<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-QSB
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to
COMMISSION FILE NUMBER 0-21999
-----------------------
NHANCEMENT TECHNOLOGIES INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
DELAWARE 84-1360852
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1746 COLE BOULEVARD, SUITE 265
GOLDEN, COLORADO 80401
(Address of principal executive offices)
(303)271-0505
(Issuer's telephone number)
----------------
Check whether the Issuer (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
past 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 [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PRECEDING FIVE YEARS
Check whether the registrant filed all documents and reports required
to be filed by Section 12, 13 or 15(d) of the Exchange Act after the
distribution of securities under a plan confirmed by a court.
Yes[ ] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
As of August 11, 1997, there were 4,228,440 shares of Common Stock,
$0.01 par value per share, outstanding.
Transitional Small Business Disclosure Format (check one) Yes [X] No [ ]
<PAGE> 2
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to SEC rules and
regulations, although the Company believes the disclosures made are adequate to
make the information presented not misleading, and, in the opinion of
management, all adjustments have been reflected which are necessary for a fair
statement of the information shown.
F-1
<PAGE> 3
NHANCEMENT TECHNOLOGIES INC.
(FORMERLY BIOFACTORS, INC.)
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
JUNE 30, 1997
-------------
<S> <C>
ASSETS
CURRENT
Cash and cash equivalents $ 2,641,200
Accounts receivable, less allowance for doubtful accounts of $50,000 2,170,100
Note receivable from stockholder 60,000
Inventory 604,600
Prepaid expenses and other 242,500
Deferred tax assets 142,000
------------
Total current assets $ 5,860,400
FURNITURE AND EQUIPMENT 649,400
Less accumulated depreciation (168,700)
------------
FURNITURE AND EQUIPMENT, NET $ 480,700
EXCESS OF COST OVER NET ASSETS ACQUIRED, NET (Note 5) $ 5,770,400
OTHER ASSETS 123,300
------------
$ 12,234,800
============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 415,700
Accrued liabilities 609,400
Payroll related liabilities 188,500
Deferred revenue 1,486,000
------------
Total current liabilities $ 2,699,600
LONG-TERM DEBT, due stockholder (Note 3) 760,000
------------
TOTAL LIABILITIES 3,459,600
STOCKHOLDERS' EQUITY (Notes 3, 4, 6 and 7)
Preferred stock, $0.01 par value, 2,000,000 shares authorized,
no shares issued and outstanding --
Common stock, $0.01 par value, 20,000,000 shares authorized,
4,228,500 shares issued and outstanding 42,300
Additional paid-in capital 17,628,200
Accumulated deficit (8,895,300)
------------
TOTAL STOCKHOLDERS' EQUITY $ 8,775,200
------------
$ 12,234,800
============
</TABLE>
F-2
<PAGE> 4
NHANCEMENT TECHNOLOGIES INC.
(FORMERLY BIOFACTORS, INC.)
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
-------------------------- --------------------------
JUNE 30 JUNE 30 JUNE 30 JUNE 30
1996 1997 1996 1997
=========== =========== =========== ===========
<S> <C> <C> <C> <C>
NET SALES $ 12,100 $ 2,640,200 $ 391,900 $ 4,072,100
COST OF SALES 22,300 1,522,800 71,800 2,159,400
----------- ----------- ----------- -----------
GROSS PROFIT (10,200) 1,117,400 320,100 1,912,700
OPERATING EXPENSES
Research and development 24,600 19,100 47,800 42,800
Selling, marketing and administrative 641,500 873,900 979,100 1,483,600
Amortization of excess of cost over net assets
acquired -- 147,400 -- 246,300
----------- ----------- ----------- -----------
TOTAL OPERATING EXPENSES 666,100 1,040,400 1,026,900 1,772,700
----------- ----------- ----------- -----------
INCOME (LOSS) FROM OPERATIONS (676,300) 77,000 (706,800) 140,000
OTHER INCOME (EXPENSE)
Interest income -- 34,100 -- 72,500
Interest expense (246,500) (19,500) (362,800) (67,900)
Other -- -- (2,000) --
----------- ----------- ----------- -----------
(246,500) 14,600 (364,800) 4,600
----------- ----------- ----------- -----------
INCOME (LOSS) BEFORE INCOME TAXES (922,800) 91,600 (1,071,600) 144,600
INCOME TAXES -- 19,500 -- 29,900
----------- ----------- ----------- -----------
NET INCOME (LOSS) (922,800) 72,100 (1,071,600) 114,700
=========== =========== =========== ===========
NET INCOME (LOSS) PER COMMON SHARE
(Note 7) $ (0.86) $ 0.02 $ (0.97) $ 0.03
=========== =========== =========== ===========
WEIGHTED AVERAGE COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING
1,024,615 4,324,967 1,024,615 3,597,461
=========== =========== =========== ===========
</TABLE>
F-3
<PAGE> 5
NHANCEMENT TECHNOLOGIES INC.
(FORMERLY BIOFACTORS, INC.)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL
PAR VALUE PAID-IN ACCUMULATED
SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
BALANCE, December 31, 1996 612,800 $ 6,100 $ 5,363,900 $ (9,010,000) $ (3,640,000)
Issuance of common stock for
acquisition (Notes 1 and 3) 1,312,500 13,100 4,666,900 4,680,000
Initial public offering of common stock
at $4.00 per share, net of offering
costs of $1,594,000 (Note 4) 2,045,000 20,500 6,565,500 6,586,000
Issuance of common stock for conversion
of notes payable and accrued interest
(Note 4) 258,200 2,600 1,030,000 1,032,600
Compensation related to grant of stock
options to consultant (Note 6) 1,900 1,900
Net income 114,700 114,700
--------- ------------ ------------ ------------ ------------
BALANCE, June 30, 1997 4,228,500 $ 42,300 $ 17,628,200 $ (8,895,300) $ 8,775,200
========= ============ ============ ============ ============
</TABLE>
F-4
<PAGE> 6
NHANCEMENT TECHNOLOGIES INC.
(FORMERLY BIOFACTORS, INC.)
CONSOLIDATED STATEMENTS OF CASH FLOW
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, 1996 JUNE 30, 1997
------------- -------------
<S> <C> <C>
Cash flows from operating activities
Net income (loss) $(1,071,600) $ 114,700
Adjustments to reconcile net income to net cash used
in operating
activities:
Depreciation 17,800 72,200
Amortization of deferred revenue (338,100)
Amortization of excess cost over net assets acquired 246,300
Amortization of debt issuance costs on notes payable 202,300
Compensation related to grant of stock options and
common stock 34,100 1,900
Changes in assets and liabilities:
Accounts receivable (2,100) (239,000)
Notes receivable, related party 350,000
Inventory -- 372,600
Prepaid expenses and other 2,300 (194,800)
Other assets -- (42,700)
Accounts payable and other current liabilities 304,500 (2,899,100)
----------- -----------
Net cash used in operating activities $ (500,800) $(2,567,900)
Cash flows from investing activities:
Cash acquired from VPI Acquisition 851,900
Note receivable from stockholder (60,000)
Purchase of furniture and equipment (4,500) (51,100)
----------- -----------
Net cash (used in) provided by investing activities $ (4,500) $ 740,800
Cash flows from financing activities:
Proceeds from initial public offering of common stock,
net of offering costs 6,962,200
Prepaid stock offering costs (61,600)
Proceeds from long-term debt 665,000
Principal payment of long-term debt (43,300) (1,814,000)
Principal payment of long-term debt due stockholder -- (740,000)
----------- -----------
Net cash provided by financing activities $ 560,100 $ 4,408,200
Net increase in cash and cash equivalents $ 54,800 $ 2,581,100
Cash and cash equivalents, beginning of period 170,400 60,100
----------- -----------
Cash and cash equivalents, end of period $ 225,200 $ 2,641,200
=========== ===========
</TABLE>
F-5
<PAGE> 7
DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
On February 3, 1997, the Company acquired all outstanding shares of common
stock of Voice Plus, Inc. in exchange for 1,312,500 shares of the Company's
Common Stock with an estimated value of $4,680,000 and two promissory notes in
an aggregate principal amount of $1,500,000. See Notes 1 and 3.
<TABLE>
<S> <C>
Total Consideration:
1,312,500 shares of Common Stock $4,680,000
Promissory notes 1,500,000
----------
$6,180,000
Cost of acquisition 270,100
----------
$6,450,100
==========
Consideration was used for:
Net assets acquired 697,100
Excess of cost over net assets acquired 5,753,000
----------
$6,450,100
==========
</TABLE>
On February 4, 1997, the Company completed its initial public offering (see
Note 4). In connection therewith, the Company converted certain notes and
related accrued interest in an aggregate amount of $1,032,600 into shares of
its Common Stock.
F-6
<PAGE> 8
1. ORGANIZATION
NHancement Technologies Inc., a Delaware corporation (the "Company"),
was incorporated in October 1996 as a holding company and successor to
the business of BioFactors, Inc. ("BFI"), a Delaware corporation. On
February 3, 1997, prior to the February 4, 1997 consummation of the
initial public offering (the "IPO") of the Company's common stock (see
Note 4), BFI merged with a subsidiary of the Company whereupon BFI, as
the surviving corporation, became a wholly owned subsidiary of the
Company (the "BFI Merger"). Also on February 3, 1997, the Company
acquired Voice Plus, Inc. ("VPI"), a California corporation, a systems
integrator and national distributor of voice processing equipment,
pursuant to a transaction by which VPI merged with a subsidiary of the
Company, whereupon VPI, as the surviving corporation, became a wholly
owned subsidiary of the Company (the "VPI Acquisition"). The business
of the Company is conducted by its operating company subsidiaries, BFI
and VPI (see Note 3).
2. FINANCIAL STATEMENT PRESENTATION AND NEW STANDARD
The accompanying consolidated financial statements as of June 30,
1997, and for the three and six months ended June 30, 1997 and 1996,
are unaudited. Certain information and footnote disclosures normally
included in the financial statements prepared in accordance with
generally accepted accounting principles ("GAAP") have been omitted.
These consolidated financial statements should be read in conjunction
with the audited financial statements and accompanying notes for the
year ended December 31, 1996 presented in the Company's latest annual
report on Form 10-KSB.
The preparation of financial statements in conformity with GAAP
requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities, disclosure of contingent
assets and liabilities at the date of the financial statements, and
the reported amounts of revenues and expenses during the reported
period. Actual results could differ from those estimates.
The consolidated financial statements presented herein reflect all
adjustments which are, in the opinion of management, necessary for a
fair presentation of the financial condition and results of operations
for the periods presented.
On March 3, 1997, the Financial Accounting Standards Board issued SFAS
No. 128, "Earnings per Share." This pronouncement provides a different
method of calculating earnings per share than is currently used in
accordance with APB No. 15, "Earnings per Share." SFAS No. 128
provides for the calculation of Basic and Diluted earnings per share.
Basic earnings per share includes no dilution and is computed by
dividing income available to common shareholders by the weighted
average number of common shares outstanding for the period. Diluted
earnings per share reflect the potential dilution of securities that
could share in the earnings of an entity, similar to fully diluted
earnings per share. Calculations under the new standard, which will be
adopted in the fourth quarter of 1997, are not expected to result in a
significant difference from those under the current method.
F-7
<PAGE> 9
3. ACQUISITION AND MERGER TRANSACTIONS
Pursuant to the BFI Merger agreement, shares of the Company's common
stock ("Common Stock") were exchanged for all the issued and
outstanding common stock of BFI, in a ratio of three shares of Common
Stock for every four shares of BFI common stock. In addition, the
Company assumed (i) the obligations of BFI's outstanding stock
options, by which assumption the optionee has the right to purchase
5.625 shares of the Company's Common Stock for every 10 shares of BFI
common stock the optionee could have purchased prior to the BFI Merger
at an exercise price per share equal to 80% of the IPO Price, (ii) the
obligations of BFI's issued and outstanding warrants in accordance
with their terms, and (iii) the obligations of the Registration Rights
Agreement dated as of September 1, 1996. The Company also undertook to
issue to certain holders of BFI notes, warrants to purchase an
aggregate of 109,900 shares of the Company's Common Stock, exercisable
one year from the close of the IPO at an exercise price of 120% of the
IPO Price.
The VPI Acquisition agreement provided for the exchange of (i) the
Company's unsecured promissory note in a principal amount of
$1,000,000, bearing interest at the medium term T-bill rate, due on
the third anniversary of the consummation of the VPI Acquisition, (ii)
the Company's unsecured promissory note in a principal amount of
$500,000, bearing interest at the medium term T-bill rate, due on the
third anniversary of the consummation of the VPI Acquisition, and
(iii) shares of the Company's Common Stock with an estimated fair
market value of $4,680,000 (of which shares valued at $2,400,000 were
sold in the IPO, and the remainder of the shares are subject to
restrictions on transferability under the Securities Act of 1933, as
amended, and pursuant to a lock-up agreement with the underwriter of
the IPO), for all the issued and outstanding common stock of VPI. As
of June 30, 1997, $740,000 of the $1,500,000 unsecured promissory
notes was paid. In connection with the VPI Acquisition, the Company
entered into a three-year employment agreement with the president and
sole stockholder of VPI, pursuant to which the Company agreed to pay a
base salary of $150,000 per year, commissions of approximately
$200,000 per year and an annual performance based bonus. The
employment agreement provides that, if the Company materially breaches
the agreement or terminates the employee without "cause," the Company
will continue to pay base salary and 50% of the commissions for the
duration of the term and, in the event of a material breach by the
Company, the two promissory notes will be accelerated and immediately
become due and payable. In addition, the Company committed to pay
signing bonuses in the aggregate amount of $170,000 to three employees
of VPI. The bonuses, of which 50% was paid upon consummation of the
IPO and the remainder is due in August 1997, are not contingent upon
continued employment.
4. INITIAL PUBLIC OFFERING
On February 4, 1997, the Company completed its IPO of 2,300,000 shares
of $0.01 par value Common Stock, of which 1,700,000 shares were sold
by the Company and 600,000 shares, representing a portion of the
consideration for the outstanding shares of VPI, were sold by a
stockholder of the Company. On February 11, 1997, the underwriters
exercised an option to purchase from the Company an additional 345,000
shares of Common Stock to cover over-allotments. The Company raised
approximately $6.6 million of funds, net of underwriting commissions,
printing costs, legal and accounting fees and other offering expenses,
totaling approximately $1,594,000, from the offering (including the
over-allotment shares) and did not receive any of the proceeds from
the sale of shares by the stockholder. The Company's Common Stock is
quoted on The Nasdaq Stock Market SmallCap System.
F-8
<PAGE> 10
In connection with the closing of the IPO, the Company repaid
principal amounts and the related accrued interest of various notes in
an aggregate amount of approximately $2,027,000. In addition, the
Company converted to its Common Stock certain notes and related
accrued interest in an aggregate amount of $1,032,600.
5. EXCESS OF COST OVER NET ASSETS ACQUIRED, NET
The excess of cost over net assets acquired is amortized over a
10-year period using the straight-line method. The carrying value is
periodically evaluated for impairment by the Company based on the
expected future undiscounted cash flows of the related business. As of
June 30, 1997, the excess of cost over net assets acquired consisted
of the following:
<TABLE>
<CAPTION>
Excess of Costs
over Net Assets Accumulated
Acquired Amortization Net
------------------- ----------------- --------------
Acquisition of Phonetics, Inc. by VPI
<S> <C> <C> <C>
in October 1996 $ 280,900 $ (17,200) $ 263,700
VPI Acquisition 5,753,000 (246,300) 5,506,700
----------- ---------- ----------
$ 6,033,900 $ (263,500) $5,770,400
=========== ========== ==========
</TABLE>
The Company is in the process of valuing the net assets acquired from
VPI. Accordingly, the allocation of purchase price may be adjusted in
future periods.
6. STOCK OPTIONS
During the six months ended June 30, 1997, the Company granted options
to purchase approximately 483,000 shares of the Company's Common Stock
principally to employees, directors and consultants, including option
grants to purchase 100,000 shares made in connection with the VPI
Acquisition, with exercise prices ranging from $3.20 to $4.00 per
share.
7. NET INCOME (LOSS) PER SHARE
Net income (loss) per common and common equivalent share using the
weighted average of common and common equivalent shares outstanding
was computed by applying Securities and Exchange Commission Staff
Accounting Bulletin No. 83 (SAB 83) for the three and six months ended
June 30, 1996. Pursuant to SAB 83, common and common equivalent shares
issued by the Company during the 12 months immediately preceding its
initial public offering at a price below the initial public offering
price, together with common share equivalents which result from the
grant of common stock options having exercise prices below the initial
public offering price during the same period, have been included in
the calculation of the shares used in computing net loss per share as
if they were outstanding for all periods prior to the initial public
offering. Net income per share for periods subsequent to the initial
public offering have been computed using the treasury stock method,
under which the number of shares outstanding includes an assumed use
of the proceeds from the issuance of such shares and from the assumed
exercise of such options and warrants to repurchase shares of the
Company's Common Stock at current market prices.
