibit B to the
Lease, multiplied by a
fraction, having as its
numerator the number of
rentable square feet
contained within the portion
of the Leased Premises so
occupied by Tenant, and
having as its denominator the
number of rentable square
feet contained within the
entire Leased Premises.
K. Termination Date: Tenth Anniversary of
Commencement Date.
L. Base Rent: See the Base Rent Schedule
attached as Exhibit B, and
incorporated herein by this
reference.
<PAGE> 4
M. Base Expenses: Base Expenses are equal to
Tenant's Proportionate Share
of the Operating Expenses for
the 1997 calendar year
adjusted as though the
Building were 100% occupied
for a full 12-month year and
as though fully assessed for
tax purposes.
N. Tenant's Proportionate Share: Tenant's Proportionate Share
is a fraction which is
calculated by dividing a
numerator, consisting of the
total rentable area of the
Premises as measured in
accordance with the standards
of the Building Owners and
Managers Association
International ("BOMA") and as
modified in Section G of this
Lease Summary, and a
denominator consisting of the
total rentable area contained
in the Building as measured
in accordance with BOMA
standards as modified in
Section F of this Lease
Summary. Based upon the
rentable square footage for
the Leased Premises and the
rentable square footage for
the Building as set forth in
Sections G and F,
respectively, of the Lease
Summary, Tenant's
Proportionate Share would be
49.12%, subject to adjustment
as set forth pursuant to the
terms of this Lease.
O. Security Deposit: $61,461.87, which shall be
applied to the first month's
Base Rent.
P. Excess Expenses: Tenant's Excess Expenses are
calculated by multiplying the
Tenant's Proportionate Share
by the Operating Expenses (as
defined in Exhibit C) for the
Building, and then
subtracting the Base Expenses
(as defined in Section M of
this Lease Summary).
================================================================================
The following exhibits are attached to and made a part of the Lease:
Exhibit A - Description of Leased Premises
Exhibit B - Base Rent Schedule
Exhibit C - Operating Expenses
Exhibit D - Heathrow Rules and Regulations
Exhibit E - Janitorial Specifications
Exhibit F - Agency Disclosure Statement
Exhibit G - Special Terms
Exhibit H - Radon Notice
Exhibit I - Tenant's Exterior Sign
Exhibit J - Building Specifications Pizzuti Heathrow 500
Proposed Office Building
Exhibit K - Parking Map
THE PROVISIONS OF THIS LEASE SUMMARY ARE INCORPORATED BY THIS
REFERENCE INTO THE LEASE.
<PAGE> 5
LEASE AGREEMENT
This Lease is made as of the 11th day of September, 1996 between 500
International Parkway Development Company, a Florida general partnership, as
Landlord, and Phoenix International Ltd., Inc., a Florida corporation, as
Tenant.
W I T N E S S E T H
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those premises (hereinafter called "Leased Premises") shown and
described in Exhibit A, attached hereto and made a part thereof, being located
on the first and second floors of 500 International Parkway, (the "Building"),
a Class A office building to be constructed at 500 International Parkway (the
"Property") in Heathrow, Florida.
The Landlord warrants that the Leased Premises are measured in
accordance with the standards of the Building Owners and Managers Association
International ("BOMA"), as modified in the manner described in Sections F and G
of the Lease Summary, as follows:
For the purposes of this Lease, the Leased Premises shall be deemed
to comprise 32,265 square feet of usable area and 37,259 square
feet of rentable area, and the Building shall be deemed to comprise
66,867 square feet of usable area and 75,860 square feet of rentable
area, subject to adjustment as set forth pursuant to the terms of this
Lease. Whenever any space is added to or deleted from the Leased
Premises pursuant to any provision of this Lease, the usable and
rentable areas of such space shall be agreed upon by Landlord and
Tenant, or failing such agreement, shall be determined in accordance
with the American National Standard Method of Measuring Floor Area in
Office Buildings of BOMA as modified in the manner described in
Sections F and G of the Lease Summary.
In addition to the Leased Premises, the Tenant shall also have the
following non-exclusive rights as appurtenances to the Leased Premises:
(a) The right of reasonable access to and from the Building and
Leased Premises, and to and from any parking facilities located on the
Property, twenty-four (24) hours per day, seven (7) days per week, and parking
privileges as may be agreed from time to time;
(b) The right of reasonable access to and from, and the right to
use, designated common areas in the Building and the
1
<PAGE> 6
Property as is reasonably afforded to all tenants of the Building; and
(c) The right to do, possess, exercise and enjoy, as to the
premises, any and all rights and privileges appertaining to a leasehold tenancy
under existing and future laws applicable thereto, to the extent not
inconsistent with any reserved rights and privileges of Landlord pursuant to
this Lease.
(d) The right to riser space for HVAC and other equipment.
Section 1. Base Rent. Tenant will pay Base Rent in the amount
set forth in the Base Rent Schedule attached hereto as Exhibit B.
Section 2. Excess Expense Payments. Tenant shall pay to
Landlord the amount by which Tenant's Proportionate Share of the actual
Operating Expenses (as those expenses are defined in Exhibit C) incurred by the
Landlord in the operation of the Building during each calendar year of the
Lease Term exceeds the Base Expenses (as those expenses are defined in Section
M of the Lease Summary)("Excess Expenses"). The Excess Expenses shall be
prorated on a daily basis using a 365-day calendar year, as necessary for any
year during which this Lease is in effect for less than the full twelve-month
calendar year.
Starting in the 13th month after the Commencement Date, if the Tenant's
Proportionate Share of actual Operating Expenses incurred by the Landlord are
greater than the Base Expenses, Tenant will, thereafter, pay any Excess
Expenses owed to the Landlord. Tenant's Excess Expenses will be paid monthly
in advance based upon Landlord's estimate of the Excess Expenses which Tenant
will incur during each calendar year during the Lease Term. For the first year
in which Excess Expenses will be paid, Landlord will deliver to Tenant on March
1, 1998, a written statement showing its actual Operating Expenses for the 1997
calendar year, and estimating the Excess Expenses Landlord expects that Tenant
will incur from the first anniversary of the Commencement Date through December
31, 1998. For every year thereafter, Landlord will notify Tenant by December 1
of each year during the Lease Term of the amount of the monthly estimated Excess
Expense payment which Tenant will be required to make for each month of the
upcoming year; provided, however, that Landlord's failure to so notify Tenant
of the amount of the monthly estimated Excess Expense payment by December 1 of
any year will not vitiate or otherwise modify Tenant's obligation to pay its
Excess Expenses hereunder.
For the purpose of determining the Base Expenses, the Landlord shall assume
that the building is 100% occupied and that the taxes are fully assessed as if
the Building were complete for the
2
<PAGE> 7
first full year. For the purpose of estimating the Excess Expenses, Landlord
shall reasonably estimate such expenses (assuming one hundred percent (100%)
occupancy of the Building if the actual occupancy is less than one hundred
percent and assuming that the building is fully assessed for tax purposes)
based on the actual Operating Expenses for the preceding year and its
reasonable expectations concerning the level of operating Expenses to be
incurred the upcoming year.
Within 120 days after the end of each calendar year, Landlord will deliver to
Tenant a written statement showing its actual Operating Expense for such
calendar year and Tenant's Excess Expenses, if any. If the sum of the
estimated Excess Expense payments paid by Tenant during such calendar year
exceeds Tenant's actual Excess Expenses incurred during such year, then, at
Landlord's election, Landlord will either refund the excess to Tenant or apply
the same toward the next succeeding monthly estimated Excess Expense payment
due from Tenant. If the sum of the estimated Excess Expense payments paid by
Tenant during such calendar year is less than Tenant's actual Excess Expenses
incurred during such year, then Tenant will pay the deficiency to Landlord
within twenty (20) days after Tenant's receipt of Landlord's written demand for
the payment thereof.
If Tenant wishes to dispute Landlord's determination of the Operating Expenses,
or the Tenant's Excess Expenses under the Lease or the calculation of any
amount payable hereunder, Tenant shall give Landlord written notice of such
dispute within forty-five (45) days after the receipt of notice from Landlord
of the matter giving rise to the dispute. Promptly after the giving of such
written notice, Landlord shall meet with Tenant and shall allow Tenant's
representatives to examine Landlord's books and records with respect to the
subject matter of the dispute in Landlord's offices within ninety (90) days
after such notice of dispute, in an attempt to reconcile any outstanding
disputes. If such efforts do not succeed, Tenant may, at its election, cause
to be made a complete audit of Landlord's records relating to the matter in
dispute by a nationally recognized firm of independent certified accountants to
be mutually selected by Landlord and Tenant. The cost of such audit shall be
borne by Tenant unless such audit discloses an error of more than five percent
(5%) of the total audited amount which favors Landlord, in which event Landlord
shall bear the cost of such audit. If such audit reveals that the amount
previously determined by Landlord was incorrect, a correction shall be made and
either Landlord shall promptly (not to exceed 45 days) return to Tenant any
overpayment or Tenant shall promptly (not to exceed 45 days) pay any
underpayment to Landlord. Notwithstanding the pendency of any dispute
hereunder, Tenant shall make payments based upon Landlord's determination or
calculation until such determination or calculation has been established
hereunder to be incorrect.
3
<PAGE> 8
In the event that Landlord is in error, then the amount overpaid by Tenant
shall be returned to Tenant.
Section 3. Manner and Timing of Rent Payments. Monthly
installments of Base Rent and estimated Excess payments, if any, will be due
and payable in advance on or before the first day of each calendar month during
the Lease Term. Each such installment will be paid to Landlord at its address
set forth in the Lease Summary (or such other address as Landlord may designate
from time to time). If the Lease Term commences on a day other than the first
day of the month or terminates on a day other than the last day of the month,
then the installments of Base Rent and estimated Excess Expense payments for
such month(s) will be adjusted on a pro rata basis. If any installment of Base
Rent or any Excess Expense payment is not received by Landlord within ten days
after Tenant has received notice that the installment is past due, then a late
payment charge of 5% of such past due amount will be assessed and will be
immediately due and payable from Tenant; provided, however, that Landlord shall
not be required to give Tenant notice of a late payment more than twice in one
calendar year. All installments of Base Rent and estimated Excess Expense
payments will be paid by Tenant without demand and without any rights of
reduction, counterclaim or offset. Tenant hereby agrees that, after receipt of
notice that sales, rent or use taxes will change, it will pay as additional
rent any sales, use or other tax (other than income taxes) now or hereafter
imposed by any governmental authority upon the rent and other sums payable by
Tenant hereunder. The sales tax on Base Rent initially payable by Tenant is
set forth in the Base Rent Schedule attached hereto as Exhibit B. Landlord
will notify Tenant of any change in any tax payable by Tenant as additional
rent hereunder. Landlord's acceptance of any payment which constitutes less
than all of the balance then owed to it by Tenant hereunder will be treated as
its receipt of a payment "on account" and not as an accord and satisfaction and
Landlord may accept any such payment (regardless of the existence of any
endorsement or statement to the contrary contained on any check or letter
accompanying such payment) without prejudice to Landlord's right to recover the
balance of the amount owed to it or pursue any other remedy provided for in
this Lease.
Section 4. Services. Landlord will provide all utility, HVAC
and elevator services which are required for the use of the Leased Premises for
general office purposes during normal business hours (8:00 a.m. to 7:00 p.m.
Monday through Friday, and 8:00 a.m. to 1:00 p.m. on Saturday (at no separate
charge, but with all costs of the provision of such services to be treated as
Operating Expense pursuant to Section 2 herein), except for the following
Holidays, on the dates of celebration set by the federal government: New Year's
Day, President's Day, Memorial Day,
4
<PAGE> 9
Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving
Day, and Christmas Day). Notwithstanding the foregoing, Tenant shall have the
right and ability to control the air conditioning and heating supply to the
Premises after normal business hours. In the event that Tenant shall use the
air conditioning and heating supply after normal business hours, Tenant shall
pay a surcharge of $22.00 per hour for such service, regardless of the amount
of space being air conditioned or heated.
Tenant agrees to pay for all costs related to the provision of telephone
service to the Leased Premises. If Tenant's usage of any such service is
excessive when compared to the normal, anticipated usage of other tenants in
the Building or if the nature of Tenant's business requires the provision of
any such service outside of normal business hours at a level in excess of that
normally provided for the Building, then, in either such event, Tenant agrees
to pay a service surcharge to Landlord in an amount which fairly reflects its
excessive usage of such service. In the event delivery of any heating, air
conditioning, electricity, HVAC, water, sewer, elevator, or other services or
utilities servicing the Leased Premises are interrupted, and such interruption
substantially impairs Tenant's ability to use the Leased Premises and to
conduct its business therefrom, the rental and all other charges under this
Lease shall abate from the commencement date of such interruption caused by
Landlord until the restoration of services at a level satisfactory to permit
Tenant to conduct its business from the Leased Premises. In the event any
interruption shall continue for seven (7) consecutive days and the Property is
the Building is the only property effected in the area, Tenant may, at its
option, within ten (10) days after expiration of said seven (7) day period,
terminate this Lease by written notice thereof to Landlord.
Section 5. Maintenance and Repair. Landlord will maintain the
Building (including all common areas which serve the Building) and all
structural elements and mechanical systems located within the Leased Premises,
including, without limitation, the heating, air conditioning, electricity,
HVAC, water, sewer, and elevator systems, in good repair and condition;
provided, however, that Tenant (and not Landlord) will be required to pay all
costs of maintaining the same if the need therefor arises due to the fault or
negligence of Tenant or its agents or employees. Landlord will also provide
janitorial service to the Leased Premises five days per week. The Janitorial
Specifications are attached hereto as Exhibit E and incorporated by this
reference.
Following the completion of all Tenant Improvements and Punchlist
Items and except as otherwise expressly set forth in this Section 5, Tenant
will be responsible for and pay as additional
5
<PAGE> 10
rent all costs associated with Landlord's maintaining and repairing the
interior of the Leased Premises (other than items which are Base Building
Improvements or Landlord's Work, as defined in Section 9 and Exhibit J, which
are Landlord's obligations), including, without limitation, all costs
associated with the painting of interior walls, the cleaning or replacing of
wallcoverings and floorcoverings and replacing of light bulbs; provided,
however, that Landlord shall be liable for any repairs and maintenance
necessitated by Landlord's negligence. Except in the case of emergency or with
regard to providing services to the Tenant, Landlord shall furnish Tenant
reasonable advance oral notice prior to entering the Leased Premises and shall
not unreasonably interfere with the conduct of Tenant's business in the Leased
Premises.
Section 6. Use of Leased Premises. Tenant will use the Leased
Premises solely for the Permitted Use and any other uses for which Tenant
obtains prior written consent from the Landlord, which consent shall not be
unreasonably withheld. Tenant will not cause or permit any waste or damage to
the Leased Premises or the Building and will not occupy or use the Leased
Premises for any business or purpose which is unlawful, hazardous, unsanitary,
noxious or offensive or which unreasonably interferes with the business
operations of other tenants in the Building. Tenant will comply with the Rules
and Regulations for the Building which are set forth in Exhibit D (and any
modifications thereto which are consistent with the provisions of this Lease).
Tenant will also have the non-exclusive right to use the common areas which
serve the Building, including, without limitation, the Building's common
lobbies, hallways, elevators, restrooms and parking areas.
Section 7. Compliance with Law. Landlord promises that Leased
Premises, as of the date of occupancy, are in compliance with all laws,
governmental requirements and recorded covenants or conditions in force at that
time. Following the date of occupancy, Landlord will be responsible for
complying with all laws, governmental requirements and recorded covenants or
conditions which are now or hereafter in force pertaining to the Leased
Premises, including, without limitation, the Americans with Disability Act of
1990, as amended, except that Tenant will at its sole expense comply with all
laws, governmental requirements and recorded covenants or conditions
necessitated solely by Tenant's specific use of the Leased Premises.
Section 8. Signs. Tenant will not place any sign or other
advertising material on the exterior or interior of the Leased Premises or the
Building, without the prior written consent of Landlord, which shall not be
unreasonably withheld. Landlord will at its expense provide Tenant with the
Building's standard graphics and signage for identification of Tenant on the
business
6
<PAGE> 11
directory, the elevator lobby and the entranceway to the Leased Premises.
Tenant shall also have the exclusive right to a sign on the exterior of the
Building, as provided in Exhibit G, attached hereto and incorporated by this
reference. Specifications and plans regarding Tenant's sign to be placed on
the exterior of the Building, including the size, shape and location of
Tenant's exterior sign, are included in Exhibit I, attached hereto and
incorporated by this reference.
Section 9. Leasehold Improvements.
(a) Base Building Improvements. Landlord has delivered and Tenant has
received a full set of final architectural and engineering drawings, plans,
specifications and finishes for the Base Building Improvements for the Building
and all related site improvements (collectively the "Base Building
Improvements"), which specifications are referenced in Exhibit J, "Building
Specifications Pizzuti Heathrow 500 Proposed Office Building." Tenant will
have until September 10, 1996 either to approve the same or to notify Landlord
of its specific objections to anything contained therein. In the event that
Landlord is unwilling to make changes to the plans and specifications for the
Base Building Improvements and Tenant finds that the Building, as it is to be
completed according to the plans and specifications, is not suitable for
Tenant's leasehold purposes, Tenant shall have the option to cancel and
terminate this Agreement within ten (10) days after such review.
(b) Landlord's Work. Landlord has delivered and Tenant has received
a full set of final architectural and engineering drawings, plans,
specifications and finishes for the improvements to the Leased Premises "Final
Landlord's Work Plans", which specifications are referenced in Exhibit J
"Building Specifications Pizzuti Heathrow 500 Proposed Office Building." The
work shown in the plans required to construct the improvements to the Base
Building and the Leased Premises prior to installation of any Tenant
Improvements, is referred to as "Landlord's Work". Landlord shall, at its
expense, promptly proceed with due diligence and continuity to perform the
Landlord's Work substantially in accordance with the plans and specifications
as such plans and specifications may be modified and amended from time to time.
(c) Tenant Improvements. Landlord will provide a tenant improvement
allowance of $18.00 per rentable square foot contained within the Leased
Premises for the design and construction of Tenant Improvements. For the
purposes of this Lease, the Tenant Improvements will be those interior
improvements to be made to the Leased Premises which are in addition to the
Base Building Improvements described in Section 9(a) and the Landlord's Work
described in Section 9(b). The tenant improvement allowance shall not include
a Landlord
7
<PAGE> 12
supervisor fee. Additionally, at least $15.00 per rentable square foot of the
tenant improvement allowance must be used for Tenant Improvements and design to
the Leased Premises. The remainder of the tenant improvement allowance may be
used by Tenant toward the cost of any Tenant Improvement, including, but not
limited to computer cabling, telephone cabling, or exterior building signage on
the Building. Notwithstanding any of the above, any portion of the tenant
improvement allowance which remains unused after the construction of the Tenant
Improvements, shall constitute a Rent Credit which shall be applied to the
monthly installments of Base Rent until exhausted.
Tenant has provided Landlord with Tenant's preliminary requirements
for the Leased Premises. Landlord has prepared and submitted to Tenant for its
review and approval preliminary specifications for the Tenant Improvements.
Tenant will have until September 10, 1996 either to approve the same or to
notify Landlord of its specific objections to anything contained therein. If
Tenant fails to respond to Landlord's submission of such preliminary
specifications by the above-mentioned date, Tenant will be deemed to have
approved such submission for all purposes of this Lease. If, however, Tenant
notifies Landlord of its objections, Landlord shall cause the specifications to
be modified to meet Tenant's objections and will then resubmit the modified
specifications to Tenant for its review and approval within ten (10) days after
receipt of Tenant's notice. Tenant will then have five (5) days to review such
resubmission. If Tenant fails to respond to Landlord's resubmission within the
aforementioned five day period, then Tenant will be deemed to have approved
such resubmission for all purposes of this Lease.
Once Landlord and Tenant have approved preliminary specifications for
such Tenant Improvements, Landlord will proceed with the preparation of the
final architectural and engineering drawings, plans and specifications for the
Tenant Improvements. Once those drawings, plans and specifications are
completed, which date shall be no later than October 11, 1996, unless any delay
is caused by Tenant, Landlord will deliver a full set thereof to Tenant for its
review and approval. Tenant's right to object to anything contained within
such final architectural and engineering drawings, plans and specifications
will be limited to any objections it may have which are premised solely upon
the fact that such drawings, plans and specifications are inconsistent with, or
not specified in, the previously approved preliminary specifications. Tenant
will notify Landlord within five (5) days after its receipt of such drawings,
plans and specifications of its approval thereof or its objections to anything
contained therein. After Tenant's receipt of such drawings, plans and
specifications, if Tenant fails to respond to Landlord's submission of such
drawings, plans and specifications within the five-day period, Tenant will be
deemed to have approved such submission for all purposes of this Lease. If,
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<PAGE> 13
however, Tenant notifies Landlord of its objections within the five-day period,
Landlord shall cause the drawings, plans and specifications to be modified to
meet Tenant's objections and then resubmit the modified drawings, plans and
specifications to Tenant for its review and approval within ten (10) days after
receipt of Tenant's notice or Landlord shall give notice that it refuses to
make such revisions. Tenant will then have five (5) days to review such
resubmission. The drawings, plans and specifications for the Tenant
Improvements, once approved by Tenant, will constitute the "Final Tenant
Improvements Plans" and will thereafter be deemed incorporated herein by this
reference.