F-9
<PAGE> 11
8. SUBSEQUENT EVENT AND LEASE COMMITMENTS
In June, 1997, the Company signed an agreement to acquire Advantis
Network & Systems, Sdn Bhd ("Advantis"), a Malaysian company providing
commercial data communications solutions by offering leading edge
networking products. The agreement to acquire Advantis is contingent
upon several issues being resolved in a manner acceptable to the
Company, including the completion of due diligence investigation and
obtaining satisfactory approval from a quasi-Malaysian governmental
authority. The terms of the agreement provide that the Company will
acquire all the shares of Advantis in exchange for 530,000 shares of
the Company's Common Stock in a transaction structured as a
pooling-of-interest, although no assurances can be given that the
transaction, if completed, will ultimately qualify as a
pooling-of-interest.
The Company has signed a three-year lease on a new 7,200 square foot
facility located at 39420 Liberty Street, Fremont, California 94538.
The Company will relocate its headquarters from Golden, Colorado and
will consolidate its VPI and BFI subsidiaries into this facility that
will also serve as its new corporate headquarters. The Company
anticipates the completion of the move in August, 1997. The Company
believes that the new facility will be adequate for its current needs
and that additional space will be available in the future at
commercially reasonable rates. Under the terms of the lease, annual
minimum lease payments range from $138,200 to $147,700 through August
31, 2000.
9. UNAUDITED PRO FORMA FINANCIAL DATA
The unaudited pro forma statements of operations combine the results
of operations of the Company and VPI for the six months ended June 30,
1997 and 1996, as if the VPI Acquisition had occurred at the beginning
of the respective periods, after giving effect to certain adjustments,
including the amortization of excess of costs over assets acquired,
interest expense on notes payable to stockholder, additional salaries,
and recalculation of estimated income taxes. The unaudited pro forma
financial information reflect the assets and liabilities of BFI at
historical amounts, and assets and liabilities of VPI are presented at
estimated current fair values. The following unaudited pro forma
summary does not necessarily reflect the result of operations as they
would have been had the VPI Acquisition occurred at the beginning of
the periods presented and is not necessarily indicative of the results
of operations for any future period.
<TABLE>
<CAPTION>
PRO FORMA
----------------------------
SIX MONTHS ENDED
----------------------------
JUNE 30, 1996 JUNE 30, 1997
------------- -------------
<S> <C> <C>
Net sales $ 4,291,600 $ 4,923,200
Cost of sales 2,515,600 2,751,600
----------- -----------
Gross profit 1,776,000 2,171,600
Total operating expenses (includes amortization of
excess of cost over net assets acquired) 2,501,700 2,074,300
----------- -----------
Income (loss) from operations (725,700) 97,300
Other (income) expenses 31,900 (8,200)
----------- -----------
Income (loss) before income taxes (757,600) 105,500
Income taxes -- 22,000
----------- -----------
Net income (loss) (757,600) 83,500
=========== ===========
Net income (loss) per common share $ (0.35) $ 0.02
=========== ===========
Weighted average common and common equivalent shares
outstanding 2,074,615 3,845,377
=========== ===========
</TABLE>
F-10
<PAGE> 12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
SIX MONTHS ENDED JUNE 30, 1997 VERSUS JUNE 30, 1996
The following contains forward-looking statements regarding future
events or the future financial performance of the Company that involve risks
and uncertainties. The Company's actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors.
GENERAL
NHancement Technologies Inc. ("NTI") was formed in 1996 as a holding
company. On February 4, 1997, NTI completed the initial public offering of its
common stock pursuant to a registration statement filed with the Securities and
Exchange Commission. Immediately prior to the closing of the IPO, through two
separate mergers, BFI and VPI became wholly owned subsidiaries of NTI. The VPI
merger was accounted for as a purchase, and the BFI merger was accounted for in
a manner similar to a pooling-of-interests. Prior to these business
combinations, each of BFI and VPI had been operating as an independent entity.
For accounting purposes, BFI is considered the acquiror; accordingly, the
financial data presented for the six months ended June 30, 1996 include only
BFI results of operations. The financial data presented for the six months
ended June 30, 1997 include six months' operating results of BFI and also
includes five months (February through June) operating results of VPI (VPI was
a separate company until February 4, 1997).
NHANCEMENT TECHNOLOGIES INC.
(FORMERLY BIOFACTORS, INC.)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30
-----------------------
1996 1997
--------- ---------
<S> <C> <C>
Net sales 100.0 % 100.0 %
Cost of sales 18.3 % 53.0 %
Gross profit 81.7 % 47.0 %
Research, selling and administrative expenses 262.0 % 37.5 %
Amortization of excess of cost over net assets 0.0 % 6.1 %
acquired
Income (loss) from operations (180.3)% 3.4 %
Other income (expense) (93.1)% 0.1 %
Income (loss) before income taxes (273.4)% 3.5 %
Income taxes 0.0 % 0.7 %
Net income (loss) (273.4)% 2.8 %
</TABLE>
BFI is completing development of its technology relating to employee
impairment testing systems and had almost no revenues during the first six
months of 1997. VPI is an integrator and distributor of voice processing and
telecommunications systems for businesses and had significant revenues during
the first six months of 1997. Increased NTI revenue for the first half of 1997
of $3,680,200 (compared to $391,900 in the first half of 1996) was exclusively
due to the acquisition of VPI and the recording of $4,050,000 of VPI revenues
for February through June 1997; no such revenues were included in the first
half of 1996. NTI's gross margin for the first half of 1997 decreased to 47.0%
from 81.7% as a result of recording VPI revenues for February through June of
1997 with an associated gross margin of 47.6%. VPI's gross margin for February
through June are unusually high due to the recording of $250,000 in
-11-
<PAGE> 13
extremely high gross margin revenues during the period. Management expects
gross margin percentage in the low to mid-40% range on future VPI sales, which
is slightly higher than historical gross margin percentages, due to favorable
pricing adjustments from a key supplier. In the first half of 1996, BFI's net
sales and gross margins were attributed to a $350,000 royalty fee with
significantly high gross margin, and to early "beta" type customer
installations of the FACTOR 1000 system with significant negative gross margins
and high engineering and customer installation costs. In the first half of
1997, BFI's gross margins on revenues were negative as revenues were negligible
with no royalty fees collected.
Research, selling and administrative ("RS&A") expenses as a percentage
of net sales decreased during the first half of 1997 versus the first half of
1996 ( 262.0% versus 37.5%) due to the acquisition of VPI, whose significant
revenues materially altered operating percentages. RS&A expenses increased from
$1,026,900, in the first half of 1996 to $1,526,400 in the first half of 1997,
due to the recording of five months of VPI operating expenses offset by
reduction in BFI's RS&A expenses, which decreased from $1,026,900 in the first
half of 1996 to $267,400 for the first half of 1997 due to expense reductions
and the allocation of certain administrative expenses to the VPI operation.
Amortization of the excess of cost over net assets acquired related to
the Voice Plus, Inc. acquisition amounted to $246,300 for the first half of
1997 or 6.1% of net sales for the period. No such charges were recorded in
1996, as the VPI acquisition was completed February 4, 1997. The goodwill
amount recorded and the associated amortization of goodwill may be adjusted in
future periods as management continues to assess the proper valuation of the
net assets acquired for the purpose of allocating the purchase price of VPI.
Management is required to finalize the allocation of the purchase price within
twelve months of the date of acquisition.
Other expense decreased from $364,800 in the first six months of 1996
to a net other income of $4,600 in the first six months of 1997, primarily due
to a decrease in interest expense on bridge financings which were repaid or
converted into shares of NTI common stock upon consummation of the IPO. After
the application of proceeds from the IPO, the Company has no interest-bearing
debt as of June 30, 1997 except $760,000, after payment of $740,000 in the
second quarter of 1997, in promissory notes payable in connection with the VPI
merger. The reduction in interest expense amounted to $294,900, and the increase
in interest income totaled $72,500 during the period.
The effective income tax rate of 20.7% in the first six months of 1997
was substantially different from the blended federal and state statutory income
tax rate of 40% principally due to the application of BFI's current losses and
net operating loss carrying forward which offset the profits of VPI on a
consolidated tax return basis. The Company has recorded a 100% valuation
allowance against the BFI gross deferred tax assets, which principally relate
to net operating loss carryforwards, as realization is presently evaluated as
uncertain. The zero effective income tax rate for the first six months of 1996
reflects only BFI which operated at a significant loss during the period and
thus recorded no income tax expense. VPI operated as a Subchapter S corporation
status during 1996. NTI will file consolidated tax returns as a C corporation
in future periods.
LIQUIDITY AND CAPITAL RESOURCES
During the first half of 1997, net cash used in the operating
activities of NTI was $2,567,900. Net cash provided by investing and financing
activities totaled $5,149,000 due to NTI's completion of the acquisition of
VPI, which had $851,900 in cash, and to the completion of the IPO with net
proceeds of about $7.0 million to the Company of which $1.8 million was used to
repay long-term debt, the remainder of which resulted in a net increase in cash
of about $2.6 million during the period. NTI's working capital
-12-
<PAGE> 14
at June 30, 1997 was $3.2 million. The current ratio at June 30, 1997 was 2.2
to 1, primarily due to the completion of the IPO and the acquisition of Voice
Plus, Inc.
As of June 30, 1997, NTI had outstanding debt of $760,000 and $30,000
of associated accrued interest all payable to its largest shareholder (the
former owner of VPI). The Company utilized proceeds from its IPO to repay about
$2.0 million of debt and interest accrued at rates between 10% and 12% per
annum and $740,000 of the principal due on the shareholder notes. The Company
intends to spend remaining IPO proceeds to fund approximately $500,000 of
product and market development costs for the FACTOR 1000 system and for general
corporate purposes, including future acquisitions.
Management estimates that it will incur minimal capital expenditures
during 1997. However, the Company is relocating and consolidating its corporate
offices in California and, in connection with that move and consolidation, will
incur certain costs estimated to be approximately $75,000, associated with new
leasehold improvements. It is anticipated that all other capital expenditures
will be financed through equipment leases and will not require significant
direct outlays of cash.
Based upon its present plans, management believes that operating cash
flow, available cash and available credit resources are adequate to make the
repayments of indebtedness described herein, to meet the working capital cash
needs of the Company and to meet anticipated capital needs during the next 12
months. Although the Company intends to issue shares of Common Stock as its
primary method of financing acquisitions, it anticipates that additional funds
will be required to implement successfully its acquisition program, and it will
use various methods to finance acquisitions, including the payment of cash, for
this purpose.
ACCOUNTING STANDARDS
On March 3, 1997, the Financial Accounting Standards Board issued SFAS
No. 128, "Earnings per Share." This pronouncement provides a different method
of calculating earnings per share than is currently used in accordance with APB
No. 15, "Earnings per Share." SFAS No. 128 provides for the calculation of
Basic and Diluted earnings per share. Basic earnings per share includes no
dilution and is computed by dividing income available to common shareholders by
the weighted average number of common shares outstanding for the period.
Diluted earnings per share reflect the potential dilution of securities that
could share in the earnings of an entity, similar to fully diluted earnings per
share. Calculations under the new standard, which will be adopted in the fourth
quarter of 1997, are not expected to result in a significant difference from
those under the current method.
-13-
<PAGE> 15
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following Exhibits are filed as part of the Quarterly Report on
Form 10-QSB
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C> <C> <C>
3.1 -- Certificate of Incorporation with the Amended and Restated Certificate of
Incorporation (1)
3.2 -- Amended and Restated Bylaws (1)
10.1 -- Formation Agreement, dated as of October 15, 1996, between BFI and VPI(1)
10.2 -- Agreement and Plan of Merger, dated as of October 30, 1996, between the
Company, BFI Acquisition Corporation and BFI (1)
10.3 -- Agreement and Plan of Merger, dated as of October 25, 1996, between the
Company, VPI Acquisition Corporation, VPI and James S. Gillespie, together with
Forms of Promissory Notes (1)
10.12 -- Equity Incentive Plan (1)
10.13 -- Employment Agreement, dated as of October 30, 1996, between Douglas S. Zorn and
the Company (1)
10.14 -- Employment Agreement, dated as of October 25, 1996, between James S. Gillespie
and the Company (1)
10.15 -- Employment Agreement, dated as of October 30, 1996, between Esmond T. Goei and
the Company (1)
10.21 -- Stockholder Agreement, dated October 25, 1996, between the Company and James S.
Gillespie (1)
10.22 -- 1997 Management and Company Performance Bonus Plan (1)
10.23 -- Employment Agreement, dated as of November 1, 1996, between Diane E. Nowak and
VPI (1)
10.24 -- Employment Agreement, dated as of November 1, 1996, between Bradley Eickman and
VPI (1)
10.27 -- Registration Rights Agreement, dated October 25, 1996, between the Company and
James S. Gillespie (1)
10.28 -- Agreement for the Sale of Shares in Advantis Network & System Sdn. Bhd. Dated
June 20, 1997, between the Company and the shareholders of Advantis.
10.29 -- Building Lease dated June 9, 1997 by and
between the Company, as Tetant and El Dorado
Holding Company, Inc., as Landlord.
11 -- Statement regarding computation of per share earnings
27 -- Financial Data Schedule
</TABLE>
(1) Incorporated by reference to the Registration Statement on Form
SB-2, File Number 333-15563, as filed with the Securities and
Exchange Commission on January 30, 1997.
(b) Reports on Form 8-K
Report on Form 8-K filed by the Company on April 7, 1997, reported on
the expiration of the letter of intent to acquire C.C. & Associates previously
disclosed in the Company's Prospectus.
[Rest of this page intentionally left blank]
-14-
<PAGE> 16
SIGNATURES
In accordance with the requirements of the Exchange Act , the
Registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
NHANCEMENT TECHNOLOGIES INC.
By: /s/ Esmond T. Goei
--------------------------------------
Date: August 12, 1997 Esmond T. Goei
Chairman of the Board, Chief Executive
Officer, President and Director
By: /s/ Douglas S. Zorn
--------------------------------------
Date: August 12, 1997 Douglas S. Zorn
Executive Vice President-Finance,
Secretary, Treasurer, Chief Operating
and Financial Officer and Director
-15-
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C> <C> <C>
10.28 -- Agreement for the Sale of Shares in Advantis Network & System Sdn. Bhd. Dated
June 20, 1997, between the Company and the shareholders of Advantis.
10.29 -- Building Lease dated June 9, 1997 by and
between the Company, as Tetant and El Dorado
Holding Company, Inc., as Landlord.
11 -- Statement regarding computation of per share earnings
27 -- Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.28
DATED THIS 20th DAY OF JUNE, 1997.
================================================================================
- BETWEEN -
THE PARTIES WHOSE NAMES AND ADDRESSES ARE
SET OUT IN COLUMN (1) OF THE SCHEDULE
- AND -
NHANCEMENT TECHNOLOGIES INC.
=======================================================
AGREEMENT FOR THE SALE OF SHARES
IN ADVANTIS NETWORK & SYSTEM SDN. BHD.
=======================================================
Prepared By:
M/S SKRINE & CO.
ADVOCATES & SOLICITORS
STRAITS TRADING BUILDING
NO. 4. LEBOH PASAR BESAR
50050 KUALA LUMPUR.
File No. KCK/1972077.4/97
18th June 1997
G:\KCK\KCH\1972077.4\SPA.DOC
<PAGE> 2
AGREEMENT FOR THE SALE OF SHARES
IN ADVANTIS NETWORK & SYSTEM SDN. BHD.
AN AGREEMENT is made this 20th day of June, 1997
BETWEEN
(1) THE PARTIES WHOSE NAMES AND ADDRESSES ARE SET OUT IN COLUMN (1) OF THE
SCHEDULE (severally "Vendor" and collectively "Vendors");
AND
(2) NHANCEMENT TECHNOLOGIES INC., a company incorporated under the laws of
the State of Delaware, the United States of America and having its
principal office at 1746 Cole Blvd, Suite 265, Golden, Colorado 80401,
United States of America and Fax No: 00-1-303-271-9493 ("NHancement");
WHEREAS:
A. ADVANTIS NETWORK & SYSTEM SDN. BHD. (Company No. 264705-A) ("Company") is
a company incorporated in Malaysia having an authorised share capital of
Ringgit Malaysia Five Hundred Thousand (RM500,000.00) divided into five
hundred thousand (500,000) ordinary shares of Ringgit Malaysia One
(RM1.00) each of which two hundred and fifty thousand (250,000) ordinary
shares have been issued and are fully paid.
B. The Vendors are the registered and beneficial owners of those number of
ordinary shares in the Company set out against their respective names in
Column (2) of the Schedule (collectively "Sale Shares") which in
aggregate constitute all the issued and fully paid-up ordinary shares of
the Company.
C. NHancement has authorised capital stock of twenty-two million
(22,000,000) shares designated into twenty million (20,000,000) shares of
common stock of USD0.01 par value per share and two million (2,000,000)
shares of preferred stock of USD0.01 par value per share of which four
million two hundred and twenty-eight thousand four hundred and forty
(4,228,440) shares of the common stock are issued and outstanding as at
the date of this Agreement. The common stock of NHancement is listed on
The NASDAQ Small Cap Market ("NASDAQ").