Landlord will provide the full budgeted costs of Tenant Improvements
as a part of (a) Landlord's preliminary specifications for Tenant Improvements,
and (b) Landlord's final drawings, plans and specifications for Tenant
Improvements. If the cost of the construction of the Tenant Improvements, as
ultimately approved by Landlord and Tenant, exceeds the amount of the
aforementioned tenant improvement allowance, Landlord will send Tenant an
Excess Cost Notice detailing the amount of such excess cost, and provide the
excess funds required to construct the improvements to the Leased Premises and
the annual Base Rent payable by Tenant for each year during the Lease Term will
be increased by an amount equal to fifteen percent (15%) of such excess costs;
provided, however, that if the aforementioned costs exceed the tenant
improvement allowance by $5.00 per rentable square foot contained within the
Leased Premises, then Tenant will pay to Landlord, in cash prior to Landlord's
commencement of construction of the Tenant Improvements to the Leased Premises,
the portion of such excess costs which exceeds the $5.00 per rentable square
foot threshold mentioned above.
(d) Construction of Improvements. Landlord will cause the Base
Building Improvements, the Landlord's Work and the Tenant Improvements
(collectively the "Improvements") to be constructed in accordance with the
Final Base Building Plans, the Final Landlord Work Plans and the Final Tenant
Improvement Plans, (collectively, the "Final Plans"). Landlord acknowledges
that time is of the essence under this Lease and promises that, subject to the
occurrence of a Delay Event, it will complete all of the following construction
tasks by the targeted completion dates set forth below:
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<PAGE> 14
================================================================================
CONSTRUCTION OBLIGATION DATE FOR COMPLETION
- --------------------------------------------------------------------------------
1. Commencement of Construction of Base Done
Building Improvements.
2. Building is Weather-tight with Roof and November 15, 1996
Windows in Place.
3. Substantial Completion of all March 1, 1997
Improvements.
================================================================================
If Landlord fails to achieve either of the construction obligations
set forth as item #1 or item #2, above, within sixty (60) days after the
designated targeted date for the completion thereof, for any reason other than
the occurrence of a Delay Event, then at Tenant's option at any time thereafter
until completion, Tenant may terminate its obligations under this Lease by
delivering written notice of termination to Landlord within five days after the
expiration of the aforementioned sixty-day period.
In addition, if Landlord fails to achieve the construction obligation
set forth as item #3, above, by the designated targeted date for the completion
thereof, for any reason other than the occurrence of a Delay Event, then
Landlord will pay to Tenant as liquidated damages an amount equal to one
thousand dollars ($1,000.00) per day for the first ten days and one thousand
five hundred dollars ($1,500.00) per day for each day thereafter until the
Improvements are substantially completed, which amount the parties hereby agree
represents reasonable daily damages likely to be incurred by Tenant as a result
of such failure by Landlord and is not a penalty.
If Landlord has not achieved the construction obligation set forth as
item #3, above by June 1, 1997, for any reason other than the occurrence of a
Delay Event, then Tenant may terminate its obligations under this Lease by
delivering written notice of termination to Landlord on or before June 6, 1997.
Notwithstanding any of the above, if Landlord has not achieved the
construction obligation set forth as item #3, above, by September 1, 1997, for
any reason whatsoever, then Tenant shall have the right to terminate this Lease
upon written notice to Landlord on or before September 6, 1997 and Landlord and
Tenant shall thereupon be released from all obligations under this Lease.
Furthermore, in the event that Tenant's sublease to the Interim Space at 300
Lincoln Place terminates at any time prior to Landlord's delivery of the Leased
Premises to Tenant in
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<PAGE> 15
accordance with the terms of this Lease and the attached Exhibits, except as a
result of Tenant's default, Tenant may terminate its obligations under this
Lease by delivering written notice of termination of this Lease Agreement to
Landlord within five (5) days after such termination.
(e) Substantial Completion. For purposes of this Lease, the terms
"Substantial Completion", "Substantially Complete" and "Substantially
Completed" and the like shall mean the date when:
(i) The Tenant Improvements have been completed
(except for punchlist work which will not
substantially impair Tenant's ability to
conduct its business in the Leased Premises)
in accordance with the terms of the Lease;
and
(ii) Landlord has obtained a temporary certificate
of occupancy or comparable municipal
authorization; and
(iii) Landlord has delivered its written notification to
Tenant of the satisfaction of the foregoing
conditions.
(f) Delay Event. For the purpose of this Lease, the term "Delay
Event" shall mean the occurrence of any event beyond the reasonable control of
Landlord which results in a delay in its attempt to achieve any of the
construction obligations referred to above including, without limitation, the
occurrence of any of the following events:
(1) The adoption of any restrictive governmental law or
pronouncement, which has the effect of placing a
moratorium on or otherwise stopping the construction
of the Base Building Improvements or Tenant
Improvements.
(2) Acts of God;
(3) Unseasonable weather (as determined by standards of
"unseasonability" promulgated by the National
Oceanographic and Atmospheric Administration covering
Seminole County, Florida;
(4) Tenant's failure to approve or modify the preliminary
specifications for the Tenant Improvements by
September 10, 1996;
(5) Tenant's failure to approve the Final Tenant
Improvement Plans by October 18, 1996 (assuming
Landlord's initial delivery of the same to Tenant
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<PAGE> 16
for its approval by no later than October 11, 1996);
(6) Any Tenant-requested change to the Final Plans which,
in the reasonable judgments of Landlord's general
contractor and Tenant, will cause a delay in its
critical path of construction performance; and
(7) Failure, through no fault of Landlord or its
contractors, of Seminole County authorities to grant
all requisite building permits by November 29, 1996
(assuming Landlord's initial delivery to such
authorities of all materials required for the
issuance of any such permits by October 21, 1996).
Upon the occurrence of any Delay Event (assuming neither Landlord, nor
its general Contractor has created any independent delay or concurrent delay to
such Delay Event) the targeted date for the achievement of the aforementioned
construction obligations will be extended by the number of days equal to the
number of days of delay caused by the occurrence of such Delay Event, which
have been shown by Landlord's general contractor to have delayed the
Contractor's critical path of construction performance. Notwithstanding
anything to the contrary contained in this Lease, if Substantial Completion of
the Improvements is delayed beyond March 1, 1997 as a result of the occurrence
of any Tenant-caused Delay Event (meaning any of those Delay Events specified
in subparagraphs 4, 5 or 6 of this Section 9(f), then the Commencement Date of
the Lease Term will be deemed to be April 1, 1997, and from and after such
date, Tenant will be obligated to pay Base Rent and all Excess Expense payments
and otherwise perform all of its other obligations and duties set forth in this
Lease.
(g) Punchlist Items. As soon as reasonably practicable after the date
of the substantial completion of the Improvements, Landlord and Tenant will
make a joint inspection of the Property for the purpose of determining any
construction work which is in need of correction or completion (collectively,
"Punchlist Items"). Tenant will submit a written listing of such Punchlist
Items to Landlord within ten (10) days after Landlord's and Tenant's joint
inspection of the Building, and Landlord will thereafter complete all such
Punchlist Items to the reasonable satisfaction of Tenant within thirty (30)
days after its receipt of such listing from Tenant; provided, however, that if
the repair, replacement or completion of any such Punchlist Item is not
reasonably capable of being effected within such thirty-day period, then
Landlord will be obligated to commence the repair, replacement or completion of
such Punchlist Item within the aforementioned thirty-day period and at all
times thereafter diligently pursue the same to completion.
12
<PAGE> 17
(h) Certification of Space. Promptly following the Substantial
Completion of the Base Building Improvements and Tenant Improvements,
Landlord's architect will certify the square footage for the following areas
according to BOMA standards as modified in accordance with the provisions in
the Lease Summary: (a) the rentable square footage within the Leased Premises,
(b) the usable square footage within the Leased Premises, (c) the rentable
square footage of the Building, and (d) the usable square footage of the
Building. If the certified square footage for the above-listed areas, as
measured in accordance with BOMA standards as modified in accordance with the
provisions of the Lease Summary, is determined to be less than the square
footage designated in the Final Plans following the preparation and approval of
the Final Landlord's Work Plans and the Final Tenant Improvement Plans as a
result of the failure of the Landlord's Work Improvements and Tenant
Improvements to comply with the Final Landlord's Work Plans and Final Tenant
Improvement Plans, then for all purposes of this Lease, the certified square
footage for the areas listed above shall be deemed to be the actual square
footage for these areas and the rentable areas of the Building and the Leased
Premises, the Base Rent, the Base Expenses, Tenant's Proportionate Share, and
the Excess Expenses (as set forth in Sections F, G, L, M, N, and P of the Lease
Summary and Sections 1 and 2 of the Lease Agreement) will be adjusted
accordingly.
Section 10. Alterations. Following the completion of Punchlist
Items, Tenant will not at any time prior to or during the Lease Term make any
alterations, additions or improvements to the Leased Premises (except for minor
alterations, additions or improvements costing less than $500.00, which do not
effect the exterior aesthetics or structural integrity of the Building or the
Leased Premises) without the prior written consent of Landlord, which shall not
be unreasonably withheld. If Landlord consents to any proposed alteration,
addition or improvement, the same shall be made by Landlord at Tenant's sole
expense. If required by Landlord, any such alterations, additions or
improvements will be removed by Tenant upon the expiration of the Lease Term.
Tenant will repair any damage to the Leased Premises caused by such removal.
Section 11. Mechanics Liens. Tenant will indemnify and hold
Landlord harmless from any liability or expense associated with Tenant's
construction of any alteration, addition or improvement to the Leased Premises,
except as provided in Section 9, above. In particular, Tenant will execute and
record an appropriate notice of commencement pursuant to Chapter 713, Florida
Statutes, identifying Tenant's interest in the Leased Premises as a leasehold
interest only. Tenant will immediately discharge or post bond for any
mechanics lien filed against the Leased Premises or the Building in connection
with any work performed by Tenant. Notwithstanding the foregoing, Tenant shall
not be
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<PAGE> 18
required immediately to discharge or to post bond hereunder so long as Tenant
is diligently defending such lien and so long as the lien is not capable of
levy.
Section 12. Assignment and Subletting. Tenant will not assign
this Lease or sublet all or any part of the Leased Premises without the prior
written consent of Landlord, which shall not be unreasonably withheld. Unless
otherwise agreed to by Landlord. Landlord's consent to any such assignment or
sublease will not relieve Tenant from its obligations under this Lease.
Section 13. Subordination. Tenant's rights and interest under
this Lease are subordinate to all mortgages and other encumbrances now or
hereafter affecting any portion of the Building. In the event of the
foreclosure of any mortgage or other encumbrance, Tenant will, upon request of
any person succeeding to the interest of Landlord, attorn to and become the
tenant of such successor in interest without change in the terms or conditions
of this Lease; provided, however, that Tenant's agreement to subordinate the
Lease to any mortgages or deeds to secure debt, hereafter placed on or against
the Building is conditioned upon Landlord's delivery to Tenant of a
subordination, non-disturbance and attornment agreement executed by the holder
of such mortgage and deed to secure debt, pursuant to which such holder shall
agree that Tenant's possession of the Leased Premises pursuant to the terms of
this Lease shall not be disturbed so long as there are no Events of Default
under this Lease. Within ninety (90) days of execution of this Lease, Landlord
shall deliver to Tenant, Landlord's standard non-disturbance, subordination and
attornment agreement executed by the current holder of Landlord's deed to
secure debt, a copy of which has been previously provided to Tenant. Such
successor in interest shall not be liable for any act or omission of any prior
landlord or subject to any offsets or defenses which Tenant may have against
any such prior landlord. Within ten days after its receipt of Landlord's
request therefor, Tenant will execute and deliver to Landlord a certificate
confirming such subordination and attornment and setting forth the current
status and facts related to this Lease and Tenant's occupancy of the Leased
Premises. Tenant may not terminate this Lease because of any default by
Landlord, unless Tenant first gives written notice of the alleged default to
any mortgagee of Landlord whose name and address have been provided to Tenant,
and such mortgagee fails to cure such default within 30 days after its receipt
of such written notice.
Section 14. Limitation of Landlord's Personal Liability. Tenant
will look solely to Landlord's interest in the Leased Premises and the Building
for the recovery of any judgment against Landlord; it being the express intent
of the parties hereto that neither Landlord, nor any of its partners will ever
be personally liable for any such judgment.
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<PAGE> 19
Section 15. Indemnification and Insurance. Subject to insurance
held by Landlord, Landlord will not be liable for and Tenant hereby releases
Landlord from any liability (other than that caused by or otherwise resulting
from Landlord's fault or negligence) or expense associated with any damage or
injury to any person or property (including any person or property of Tenant or
anyone claiming under Tenant) which arises directly or indirectly in connection
with the Leased Premises or Tenant's use or occupancy of the Leased Premises or
any common areas serving the Building. Tenant will indemnify and hold Landlord
harmless from any of the above-described liabilities and expenses; provided,
however, that Tenant will not be obligated to indemnify Landlord as to any
liability or expense occasioned by the fault or negligence of Landlord.
All property stored or placed by Tenant in or about the Leased
Premises will be so stored or placed at the sole risk of Tenant. Tenant will
at its sole expense maintain in full force and effect at all times during the
Lease Term: (a) comprehensive public liability insurance for personal injury
and property damage with liability of not less than $1,000,000 for injury to
one person, $2,000,000 for injury from one occurrence and $500,000 for property
damage; and (b) extended coverage insurance on all property stored or placed by
Tenant in or about the Leased Premises in an amount equal to the full
replacement value thereof. Each insurance policy required to be maintained by
Tenant hereunder will name Landlord as an additional insured and will
specifically provided that such insurance policy cannot be terminated without
giving at least 30 days prior written notice to Landlord.
Section 16. Waiver of Subrogation. Landlord and Tenant each
hereby waives its right to receive damages against the other party with respect
to any loss or claim occasioned by the occurrence of any casualty to the
Building or the Leased Premises which is covered under a valid and collectible
fire and extended coverage insurance policy. Any insurance policy procured by
either Tenant or Landlord hereunder will contain an express waiver of any right
of subrogation by the insurance company against Landlord or Tenant, as the case
may be.
Section 17. Hazardous Substance. Tenant will not use, store or
dispose of any "hazardous substance", "hazardous material" or "toxic substance"
(as those terms are defined or used in the context of Comprehensive
Environmental Response, Compensation and Liability Act or any other federal,
state or local environmental law, regulation or requirement) on or about the
Leased Premises, except for immaterial amounts that are exempt from or do not
give rise to any violation of applicable law. Tenant will indemnify and hold
Landlord harmless from any liability or expense (including, without limitation,
reasonable attorney's fees and expenses, court costs, expenses and costs
incurred in the
15
<PAGE> 20
investigation, settlement and defense of claims and any cost or expense
incurred in connection with any environmental clean-up) incurred by or claimed
against Landlord as a result of Tenant's breach of the covenant contained in
this section. The foregoing indemnification (as well as the indemnification
set forth in Section 15 of this Lease) will survive the expiration or sooner
termination of the Lease Term.
Section 18. Surrender of Premises. Upon the termination of
Tenant's right of possession under this Lease, Tenant will immediately
surrender possession of the Leased Premises to Landlord in good repair and
"broom clean" condition, reasonable wear and tear expected. Tenant will at the
same time remove all of its trade fixtures from the Leased Premises, as well as
any alterations, additions or improvements designated by Landlord (other than
those improvements constructed by Landlord pursuant to Sections 9, and 10).
Tenant will promptly repair any damage caused to the Leased Premises by the
removal of any of such property.
Section 19. Security Interest. Landlord has no security interest
in any of Tenant's personal property (both tangible and intangible) which may
from time to time be located on or about the Leased Premises or used in
connection with the business conducted by Tenant at the Leased Premises.
Section 20. Casualty. If the Leased Premises is damaged by fire
or other casualty, the Landlord will promptly give written notice to Tenant
whether the damages area can reasonably be repaired within 180 days after the
date on which all requisite permits and licenses for the repair thereof are
obtained from the appropriate governmental authorities. If Landlord notifies
Tenant that it does not believe that the damaged area can reasonably be
repaired within such 180-day period, then both Landlord and Tenant will have
the option of terminating this Lease by giving written notice thereof to the
other at any time within 30 days after the date of Tenant's receipt of the
aforementioned notice from Landlord. If Landlord determines that the damaged
area can reasonably be repaired within such 180-day period or if neither party
elects to terminate this Lease despite the fact that Landlord has determined
that the damaged area cannot be reasonably repaired within such 180-day period,
then Landlord will proceed to repair the damages area at its sole expense. If
the Leased Premises are rendered untenantable in whole or in part as a result
of a fire or other casualty which was not caused by Tenant, then all rent and
other payments accruing after the occurrence of any such fire or other casualty
and prior to the completion of the repair of the Leased Premises will be
equitably and proportionately abated to reflect the untenantable portion of the
Leased Premises. Landlord will not be liable to Tenant for any inconvenience
or interruption to Tenant's business occasioned
16
<PAGE> 21
by such fire or other casualty or the concomitant repair of the damaged area.
Section 21. Condemnation. If any portion of the Leased Premises
or the Building is taken by or under threat of condemnation so as to render as
much as one-third of the Leased Premises wholly untenantable, then this Lease
will automatically terminate as of the date of the vesting to title to such
property in the condemning authority. Landlord will be entitled to receive the
entire award made by the condemning authority for any such taking. Landlord
will promptly notify Tenant of the institution of any condemnation proceeding
affecting the Leased Premises.
Section 22. Holding Over. Tenant will not hold over in its
occupancy of the Leased Premises after the expiration of the Lease Term without
the prior written consent of Landlord. If Tenant holds over without the prior
written consent of Landlord, then Tenant will pay one hundred fifty percent
(150%) of the Base Rent then in effect for each month during the entire
holdover term. Any holding over or without with the consent of Landlord will
constitute this Lease as a lease from month-to-month.
Section 23. Default. If Tenant fails to pay any installment of
Base Rent or any other sum payable by it hereunder within ten days within ten
(10) days after receiving notice of Landlord's non-receipt of such payment, or
if Tenant defaults in the performance of any of its other obligations under
this Lease and such default continues for 30 days after written notice thereof
is received by Tenant, then, in addition to any other legal rights and remedies
available to Landlord at law or in equity, Landlord may: (a) terminate
Tenant's right of possession under this Lease; or (b) reenter and attempt to
relet the Leased Premises without terminating this Lease, in which event Tenant
will remain obligated to pay to Landlord any deficiency between all sums
payable by Tenant pursuant to this Lease and any sums collected by Landlord
from any reletting of the Leased Premises (net of any sums paid by Landlord in
connection with such reletting, including, without limitation, leasing
commissions, attorneys' fees and costs of improvements to the Leased Premises).
Landlord may collect any amounts payable to it pursuant to this paragraph by
any lawful means, including, without limitation, the sale by public or private
sale of all of Tenant's personal property in which Landlord has a security
interest. In the event that Landlord terminates Tenant's possession of the
Leased Premises, Landlord has an obligation to make its best efforts to relet
the Leased Premises.
Section 24. Prevailing Party's Fees. If any legal action is
commenced by either Landlord or Tenant, to enforce its rights hereunder, then
all attorney's fees, paralegal fees and other expenses incurred by the
prevailing party in such action shall be promptly paid by the non-prevailing
party.
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<PAGE> 22
Section 25. Successors and Assigns. This Lease shall be binding
upon and inure to the benefit of the successors and assigns of Landlord and the
successors and permitted assigns of Tenant.
Section 26. No Waiver. No waiver of any covenant or condition of
this Lease by either party will be deemed to constitute a future waiver of the
same or any other covenant or condition of this Lease. In order to be
effective, any such waiver must be in writing and must be delivered to the
other party to this Lease.
Section 27. Brokerage Commissions. Each of Landlord and Tenant
hereby represents and warrants that it has not dealt or consulted with any real
estate broker or agent in connection with this Lease other than those real
estate brokers and agents specifically identified in the Agency Disclosure
Statement attached hereto as Exhibit F. Each of Landlord and Tenant agrees to
indemnify and hold the other harmless from and against any liability or expense
occasioned by a breach of the foregoing representation.