D. The Vendors are desirous of selling and NHancement is desirous of
purchasing the Sale Shares upon the terms and conditions hereinafter
contained.
<PAGE> 3
2
E. The parties intend that the transactions contemplated hereby qualify as
a pooling of interests for United States' financial accounting purposes
and as an exempt transaction pursuant to Section 4(2) of the Securities
Act (as hereafter defined).
NOW THIS AGREEMENT WITNESSETH as follows:-
1. DEFINITIONS
1.1 In this Agreement where the context so admits, the following expression
shall have the following meanings:-
"Accounts" means the audited balance sheet and profit and loss accounts
of the Company audited by the Company's auditors for the period ended on
the Accounts Date and a copy of which has been provided by the Vendors to
NHancement;
"Accounts Date" means the financial year ended 31st March 1996 of the
Company;
"Act" means the Companies Act, 1965 as amended from time to time and any
re-enactment thereof;
"Common Stock" means the common stock of NHancement of USD0.01 par value
per share;
"Company" means ADVANTIS NETWORK & SYSTEM SDN. BHD. described in
Recital A;
"Completion Date" means the date for completion of the sale and purchase
of the Sale Shares referred to in Clause 5.1;
"Consideration Shares" means 530,000 fully-paid and non-assessable shares
of Common Stock;
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended from time to time and any successor or re-enactment
thereof;
"FIC" means the Foreign Investment Committee of Malaysia;
"Purchase Price" means the purchase price payable by the Purchaser for
the Sale Shares determined in the manner set out in Clause 3.3;
"Sale Shares" means the aggregate of the shares to be purchased by
NHancement from the Vendors being all of the issued share capital of the
Company;
"Securities Act" means the Securities Act of 1933 of the United States of
America, as amended from time to time and any successor or re-enactment
thereof;
"USD" means the legal currency of the United States of America
denominated in Dollars;
<PAGE> 4
3
1.2 Words denoting the singular shall include the plural number and vice
versa. Words denoting the masculine gender shall include the feminine and
neuter genders. Words denoting persons shall include corporations and
firms.
1.3 Clause headings are for reference only and shall be ignored when
construing the meaning of any provisions of this Agreement.
1.4 The Schedule and Appendices shall be taken read and construed as an
essential part of this Agreement.
1.5 References to Clauses, Schedule and Appendices are references to
Clauses, Schedule and Appendices respectively of this Agreement.
2. SALE AND PURCHASE
2.1 The Vendors hereby agree to sell and NHancement hereby agrees to
purchase the Sale Shares free from all encumbrances, claims, charges,
liens and equities and with all rights attaching thereto as from the date
hereof upon the terms and conditions herein contained.
3. CONSIDERATION
3.1 The consideration for the sale by the Vendors of the Sale Shares to
NHancement shall be satisfied by the issuance and delivery by NHancement
of the Consideration Shares to the Vendors.
3.2 The number of the Consideration Shares to be issued and delivered by
NHancement to each Vendor is set out in Column (4) of the Schedule
against the respective name of each Vendor.
3.3 The parties agree that the Purchase Price for the Sale Shares shall be
equal to eighty per cent (80%) of the average closing price per share
quoted by NASDAQ over the five (5) trading days immediately preceding the
date hereof times the number of Consideration Shares; being USD
1,484,000.00. The parties further agree that, notwithstanding any
variation in the price of the Common Stock as quoted by NASDAQ between
the date hereof and the Completion Date, there shall not be any
adjustments to the number of Consideration Shares to be issued to the
Vendors.
3.4 The Consideration Shares shall upon issue be restricted securities
subject to the restrictions on transfer pursuant to Rule 144 promulgated
under the Securities Act.
<PAGE> 5
4
4. CONDITIONS PRECEDENT
4.1 Subject to the provisions herein contained, NHancement's obligation to
perform this Agreement is conditional upon approval by the FIC and any
other relevant authority of the acquisition of the Sale Shares by
NHancement having been obtained on or before the expiration of six (6)
months from the date of this Agreement or such other date as the parties
hereto may mutually agree. It being agreed that:-
4.4.1 Each of NHancement and the Vendors shall, at its own cost and
expense, as soon as possible after the execution of this Agreement
make the necessary applications to the respective authorities and
persons for the purpose of obtaining the approvals referred to in
this Clause 4.1 and the parties shall promptly furnish the other
with any information and documents which the other may require for
the purposes of making the applications referred to in this Clause
4.1;
4.1.2 If conditions or terms are imposed in connection with the granting
of the approvals referred to in this Clause 4.1 and any of the
said conditions or terms is unacceptable to NHancement. NHancement
shall appeal to the relevant authority against such conditions or
terms within thirty (30) days of receipt of notice of the said
conditions or terms;
4.1.3 If any of the approvals referred to in this Clause 4.1 is granted
subject to terms and conditions which are acceptable to
NHancement, such approval shall be deemed to have been obtained
and this Agreement shall be deemed to have been modified and
varied to such extent as may be necessary to comply with the terms
and conditions imposed by the authority(ies) concerned.
4.2 NHancement's obligation to perform this agreement is conditioned upon
NHancement being reasonably satisfied, after a due diligence audit
carried out by it or its advisers, that (A) the books of accounts and
records of the Company give a true and fair view of its assets,
liabilities, business and affairs; and (B) there has not been any
material deterioration in the financial position of the Company since the
Accounts Date. It being agreed that:-
4.2.1 the Vendors will as soon as possible after the date hereof but no
later than 15th August 1997:-
(a) ensure that the Company's auditors shall, at the cost and
expense of the Company, complete the audit of the Company's
accounts for its financial year ended 31st March 1997;
(b) cause the audited accounts to be approved by the board of
directors and shareholders of the Company; and
(c) forthwith provide a copy of the audited accounts to
NHancement;
<PAGE> 6
5
4.2.2 NHancement shall, at its own cost and expense, as soon as
possible after the date hereof appoint a firm of auditors to carry
out a due diligence and shall use all reasonable endeavours to
ensure that the due diligence audit is completed within sixty (60)
days from the date of delivery of the accounts referred to in
Clause 4.2.1(c);
4.2.3 The Vendor shall procure the Company and its auditors, officers
and employees to give full and unfettered access to the books of
accounts and other documents of the Company to NHancement's
auditors;
4.2.4 NHancement shall furnish a copy of the report of the auditors to
the Vendors and shall within fourteen (14) days from receipt of
the report inform the Vendors in writing whether the condition
precedent of this Clause 4.2 has been fulfilled; and
4.2.5 NHancement shall have the right to terminate this Agreement if
the audited accounts of the Company for the financial year ended
31st March 1997 discloses a material deterioration in the
financial position of the Company as compared to its financial
position as at the Accounts Date.
4.3 NHancement being satisfied from documents and evidence furnished to it
by the Vendors or the Company that:-
4.3.1 the Vendors have taken all necessary corporate actions to procure
Advantis Structured Systems Sdn Bhd and Advantis Integration Sdn
Bhd to have changed their respective names to remove any reference
to "Advantis" or any word or phrase similar thereto;
4.3.2 the sale by the Company of its fifty-one per cent (51%)
shareholding in each of Advantis Structured Systems Sdn Bhd and
Advantis Integration Sdn Bhd have been completed on an arms-length
and fair market value basis and on a without recourse basis
against the Company and the sale proceeds have been received by
the Company;
4.3.3 the Vendors who have an interest in the remaining 49% of the
issued capital of Advantis Integration Sdn Bhd have disposed of
their respective legal and beneficial interests in that company;
and
4.3.4 the Vendors who have an interest in the issued capital of
Advantis Technologies Sdn Bhd have taken all necessary corporate
actions to procure that company to have changed its name to remove
any reference to "Advantis" or any word or phrase similar thereto
and subsequently to have disposed of their respective legal and
beneficial interests in that company.
4.4 NHancement may terminate this Agreement by giving written notice to such
effect to the Vendors if:-
<PAGE> 7
6
4.4.1 any of the approvals required by Clause 4.1 is refused, nor
obtained within the allotted period, or is obtained subject to
limitations which are unacceptable to NHancement and which
NHancement is unable to modify on appeal to the relevant
authority; or
4.4.2 any of the other conditions of Clause 4 remains unfulfilled by a
date six (6) months after the date hereof;
Upon receipt of such written notice by the other party hereto, this
Agreement shall summarily terminate and be at an end and of no further
effect and no party hereto shall have any further claim against the
others pursuant to the terms of this Agreement save for any antecedent
breach.
5. COMPLETION
5.1 The sale and purchase of the Sale Shares shall be completed on or before
the expiry of thirty (30) days from the date the last of the approvals or
conditions stated in Clause 4 have been obtained or fulfilled
("Completion Date") in the manner hereinafter set forth:-
5.1.1 the Vendors shall deliver or procure the delivery to NHancement
of the following:-
(a) a copy of the resolution of the Board of Directors of the
Company (duly certified by a Director or the Company
Secretary of the Company) approving the transfer of the
Sale Shares from the Vendors to NHancement or its
nominee(s) together with signed copies of the waiver(s) of
pre-emption rights of any person whomsoever to the Sale
Shares or any part thereof if such waiver(s) are required
under the Articles of Association of the Company to enable
NHancement or its nominee(s) to be registered as the
transferee(s) of the Sale Shares;
(b) the relevant share certificates relating to the Sale
Shares and the duly executed valid and registrable
transfers in respect thereof in favour of NHancement or its
nominee(s);
(c) a copy of the resolutions of the Board of Directors of the
Company (duly certified by a Director or the Secretary of
the Company) approving the appointment of four (4) nominees
of NHancement as directors of the Company;
(d) letters of resignation of all directors of the Company
other than the directors nominated by NHancement to take
effect immediately and without any compensation for loss of
office;
(e) letters of resignation of the Auditors and the Company
Secretary;
<PAGE> 8
7
(f) the common seal and all assets and documents belonging to
the Company;
(g) employment agreements between the persons whose names
appear below and the Company in a form acceptable to
NHancement whereby the said persons agree to be employed by
the Company in the designation which appears against their
respective names for not less than two (2) years after the
Completion Date :-
<TABLE>
<CAPTION>
Name Designation
---- -----------
<S> <C>
Goh Kim Siang Managing Director
Ng Kok Wah Technical Manager
Man Yiew Ming Technical Manager
Ahilan Surnander Divisional Manager, Sales;
s/o S. O. Thevar
</TABLE>
(h) a market stand-off agreement signed by each Vendor
substantially in a form acceptable to NHancement;
(i) a Closing Certificate signed by each Vendor whereby the
Vendors confirm that the representations, warranties and
covenants provided by them under this Agreement remain
true and accurate as at the Completion Date;
(j) a Closing Certificate signed by the managing Director of
the Company confirming that the representations and
warranties set out in Clauses 6.2.2 to 6.1.28 hereof
remain true and accurate, and the undertakings set out in
Clauses 7.1.1 to 7.1.11 have been complied with by the
Vendors, as at the Completion Date;
(k) a copy of the United States Internal Revenue Code FORM W-8
"Certificate of Foreign Status" signed by each Vendor:
5.1.2 against delivery and completion of the items referred to in Clause
5.1.1 above NHancement shall deliver to the Vendors:-
(a) stock certificate(s) representing Common Stock in
denominations relating to each Vendor's respective
proportion of the Consideration Shares;
(b) a Closing Certificate signed on behalf of NHancement
whereby NHancement confirms that the representations,
warranties and covenants provided by it under this
Agreement remain true and accurate as at the Completion
date.
<PAGE> 9
8
5.2 The parties acknowledge that NHancement is not obliged to complete the
purchase of the Sales Shares unless the sale and purchase of all the Sale
Shares takes place contemporaneously.
6. VENDORS' REPRESENTATIONS AND WARRANTIES
6.1 The Vendors hereby jointly and severally represent and warrant to
NHancement the intent that the provisions of this Clause shall continue to
have full force and effect for a period of three (3) years from the
Completion Date, that except as otherwise disclosed in the Accounts or by
the Vendors to NHancement in writing before the date hereof or as provided
for in this Agreement that:-
6.1.1 The Company is duly incorporated, validly existing and in good
standing under the laws of Malaysia;
6.1.2 No order has been made, no petition has been presented and no
resolution has been passed or proposed and no analogous action or
proceedings in Malaysia or any other jurisdiction has been
initiated or taken for the purpose of winding up the Company and
no receiver, manager or liquidator has been appointed with respect
thereto;
6.1.3 All corporate approvals required in connection with the increase
from time to time in the authorised and issued share capital of
the Company have been obtained and the authorised and issued share
capital is as set out in Recital (A) hereof;
6.1.4 No person has the right to call for the issue of any share or loan
capital of the Company under any option or other agreement
(including conversion rights);
6.1.5 The Company has the requisite corporate powers to carry on the
business presently being carried on;
6.1.6 The Accounts for the period ended on the Accounts Date have been
prepared in accordance with the requirements of all relevant
statutes and generally accepted accounting principles in Malaysia
and are true and accurate in all material respects and show a true
and fair view of the assets and liabilities of the Company at the
Accounts Date and the profits thereof for the relevant period;
6.1.7 There has been no material deterioration in the financial
position, profits or prospects of the Company since the Accounts
Date;
6.1.8 The amounts included in the Accounts or in the books of the
Company as due from debtors are substantially collectable and have
not been written off or proved to be irrevocable to any material
extent;
6.1.9 The aggregate of the stock-in-trade included in the Accounts has
been arrived at on the basis of the cost or market value whichever
is
<PAGE> 10
9
the lower and full provision has been made for old and slow moving
stock and no part of such aggregate value is attributable to stock
which is known to be unusable or unsaleable in the normal course
of business;
6.1.10 All licences, consents, permits and authorities of or from any
court, tribunal, or governmental authority or agency which are
necessary or desirable to enable the Company to carry on its
business in the places and in the manner in which such business is
now carried on have been obtained and the Vendors know of no
reason why any of them should be suspended, cancelled or revoked;
6.1.11 All licences including business licences and permits,
intellectual property including patents, trade marks, copyrights
and registered designs which are used by the Company in connection
with its business are registered in the name of or licensed to the
Company and are valid and effective and no licence or other rights
have been granted or agreed to be granted to any third party in
respect of such intellectual property;
6.1.12 The Company is not in default in respect of any of its
obligations, whether contractual or statutory in any material
respect;
6.1.13 The Company is not engaged in any material litigation or
arbitration proceedings and no material litigation or arbitration
proceedings are pending or threatened by or against the Company
and the Vendors know of no reason why any such proceedings are
likely to be commenced;
6.1.14 The Company has not entered into any long term or abnormal
contract or undertaken any obligations whatsoever except such as
are usual and necessary in the ordinary and proper course of its
business or as are referred to in the Accounts and in particular,
and without limitation to the foregoing, there are no contracts
for the purchase of stocks at prices substantially in excess of
market prices prevailing as at the dates such contracts were made
or for the sale of stocks at prices substantially lower than the
market prices prevailing as at the dates such contracts were made;
6.1.15 Save as disclosed in the Accounts, the Company has not any
mortgages, charges, liens or other encumbrances secured over any
of its assets;
6.1.16 The Company has no outstanding debts, liabilities, contracts or
engagements other than those disclosed in the Accounts and in
respect of transactions entered into subsequent to the Accounts
Date, in the books of account of the Company;
6.1.17 The Company has not since the Accounts Date paid or made and will
not pending completion hereunder pay or make any dividend, bonus
issue or other distribution (other than those for which full
<PAGE> 11
10
reserve or provision was made in the Accounts) or any loan or
advance;
6.1.18 To the best of the knowledge, information and belief of the
Vendors, the tax returns of the Company have at all times been
correct and on a proper basis and are not the subject of any back
duty claim or other dispute with the revenue authorities;
6.1.19 The amounts provided in the Accounts for taxation are sufficient
to cover all taxation (whether income tax, amounts assessed as if
they were amounts of income tax, service tax, sales tax or capital
gains tax) for which the Company is at the Accounts Date or at any
time thereafter may become liable to be assessed or to pay on or
in respect of or by reference to its business, income or profits
on or before the Accounts Date or in respect of dividends or
distributions made prior to the Accounts Date or in respect of
any accounting period of the Company ended on or before the
Accounts Date;
6.1.20 There are no outstanding notices served on the Company in respect
of any of its assets which are material to its business;
6.1.21 The Company has no subsidiaries other than Advantis Structured
Systems Sdn Bhd and Advantis Integration Sdn Bhd in respect of
which the Company has divested its entire fifty-one per cent (51%)
shareholding in each of such companies subsequent to the Accounts
Date;
6.1.22 The divestment of the shares by the Company referred to in Clause
6.1.21 have been effected with the purchasers thereof on a without
recourse basis to the Company;
6.1.23 The Company and to the best of the knowledge and belief of the
Vendors, every officer of the Company has complied with all laws,
regulations and official directives (whether or not having the
force of law) and all judgments, orders and decrees in Malaysia
and every other relevant jurisdiction applicable to the Company;
the carrying on of its business and all issues of shares
debentures or other securities of the Company;
6.1.24 The statutory books and minute books of the Company have been
properly written up and all appropriate returns have been made to
the Registrar of Companies and any other official body in Malaysia
and any other relevant jurisdictions;
6.1.25 The furniture fixtures fittings equipment and vehicles used in
connection with the business of the Company other than leased or
hired items which have been disclosed are the property of and held
by the Company free from any hire or hire purchase agreement or
agreement for payment on deferred terms or bill of sale;
<PAGE> 12
11
6.1.26 Of the fixtures fittings equipment and vehicles included
in the Accounts and also any such item acquired by the Company
since the Accounts Date:-
(a) none has been retaken into possession by the owner under
any hire purchase agreement or equipment lease agreement;
(b) none has been sold or disposed of at a price which is
materially less than its book value;
(c) none was acquired at a price substantially in excess of
market value;
6.1.27 All the assets of the Company which are of an insurable nature
are insured in amounts reasonably regarded as adequate against
fire and other risks and all policies for such insurance are in
force and are not voidable on account of any act, omission or
non-disclosure;
6.1.28 With respect to its employees, the Company has:-
(a) paid all statutory contributions (including without
limitation, employees' provident fund and social security
contributions) which are required to be paid by the
Company under the laws of Malaysia;
(b) has deducted from the employees and paid to the relevant
authorities, contributions and payments (including without
limitation the employees' contribution to the employees'
provident fund and deductions on account of income tax)
which are required to be so deducted and paid over to the
relevant authorities under the laws of Malaysia.