Section 28. Relocation. Landlord will have no right to relocate
Tenant to other space in the Building.
Section 29. Reasonableness of Consent. Landlord shall not
unreasonably withhold any consent or approval which is required to be given by
it pursuant to the terms of this Lease.
Section 30. Amendment. This Lease may not be amended except by a
written instrument signed by both Landlord and Tenant.
Section 31. Governing Law. This Lease will be governed by and
construed in accordance with the laws of the State of Florida.
Section 32. Notices. All notices required or permitted under
this Lease must be in writing and must be delivered to Landlord and Tenant at
their addresses set forth in the Lease Summary (or such other address as may
hereafter be designated by such party). Any such notice must be personally
delivered or sent by either registered or certified mail or overnight courier.
Section 33. Security Deposit. Concurrently with its execution of
this Lease, Tenant has deposited with Landlord a Security Deposit in the amount
identified in the Lease Summary, which will be applied to the first month's
Base Rent.
Section 34. Special Terms. Exhibit G sets forth those special
provisions, if any, which supplement the provisions of this Lease.
[Signatures and Acknowledgements Appear on Next Page]
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<PAGE> 23
SIGNATURES AND ACKNOWLEDGEMENTS
Landlord and Tenant have executed this Lease as of the date specified in the
Lease Summary.
Signed and acknowledged
in the presence of: LANDLORD:
500 INTERNATIONAL PARKWAY
DEVELOPMENT COMPANY
/s/ Nova S. Witte By Pizzuti Management Inc.
/s/ Kellie Silver By /s/ Richard C. Daley VP
-------------------------------
(Name) (Title)
TENANT:
PHOENIX INTERNATIONAL LTD., INC.
/s/ Clay Scarborough By /s/ Bahram Yusefzadeh CEO
-------------------------------
(Name) (Title)
STATE OF Ohio )
COUNTY OF Franklin ): SS
Before me, a notary public in and for said state and county, personally
appeared Richard C. Daley, the Vice President of Pizzuti Management Inc., the
managing agent of 500 International Parkway Development Company, the Landlord
in the foregoing Lease.
Date: 9/12/96 /s/ Nova S. Witte
------------------------------
Notary Public
STATE OF Florida )
COUNTY OF Orange ): SS
Before me, a notary public in and for said state and county,
personally appeared Bahram Yusefzadeh, the CEO of Phoenix International Ltd.,
Inc., the Tenant in the foregoing Lease, who acknowledged the signing of the
Lease to be his free act and deed no behalf of Tenant.
Date: 9/9/96 /s/ Maria M. Garcia
------------------------------
Notary Public
19
<PAGE> 24
EXHIBIT A
DESCRIPTION OF LEASED PREMISES
Initialed and Approved by Tenant:
_________________________________
<PAGE> 25
EXHIBIT B
BASE RENT SCHEDULE
The monthly Base Rent payable to Tenant during the Lease Term will be as set
forth in the following schedule:
<TABLE>
<CAPTION> Per Rentable
Lease Period Square Foot Base Rent Monthly Base Rent
- ------------ --------------------- -----------------
<S> <C> <C>
Lease Year 1 18.50 57,441
Lease Year 2 18.75 58,217
Lease Year 3 19.00 58,933
Lease Year 4 19.25 59,770
Lease Year 5 19.50 60,546
Lease Year 6 20.00 62,098
Lease Year 7 20.25 62,875
Lease Year 8 20.50 63,651
Lease Year 9 20.75 64,427
Lease Year 10 21.00 65,203
</TABLE>
The total monthly payment due from Tenant during the first year of the Lease
Term will be $61,461.87 (consisting of Base Rent of $57,441 and sales tax
thereon of $4,020.87). For the purposes of this Lease, all references to a
"Lease Year" will mean each successive twelve month period during the Lease
Term, with the first such twelve month period beginning on the Commencement
Date.
Initialed and Approved by Tenant:
_________________________________
Notwithstanding the foregoing, after Lease Year 1 of the Lease, the per
rentable square foot Base Rent shall be the lesser of the amount shown above or
the prior year's rent multiplied by the Consumer Price Index Adjustment ("CPI
Adjustment") as defined herein. The CPI Adjustment for any Lease Year shall be
a fraction, the numerator of which shall be the average CPI for the twelve (12)
months ending with the Commencement Date anniversary immediately preceding such
Lease Year and the denominator of which shall be the average CPI for the twelve
(12) months ending with the Commencement Date or Commencement Date anniversary
before the Commencement Date anniversary immediately preceding such Lease Year.
The term "CPI" as used in this Lease shall mean the Consumer Price Index for
All Urban Consumers in the Central Florida Area (or any reconstituted
geographic area covering the Central Florida Area), published by the United
States Department of Labor, Bureau of Statistics.
For example, if the Commencement Date is April 1, 1997, the Base Rent
for Lease Year 2 (from April 1, 1998 to March 31, 1999) shall be
calculated as follows:
<PAGE> 26
If (1) the average CPI for the 12 months prior to April 1, 1998 was
132.2, and (2) the average CPI for the 12 months prior to April 1,
1997 was 129.6, then (1) the CPI Adjustment would be 1.02, (2) the CPI
Adjustment would be multiplied by the Year 1 Rent ($57,411.00) to get
a total of $58,559.22, and (3) because $58,559.22 is greater than the
$58,217.00 listed on this Exhibit B Rent Schedule for Year 2, the
Base Rent for Year 2 would be $58,217.00.
In the event the federal government changes the publication frequency of the
CPI so that the CPI is not available to make a CPI Adjustment of annual rent,
the CPI Adjustment shall be based on the percentage difference between the CPI
for the closest preceding month for which a CPI is available and the CPI for
the last anniversary of the Commencement Date. If the issuance of the CPI by
the federal government is discontinued, the Landlord shall use for the CPI the
official index published by a federal governmental agency which is most nearly
equivalent to the CPI. If no such index is available, then Landlord shall use
such index or procedure which reasonably reflects national average of increases
or decreases in consumer prices. If the rental payments determined pursuant to
this Exhibit B exceed that allowed by the terms of any valid governmental
restriction which limits the amount of rent or if the rental payments described
pursuant to this Exhibit B exceed any limitation otherwise imposed by this
Lease, the amount of rent or other payments shall be the maximum permitted by
such governmental restriction and by such limitation; however, all increases or
decreases in rent or other payments provided in this Lease shall be calculated
thereafter based upon the amount of the rent which would have been payable
under the Lease as if such government restriction or other limitation had not
limited the rent payable under the terms of this Lease. Notwithstanding the
above, the increase in per rentable square foot base rent from Year 5 to Year 6
shall be $.50, regardless of any increase in the CPI.
<PAGE> 27
EXHIBIT C
OPERATING EXPENSES
For purposes of this Lease, the term "Operating Expenses" shall mean all
reasonable expenses, costs and disbursements computed on the accrual basis in
accordance with generally accepted accounting principles, relating to or
incurred or paid in connection with the operation, maintenance and repair of
the Building and Property, including, but not limited to the following:
1. Costs of maintaining and repairing (but not replacing) the Building
and all common areas serving the Building;
2. The cost of providing janitorial services to the Building;
3. The cost of providing security for the Building;
4. Real estate taxes and assessments (excluding any penalties and
interest) on the Building; including, without limitation, any
assessments imposed by any property owner's association;
5. Insurance premiums for insurance for the Building and Property
required to be maintained by Landlord hereunder or which a prudent
owner would carry, including, but not limited to, premiums for
liability insurance, business interruption insurance, rental abatement
insurance, and garage-keeper's insurance;
6. Costs related to the provision of utility services to the Building,
including the cost of water, sewer, gas, heating, lighting,
ventilation, electricity, air conditioning, and any other utilities
supplied or paid for by Landlord for the Building and Property and the
costs of maintaining the systems supplying the same;
7. Properly allocated salaries and related costs (including fringe
benefits, payroll taxes and a labor overhead charge of not more than
15%) of personnel spending time directly associated with the
operation, management and maintenance of the Building, including,
without limitation, those paid to any on-site assistant property
management or maintenance personnel;
8. A reasonable property management fee (not to exceed four percent (4%)
of gross Building revenue);
9. A reasonable contingency/replacement reserve;
10. The cost of any cost-saving utility devices installed in the Building,
which are primarily for the purpose of reducing operating expenses;
provided that any such cost that is required to be capitalized in
accordance with generally accepted accounting principles shall be
amortized over the
<PAGE> 28
useful life thereof, and only the portion of such amortization falling
in any calendar year shall be included in Operating Expenses for that
year;
11. The cost of any Building improvement which are incurred in securing
Building compliance (not Leased Premises compliance) with new or
revised federal or state laws or municipal or county ordinances or
codes or regulations promulgated under any of the same; provided that
any such cost that is required to be capitalized in accordance with
generally accepted accounting principles shall be amortized over the
useful life thereof, and only the portion of such amortization falling
in any calendar year shall be included in Operating Expenses;
12. Properly allocated routine accounting, legal and other professional
services rendered in connection with the operation, management and
maintenance of the Building and incurred for the benefit of the entire
Building (such as challenging taxes, but not such as in regard to
other tenants, prospective tenants, or ownership disputes); and
13. All other costs related to the operation, management and maintenance
of the Building which are considered to be operating expenses under
generally accepted accounting principles.
Notwithstanding the foregoing, the following expenses are excluded from the
definition of "Operating Expenses."
1. Landlord's debt service on any financing related to the Building
including payments of principal and interest on debt or amortization
payments on any mortgage, including any costs associated with any
refinancing of the Building and rental or any other payments under any
ground lease or other underlying lease, except as may be permitted
pursuant to this Section and except to the extent a portion of such
rental payments represent the payment of taxes of insurance
specifically permitted to be included in Operating Expenses hereunder;
2. Franchise or income taxes payable by Landlord;
3. Salaries and related costs of Landlord's off site administrative
personnel;
4. Cost of all tenant improvements;
5. Leasing commissions;
6. Attorney's fees incurred by Landlord in prosecuting any eviction or
other legal action against any tenant in the Building; and
7. All costs and expenses which are considered to be capital expenditures
under generally accepted accounting principles
<PAGE> 29
(other than those specifically included within the definition of
"Operating Expenses" in this Exhibit C).
8. Services performed by Landlord specifically for other tenants in the
Building to the extent such work or services are in excess of Building
standard services and any compensation paid to clerks, attendants, or
other persons in commercial concessions (i.e., concession in which the
customer directly pays for the provision of goods or services)
operated by Landlord;
9. Fines or penalties resulting from violation of laws, rules or
regulations and any interest costs associated therewith, unless such
fines, penalties or late charges are due to an act of Tenant or
Tenant's failure to timely pay any amounts due under this Lease;
10. Cost of correcting defects in initial construction of the Building or
any structural change in the Building (except normal wear and tear);
11. Services or materials (or, if separately allocated, overhead and
profit) (except as provided for in this Lease) of a related person or
entity of Landlord to the extent the amount charged by such related
person or entity exceeds the competitive amount payable for comparable
services or materials of comparable quality provided by unrelated
persons or entities of high class appropriate to the prudent operation
of a first-class office building such as the Building;
12. Damages or costs or expenses paid or payable by Landlord in connection
with claims, actions or counterclaims as a result of Landlord's gross
negligence or willful malfeasance or willful misfeasance;
13. Legal fees, space planners' fees, real estate brokers' leasing
commissions, and advertising and promotional expenses incurred in
connection with the original development or original leasing of the
Building or future leasing of the Building or any promotion of the
Building (except a building newsletter), professional fees incurred in
connection with negotiating any leases in the Building and resolving
any disputes with or amount tenants in the Building, and any other
expenses incurred in connection with leasing space in the Building and
the costs of alterations or improvements to other space in the
Building which are not available for all tenants of the Building;
14. Any bad debt loss, rent loss, or reserves for bad debts or rent loss;
15. Costs related to the operation of 500 International Parkway
Development Company (or any successor thereto as Landlord), as the
same are distinguished from the costs of operation and
<PAGE> 30
maintenance of the Building and its supporting facilities, including,
without limitation, Landlord's accounting and legal fees, costs of
defending any lawsuits with any mortgage (except as the actions of
Tenant may be at issue), direct costs of selling, syndicating,
financing, mortgaging or hypothecating any of Landlord's interest in
the Building, costs of any disputes between Landlord and its employees
(if any) not engaged in the management, operation or maintenance of
the Building, or disputes of Landlord with the Building management
(unless such disputes arise out of or in relation to this Lease);
16. Costs and expenses relating to the acquisition, or replacement of
sculptures, paintings, tapestries or other objects of art (normal
cleaning, maintenance and replacement of light fixtures excepted);
17. Any costs or expenses relating to asbestos removal or encapsulation or
any fines, costs, expenses or damages relating to any violation of any
environmental law in effect as of the date of installation of the
substance violating such law (as the same are distinguished from
expenses incurred in complying with any environmental laws), unless
the condition giving rise to such violation or fine arose out of, or
is caused by, acts or omissions of Tenant, its employees, contractors
or agents;
18. Depreciation on the Building, costs of tenants' improvements, real
estate brokers' commissions, advertising costs, costs associated
exclusively with leasable retail areas, interest and capital items
other than those capital items referred to in this Exhibit C, salaries
of executives above the grade of Vice President of property
management, or the cost of any item reimbursed by insurance; and
19. Any costs not also charged to any other tenant of the Building.
All Operating Expenses shall be computed for each calendar year during the
Lease Term based upon the accrual method of accounting. If the Building is
ever less than 100% occupied, then Operating Expenses shall be calculated as if
the Building had been 100% occupied and the results shall constitute Landlord's
Operating Expenses for such calendar year for all purposes of this Lease.
Operating Expenses set forth at items 2, 3, 7, 8, 9 and 12 (which are deemed to
be controllable by Landlord) above, shall be limited to the lesser of actual
cost or a five percent (5%) increase annually.
Initialed and Approved by Tenant
________________________________
<PAGE> 31
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice visible from
outside the Premises shall be installed or displayed on any part of
the outside or inside of the Building without the prior written
consent of Landlord. Landlord shall have the right to remove, at
Tenant's expense, any sign installed or displayed in violation of this
rule. All approved signs or lettering on doors and walls shall be
printed, painted, affixed or inscribed at the expense of Tenant by a
person chosen by Landlord, using materials of Landlord's choice and in
a style and format approved by Landlord.
2. Tenant must use Landlord's blinds in all exterior and atrium window
offices. No awning shall be permitted on any part of the Premises.
Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exists,
entrances, elevators, escalators or stairways of the Building. The
halls, passages, exists, entrances, shopping malls, elevators,
escalators and stairways are not for the general public, and Landlord
shall in all cases retain the right to control and prevent access
thereto of all persons whose presence in the judgment of Landlord
would be prejudicial to the safety, character, reputation and
interests of the Building and its tenants; provided that nothing
herein contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No
tenant and no employee or invitee of any tenant shall go upon the roof
of the Building.
4. The directory of the Building will be provided by Landlord and shall
consist exclusively of the display of the name and location of tenants
only; Landlord reserves the right to exclude any other names
therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those
approved by Landlord shall be employed by Tenant or permitted to enter
the Building for the purpose of cleaning the same. Landlord shall not
in any way be responsible to any Tenant for any loss of property on
the Premises, however, occurring, or for any damage to any Tenant's
property by any employee or any other person.
<PAGE> 32
6. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge or
any additional keys. Tenant shall not make or have made additional
keys, and Tenant shall not alter any lock or install a new additional
lock or bolt on any door of its Premises. Tenant, upon the
termination of its tenancy, shall deliver to Landlord the keys of all
doors which have been furnished to Tenant, and in the event of loss of
any keys so furnished, shall pay Landlord therefore. Notwithstanding
the above provisions, Tenant may install and operate a separate
security system.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions for installation.
8. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials,
furniture, packages, supplies, merchandise or other property will be
received in the Building or carried in the elevators except between
such hours and in such elevators as may be designated by Landlord.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. Landlord shall have the right to
prescribe the weight, size and position of all equipment, materials,
furniture or other property brought into the Building. Heavy objects,
if such objects are considered necessary by Tenant, as determined by
Landlord, shall stand on such platforms as determined by Landlord to
be necessary to properly distribute the weight. Business machines and
mechanical that may be transmitted to the structure of the Building or
to any space therein to such degree as to be objectionable to Landlord
or to any tenants in the Building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to
move such equipment in or out of the Building must be acceptable to
Landlord. Landlord will not be responsible for loss of, or damage to,
any such equipment or other property from any cause, and all damage
done to the Building by maintaining or moving such equipment or other
property shall be repaired at the expenses of the Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office
equipment. Tenant shall not use or permit to be used in the Premises
any foul or noxious gas or substance, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors,
<PAGE> 33
vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other
than supplied by Landlord.
12. Tenant shall not waste electricity, water, or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's hearing, air conditioning, and lighting to
comply with governmental energy saving rules, laws or regulations of
which Tenant has actual notice, and shall refrain from attempting to
adjust control. Tenant shall keep corridor doors closed.
13. Landlord reserves the right, exercisable without liability to Tenant,
to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the Building between the
hours of 8 p.m. and 7 a.m. the following day, or such other hours as
may be established from time to time by Landlord, and on Sundays and
legal holidays, any person unless that person is known to the person
or employee in charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Tenant shall pay the cost of replacing any security cards
provided by Landlord. Landlord shall not be liable for damages for
any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access
to the Building in case of invasion, mob, riot, public excitement or
other commotion by closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus before Tenant and
its employees leave the Premises. Tenant shall be responsible for any
damage or injuries sustained by other tenants or occupants of the
Building or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except at such hours and
under such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the tenant
who, or whose employees, shall have caused it.
<PAGE> 34
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall
not make any room-to-room solicitation of business from other tenants
in the Building. Tenant shall not use the Premises for any business
or activity other than that specifically provided in Tenant's Lease.
19. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant
shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
20. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any deface the Premises or any
part thereof, except to install normal wall hangings. Landlord
reserves the right to direct electricians as to where and how
telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix
any floor covering to the floor of the Premises in any manner except
as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
21. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and
each tenant shall cooperate to prevent same.
23. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the
Rules and Regulations of the Building.
24. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material
which cannot be disposed of in the ordinary and customary manner of
trash and garbage disposal. All garbage and refuse disposal shall be
made in accordance with directions issued from time to time by
Landlord.
25. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or
objectionable purpose. No cooking shall be done or permitted by any
tenant on the Premises, except that use by Tenant of Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate
and similar beverages shall be permitted, and the use of microwave
shall
<PAGE> 35
be permitted, provided that such equipment and its use is in
accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations.
26. Tenant shall not use in any space or in the public halls of the
Building any hand trucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into
the Building.
27. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. Tenant assumes any responsibility for keeping door locked and other
means of entry to the Premises closed.
30. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from
landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
31. In the event Tenant fails to deliver to Landlord its keys to the
Premises upon termination of Tenant's right to possession under the
Lease, or Tenant's vacating of the Premises, the cost of replacing the
locks and keys shall be borne by Tenant.
32. Bicycles, motorbikes and motorcycles are prohibited within the
Building and must be kept in designated parking areas.
33. No pets or other animals of any type whatsoever are permitted in the
Building at any time.
34. Landlord agrees to enforce rules and regulations against all tenants
in the Building consistently and equally. Landlord shall not require
Tenant to observe and comply with the rules and regulations and shall
not enforce the rules and regulations against Tenant which are not
also enforced against all other tenants in the Building.
35. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of premises
in the Building.
<PAGE> 36
36. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed
for safety and security, for care and cleanliness of the Building and
for the preservation of good order therein. Tenant agrees to abide by
all such Rules and Regulations hereinabove stated.
37. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees and agents.
Initialed and Approved by Tenant
________________________________
<PAGE> 37
EXHIBIT E
JANITORIAL SPECIFICATIONS
<PAGE> 38
EXHIBIT F
AGENCY DISCLOSURE STATEMENT
The following are the only real estate agents and brokers involved in the
leasing transition between Landlord and Tenant:
Pizzuti Realty of Florida Inc. - Representative of Landlord - whose
commission is to be paid by Landlord.
Properties Atlantic, Inc. - Representative of Tenant - whose commission
is to be paid by Landlord pursuant to a separate written agreement
Initialed and Approved by Tenant:
_________________________________
<PAGE> 39
EXHIBIT G
SPECIAL TERMS
The following special terms modify and supplement the provisions of the Lease
Agreement between Landlord and Tenant. All capitalized terms used but not
defined in this Exhibit G will have the meanings attributed thereto in the
Lease Agreement.