6.2 The Vendors hereby severally represent and warrant to NHancement that:-
6.2.1 This Agreement constitutes valid and binding obligations on the
respective Vendors;
6.2.2 Each respective Vendor is the registered and beneficial owner of
the respective number of the Sale Shares registered in his name;
6.2.3 Each respective Vendor is entitled to sell and transfer or
procure the sale and transfer of the full legal and beneficial
ownership in the respective number of the Sale Shares registered
in his name to NHancement on the terms set out in this Agreement;
6.2.4 There is no option, right to acquire, mortgage, charge, or other
encumbrance or any equity on, over or affecting the Sale Shares
or any of them and so far as the respective Vendor thereof is
aware no claim has been made by any person to be entitled to any
of the foregoing.
<PAGE> 13
12
6.3 NHancement hereby acknowledges that the obligations of the Vendors under
Clause 6.2 are several and no Vendor shall be liable for the default of
any other Vendor of any representation or warranty contained therein. The
Vendors acknowledge that their obligations under Clauses 6.1.1 to 6.1.28
are joint and several.
6.4 Each representation and warranty set out in Clauses 6.1 and 6.2 shall be
separate and independent and, save as expressly provided, shall not be
limited by reference to any other representation or warranty or any other
provisions contained in this Agreement.
7. VENDORS' UNDERTAKINGS
7.1 As from the date of this Agreement and until the Completion Date the
Vendors shall procure that the Company shall maintain and carry on its
business in the ordinary and usual course and that no act or omission
other than in such ordinary and usual course shall be effected without
the prior consent in writing of NHancement and in particular but without
prejudice to the generality of the foregoing the Vendors shall procure
that:-
7.1.1 no share or loan capital in the Company are issued and no options
and rights or warrants are created in respect of any share of loan
capital in the Company;
7.1.2 the business of the Company will continue to be carried on and
managed in the same manner as at the present time and in
accordance with all regulations applicable to it;
7.1.3 the Company will not create or agree to create any mortgage,
charges or other security or encumbrances over its assets save and
except in the ordinary course of its business;
7.1.4 the Company will not enter into any material contracts or incur
any material liabilities or obligations except in the ordinary
course of its business;
7.1.5 the Company will not enter into any long term or abnormal
contract or capital commitment except in the ordinary course of
its business;
7.1.6 the Company will not pay or agree to pay to its directors or
officers or any of them any remuneration or other emoluments or
benefits whatsoever other than those which have been disclosed and
agreed to be NHancement;
7.1.7 the Company will not dispose of any material part of its fixed
assets save and except for those assets which are no longer
required in the Company's business;
<PAGE> 14
13
7.1.8 the Company will not do anything other than acts in the
ordinary course of its business whereby its financial position
shall be rendered materially less favorable than at the date
hereof;
7.1.9 the Company will not permit any liens to arise on any of its
assets save and except such liens arising in the ordinary course
of business or by law;
7.1.10 the Company will not acquire any assets on hire purchase or
deferred terms save and except with respect to assets which are
necessary for its business;
7.1.11 the Company will not pass any resolution by its board of
directors or by its members in general meeting and will not make
any alteration to its Memorandum and Articles of Association save
and except as is necessary to give effect to the provisions of
this Agreement or as required in the ordinary and proper course of
its business.
7.2 Any Vendor who hereby acquires a number of Consideration Shares greater
than five per cent (5%) of the outstanding Common Stock of NHancement
shall file with the United States Securities and Exchange Commission
within ten (10) days of the Completion Date a fully executed Form 13D
reporting such acquisition as required by Section 13(d) of the Exchange
Act, copies of which shall also be delivered to NHancement and filed
with NASDAQ.
7.3 The Vendors acknowledge that the proprietary interest and goodwill in
the word "Advantis" continues to vest in the Company upon completion of
the sale and purchase of the Sale Shares. The Vendors undertake that
they will not by themselves or through any third parties use the name
"Advantis" or any word or phrase similar thereto in any other company or
business which they may now or hereafter carry on in Malaysia or
elsewhere.
8. VENDORS' TAX INDEMNITIES
8.1 The Vendors hereby jointly and severally undertake with NHancement that
they will indemnify NHancement against any depletion or diminution in
value in the assets of the Company resulting from:-
8.1.1 any amount of tax (whether income tax, amounts assessed as if
they were amounts of income tax, service tax or sales tax) already
assessed or which may hereafter be assessed on the Company for any
period ending on or before the Accounts Date except in so far as
provision is made for such liability in the Accounts;
8.1.2 any claim for income tax in respect of any dividend paid or any
distribution made by the Company before the Completion Date except
in so far as provision is made for such liability in the
Accounts;
<PAGE> 15
14
8.1.3 any claim made for payment by the Company of capital gains tax in
respect of a chargeable gain accruing at any time prior to the
Completion Date except in so far as provision is made for such
liability in the Accounts;
8.1.4 any reasonable settlement of any threatened claim, demand,
direction, apportionment, assessment, recovery or counter-claim as
aforesaid;
8.1.5 any costs reasonably incurred by the Company in contesting or
settling any such claim, demand, direction, apportionment,
assessment, recovery or counter-claim as aforesaid, whether
threatened or made.
9. NHANCEMENT'S REPRESENTATIONS AND WARRANTIES
9.1 NHancement hereby represents and warrants to the Vendors to the intent
that the provisions of this Clause shall continue to have full force and
effect for a period of three (3) years from the Completion Date, that
except as otherwise disclosed by NHancement to the Vendors in writing
before the date hereof or as provided for in this Agreement that:-
9.1.1 NHancement is a corporation duly organised, validly existing and
in good standing under the laws of the State of Delaware, United
States of America;
9.1.2 All corporate actions required in connection with the issuance and
delivery of the Consideration Shares will have been obtained and
be of full force and effect on the Completion Date;
9.1.3 The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorised
by all necessary corporate action and this Agreement is a valid
and binding obligation of NHancement, enforceable in accordance
with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium or similar laws
affecting the rights of creditors generally;
9.1.4 Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby in the manner
herein provided will:-
(a) contravene any provision of the Certificate of
Incorporation or Bylaws of NHancement;
(b) violate, be in conflict with, constitute a default under,
cause the acceleration of any payments pursuant to, or
otherwise impair the good standing, validity and
effectiveness of any
<PAGE> 16
15
lease, licence, law, rule, regulation, order or permit to
which NHancement is subject;
9.1.5 Upon issuance the Consideration Shares will be eligible for
trading on NASDAQ subject to the restrictions of Rule 144 and
the market standoff agreement;
9.1.6 NHancement has delivered to the Vendors copies of its final
prospectus dated January 30, 1997 and its most recent FORM 10KSB.
FORM 10QSB and FORMS 8K filed with the United States Securities
and Exchange Commission in compliance with the reporting
requirements of the Exchange Act; which documents include, among
other things, audited financial statements of NHancement for its
most recent fiscal year and unaudited financial statements of
NHancement for its most recent quarter, and which describe its
business as of their respective dates and, taking into account the
activities described therein and herein, accurately describe its
business as of the date hereof.
9.2 Each representation and warranty set out in Clause 9.1 shall be separate
and independent and, save as expressly provided, shall not be limited by
reference to any other representation or warranty or any other provisions
contained in this Agreement.
10. SPECIFIC PERFORMANCE
10.1 The parties hereto shall be entitled to obtain an order for specific
performance against any party defaulting in the performance of its
respective obligations under this Agreement.
11. TIME OF THE ESSENCE
11.1 Time wherever mentioned shall be of the essence in this Agreement.
12. LEGAL COSTS AND STAMP DUTY
12.1 The cost of and incidental to the preparation of this Agreement
including the stamp duty and transfer fee payable on the transfer and
registration of the Sale Shares shall be borne by NHancement. Each
party shall bear its own solicitors fees of and incidental to the
preparation of this Agreement.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of Delaware and the parties hereto
submit to the non-exclusive jurisdiction of the Courts of Malaysia. The
parties hereto agree that
<PAGE> 17
16
nothing contained in this Clause shall preclude any party from commencing
legal proceedings in any other jurisdiction.
13.2 Each of the Vendors hereby appoints the person named below to be their
agent ("Service Agent") for receipt of any originating process and cause
papers with respect to any legal proceeding commenced against them under
or pursuant to this Agreement:-
Name of Service Agent: Goh Kim Siang
Address : No. 323, Jalan BK 2/7
Bandar Kinrara
58200 Kuala Lumpur
13.3 The Vendors agree that any originating process and cause papers served on
the Service Agent in accordance with Clause 13.2 shall be deemed to have
been duly served on the Vendors.
14. NOTICES
14.1 Any communication (including without limitation notices consents and
similar documents) required or permitted to the given or served under
this Agreement shall be in writing and may be served or registered post
for addresses within the country of the sender and by registered
air-letter for addresses outside the country of the sender and in both
cases by hand or by telefax, addressed to the relevant party at the
addresses or telefax numbers set out in the Schedule or such other
address or telefax number as may have been notified to the other party
in accordance with this Clause.
14.2 Any such communication notice consents and similar documents shall be
deemed to have been served:-
14.2.1 in the case of delivery by hand when delivered if a receipt is
obtained from the addressee; and
14.2.2 in the case of telefax:-
(a) if despatched during regular business hours of the
receiving office when despatched and telefax
acknowledgement or answerback is duly an automatically
received by the sender of the telefax; or
(b) if despatched otherwise than during regular business hours
of the receiving office upon the commencement at the
receiving office of the next regular business hours
succeeding transmission provided always that answerback is
duly automatically received by the sender on despatch as
aforesaid;
<PAGE> 18
17
14.2.3 if despatched by registered post to an address within the country
of the sender five (5) days and if despatched by registered
air-letter to an address outside the country of the sender
fourteen (14) days after the date it is lodged with the postal
authorities for despatch.
15. SUCCESSORS BOUND
15.1 This Agreement shall be binding upon the respective successors-in-title,
personal representatives and permitted assigns of the Vendors and the
successors-in-title and permitted assigns of the Purchaser. None of the
parties shall assign his rights and obligations hereunder without the
prior consent in writing of the other parties hereto.
16. SEVERABILITY
16.1 Any term, condition, stipulation, provision, covenant or undertaking in
this Agreement which is or may become illegal, void, prohibited or
unenforceable in any respect under any law shall be ineffective to the
extent of such illegality, voidness, prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
illegality, voidness, prohibition or unenforceability shall not
invalidate or render illegal, void or unenforceable any other term,
condition, stipulation, provision, covenant or undertaking contained in
this Agreement.
17. NO WAIVER
17.1 Knowledge or acquiescence by any party of or in any breach of any of the
terms, conditions or covenants herein contained shall not operate as or
be deemed to be a waiver of such terms, conditions or covenants or any of
them and notwithstanding such knowledge or acquiescence, each party shall
be entitled to exercise its respective rights under this Agreement and to
require strict performance by the other of the terms, conditions and
covenants herein.
18. NO TRADING
18.1 The Vendors severally covenant with NHancement that they shall not trade
in any securities of NHancement until the Completion Date or earlier
termination hereof.
19. CONFIDENTIALITY
19.1 Except as and to the extent required by law:-
19.1.1 NHancement will not disclose or use to the detriment of the
Company or the Vendors, any Confidential Information (as defined
below) with respect to the Company furnished or to be furnished to
NHancement or its auditors or representatives by any Vendor or the
Company or their respective representatives in the course of the
due
<PAGE> 19
18
diligence audit referred to in Clause 4 hereof or pursuant to
this Agreement;
19.1.2 the Vendors will not disclose or use to the detriment of
NHancement, any Confidential Information (as defined below) with
respect to NHancement furnished or to be furnished to the Vendors
or their respective representatives pursuant to this Agreement;
19.2 For the purposes of Clause 19.1. "Confidential Information" means any
information about stamped "confidential" or identified in writing as
such by the party providing the information ("Provider") to the other
party ("Recipient") or their respective representatives unless:-
19.2.1 such information is already known to the Recipient or
its representatives or to others not bound by a duty of
confidentiality or such information becomes publicly
available through no fault of the Recipient or its
representatives;
19.2.2 the use of such information is necessary or appropriate
in making any filing or obtaining any consent or approval
set out in Clause 4.1 hereof;
19.2.3 the furnishing or use of such information is required by
or necessary or appropriate in connection with legal
proceedings.
19.3 Upon the written request of the Provider, the Recipient will promptly
return to the Provider or destroy any Confidential Information in its
possession and certify in writing to the Provider that it has done so.
20. DISCLOSURE
20.1 Except and to the extent required by law, none of the parties hereto or
their respective representatives shall directly or indirectly make any
public comment, statement or communication with respect to, or disclose
the provisions of this Agreement or the transaction herein provided for
to any other persons without the prior consent in writing of the other
parties hereto PROVIDED THAT NHancement may file all reports and make all
disclosure required by the Exchange Act and NASDAQ and any corresponding
public release and in connection therewith the necessary disclosure to
its accountants, agents and other third parties without the prior
approval of the Vendors.
21. ENTIRE CONTRACT AND AMENDMENT
21.1 This Agreement constitutes the entire agreement and understanding between
the parties hereto in connection with the subject matter hereof.
21.2 No purported amendment of this Agreement shall be effective unless made
in writing and signed by all parties.
<PAGE> 20
19
22. NO NEGOTIATION
22.1 Until such time, if any, as this Agreement is terminated pursuant to
Clause 4, the Vendors will not, and will cause the Company and each of
their representatives not to, directly or indirectly solicit, initiate,
or encourage any inquiries or proposals from, discuss or negotiate with,
provide any non-public information to, or consider the merits of any
unsolicited inquiries or proposals from, any person (other than the
Purchaser) relating to any transaction involving the sale of the business
or assets (other than in the ordinary course of business) of the Company,
or any part of the share capital of the Company, or any merger,
consolidation, business combination, or similar transaction involving the
Company.
23. INDEMNIFICATION
23.1 From and after the Completion Date, the Vendors shall jointly and
severally indemnify and hold harmless NHancement and its officers,
directors, employees, shareholders and agents from and against any and
all damages, losses, obligations, deficiencies, liabilities, claims,
encumbrances, penalties, costs, and expenses, including reasonable
attorneys' fees (collectively "Losses"), that any of them may suffer or
incur, resulting from, related to, or arising out of any
misrepresentation, breach of any representation and warranty, or
nonfulfillment of any of the covenants or agreements of the Vendors in
this Agreement or from any misrepresentation in or omission from Annexure
A to this Agreement, certificate, financial statement, or from any other
document furnished or to be furnished to NHancement hereunder and any and
all actions, suits, investigations, proceedings, demands, assessments,
audits, judgments and claims arising out of any of the foregoing.
23.2 From and after the Completion Date, the Purchaser agrees to indemnify
and hold harmless the Vendors from and against any and all Losses that
Vendors may suffer or incur, resulting from, related to, or arising out
of any misrepresentation, breach of warranty, or nonfulfillment of any of
the covenants or agreements of NHancement in this Agreement or from any
misrepresentation in or omission from any certificate or document
furnished or to be furnished to the Vendors hereunder and any and all
actions, suits, investigations, proceedings, demands, assessments,
audits, judgments, and claims arising out of any of the foregoing
PROVIDED THAT nothing herein shall oblige NHancement to indemnify the
Vendors for any losses suffered by them in consequence of changes in the
price of the Common Stock (including the Consideration Shares).