1. Parking. During the Lease Term, Landlord will provide Tenant with four
parking spaces for every 1,000 square feet of rentable space contained within
the Leased Premises, of which five will be reserved parking spaces to be
located where indicated on Exhibit K, attached hereto and incorporated by this
reference.
2. Rights of First Refusal and Rights of First Offer. Notwithstanding
anything to the contrary, Tenant has the following rights of first refusal,
which rights commence at the execution of this Lease:
(a) Right of First Refusal and Right of First Offer on 500
International Parkway Building. At all times prior to the Commencement Date of
the Lease for Seagate Software Management Group at 400 International Parkway
("Seagate Commencement Date"), Tenant will have the right to expand its Leased
Premises by leasing that portion of the south half of the first floor of the
Building which has not been leased to any other party (following expiration of
Tenant's right of first refusal under the next paragraph of this Section
2(a))("500 Expansion Space"). Tenant may exercise this expansion right by
giving written notice of its intent to lease the 500 Expansion Space at any
time prior to the Seagate Commencement Date. If Landlord receives Tenant's
written notice of its exercise of such expansion right by or before the Seagate
Commencement Date, then Landlord and Tenant will enter into an addendum to this
Lease, which sets forth the terms and conditions of Tenant's leasing of the 500
Expansion Space, which terms and conditions with be identical to those set
forth in this Lease as it relates to the Leased Premises, except that the
commencement date of Tenant's leasing of the 500 Expansion Space will be
October 1, 1997. Base Rent payable by Tenant during the Term of its leasing of
the 500 Expansion Space will be the same as set forth in this Lease with
respect to the Leased Premises for the same calendar periods. Notwithstanding
anything to the contrary contained herein, Landlord will have the right to
market the 500 Expansion Space prior to the Seagate Commencement Date, subject,
however, to the right of first refusal granted to Tenant under the next
paragraph of this Section 2(a).
Subject to the limitations hereinafter set forth in this paragraph, if at any
time prior to the expiration of the Lease Term hereunder, Landlord receives a
solicited or unsolicited offer ("Third Party Offer") from any person or entity
to lease all or any part of the 500 Expansion Space and if Landlord, in good
faith, is willing to consider accepting such offer then Landlord will promptly
provide
<PAGE> 40
Tenant with written notice of the existence of such Third Party Offer. Tenant
will have five days after its receipt of Landlord's notice to provide Landlord
with written notice that it elects to lease the portion of the 500 Expansion
Space covered by the Third Party Offer, upon the identical terms and conditions
set forth in this Lease with respect to the Leased Premises, except that the
commencement date of Tenant's leasing of the Expansion Space will be the later
of October 1, 1997 or the date on which the improvements to the subject portion
of the 500 Expansion Space are substantially completed by Landlord for Tenant's
occupancy. The termination date of Tenant's leasing of such space will be the
Termination Date with respect to the Leased Premises as provided for in this
Lease and if the term of Tenant's leasing of the 500 Expansion Space is less
than 5 years, then the tenant improvement allowance to be provided to Tenant
will be equal to $18 per rentable square foot contained within the 500
Expansion Space, multiplied by a fraction having as its numerator, the number
of years of portion thereof in the lease term for the 500 Expansion Space and
having as its denominator the number 10. Base Rent payable by Tenant during
the term of its leasing of the 500 Expansion Space will be the same as set
forth in this Lease with respect to the Leased Premises for the same calendar
periods. If Tenant fails to provide Landlord with any written notice within
the aforementioned five-day period or if Tenant expressly declines to exercise
its right of first refusal within the aforementioned five-day period, then, in
either event, Landlord will thereafter have the unrestricted right to lease the
subject portion of the 500 Expansion Space to the offeror under the Third Party
Offer. If Tenant elects to exercise its right of first refusal within the
aforementioned five-day period, then Landlord and Tenant will enter into an
addendum to this Lease, which sets forth the terms and conditions of Tenant's
leasing of the subject portion of the 500 Expansion Space. Notwithstanding
anything to the contrary contained in this paragraph, at all times after the
Seagate Commencement Date, Tenant's right of first refusal hereunder will be
subject and subordinate to the prior right of first refusal held by Seagate
Software Storage Management Group. Landlord and Tenant acknowledge that
Tenant's right of first refusal will be an ongoing, continuing right of first
refusal and will apply to all Third Party Offers received by Landlord on the
500 Expansion Space during the Lease Term hereunder.
(b) Right of First Refusal and Right of First Offer on 300 International
Parkway Building. Subject to the limitations hereinafter set forth in this
paragraph, if, at any time during the Lease Term hereunder, space becomes
available in the 300 International Parkway Building ("300 Expansion Space") or
Landlord receives a Third Party Offer from any person or entity to lease any
vacant space in the 300 Expansion Space, and if Landlord, in good faith, is
willing to consider accepting such offer, then Landlord will promptly provide
Tenant with written notice of the existence of such availability or Third Party
Offer.
<PAGE> 41
1. First Five Lease Years. In the event that Landlord shall
offer such opportunity to lease the 300 Expansion Space to Tenant
within the first five Lease Years in the Lease Term, Tenant will have
five days after its receipt of Landlord's notice to provide Landlord
with written notice that it elects to lease the subject portion of the
300 Expansion Space upon the identical terms and conditions set forth
in this Lease with respect to the Leased Premises, except:
a. Commencement Date. The commencement date of Tenant's
leasing of the subject portion of the 300 Expansion Space will be the
later of October 1, 1997 or the date on which the improvements to the
subject portion of the 300 Expansion Space are substantially completed
by Landlord for Tenant's occupancy;
b. Base Rent. The Base Rent payable by Tenant during
the term of its leasing of the 300 Expansion Space will be set at the
rates contained in the Third Party Offer, or in the event there is no
Third Party Offer, at the rates then being quoted not to exceed the
last deal made by the Landlord for a comparable space in a comparable
building in the greater Lake Mary, Florida area with the rental terms
of any such Third Party Offer or last deal being adjusted as
reasonably appropriate to reflect the lease term and tenant
improvement allowance being provided to Tenant hereunder; and
c. Tenant Improvement Allowance. The tenant improvement
allowance to be provided to the Tenant shall be the same as the tenant
improvement allowance in this Lease.
d. The Termination Date of Tenant's leasing of the
subject portion of the 300 Expansion Space will be the Termination
Date with respect to the Leased Premises as provided in this Lease.
2. The Last Five (5) Lease Years. In the event that Landlord
shall offer such opportunity to lease the 300 Expansion Space to
Tenant within the last five Lease Years in the Lease Term, Tenant will
have five days after its receipt of Landlord's notice to provide
Landlord with written notice that it elects to lease the subject
portion of the 300 Expansion Space upon the identical terms and
conditions set forth in this Lease with respect to the Leased
Premises, except:
a. Commencement Date. The commencement date of Tenant's
leasing of the subject portion of the 300 Expansion Space will be the
later of October 1, 1997 or the date on which the improvements to the
subject portion of the 300 Expansion Space are substantially completed
by Landlord for Tenant's occupancy;
<PAGE> 42
b. Base Rent. The Base Rent payable by Tenant during
the term of its leasing of the 300 Expansion Space will be set at the
rates contained in the Third Party Offer, or in the event there is no
Third Party Offer, at the rates then being quoted, not to exceed the
last deal made by the Landlord for a comparable space in a comparable
building in the greater Lake Mary, Florida area with the rental terms
of any such Third Party Offer or last deal being adjusted as
reasonably appropriate to reflect the lease term and tenant
improvement allowance being provided to Tenant hereunder; and
c. Tenant Improvement Allowance. The tenant improvement
allowance to be provided to Tenant will be equal to the tenant
improvement allowance provided in this Lease multiplied by a fraction
having as its numerator the number of years, or portion thereof, in
the lease term for the Expansion Space and having as its denominator
the number ten.
d. The Termination Date of Tenant's leasing of the
subject portion of the 300 Expansion Space will be the Termination
Date with respect to the Leased Premises as provided in this Lease.
If Tenant fails to provide Landlord with any written notice within the
aforementioned five-day period or if Tenant expressly declines to exercise its
right of first refusal within the aforementioned five-day period, then, in
either event, Landlord will thereafter have the unrestricted right to lease the
subject portion of the 300 Expansion Space to the offeror under the Third Party
Offer. If Tenant elects to exercise its right of first refusal within the
aforementioned five-day period, then Landlord and Tenant will enter into an
addendum to this Lease, which sets forth the terms and conditions of Tenant's
leasing of the subject portion of the 300 Expansion Space.
Notwithstanding anything to the contrary contained in this paragraph, Tenant's
right of first refusal hereunder will be subject and subordinate to the prior
right of first refusal held by Seagate Software Storage Management Group, as
well as the prior rights of any then existing tenant in the 300 International
Parkway Building to lease any such space. Landlord and Tenant acknowledge that
Tenant's right of first refusal will be an ongoing, continuing right of first
refusal and will apply to all Third Party Offers received by Landlord on the
300 Expansion Space during the Lease Term hereunder.
(c) Right of First Refusal on 600 Business Center Drive Building.
Subject to the limitations hereinafter set forth in this paragraph, if, at any
time during the Lease Term hereunder, Landlord receives a Third Party Offer
from any person or entity to lease any vacant space in the 600 Business Center
Drive Building which would have the effect, if accepted, of leaving vacancies
in
<PAGE> 43
the 600 Business Center Drive Building of less than 20,000 rentable square feet
(the space which is subject to the Third Party Offer, plus all space which
would be vacant following the acceptance of such Third Party Offer, being
hereinafter referred to as the "600 Expansion Space"), and if Landlord in good
faith, is willing to consider accepting such offer, then Landlord will promptly
provide Tenant with written notice of the existence of such Third Party Offer.
Landlord's notice to Tenant will include the proposed rent contained in the
Third Party Offer, adjusted ,as reasonably appropriate, to reflect the lease
term and tenant improvement allowance being provided hereunder, and other
economic and business terms related to the leasing of the 600 Expansion Space.
1. The First Five (5) Lease Years. In the event that Landlord
shall offer such opportunity to lease all of the 600 Expansion Space
to Tenant within the first five Lease Years in the Lease Term, Tenant
will have five days after its receipt of Landlord's notice to provide
Landlord with written notice that it elects to lease all of the 600
Expansion Space at the market rents and upon the other economic and
business terms specified in Landlord's notice to Tenant, and for a
term which will commence upon the substantial completion of the
improvements to the 600 Expansion Space and which will expire on the
Termination Date with respect to the Leased Premises as provided in
this Lease. Furthermore, the tenant improvement allowance to be
provided to the Tenant shall be the same as in this Lease.