23.3 Promptly after acquiring knowledge of any Losses against which the
Vendors have indemnified NHancement or against which NHancement has
indemnified the Vendors, or as to which any party may be liable, the
Vendors or NHancements, as the case may be, shall give to the other party
written notice thereof. Each indemnifying party shall, at its own
expense, promptly defend, contest or otherwise protect against any Losses
against which it has indemnified an indemnified party, and each
indemnified party shall receive from the other party all necessary and
<PAGE> 21
20
reasonable cooperation in said defense including, but not limited to, the
services of employees of the other party who are familiar with the
transactions out of which any such Losses may have arisen. The
indemnifying party shall have the right to control the defence of any
such proceeding unless it is relieved of its liability hereunder with
respect to such defence by the indemnified party. The indemnifying party
shall have the right, at its option, and, unless so relieved, to
compromise or defend, at its own expense by its own counsel, any such
matter involving the asserted liability of the indemnified party. In the
event that the indemnifying party shall undertake to compromise or defend
any such asserted liability, it shall promptly notify the indemnified
party of its intention to do so. In the event that an indemnifying party,
after written notice from an indemnified party, fails to take timely
action to defend the same, the indemnified party shall have the right to
defend the same by counsel of its own choosing, but at the cost and
expense of the indemnifying party.
24. INTERFERENCE WITH BUSINESS
24.1 The Vendors acknowledge that:-
24.1.1 they have occupied a position of trust and confidence with the
Company prior to the date hereof and have become familiar with
the following, any and all of which constitute confidential
information of the Company (collectively the "Advantis
Confidential Information"):
(a) any and all trade secrets concerning the business and
affairs of the Company, product specifications, data,
know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples,
inventions and ideas, past, current and planned research
and development, current and planned manufacturing and
distribution methods and processes, customer lists, current
and anticipated customer requirements, price lists, market
studies, business plans, computer software and programs
(including object code and source code), computer software
and database technologies, systems, structures and
architectures (and related processes, formulae,
compositions, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and
information of the Company and any other information,
however documented, of the Company that is a trade secret;
(b) any and all information concerning the business and affairs
of the Company, which includes historical financial
statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans,
the names and backgrounds of key personnel, personnel
training and techniques and materials, however documented;
and
<PAGE> 22
21
(c) any and all notes, analysis compilations, studies,
summaries, and other material prepared by or for the
Company containing or based, in whole or in part, on any
information included in the foregoing;
24.1.2 the business of the Company is national in scope and its
products and services are marketed throughout Malaysia;
24.1.3 the Company competes with other businesses that are or could be
located in any part of Malaysia;
24.1.4 NHancement has required that the Vendors make the covenants set
out in Clauses 24.2 and 24.3 as a condition to NHancement's
purchase of the Sales Shares:
24.1.5 the provisions of Clauses 24.2 and 24.3 are reasonable and
necessary to protect and preserve the Company's business
enterprise and value; and
24.1.6 the Company would be irreparably damaged if the Vendors were to
breach the covenants set out in Clauses 24.2 or 24.3.
24.2 The Vendors acknowledge and agree that all Advantis Confidential
Information known or obtained by Seller, whether before or after the data
hereof, is the property of the Company. Therefore, the Vendors agree that
they will not, at any time, disclose to any unauthorized persons or use
for his own account or for the benefit of any third party any Advantis
Confidential Information, whether the Vendors have such information in
their respective memory or embodied in writing or other physical form,
without NHancement's prior consent in writing, unless and to the extent
that the Advantis Confidential Information is or becomes generally known
to and available for use by the public other than as a result of the
Vendors' fault or the fault of any other person bound by a duty of
confidentiality to NHancement or the Company. The Vendors acknowledge
that at the Completion Date they will deliver to NHancement all documents
(including devices, or computer software, whether embodied in a disk or
in other form) and all copies thereof, relating to the businesses,
operations, or affairs of the Company and any other Advantis Confidential
Information that the Vendors may then possess or have under their
control.
24.3 As an inducement for NHancement to enter into this Agreement the Vendors
agree that for a period of three (3) years after the Completion Date:-
24.3.1 the Vendors will not, directly or indirectly, either for himself
or any other person:-
(a) induce or attempt to induce any employee of the Company to
leave the employ thereof;
(b) in any way interfere with the relationship between the
Company and any employee thereof;
<PAGE> 23
22
(e) employ, or otherwise engage as an employee, independent
contractor, or otherwise, any employee of the Company; or
(d) induce or attempt to induce any customer, supplier,
licensee, or business relation of the Company to cease
doing business with the Company or in any way interfere
with the relationship between any customer, supplier,
licensee, or business relation of the Company;
24.3.2 the Vendors will not use any Advantis Confidential Information,
directly or indirectly, either for himself or any other person, to
solicit the business of any person known to the Vendor to be a
customer of the Company, whether or not the Vendor had personal
contact with such person, with respect to products or activities
which compete in whole or in part with the products or activities
of the Company;
24.3.3 the Vendors will not disparage NHancement or the Company, or any
of their shareholders, directors, officers, employees, or agents;
and
24.3.4 the Vendors will, within ten days after accepting any employment,
advise NHancement of the identity of any employer of the Vendor
whereafter NHancement or the Company may serve notice upon each
such employer that the Vendor is bound by this Clause 24 and
furnish each such employer with an extract of this Clause or the
relevant portions thereof.
25. BANK BORROWINGS AND EXISTING SECURITIES
25.1 NHancement hereby acknowledges that:-
25.1.1 the Company has an existing credit facility in the principal sum
of Ringgit Malaysia Two Million Two Hundred and Fifty Thousand
(RM2,250,000.00) with Pewira Affin Bank Berhad ("Existing
Facilities") which is secured by a Joint and Several Guarantee of
Goh Kim Siang, Abdul Rahman Bin Mohamed Hussain and Lee Gim Teik
("Existing Guarantee") and a third party charge over certain
immovable properties owned by Lee Gim Teik and a pledge of fixed
deposits by Lee Gim Teik ("Existing Third Party Securities"); and
25.1.2 a financial institution has in principle approved overdraft
facilities in the principal sum of Ringgit Malaysia Two Hundred
and Fifty Thousand (RM250,000.00) ("Additional Facilities") but
the terms thereof have yet to be advised to the Company and may
include provision of third party securities by way of bank
guarantees or charge over fixed assets ("Additional Third Party
Securities").
<PAGE> 24
23
25.2 Within ninety (90) days from the Completion Date, NHancement shall use
commercially reasonable efforts to (a) retain the Existing Facilities and
procure the release of the Existing Guarantee or (b) replace the Existing
Facilities with new credit facilities so as to secure a release of the
Existing Guarantee and the Existing Third Party Securities. As from the
Completion Date until the Existing Guarantee and the Existing Third Party
Securities have been released. NHancement shall indemnify the guarantors
and Lee Gim Teik against any losses incurred by them under the Existing
Guarantee and the Existing Third Party Securities, as the case may be, in
consequence of non-compliance by the Company with the terms of the
Existing Facilities.
25.3 The Vendors shall upon receipt of the letter setting out the terms of
the Additional Facilities furnish a copy of such letter to NHancement. If
NHancement is satisfied that the Additional Facilities are offered on
reasonable commercial terms existing in Malaysia, NHancement will consent
to the Company accepting the same. If any Additional Third Party
Securities are provided as securities for the Additional Facilities,
NHancement shall use commercially reasonable efforts to procure a release
of such securities within ninety (90) days from the Completion Date. As
from the Completion Date until the Additional Third Party Securities have
been released, NHancement shall indemnify the parties providing any
Additional Third Party Securities against any losses incurred by them
under such securities in consequence of non-compliance by the Company
with the terms of the Additional Facilities.
26. TRUST ARRANGEMENTS
26.1 Nordin bin Mohamad Desa ("Trustee"), a Vendor, hereby discloses to the
other parties hereto, including NHancement, that ten thousand (10,000)
shares ("Trust Shares") presently registered in his name have been held
by him in trust for Abdul Rahman Bin Mohamed Hussain ("Beneficiary"),
another Vendor since 17th May 1994. The Trustee shall within two (2)
weeks from the date hereof transfer the Trust Shares to the Beneficiary.
NHancement hereby consents to such transfer. The Trustee and the
Beneficiary shall as soon as possible after the completion of the
transfer of the Trust Shares provide NHancement with such documents
(including, without limitation, stamped transfer forms, board resolution
and new and cancelled share certificates) as NHancement may reasonably
require as evidence of the completion of the transfer.
26.2 Notwithstanding anything herein contained to the contrary, all parties
to this Agreement hereby agree and confirm that all representations,
warranties and undertakings provided by the Vendors under this Agreement
with respect to their registered and beneficial ownership of the
respective Sale Shares are hereby modified to the extent required by the
disclosure set out in Clause 26.1.
[The rest of this page has been left intentionally blank.]
<PAGE> 25
SCHEDULE
<TABLE>
<CAPTION>
Column (1) Column(2) Column(3) Column(4)
Agreed Number of
Name and Address Number of Proportion Consideration
of Vendors Sale Shares (%) Shares
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Lee Ai Leng 47,500 19 100,700
No. 323, Jalan BK 2/7
Bandar Kinrara
58200 Kuala Lumpur
Fax No.: 603-432 8872
2. Nordin bin Mohamad Desa 5,000 2 10,600
No. 12, Jalan AU 5
Lembah Kerarnat
54200 Kuala Lumpur
Fax No.: 603-432 8872
3. Abdul Rahman Bin Mohamed 32,500* 13 68,900
Hussain
No. 25, Jalan 22/42
Taman Lean Seng
46300 Peraling Jaya
Selangor
Fax No.: 603-432 8872
4. Lee Gim Teik 127,500 51 270,300
12 Jalan Pintar
6 1/2 Mile, Jalan Cheras
56100 Kuala Lumpur
Fax No.: 603-432 8872
5. Man Yiew Ming 22,500 9 47,700
42 Jalan SR 8/15
Taman Purra Indah
43300 Serdang
Selangor
Fax No.: 603-432 8872
</TABLE>
* Ten thousand (10,000) of such shares as of the date of the Agreement are
held in trust by Nordin bin Mohamad Desa for the benefit of Abdul Rahman
bin Mohamed.
<PAGE> 26
SCHEDULE (contd.)
<TABLE>
<CAPTION>
Column (1) Column(2) Column(3) Column(4)
Agreed Number of
Name and Address Number of Proportion Consideration
of Vendors Sale Shares (%) Shares
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
6. Ng Kok Wah 15,000 6 31,800
68, Jalan, USJ 4/1G
47600 UEP Subang
Selangor
Fax No.: 603-432 8872
------- --- -------
TOTAL 250,000 100 530,000
======= === =======
</TABLE>
<PAGE> 27
IN WITNESS WHEREOF the parties hereto have hereunto set their hands the day and
year first above written.
SIGNED by )
LEE AI LENG ) /s/ LEE AI LENG
in the presence of:- )
/s/ ADRIAN CHAIR
ADRIAN CHAIR
731005-10-5397
SIGNED by )
NORDIN BIN MOHAMAD DESA ) /s/ NORDIN BIN MOHAMAD DESA
in the presence of:- )
/s/ ANDREW KH00 CHIN HOCK
ANDREW KHOO CHIN HOCK
Advocate & Solicitor
Kuala Lumpur
SIGNED by )
ABDUL RAHMAN BIN MOHAMED ) /s/ ABDUL RAHMAN BIN MOHAMED
HUSSAIN ) HUSSAIN
in the presence of:- )
/s/ ANDREW KH00 CHIN HOCK
ANDREW KHOO CHIN HOCK
Advocate & Solicitor
Kuala Lumpur
SIGNED by )
LEE GIM TEIK ) /s/ LEE GIM TEIK
in the presence of:- )
/s/ ADRIAN CHAIR
ADRIAN CHAIR
731005-10-5397
SIGNED by )
NG KOK WAH ) /s/ NG KOK WAH
in the presence of:- )
/s/ ADRIAN CHAIR
ADRIAN CHAIR
731005-10-5397
<PAGE> 28
SIGNED by )
MAN YIEW MING ) /s/ MAN YIEW MING
in the presence of:- )
/s/ ADRIAN CHAIR
ADRIAN CHAIR
731005-10-5397
SIGNED by ESMOND GOEI )
) /s/ ESMOND GOEI
for and on behalf of )
NHANCEMENT TECHNOLOGIES INC. )
in the presence of:- )
/s/ ANDREW KH00 CHIN HOCK
ANDREW KHOO CHIN HOCK
Advocate & Solicitor
Kuala Lumpur
<PAGE> 1
EXHIBIT 10.29
LEASE
DATED JUNE 9, 1997
BY AND BETWEEN VOICE PLUS, INC., A CALIFORNIA
CORPORATION, AS TENANT, AND EL DORADO HOLDING COMPANY,
INC., A CALIFORNIA LIMITED PARTNERSHIP,
AS LANDLORD
<PAGE> 2
INDEX
OFFICE LEASE
<TABLE>
<S> <C>
1. Summary of Lease Provisions ............................................. 1
1.1 Tenant ............................................................ 1
1.2 Landlord .......................................................... 1
1.3 Date of Lease ..................................................... 1
1.4 Premises .......................................................... 1
1.5 Term .............................................................. 1
1.6 Commencement Date ................................................. 1
1.7 Ending Date ....................................................... 1
1.8 Rent .............................................................. 1
1.9 Use of Premises ................................................... 1
1.10 Direct Cost Estimate ............................................... 1
1.11 Security Deposit .................................................. 1
1.12 Addresses for Notices ............................................. 1
1.13 Non-Exclusive Parking Spaces ...................................... 1
1.14 Summary Provisions in General ..................................... 1
2. Property Leased ......................................................... 2
2.1 Premises .......................................................... 2
2.2 Improvements ...................................................... 2
2.3 Acceptance of Premises ............................................ 2
3. Term .................................................................... 2
3.1 Commencement Date ................................................. 2
3.2 Delay of Commencement Date ........................................ 2
3.3 Early Occupancy ................................................... 2
3.4 Tenant to Physically Occupy Premises .............................. 2
4. Rent .................................................................... 2
4.1 Rent .............................................................. 2
4.2 Late Charge ....................................................... 3
4.3 Additional Rent ................................................... 3
4.4 Cost of Living Adjustment ......................................... 3
5. Security Deposit ........................................................ 3
6. Use of Premises ......................................................... 3
6.1 Permitted Uses .................................................... 3
6.2 Tenant to Comply with Legal Requirements .......................... 3
6.3 Prohibited Uses ................................................... 4
7. Insurance; Indemnity; Waiver ............................................ 4
7.1 Insurance by Landlord ............................................. 4
7.2 Insurance by Tenant ............................................... 4
7.3 Failure by Tenant to Obtain Insurance ............................. 4
7.4 Indemnification ................................................... 4
7.5 Claims by Tenant .................................................. 5
7.6 Mutual Waiver of Subrogation ...................................... 5
8. Utilities and Services .................................................. 5
8.1 Provision to Premises ............................................. 5
8.2 Failure to Provide Services ....................................... 5
8.3 Additional Electrical Power ....................................... 5
8.4 Heat Generating Machines .......................................... 5
8.5 Excess Use of Services ............................................ 5
9. Repairs and Maintenance ................................................. 5
9.1 Landlord's Responsibilities ....................................... 5
9.2 Tenant's Responsibilities ......................................... 6
10. Common Area ............................................................. 6
10.1 In General ........................................................ 6
10.2 Parking Areas ..................................................... 6
10.3 Maintenance by Landlord ........................................... 6
11. Direct Costs ............................................................ 6
11.1 Definition ........................................................ 6
11.2 Payment of Excess Direct Costs by Tenant .......................... 6
12. Alterations, Improvements and Personal Property ......................... 7
12.1 In General ........................................................ 7
12.2 Removal Upon Lease Termination .................................... 7
12.3 Landlord's Improvements ........................................... 7
13. Default and Remedies .................................................... 7
13.1 Events of Default ................................................. 7
13.2 Remedies .......................................................... 8
14. Damage or Destruction ................................................... 8
14.1 Definition of Terms ............................................... 8
14.2 Insured Casualty .................................................. 8
14.3 Uninsured Casualty ................................................ 8
14.4 Tenant's Election ................................................. 9
14.5 Damage or Destruction Near End of Lease Term ...................... 9
14.6 Termination of Lease .............................................. 9
14.7 Abatement of Rentals .............................................. 9
14.8 Liability for Personal Property ................................... 9
14.9 Waiver of Civil Code Remedies ..................................... 9
14.10 Damage or Destruction to the Building ............................. 9
15. Condemnation ............................................................ 9
15.1 Definition of Terms ............................................... 9
15.2 Rights ............................................................ 9
15.3 Total Taking ...................................................... 9
15.4 Partial Taking .................................................... 9
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
16. Liens .................................................................. 10
16.1 Promises to be Free of Liens ..................................... 10
16.2 Notice of Lien; Bond ............................................. 10
17. Landlord's Rights Access to Premises ................................... 10
18. Landlord's Right to Perform Tenant's Covenants ......................... 10
19. Lender Requirements .................................................... 10
19.1 Subordination .................................................... 10
19.2 Subordination Agreements ......................................... 10
19.3 Approval by Lenders .............................................. 10
19.4 Attornment ....................................................... 10
19.5 Estoppel Certificates and Financial Statements ................... 10
20. Holding Over ........................................................... 11
21. Notices ................................................................ 11
22. Attorneys' Fees ........................................................ 11
23. Assignment, Subletting and Hypothecation ............................... 11
23.1 In General ....................................................... 11
23.2 Voluntary Assignment and Subletting .............................. 11
23.3 Collection of Rent ............................................... 12
23.4 No Bonus Value ................................................... 12
23.5 Corporations and Partnerships .................................... 12
23.6 Reasonable Provisions ............................................ 12
23.7 Attorneys' Fees and Costs ........................................ 12
23.8 Involuntary Transfer ............................................. 12
23.9 Hypothecation .................................................... 12
23.10 Binding on Successors ............................................ 12
24. Successors ............................................................. 13
25. Landlord Default; Mortgagee Protection ................................. 13
26. Exhibits ............................................................... 13
27. Surrender of Lease Not Merger .......................................... 13
28. Waiver ................................................................. 13
29. General ................................................................ 13
29.1 Captions and Headings ............................................ 13
29.2 Definitions ...................................................... 13
29.3 Copies ........................................................... 13
29.4 Time of Essence .................................................. 13
29.5 Severability ..................................................... 13
29.6 Governing Law .................................................... 13
29.7 Joint and Several Liability ...................................... 13
29.8 Construction of Lease Provisions ................................. 13
29.9 Conditions ....................................................... 13
29.l0 Tenant's Financial Statements .................................... 13
29.11 Withholding of Landlord's Consent ................................ 13
30. Signs; Directory ....................................................... 14
31. Landlord as Party Defendant ............................................ 14
32. Landlord Not a Trustee ................................................. 14
33. Interest ............................................................... 14
34. Surrender of Premises .................................................. 14
35. Rights Reserved by Landlord ............................................ 14
36. Observance of Rules and Regulations .................................... 14
37. Building Plans ......................................................... 14
38. Relocation of Tenant ................................................... 14
39. Quiet Enjoyment ........................................................ 15
40. Entire Agreement ....................................................... 15
41. Labor Disputes ......................................................... 15
42. Submission of Lease .................................................... 15
43. No Partnership or Joint Venture ........................................ 15
44. Authority .............................................................. 15
</TABLE>
<PAGE> 4
OFFICE LEASE
For and in consideration of the rentals, covenants, and conditions hereinafter
set forth, Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the herein described Premises for the term, at the rental and subject
to and upon all of the terms, covenants and agreements set forth in this Office
Lease, including Landlord's right to recover the Premises pursuant to Paragraph
23 below ("Lease"):
SUMMARY OF LEASE PROVISIONS
1.1 TENANT: Voice Plus, Inc., a California corporation ("Tenant").
1.2 LANDLORD: El Dorado Holding Company, Inc., a California Limited
Partnership ("Landlord").
1.3 DATE OF LEASE (for reference purposes only): June 9, 1997
1.4 PREMISES: That certain space hereinafter more particularly described
and situated in that certain building shown cross-hatched on the site
plan attached hereto as Exhibit "A", commonly referred to as 39420
Liberty Street, Suite 250 and located in the City of Fremont, County of
Alameda, State of California. (Paragraph 2.1)
1.5 TERM: three (3) years (Paragraph 3)
1.6 COMMENCEMENT DATE: September 1, 1997, subject to the provisions of
Paragraph 3 below. (Paragraph 3)
1.7 ENDING DATE: August 31, 2000, unless sooner terminated pursuant to the
terms of this Lease.
1.8 RENT: (Paragraph 4)
The monthly rent will be due and payable on or before the first
day of each month and every month of the lease term as follows:
Months 01-12 @ $11,514.45 per month
Months 13-24 @ $11,911.50 per month
Months 25-36 @ $12,308.55 per month
1.9 USE OF PREMISES: General office use. (Paragraph 6)
1.10 DIRECT COSTS ESTIMATE: $ Base year 1997 (Paragraph 11.1) Tenant's
percentage share of Direct Costs in excess of Direct Costs Estimate:
11.82 percent. (Paragraph 11.2)
1.11 SECURITY DEPOSIT: twelve thousand three hundred eight and 55/100
($12,308.55) dollars (Paragraph 5)
1.12 ADDRESSES FOR NOTICES:
To Landlord: El Dorado Holding Company, Inc.
3052 Willow Pass Road, Suite 203
Concord, CA 94519 Copy: Linda Wackwitz
VP General Counsel
To Tenant: To the Premises with a courtesy copy to: 39420 Liberty Street
Suite 250
Voice Plus, Inc. Attn: Doug Zorn, CFO Fremont, CA 94538
39420 Liberty Street, Suite 250
Fremont, CA 94538
1.13 NONEXCLUSIVE RIGHT TO USE: thirty-two (32) parking spaces within the
Common Area. (Paragraph 10.2).
1.14 SUMMARY PROVISIONS IN GENERAL. Parenthetical references in this
Paragraph 1 to other paragraphs in this Lease are for convenience of
reference, and designate some of the other Lease paragraphs where
applicable provisions are set forth. All of the terms and conditions of
each such referenced paragraph shall be construed to be incorporated
within and made a part of each of the above referring Summary of Lease
Provisions. In the event of any conflict between any Summary of Lease
Provision as set forth above and the balance of the Lease, the latter
shall control.
/s/
INITIALS
2
<PAGE> 5
PROPERTY LEASED
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon the terms and conditions herein set forth, those certain
premises ("Premises") referred to in Paragraph 1.4 above and shown
cross-hatched on the floor plan attached hereto as Exhibit "B". In addition
Tenant shall have such rights in and to the Common Area (defined in Paragraph
11.1 below) as more fully described in Paragraph 11.1 below.
The building in which the Promises are located is referred to herein as the
"Building". The "Land" shall mean and refer to all of the real property
outlined in red on Exhibit "A", and shall not be limited to the parcel of real
property on which the Building is located (if the same is a separate legal
parcel). The Building and any other building(s) or improvement(s) now or
hereafter located on the Land are referred to herein collectively as the
"Project."
Landlord reserves the right to grant to tenants of the Project or of the
buildings or improvements which now exist or may hereafter be constructed upon
the Land or upon real property owned by Landlord adjacent to the Land, and to
the agents, employees, servants, invitees, contractors, guests, customers and
representatives of such tenants, or to any other user authorized by Landlord,
the non-exclusive right to use the Land for pedestrian and vehicular ingress
and egress and vehicular parking (excluding only that portion of the Land
designated herein for Tenant's exclusive use for vehicular parking, if any).
2.2 IMPROVEMENTS. The improvements to be constructed by Landlord for Tenant's
use in the Promises are set forth in detail on the attached Exhibit "C". In the
event of changes to any of the work set forth in Exhibit "C" (whether such
changes are required by any public agency, or by reason of any error or
omission in plans because of information provided to Landlord by Tenant, or
because requested in writing by Tenant and accepted in writing by Landlord),
Tenant shall pay to Landlord Landlord's costs related to such changes before
work in regard to such changes is commenced; provided, however, in no ever,
shall Landlord's failure to demand such payment before commencement of work in
regard to such changes, or Tenant's failure to pay for the same before
commencement of work in regard to such changes, be deemed to be a waiver of
Landlord's right to require or enforce collection of such payment for
changes at any time thereafter. Landlord's costs related to the changes shall
include, without limitation, all architectural, contractor and engineering
expenses, and the cost of all building and other permits, and inspection fees.
Tenant acknowledges that Landlord or a person or entity related to and/or
controlled by Landlord may serve as Landlord's architect, engineer and/or
contractor in regard to the above-described work and, in the event of any
changes, Landlord's costs shall be deemed to include architect, engineering
and/or contractor expenses at the rates charged to third parties by Landlord
and/or such related person or entity for such services, when performed
independently of any lease agreement. Since any construction work performed on
the Premises by Tenant prior to substantial completion of the work required of
Landlord pursuant to this Paragraph 2.2 may interfere with the work required of
Landlord or with Landlord's ability to obtain a Certificate of Completion
therefor, any such work by Tenant shall be subject to the provisions of
Paragraph 12.1 hereof, and Landlord may in its sole discretion withhold its
consent to any such work by Tenant.
2.3 ACCEPTANCE OF PREMISES By taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises as being in good and sanitary order,
condition and repair and to have accepted the Premises in their condition
existing as of the date Tenant takes possession of the Promises, subject to all
applicable laws, covenants, conditions, restrictions, easements and other
matters of public record and the rules and regulations from time to time
promulgated by Landlord governing the use of the Building, Common Area and
Land, and further, to have accepted tenant improvements to be constructed by
Landlord (if any) as being completed in accordance with the plans and
specifications for such improvements subject only to completion of items on
Landlord's punch list. Tenant acknowledges that neither Landlord nor Landlord's
agents have made any representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business, the condition of the Building or
Premises, or the use or occupancy which may be made thereof and Tenant has
independently investigated and is satisfied that this Premises are suitable for
Tenant's intended use and that the Building and Premises meet all governmental
requirements for, such intended use.
TERM
3.1 COMMENCEMENT DATE. The term of this Lease ("Lease Term") shall be for the
period specified in Paragraph 1.5 above, commencing on the date set forth in
Paragraph 1.6 above ("Commencement Date"); provided, however, in the event any
improvements to be constructed by Landlord, as set forth on Exhibit "C", are
not completed by the aforesaid Commencement Date, then the Commencement Date
shall be deemed to be the date on which the improvements to be constructed by
Landlord are substantially completed. Such improvements shall be deemed to be
substantially completed upon the occurrence of the earlier of the following:
(a) The date on which all improvements to be constructed by Landlord have
been substantially completed except for: (i) punch list items which do not
prevent Tenant from using the Premises for its intended use; (if) such
work as Landlord is required to perform but which is delayed because of
fault or neglect of Tenant, acts of Tenant or Tenant's agents (including
without limitation delays caused by work done on the Premises by Tenant or
Tenant's agents or by acts of Tenant's contractors or subcontractors) or
delays caused by change orders requested by Tenant or required because of
any errors or omissions in plans submitted by Tenant; and (iii) such work
as Landlord is required to perform but cannot complete until Tenant
performs necessary portions of construction work it has elected or is
required to do; or
(b) The issuance of appropriate governmental approvals for occupancy of
the Premises; or
(c) The date Tenant opens for business in the Premises.
If the Commencement Date is a date other than the date set forth in Paragraph
1.6, then the Ending Date set forth in Paragraph 1.7, the rental adjustment
dates set forth in Paragraph 1.8 and any other dates certain specified herein
shall be adjusted accordingly. When the Commencement Date, Ending Date, rental
adjustment dates, and such other dates become ascertainable, Landlord and
Tenant shall specify the same in writing, in the form of the attached Exhibit
"D", which writing shall be deemed incorporated herein. Tenant's failure to
execute and deliver the letter attached hereto as Exhibit "D" shall be a
Default by Tenant hereunder. The expiration of the Lease Term or sooner
termination of this Lease is referred to herein as the "Lease Termination".
3.2 DELAY OF COMMENCEMENT DATE. Landlord shall not be liable for any damage or
loss incurred by Tenant for Landlord's failure for whatever cause to deliver
possession of the Premises by any particular date (including the Commencement
Date), nor shall this Lease be void or voidable on account of such failure to
deliver possession of the Premises; provided that if Landlord does not deliver
possession of the Premises to Tenant by a date which is one hundred fifty (150)
days from the date this lease is executed by both parties, Tenant shall have
the right to terminate this Lease by written notice delivered to Landlord
within five (5) days thereafter, and Landlord and Tenant shall be relieved of
their respective obligations hereunder; provided further that said one hundred
fifty (150) day period shall be extended by the number of days work on the
Premises is delayed due to fault or neglect of Tenant, acts of Tenant or
Tenant's agents, or due to acts of God, labor disputes, strikes, fires, rainy
or stormy weather, acts or failures to act of public agencies, inability to
obtain labor or materials, earthquake, war, insurrection, riots or other causes
beyond Landlord's reasonable control.
3.3 EARLY OCCUPANCY. If Tenant takes possession of the Promises prior to the
Commencement Date, Tenant shall do so subject to all of the terms and
conditions hereof and shall pay the Rentals provided for herein.
RENT
4.1 RENT. Tenant shall pay to Landlord as rent for the Premises ("Rent"),
in advance, on the first day of each calendar month, commencing on the date
specified in Paragraph 1.8 and continuing throughout the Lease Term (until
adjusted pursuant to Paragraph 4.4 below) the Rent set forth in Paragraph 1.8
above. Rent shall be prorated, based on thirty days per month, for any partial
month during the Lease Term. Rent shall be payable without deduction, offset,
prior notice or demand in lawful money of the United States to Landlord at the
address herein specified for purposes of notice or to such other persons or
such other places as Landlord may designate in writing.
2
<PAGE> 6
4.2 LATE CHARGE. Tenant hereby acknowledges that late payment by Tenant to
Landlord of Rent will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Landlord by the terms of any mortgage or
deed of trust covering the Premises. Accordingly, Tenant shall pay to Landlord,
as Additional Rent, without the necessity of prior notice or demand, a late
charge equal to ten percent (10%) of any installment of Rent which is not
received by Landlord within ten (10) days after the due date for such
installment. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the cost Landlord will incur by reason of late
payment by Tenant. in no event shall this provision for a late charge be
deemed to grant to Tenant a grace period or extension of time within which to
pay any installment of Rent or prevent Landlord front exercising any right or
remedy available to Landlord upon Tenant's failure to pay such installment of
Rent when due, including, without limitation the right to terminate this Lease.
In the event any installment of Rent is not received by Landlord by the
thirtieth (30th) day after the due date for such installment, such installment
shall bear interest at the annual rate set forth in Paragraph 33 below,
commencing on the thirty-first (31st) day after the due date for such
installment and continuing until such installment is paid in full.
4.3 ADDITIONAL RENT. All taxes, charges, costs and expenses and other sums
which Tenant is required to pay hereunder (together with all interest and
charges that may accrue thereon in the event of Tenant's failure to pay the
same) and all damages, costs and expenses which Landlord may incur by reason of
any Default by Tenant shall be deemed to be additional rent hereunder
("Additional Rent"). Additional Rent shall accrue commencing on the
Commencement Date. in the event of nonpayment by Tenant of any Additional Rent,
Landlord shall have all the rights and remedies with respect thereto as
Landlord has for the nonpayment of Rent. The term "Rentals" as used in this
Lease shall mean Rent and Additional Rent.
SECURITY DEPOSiT
5 Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord a security deposit ("Security Deposit") in the amount set forth
in Paragraph 1.11 above. The Security Deposit shall be held by Landlord as
security for the faithful performance by Tenant of each and every term,
covenant, and condition of this Lease applicable to Tenant, and not as
prepayment of Rent. if Tenant shall at any time fail to keep or perform any
term, covenant or condition of this Lease applicable to Tenant, including
without limitation, the payment of Rentals or those provisions requiring Tenant
to repair damage to the Premises caused by Tenant or to surrender the Premises
in the condition required pursuant to Paragraph 35 below, Landlord may but
shall not be obligated to, and without waiving or releasing Tenant from any
obligation under this Lease, use, apply or retain the whole or any part of the
Security Deposit reasonably necessary for the payment of any amount which
Landlord may spend by reason of Tenant's default or as necessary to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. in the event Landlord uses or applies any portion of the Security
Deposit, Tenant shall, within five (5) days after written demand by Landlord
remit to Landlord sufficient funds to restore the Security Deposit to its
original sum. Failure by Tenant to so remit funds shall be a Default by Tenant.
Should Tenant comply with all of the terms, covenants and conditions of this
Lease applicable to Tenant, the balance of the Security Deposit shall be
returned to Tenant within fourteen (14) days after Lease Termination and
surrender of the Premises by Tenant; provided, however, if any portion of the
Security Deposit is to be applied to repair damages to the Premises caused by
Tenant or Tenant's agents, to clean the Premises, or to remove alterations and
restore the Premises pursuant to Paragraph 13.2 below, then the balance of the
Security Deposit shall be returned to Tenant no later than thirty (30) days
from the date Landlord receives possession of the Premises.
USE OF PREMISES
6.1 PERMITTED USES. Tenant shall use the Premises and the Common Area only in
conformance with applicable governmental laws, regulations, rules and
ordinances for the purposes set forth in Paragraph 1.9 above, and for no other
purpose without the prior written consent of Landlord, which consent Landlord
may withhold in its sole discretion. Tenant acknowledges and agrees that
Landlord has selected or will be selecting tenants for the Building in order to
produce a mix of tenant uses compatible and consistent with the design
integrity of the Building and with other uses of the Building; provided,
however, the selection of Building tenants shall be in Landlord's sole
discretion and Landlord in making such selection shall not be deemed to be
warranting that any use of the Building made by any such tenant is compatible
or consistent with the design integrity of the Building or other uses of the
Building. Any change in use of the Premises or the Common Area by Tenant
without the prior written consent of Landlord, which consent Landlord may
withhold in Landlord's sole discretion, shall be a Default by Tenant. Tenant
and Tenant's agents shall comply with the provisions of any declaration of
covenants, conditions and restrictions affecting the Premises and the Common
Area.