2. The Last Five (5) Lease Years. In the event that Landlord
shall offer such opportunity to lease all of the 600 Expansion Space
to Tenant within the last five Lease Years in the Lease Term, Tenant
will have five days after its receipt of Landlord's notice to provide
Landlord with written notice that it elects to lease all of the 600
Expansion Space at the market rents and upon the other economic and
business terms specified in Landlord's notice to Tenant, and for a
term which will commence upon the substantial completion of the
improvements to the 600 Expansion Space and which will expire on the
Termination Date with respect to the Leased Premises as provided in
this Lease. Furthermore, the tenant improvement allowance to be
provided to Tenant will be equal to the allowance provided in this
Lease multiplied by a fraction having as its numerator the number of
years, or portion thereof, in the lease term for the Expansion Space
and having as its denominator the number ten.
If Tenant fails to provide Landlord with any written notice within the
aforementioned five-day period or if Tenant expressly declines to exercise its
right hereunder within such five-day period, then, in either such event,
Tenant's rights under this paragraph will automatically terminate and, at all
times thereafter, Landlord will have the unrestricted right to lease all or any
part of the 600 Expansion Space to any party it so desires.
<PAGE> 44
3. Tenant Signage. Notwithstanding anything to the contrary contained in
Section 8 of the Lease, Landlord agrees that Tenant will be identified on a
nonexclusive basis on monument signage located at the front of the tract of
land on which the Building is located. In addition, Tenant shall have the
exclusive right to an exterior building sign and Landlord will provide Tenant
signage on the face of the Building as described in Exhibit I, attached hereto
and incorporated by this reference, upon any of the following conditions being
satisfied:
a. Tenant's occupancy of more than 50% of the rentable square footage
contained within the Building;
b. At least 66% of the Building being leased and occupied by tenants,
with Tenant remaining as the largest single rentable square footage in
the Building; or
c. Seagate Software Storage Management Group's occupancy of more rentable
square footage in the Building than any other Tenant and Tenant's
continuing occupancy of at least 37,259 square feet of rentable space
in the Building.
d. The cost of any such Building signage will be paid by Tenant. The
location, design and composition of the monument sign, as well as any
permitted Building sign must comply with applicable zoning and
building codes, will be consistent with other similar signage located
within the Heathrow International Business Center and general
specifications which will govern both the monument and buildings sign
referred to above are attached hereto as Exhibit I. The building sign
will be located on the eastern wall at the north end of the top floor
of the Building.
Landlord agrees that Tenant has satisfied the conditions set forth above and
Landlord hereby agrees to provide Tenant with the exclusive exterior building
signage for the term of this Lease and any extensions.
4. Relocation Costs. Within three business days after the later of the
Commencement Date or Landlord's receipt of Tenants' first monthly Base Rent
payment thereunder, Landlord will pay to Tenant an amount equal to $2.00 per
rentable square foot contained within the Leased Premises to defray Tenant's
costs of relocating to the Leased Premises. Alternately, Tenant may submit
invoices approved by Tenant (from vendors providing services or equipment
relating to relocation) to Landlord who will pay such invoices for the Tenant
on a timely basis.
5. Renewal Term. Tenant will have the option to renew this Lease for one
renewal term of five years. Such renewal option must be exercised, if at all,
by Tenant's delivery of written notice of exercise to Landlord at least 180
days prior to the schedule expiration of the Initial Lease Term. Tenant's
right to renew this Lease will be conditioned upon the Lease being in full
force and
<PAGE> 45
effect, without any default on the part of Tenant beyond any applicable grace
period both at the time of Tenant's exercise of such option and at the time of
the scheduled commencement of such renewal term. Such renewal term will be
upon the same terms and conditions set forth in this Lease with respect to the
initial Lease Term except that Base Rent for any such renewal term will be at
the ninety-five percent (95%) of the then existing market rates for comparable
space in comparable buildings in the greater Lake Mary, Florida area, but in no
event shall the Base Rent be less than $21.00 per rentable square foot or
greater than $24.00 per rentable square foot. Landlord will notify Tenant of
such market rate within ten days after Tenant's request for the same.
6. Refurbishment Allowance. At the beginning of the sixth year of the
Lease Term (as the term "year" is defined in Exhibit B to this Lease), Landlord
will provide to Tenant a refurbishment allowance equal to $3.00 per rentable
square foot contained within the Leased Premises. An amount up to, but not
exceeding the amount of the aforementioned refurbishing allowance, will be paid
to Tenant in the sixth lease year within ten days after Tenant's presentation
to Landlord of reasonably detailed invoices from third parties documenting
refurbishing costs actually incurred by Tenant in connection with the
refurbishment of the improvements to the Leased Premises.
7. Additional Space. In the event Tenant has space needs in excess of
the Leased Premises, as they may be increased in accordance with the terms
hereof, which space needs arise within the Lease Term but after the seventh
(7th) year thereof, Landlord and Tenant shall make arrangements for the
relocation of Tenant to another Pizzuti owned building in Heathrow
International Business Center, or alternatively, Landlord and Tenant shall
enter into a build to suit agreement. In the event of either a relocation of
Tenant to another Pizzuti owned building or the entering into of a build to
suit agreement, the terms and conditions of said business arrangement shall be
mutually acceptable to Landlord and Tenant, failing which no relocation or
build to suit agreement shall occur and this Lease shall continue in full force
and effect.
8. Preliminary Space Plan. Landlord shall bear the expense of
formulation of the preliminary space plan. All other costs associated with
architectural and engineering plans and drawings for the Leased Premises shall
be paid for out of the tenant improvement allowance provided by Landlord.
9. General Contractor. In light of the substantial cost savings which
Tenant will realize by utilization of the same general contractor and
subcontractors as those used by Landlord for the Building, Tenant acknowledges
that Tenant will not have the right to select a different general contractor or
to utilize other subcontractors than those being used by Landlord for the
completion of tenant improvements. The general contractor fee for utilization
by Tenant of the general contractor shall not exceed five percent (5%).
<PAGE> 46
10. Brokerage Commission. Landlord agrees that it will pay Properties
Atlantic, Inc. a commission pursuant to a separate written agreement to be
entered into by Properties Atlantic Inc. and Landlord and that it will pay a
commission to Pizzuti Realty of Florida Inc., a representative of Landlord.
Landlord and Tenant hereby covenant and agree with one another that no other
brokerage fees or commissions are due with respect to or in conjunction with
this Lease. Landlord shall pay the brokerage commission to Properties
Atlantic, Inc. in accordance with the provisions set out above and the Landlord
agrees to indemnify Tenant from and against all loss, cost damage or expense,
including, but not limited to, attorneys fees and court costs incurred by
Tenant as a result of any claims for brokerage fees or commissions by
Properties Atlantic, Inc. or Pizzuti Realty of Florida Inc. or any other person
or entity arising from Landlord's breach of covenants set forth in this
paragraph.
<PAGE> 47
EXHIBIT H
RADON NOTICE
Notification pursuant to Florida statute 404.056(8):
RADON GAS: "Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit."
Initialed and Approved by Tenant:
_________________________________
<PAGE> 48
EXHIBIT I
TENANT'S EXTERIOR SIGN
<PAGE> 49
EXHIBIT J
BUILDING SPECIFICATIONS
<PAGE> 50
EXHIBIT K
PARKING MAP
<PAGE> 1
EXHIBIT 11.1
PHOENIX INTERNATIONAL LTD., INC.
COMPUTATION OF EARNINGS (LOSS) PER SHARE
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------------ ------------------------------
1996 1995 1996 1995
----- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $ 558,567 $ (377,437) $ 1,051,543 $ 843,055
============ ============= ============= =============
PRIMARY
Weighted average common stock outstanding 3,774,103 2,916,474 3,248,940 2,881,408
Effect of dilutive common stock equivalents
outstanding during the period (1) 342,765 -- 278,090 103,147
Effect of common stock issued and stock options
granted during the 12-month period
preceding July 1, 1996 (3) -- 299,760 76,587 229,760
------------ ------------- ------------- -------------
Total common and common equivalent shares 4,116,868 3,146,234 3,603,617 3,214,315
============ ============= ============= =============
Primary net income per share $ 0.14 $ (0.12) $ 0.29 $ 0.26
============ ============= ============= =============
FULLY DILUTED
Weighted average common stock outstanding 3,774,103 2,916,474 3,248,940 2,881,408
Effect of dilutive common stock equivalents
outstanding during the period (2) 392,020 -- 326,693 103,147
Effect of common stock issued and stock options
granted during the 12-month period
preceding July 1, 1996 (3) -- 229,760 76,587 229,760
------------ ------------- ------------- -------------
Total common and common equivalent shares 4,166,123 3,146,234 3,652,220 3,214,315
============ ============= ============= -------------
Fully diluted net income per share $ 0.14 $ (0.12) $ 0.29 $ 0.26
============ ============= ============= =============
</TABLE>
_____________________________
(1) Based on the treasury stock method using average market price.
(2) Based on the treasury stock method using the higher of the average or
period-end market price.
(3) Pursuant to Securities and Exchange Commission Staff Accounting Bulletin
No. 83, common stock issued and stock options granted at prices below the
initial public offering price per share during the 12-month period
immediately preceding the initial filing and through the effective date of
the Registration Statement, using the treasury stock method.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FINANCIAL
STATEMENTS FROM FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<EXCHANGE-RATE> 1
<CASH> 3,613,068
<SECURITIES> 2,694,575
<RECEIVABLES> 672,076
<ALLOWANCES> 10,000
<INVENTORY> 0
<CURRENT-ASSETS> 7,590,983
<PP&E> 1,188,731
<DEPRECIATION> 336,667
<TOTAL-ASSETS> 10,185,149
<CURRENT-LIABILITIES> 1,803,509
<BONDS> 0
0
0
<COMMON> 38,318
<OTHER-SE> 8,343,322
<TOTAL-LIABILITY-AND-EQUITY> 10,185,149
<SALES> 0
<TOTAL-REVENUES> 6,768,217
<CGS> 0
<TOTAL-COSTS> 1,994,232
<OTHER-EXPENSES> 3,363,200
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 19,231
<INCOME-PRETAX> 1,533,209
<INCOME-TAX> 481,666
<INCOME-CONTINUING> 1,051,543
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,051,543
<EPS-PRIMARY> 0.29
<EPS-DILUTED> 0.29
</TABLE>