6.2 TENANT TO COMPLY WITH LEGAL REQUIREMENTS. Tenant shall, at its sole cost,
promptly comply with all laws, statutes, ordinances, rules, regulations, orders
or requirements of all municipal, county, state and federal authorities and
quasi-governmental authorities relating to or affecting the use, occupational
safety, occupancy, or condition of the Premises, now in force, or which may
hereafter be in force, including without limitation any of the foregoing
relating to utility usage and load or number of permissible occupants or users
of the Premises, whether or not the same are now contemplated by the parties;
with the provisions of all recorded documents affecting the Premises or the
Common Area insofar as the same relate to or affect the condition, use,
occupational safety or occupancy of the Premises or the Common Area; and with
the requirements of any board of fire underwriters (or similar body now or
hereafter constituted) relating to or affecting the condition, use,
occupational safety or occupancy of the Premises or the Common Area. Tenant's
obligations pursuant to this paragraph shall include, without limitation,
maintaining or restoring the Premises and making structural and nonstructural
alterations and additions in compliance and conformity with all laws and
recorded documents relating to the condition, use, occupancy or occupational
safety of the Premises during the Lease Term; provided, however, that Landlord
shall make any alteration or addition required to bring the Premises or the
Common Area into compliance with legal requirements in effect at the time the
Premises or any improvements installed therein by Landlord, respectively, were
originally constructed. At Landlord's option, Landlord may make the required
alteration, addition or change, and Tenant shall pay the cost thereof as
Additional Rent. With respect to any structural alterations or additions as may
be hereafter required due to a change in laws and unrelated to Tenant's
specific use of the Premises or the Common Area, Tenant shall be required to
pay a pro rata portion of the cost thereof, which amount shall be determined by
multiplying the total cost by a fraction, the numerator of which is the number
of months remaining in the Lease Term at the time of the alteration or
addition, and the denominator of which is the number of months in the useful
life of the alteration or addition. Tenant shall obtain, prior to taking
possession of the Premises, any permits,
3
<PAGE> 7
licenses or other authorizations required for the lawful operation of its
business at the Premises. The judgment of any court of competent jurisdiction
or the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any law, statute, ordinance,
order, rule, regulation, recorded document or requirement, shall be conclusive
evidence of such violation by Tenant. Any alterations or additions undertaken
by Tenant pursuant to this Paragraph 6.2 shall be subject to the requirements
of Paragraph 13.1 below.
6.3 PROHIBITED USES. Tenant and Tenant's agents shall not commit or suffer to be
committed any waste upon the Premises. Tenant and Tenant's agents shall not do
or permit anything to be done in or about the Premises or Common Area which
will in any way obstruct or interfere with the rights of other tenants of the
Building, other authorized users of the Common Area, or occupants of
neighboring property, or injure or annoy them. Tenant and Tenant's agents shall
not use or allow the Premises to be used for any unlawful, immoral or hazardous
purpose or any purpose not permitted by this Lease nor shall Tenant or Tenant's
agents cause, maintain, or permit any nuisance in, on or about the Premises.
Tenant and Tenant's agents shall not do or permit anything to be done in or
about the Premises nor bring or keep anything in or about the Premises which
will in any way increase the existing rate or affect any insurance upon the
Premises, Common Area, Land or Building or any part thereof or any of its
contents, or cause a cancellation of any insurance policy covering the
Premises, Building, Land or Common Area or any part thereof or any of its con-
tents, nor shall Tenant or Tenant's agents keep, use or sell or permit to be
kept, used or sold in or about the Premises any articles which may be
prohibited by a standard form policy of fire insurance. In the event the rate
of any insurance upon the Premises, Building, Land or Common Area or any part
thereof or any of its contents is increased because of the acts or omissions of
Tenant or Tenant's agents, Tenant shall pay, as Additional Rent, the full cost
of such increase; provided, however, this provision shall in no event be deemed
to constitute a waiver of Landlord's right to declare a default hereunder by
reason of such increase or of any other rights or remedies of Landlord in
connection with such increase. Tenant and Tenant's agents shall not place any
loads upon the floor, walls or ceiling of the Premises which would endanger the
Building or the structural elements thereof or of the Premises, nor place any
harmful liquids in the drainage system of the Building or Common Area. No waste
materials or refuse shall be dumped upon or permitted to remain upon any part
of the Premises, Land, Common Area or Building except in enclosed trash
containers designed for that purpose by Landlord. No materials, supplies,
equipment, finished products (or semi-finished products), raw materials, or
other articles of any nature shall be stored upon, or be permitted to remain
on, any portion of the Land, Common Area or Building outside the Premises.
INSURANCE; INDEMNITY; WAIVER
7.1 INSURANCE BY LANDLORD.
(a) Landlord shall, during the Lease Term, procure and keep in force the
following insurance, the cost of which shall be a Direct Cost, payable by
Tenant pursuant to Paragraph 11.2 below:
(i) Property Insurance. "All risk" property insurance, including,
without limitation, coverage for earthquake and flood; boiler and
machinery (if applicable); sprinkler damage; vandalism; malicious
mischief; full coverage plate glass insurance; and demolition,
increased cost of construction and contingent liability from change
in building laws on the Building and the Land, including any
improvements or fixtures constructed or installed in the Building and
on the Land by Landlord. Such insurance shall be in the full amount
of the replacement cost of the foregoing, with reasonable deductible
amounts, which deductible amounts shall be a Direct Cost, payable by
Tenant pursuant to Paragraph 11.2. Such insurance shall also include
rental income insurance, insuring that one hundred percent (100%) of
the Rentals (as the same may be adjusted hereunder) will be paid to
Landlord for a period of up to twelve (12) months if the Premises are
destroyed or damaged, as may be required by any beneficiary of a deed
of trust or any mortgagee of any mortgage affecting the Premises.
Such insurance shall not cover any leasehold improvements installed
in the Premises by Tenant at its expense, or Tenant's equipment,
trade fixtures, inventory, fixtures or personal property located on
or in the Premises;
(ii) Liability Insurance. Comprehensive general liability (lessor's
risk) insurance against any and all claims for personal injury, death
or property damage occurring in or about the Building or the Land.
Such insurance shall have a combined single limit of not less than
Three Million Dollars ($3,000,000); and
(iii) Other. Such other insurance as Landlord deems necessary and
prudent.
7.2 INSURANCE BY TENANT. Tenant shall, during the Lease Term, at Tenant's sole
cost and expense, procure and keep in force the following insurance:
(a) PERSONAL PROPERTY INSURANCE. "All risk" property insurance,
including, without limitation, coverage for (if applicable); sprinkler
damage; and from changes in building laws on all leasehold
improvements installed in the Premises by Tenant at its expense (if
any), and on all equipment, trade fixtures, inventory, fixtures and
personal property located on or in the Premises, including
improvements or fixtures hereinafter constructed or installed on the
Premises. Such insurance shall be in an amount equal to the full
replacement cost of the aggregate of the foregoing and shall provide
coverage comparable to the coverage in the standard ISO all risk
form, when such form is supplemented with the coverages required
above.
(b) LIABILITY INSURANCE. Comprehensive general liability insurance
for the mutual benefit of Landlord and Tenant, against any and all
claims for personal injury, death or property damage occurring in, or
about the Premises and Common Area (and Tenant's operations on the
Premises), or arising out of Tenant's or Tenant's agents' use of the
Common Area or use or occupancy of the Premises. Such insurance shall
have a combined single limit of not less than Three Million Dollars
($3,000,000). Such insurance shall contain a cross-liability
(severability of interests) clause and an extended ("broad form")
liability endorsement, including blanket contractual coverage. The
minimum limits specified above are the minimum amounts required by
Landlord, and may be revised by Landlord from time to time to meet
changed circumstances, including without limitation to reflect (i)
changes in the purchasing power of the dollar, (ii) changes indicated
by the amount of plaintiffs' verdicts in personal injury actions in
the State of California, or (iii) changes consistent with the
standards required by other landlords in the county in which the
Premises are located. Such liability insurance shall be primary and
not contributing to any insurance available to Landlord, and
Landlord's insurance (if any) shall be in excess thereto.
(c) OTHER. Such other insurance as required by law, including,
without limitation, workers' compensation insurance.
(d) FORM OF THE POLICIES. The policies required to be maintained by
Tenant pursuant to Paragraphs 7.2 (a), (b), and (c) above shall be
with companies, on forms, with deductible amounts (if any), and loss
payable clauses satisfactory to Landlord, shall include Landlord and
the beneficiary or mortgagee of any deed of trust or mortgage
encumbering the Building and/or the Land as additional insureds, and
shall provide that such parties may, although additional insureds,
recover for any loss suffered by Tenant's negligence. Certified
copies of policies or certificates of insurance shall be delivered to
Landlord prior to the Commencement Date; a new policy or certificate
shall be delivered to Landlord at least thirty (30) days prior to the
expiration date of the old policy. Tenant shall have the right to
provide insurance coverage which it is obligated to carry pursuant to
the terms hereof in a blanket policy, provided such blanket policy
expressly affords coverage to the Premises and Common Area and to
Tenant as required by this Lease. Tenant shall obtain a written
obligation on the part of Tenant's insurer(s) to notify Landlord and
any beneficiary or mortgagee of a deed of trust or mortgage
encumbering the Premises and/or the Land in writing of any
delinquency in premium payments and at least thirty (30) days prior
to any cancellation or modification of any policy.
7.3 FAILURE BY TENANT TO OBTAIN INSURANCE. If Tenant does not take out the
insurance required pursuant to Paragraph 7.2 or keep the same in full force and
effect, Landlord may, but shall not be obligated to, take out the necessary
insurance and pay the premium therefor, and Tenant shall repay to Landlord, as
Additional Rent, the amount so paid promptly upon demand. In addition, Landlord
may recover from Tenant and Tenant agrees to pay, as Additional Rent, any and
all reasonable expenses (including attorneys' fees) and damages which
Landlord may sustain by reason of the failure of Tenant to obtain and maintain
such insurance, it being expressly declared that the expenses and damages of
Landlord shall not be limited to the amount of the premiums thereon.
7.4 INDEMNIFICATION. Tenant shall indemnify, hold harmless, and defend Landlord
with competent counsel reasonably satisfactory to Landlord (except for
Landlords active negligence or willful misconduct) against all claims, losses
or liabilities for injury or death
/s/
INITIALS
4
<PAGE> 8
to any person or for damage to or loss of use of any property arising out of
any occurrence in, on or about the Building Common Area or Land, if caused or
contributed to by Tenant or Tenant's agents, or arising out of any occurrence
in, upon or at the Premises or on account of the use, condition, occupational
safety, or occupancy of the Premises. It is the intent of the parties hereto
that the indemnity contained in this Paragraph 7.4 shall not be limited or
barred by reason of any passive negligence on the part of Landlord or
Landlord's agents, except as expressly provided herein. Such indemnification
shall include and apply to attorneys' fees, investigation costs, and other
costs actually incurred by Landlord. Tenant shall further indemnity, defend and
hold harmless Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease. The provisions of this Paragraph 7.4
shall survive Lease Termination with respect to any damage, injury or death
occurring prior to such termination. This Lease is made on the express
condition that Landlord shall not be liable for, or suffer loss by reason of,
injury to person or property, from whatever cause, in any way connected with
the condition, use, occupational safety or occupancy of the Premises
specifically including, without limitation, any liability for injury to the
person or property of Tenant or Tenant's agents.
7.5 CLAIMS BY TENANT. Landlord shall not be liable to Tenant, and Tenant waives
all claims against Landlord, for injury or death to any person, damage to any
property, or loss of use of any property in the Premises, Common Area, Land or
Building or loss to Tenant's business by and from all causes, including without
limitation, any defect in the Premises, Common Area or Building and/or any
damage or injury resulting from fire, steam, electricity, gas, water or rain,
which may leak or flow from or into any part of the Premises, or from breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, whether the damage
or injury results from conditions arising upon the Premises or upon other
portions of the Building, Common Area or Land or from other sources. Landlord
shall not be liable for any damages arising from any act or negligence of any
other tenant of the Building or user of the Common Area. Tenant or Tenant's
agents shall immediately notify Landlord in writing of any known defect in the
Premises, Common Area, Building or Land. The provisions of this Paragraph 7.5
shall not apply to any damage or injury caused by Landlord's willful misconduct
or sole negligence.
7.6 MUTUAL WAIVER OF SUBROGATION. Landlord hereby releases Tenant, and Tenant
hereby releases Landlord, and their respective officers, agents, employees and
servants, from any and all claims or demands of damages, loss, expense or
injury to the Premises, the Building or the Common Area, or to the furnishings,
fixtures, equipment, inventory or other property of either Landlord or Tenant
in, about or upon the Premises, the Building or the Common Area, which is
caused by or results from perils, events or happenings which are the subject of
insurance carried by the respective parties pursuant to this Paragraph 7.6 and
in force at the time of any such loss, whether due to the negligence of the
other party or its agents and regardless of cause or origin; provided, however,
that such waiver shall be effective only to the extent permitted by the
insurance covering such loss and to the extent such insurance is not prejudiced
thereby.
UTILITIES AND SERVICES
8.1 PROVISION TO PREMISES. Landlord shall furnish to the Premises from 7:00 a.m.
- - 6:00 p.m. Monday through Friday (or such shorter period as may be prescribed
by any applicable policies or regulations adopted by any utility or
governmental agency), except for New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving, Christmas and other legal holidays,
the following services (collectively the "Services"):
(a) Normal electrical service, water, heat, and air conditioning as
required in the reasonable judgment of Landlord for the comfortable use
and occupation of the Premises and subject to any regulations imposed by
any local, state, or federal governmental authority;
(b) Janitorial and cleaning services, to the extent and manner in which
such services, in Landlord's sole discretion, are customarily furnished in
comparable buildings in the immediate market area; and
(c) Elevator service. - 24 HOURS PER DAY
SEE ADDENDA ARTICLE 47
8.2 FAILURE TO PROVIDE SERVICES. Landlord shall not be liable, under any
circumstances and however occurring, for injury to person, damage to or loss
of use of property, inconvenience, or interference with business, and Tenant
shall not be entitled to any abatement or reduction of Rentals, by reason of
the installation, use or interruption of use of any equipment in connection
with the furnishing of any Services or by reason of a failure or delay in
furnishing any Services when such failure or delay is caused by accident or any
condition beyond Landlord's reasonable control (including without limitation
breakage, strikes, lockouts or other disturbances or disputes of any character)
or by the making of repairs or improvements to the Premises, Common Area, Land
or Building, or the limitation, curtailment, rationing or other restriction on
use of water, gas, electricity or any other form of energy, or any other
Services or utility whatsoever, serving the Premises, Common Area, Land or
Building. Landlord shall be entitled to cooperate voluntarily and in a
reasonable manner with the efforts of national, state or local governmental
agencies or utility suppliers in reducing energy or other resource consumption.
8.3 ADDITIONAL ELECTRICAL POWER. Tenant shall not, without Landlord's prior
written consent, use any machines or equipment, including without limitation,
electronic data processing machines, punch card machines, computers and
duplicating machines, which require electrical line voltage in excess of 110
volts or which will increase the amount of electricity ordinarily furnished for
use of the Premises as general office space and related purposes. If Tenant
requires additional electrical power, Tenant shall request Landlord to provide
such additional power, which request Landlord may refuse in Landlord's sole
discretion. If additional electrical power is furnished, Tenant shall pay on
demand and as Additional Rent the costs, including without limitation
installation, operation (at the rates charged by the local public utility),
repair and maintenance costs, related to all such electric power consumed, plus
all expenses incurred by Landlord in keeping account of the electric power
consumed (including the installation and/or use of special meters as deemed
necessary by Landlord in Landlord's sole discretion).
8.4 HEAT GENERATING MACHINES. Whenever heat generating machines, equipment or
lighting are used in the Premises which affect the temperature maintained in
the Premises or elsewhere in the Building by the air conditioning system,
Landlord reserves the right to provide supplementary air conditioning. The
costs of acquiring, installing, and maintaining such supplementary air
conditioning (including without limitation the cost of cooling energy to the
Premises in excess of that required for normal office use) shall be paid by
Tenant upon demand as Additional Rent.
8.5 EXCESS USE OF SERVICES. Tenant agrees that if Landlord incurs costs for any
Services to the Premises in excess of the costs for any such Services
customarily furnished for use of the Premises as general office space during
the hours specified in Paragraph 8.1 above, then Tenant shall pay on demand and
as Additional Rent the excess costs of any such Services, including without
limitation the cost of keeping account of the Services consumed (including the
installation and/or use of special meters as deemed necessary by Landlord in
Landlord's sole discretion).
REPAIRS AND MAINTENANCE
9.1 LANDLORD'S RESPONSIBILITIES. In addition to the Services described in
Paragraph 8.1 above and subject to the provisions of Paragraph 14, Landlord
shall maintain, in a reasonably good state of repair: the roof, roofing,
structural and exterior walls (including painting thereof) and foundations of
the Building; the mechanical, HVAC System, plumbing and electrical equipment
serving the Premises, Building and Common Area; and the Common Area, including
lobbies, stairs, and corridors. The costs of repairs and maintenance which are
the obligation of Landlord hereunder shall be deemed Direct Costs; provided,
however, any repairs required because of the wrongful act of Tenant or Tenant's
agents shall be made at the sole expense of Tenant and paid as Additional Rent.
Tenant shall give prompt written notice to Landlord any known maintenance work
required to be made by Landlord pursuant to this Paragraph 9.1. Landlord shall
not be liable for any failure to make any such repairs or to perform any
maintenance for which Landlord is responsible unless such failure shall persist
for an unreasonable time after written notice of the need for such repairs or
maintenance is given to Landlord by Tenant and such failure is due solely to
causes within Landlord's reasonable control. Landlord shall not be liable by
reason of any injury to or interference with Tenant's business conducted at the
Premises arising from the making of any repairs, alterations or improvements in
or to any portion of the Building, Common Area or Premises or in or to the
fixtures, appurtenances and equipment therein.
/s/
INITIALS
5
<PAGE> 9
9.2 TENANT'S RESPONSIBILITIES. Except as expressly provided in Paragraph 9.1
above, Tenant shall, at its sole cost, throughout the Lease Term, maintain the
entire Premises and every part thereof, in good and sanitary order and
condition. Tenant shall reimburse Landlord, on demand and as Additional Rent,
for the cost of damage to the Premises, Building and/or Common Area caused by
Tenant or Tenant's agents. Tenant expressly waives the benefits of any statute
now or hereafter in effect (including without limitation the provisions of
subsection 1 of Section 1932, Section 1941 and Section 1942 of the California
Civil Code and any similar law, statute or ordinance now or hereafter In
effect) which would otherwise afford Tenant the right to make repairs at
Landlord's expense (or to deduct the cost of such repairs from Rentals due
hereunder) or to terminate this Lease because of Landlord's failure to keep the
Premises in good and sanitary order. In the event Tenant fails to maintain the
Premises as required pursuant to this Paragraph 9.2, Landlord may give Tenant
notice to do such sets as are reasonably required to so maintain the Premises
and if Tenant fails to commence such work within ten (10) days after such
notice is given and diligently prosecute it to completion, then Landlord and
Landlord's agents, in addition to all of the rights and remedies available
hereunder or by law and without waiving any alternative remedies, shall have
the right to enter the Premises and to do such acts and expand such funds at
the expense of Tenant as are reasonably required to perform such work. Any
amount so expended by Landlord shall be paid by Tenant to Landlord as
Additional Rent, upon demand. Landlord shall have no liability to Tenant for
any damage, inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work.
COMMON AREA
10.1 IN GENERAL. Subject to the terms and conditions of this Lease and such
rules and regulations as Landlord may from time to time prescribe, Tenant and
Tenant's agents shall have, in common with other tenants of the Building and
other permitted users, the nonexclusive right to use during the Lease Term the
access roads, parking areas, sidewalks, landscaped areas and other facilities
on the Land or entrances, lobbies, halls, atriums, corridors, toilets and
lavatories, passenger elevators and service areas and other facilities in the
Building designated by Landlord for the general use and convenience of the
occupants of the Building and other authorized users, which areas and
facilities are referred to herein as the "Common Area". This right to use the
Common Area shall terminate upon Lease Termination. Landlord reserves the right
from time to time to make changes in the shape, size, location, amount and
extent of the Common Area. Landlord further reserves the right to promulgate
such reasonable rules and regulations relating to the use of all or any portion
of the Common Area and to amend such rules and regulations from time to time
with or without advance notice, as Landlord may deem appropriate for the best
interests of the occupants of the Building and other authorized users. Any
amendments to the rules and regulations shall be effective as to Tenant, and
binding on Tenant, upon delivery of a copy of such rules and regulations to
Tenant. Tenant and Tenant's agents shall observe such rules and regulations and
any failure by Tenant or Tenant's agents to observe and comply with the rules
and regulations shall be a Default by Tenant. Landlord shall not be responsible
for the nonperformance of the rules and regulations by any tenants or occupants
of the Building or other authorized users, nor shall Landlord be liable to
Tenant by reason of the noncompliance with or violation of the rules and
regulations by any other tenant or user.
10.2 PARKING AREAS. Tenant is allocated and Tenant and Tenant's employees and
invitees shall have the nonexclusive right to use the number of parking spaces
set forth in Paragraph 1.13, the location of which may be designated from time
to time by Landlord. Neither Tenant nor Tenant's agents shall at any time use
more parking spaces than the number so allocated to Tenant or park or permit
the parking of their vehicles in any portion of the Land not designated by
Landlord as a nonexclusive parking area. Tenant and Tenant's agents shall not
have the exclusive right to use any specific parking space. Notwithstanding the
number of parking spaces designated for Tenant's nonexclusive use, in the event
by reason of any rule, regulation, order, law, statute or ordinance of any
governmental or quasi-governmental authority relating to or affecting parking
on the Land, or any cause beyond Landlord's reasonable control, Landlord is
required to reduce the number of parking spaces on the Land, Landlord shall
have the right to proportionately reduce the number of Tenant's parking
spaces and the nonexclusive parking spaces of other tenants of the Building.
Landlord reserves the right to promulgate such reasonable rules and
regulations relating to the use of the parking areas as Landlord may deem
appropriate. Landlord furthermore reserves the right, after having given Tenant
reasonable notice, to have any vehicles owned by Tenant or Tenant's agents
which are parked in violation of the provisions of this Paragraph 10.2 or in
violation of Landlord's rules and regulations relating to parking, to be towed
away at Tenant's cost. In the event Landlord elects or is required by any law
to limit or control parking on the Land, by validation of parking tickets or
any other method, Tenant agrees to participate in such validation or other
program under such reasonable rules and regulations as are from time to time
established by Landlord. Landlord shall have the right to close, at reasonable
times, all or any portion of the parking areas for any reasonable purpose,
including, without limitation, the prevention of a dedication thereof, or the
accrual of rights in any person or the public therein. Employees of Tenant
shall be required to park in areas designated for employee parking, if any. The
parking areas shall not be used by Tenant or Tenant's agents for any purpose
other than the parking of operable motor vehicles and the ingress and egress of
pedestrians and motor vehicles.
SEE ADDENDA ARTICLE 48
10.3 MAINTENANCE BY LANDLORD. Landlord shall operate, manage and maintain the
Common Area. The manner in which the Common Area shall be maintained and the
expenditures for such maintenance shall be at the sole discretion of Landlord.
The cost of such maintenance, operation and management shall be "Direct Costs,"
and Tenant shall pay to Landlord, as Additional Rent, Tenant's share of such
costs as provided in Paragraph 11 below.
DIRECT COSTS
11.1 DEFINITION. "Direct Cost" or "Direct Costs" as used in this Lease shall
mean and include all items identified in other paragraphs of this Lease as a
Direct Cost and the total cost paid or incurred by Landlord for the operation,
maintenance, repair, and management of the Premises, Building, Common Area and
Land which costs shall include, without limitation, the cost of Services
supplied to the Premises, Building and Common Area, to the extent such costs
are not separately charged or metered to tenants of the Building; (including
without limitation any temporary or permanent utility surcharge or other
exaction, whether now or hereafter imposed) security protection; water;
sewage, trash removal; fuel; electricity; heat; lighting systems; fire
protection systems; storm drainage and sanitary sewer systems; HVAC including
air conditioning; cleaning; labor; materials; supplies; tools; equipment;
maintaining, cleaning, repairing the roof (including repair of leaks and
resurfacing) and the exterior surfaces (including painting) of the Building;
maintenance and repair of the structural parts (including foundation, floor
slab and load bearing walls) of the Building; replacement of window coverings
provided by Landlord and carpeting in public corridors and the Common Area;
property and liability insurance covering the Building and the Land and any
other insurance carried by Landlord pursuant to Paragraph 8 above; Real
Property Taxes and any other general and special assessments (or any other
governmental charges or impositions in lieu thereof) which are applicable to the
Building, Land or Premises, insurance deductible amounts; window cleaning;
elevator or escalator services; material handling; compensation and fringe
benefits payable to all persons employed by Landlord in connection with the
operation, maintenance, repair, and management of the Premises, Building, Land
and Common Area; cleaning, sweeping, striping, resurfacing of parking and
driveway areas; cleaning and repairing of sidewalks, curbs, stairways; costs
related to irrigation systems, installing and maintaining the Building
directory and Building signs; Business taxes and fees for licenses and permits
required for the operation of the Building, Land and Common Area; the cost of
complying with rules, regulations and orders of governmental authorities,
including without limitation maintenance, alterations and repairs required in
connection therewith; cost related to landscape maintenance; and the cost of
contesting the validity or applicability of any governmental enactments which
may affect Direct Costs. If the Project contains more than one (1) building at
any time during the Lease Term, then the term "Direct Costs" shall mean and
include all of the Direct Costs allocable to the Building and a proportionate
share (based on the square footage of gross leaseable area in the Building as a
percentage of the total of square footage of time in question) of all Direct
Costs which are related to the Project in general and are not allocated to any
one building in the Project. Direct Costs shall also include a management fee
to Landlord in an amount equal to ten percent (10%) of the total Direct Costs.
The specific examples of Direct Costs stated in this Paragraph 11.1 are in no
way intended to, and shall not limit the costs comprising Direct Costs, nor
shall such examples be deemed to obligate Landlord to incur such costs or to
provide such services or to take such actions except as Landlord may be
expressly required in other portions of this Lease, or except as Landlord, in
its sole discretion, may elect. All costs incurred by Landlord in good faith
for the operation, maintenance, repair and management of the Premises,
Building, Land, Project, and Common Area shall be deemed conclusively binding
on Tenant.
11.2 PAYMENT OF EXCESS DIRECT COSTS BY TENANT. Tenant shall pay to Landlord, as
Additional Rent, Tenant's percentage share (stated in Paragraph 1.10 above)
of the amount by which Direct Costs in any calendar year of the Lease Term
exceed the direct costs estimate set forth in Paragraph 1.10 above ("Direct
Costs Estimate"). Tenant's percentage share of excess Direct Costs shall be
/s/
INITIALS
6
<PAGE> 10
payable during the Lease Term in monthly installments on the first day of each
month, in advance, without deduction, offset or prior demand, as follows:
(a) At any time during the first calendar year of the Lease Term, Landlord
may give Tenant written notice of Landlord's estimate of the amount by
which Direct Costs for that calendar year will exceed the Direct Costs
Estimate. An amount equal to one-twelfth (1/12) of Tenant's annual
percentage share of any such estimated Increase shall be payable monthly
by Tenant as aforesaid, commencing on the first day of the calendar month
following Landlord's notice and continuing until receipt of any notice of
increase from Landlord given pursuant to subparagraph (b) or subparagraph
(c) below.
(b) Prior to or during December of each calendar year during the Lease
Term or as soon as practicable thereafter, Landlord may give Tenant
written notice of Landlord's estimate of the amount by which the Direct
Costs for the next succeeding calendar year will exceed the Direct Costs
Estimate. An amount equal to one-twelfth (1/12) of Tenant's annual
percentage share of any such estimated increase shall be payable monthly
by Tenant as aforesaid, commencing on the first day of the calendar month
following Landlord's notice and continuing throughout the Lease Term,
subject to further adjustments following receipt of any notice of increase
from Landlord given pursuant to this subparagraph (b) or subparagraph (c)
below.
(c) Landlord may at any time during any calendar year of the Lease Term
adjust estimates of Direct Costs to reflect current expenditures and
following written notice to Tenant of such revised estimate, subsequent
payments by Tenant shall be based upon such revised estimate.
(d) If the Commencement Date is on a date other than the first day of a
calendar year, the amount of increases in Direct Costs payable by Tenant
in such calendar year shall be prorated on the basis which the number of
days from the Commencement Date to the end of the calendar year in which
the Commencement Date falls bears to 365.
(e) Within one hundred twenty (120) days after the end of each calendar
year during the Lease Term or after Lease Termination or as soon
thereafter as practicable, Landlord will furnish to Tenant a statement of
the actual Direct Costs paid or incurred by Landlord during the preceding
year. Within ten (10) days therefrom, Tenant shall pay to Landlord, as
Additional Rent, its increased share of Direct Costs set forth in said
statement or Landlord shall apply any applicable credit for overpayment of
Direct Costs against the Direct Costs increases next becoming due from
Tenant, as the case may require. Such statements shall be binding upon
Landlord and Tenant, subject to the provisions of subparagraph (f) below.
If Lease Termination shall be on a day other than the last day of a
calendar year, the amount of any adjustment to be made pursuant to this
Paragraph 11.2 (e) for the calendar year in which the Lease Termination
falls shall be prorated on the basis which the number of days from the,
commencement of such calendar year to and including such termination date
bears to 365. The termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to this subparagraph (e).
(f) Notwithstanding any statement of Direct Costs furnished by Landlord,
if after any taxing authority or other governmental agency notifies
Landlord of the levy, assessment or imposition of any taxes which
constitute a Direct Cost applicable to the Lease Term (whether such notice
is received during the Lease Term or after Lease Termination) for which
Tenant has not yet been charged, Tenant shall pay, within ten (10) days
after written notice from Landlord, its percentage share of such taxes
which would have exceeded the Direct Cost Estimate in the applicable Lease
Year.
ALTERATIONS, IMPROVEMENTS AND PERSONAL PROPERTY
12.1 IN GENERAL. Tenant shall not make or permit to be made any alterations,
changes, enlargements, or improvements (collectively "alterations") in, on,
about or to the Premises or any part thereof, without obtaining the prior
written consent of Landlord which can't be unreasonably withheld or delayed and
without acquiring and complying with the conditions of all permits required for
such alterations by any governmental authority having jurisdiction thereof. The
term "alterations" as used in this Paragraph 12 shall also include all heating,
lighting, electrical (including all wiring, conduit outlets, drops, buss ducts,
main and subpanels), air conditioning and partitioning in the Premises made by
Tenant regardless of how affixed to the Premises. As a condition to the giving
of its consent, Landlord may impose such requirements as Landlord may deem
necessary in its sole discretion, including without limitation: the manner in
which the work is done; a right of approval of the contractor by whom the work
is to be performed; the times during which such work is to be accomplished; and
the requirement that Tenant post a completion bond in an amount and form
satisfactory to Landlord; the requirement that Tenant reimburse Landlord, as
Additional Rent, for Landlord's actual costs incurred in reviewing any proposed
alteration, whether or not Landlord's consent is granted. In the event Landlord
consents to the making of any alterations by Tenant, the same shall be made by
Tenant, at Tenant's sole cost and expense, in accordance with the plans and
specifications approved by Landlord and in a manner causing Landlord and
Landlord's agents and other tenants of the Building the least interference and
inconvenience practicable under the circumstances. In making any such
alterations Tenant shall give written notice to Landlord five (5) days prior to
employing any laborer or contractor to perform services related to or receiving
materials for use upon the Premises, and prior to the commencement of any work
of improvement on the Premises. Any alterations to the Premises made by Tenant
shall be made in accordance with applicable laws, ordinances, regulations and
codes and in a first-class workmanlike manner. In making any such alterations,
Tenant shall, at Tenant's sole cost and expense, file for and secure and comply
with any and all permits or approvals required by all governmental departments
or authorities having jurisdiction thereof and any utility company having an
interest therein. In no event shall Tenant make any structural changes to the
Premises or make any changes to the Premises which would weaken or impair the
structural integrity of the Building.
12.2 REMOVAL UPON LEASE TERMINATION. At the time Tenant requests Landlord's
consent, Tenant shall request a decision from Landlord In writing as to whether
Landlord will require Tenant, at Tenant's expense, to remove any such
alterations and restore the Premises to their prior condition at Lease
Termination. Landlord may defer such decision until Tenant's request for such
decision prior to the expiration of the Lease Term, as described below. In the
event Tenant failed to earlier obtain Landlord's written decision as to whether
Tenant will be required to remove any alteration, or in the event Landlord
elected to defer such decision, then no less than ninety (90) nor more than one
hundred twenty (120) days prior to the expiration of the Lease Term, Tenant by
written notice to Landlord shall request Landlord to inform Tenant whether or
not Landlord desires to have any alterations made to the Premises by Tenant
removed at Lease Termination. Following receipt of such notice, Landlord may
elect to have all or a portion of Tenant's alterations removed from the
Premises at Lease Termination, and Tenant shall, at its sole cost and expense,
remove at Lease Termination such alterations designated by Landlord for removal
and repair all damage to the Premises, Common Area, and Building arising from
such removal. In the event Tenant falls to so request Landlord's decision or
fails to remove any alterations designated by Landlord for removal, Landlord
may remove any alterations made to the Premises by Tenant and repair all damage
to the Premises and Common Area arising from such removal, and may recover from
Tenant all cost and expenses Incurred thereby. Tenant's obligation to pay such
costs and expenses to Landlord shall survive Lease Termination. Unless Landlord
elects to have Tenant remove any such alterations, all such alterations, except
for moveable furniture and trade fixtures of Tenant not affixed to the
Premises, shall become the property of Landlord upon Lease Termination (without
any payment therefor) and remain upon and be surrendered with the Premises at
Lease Termination.
12.3 LANDLORD'S IMPROVEMENTS. All fixtures, Improvements or equipment which are
installed, constructed on or attached to the Premises, Building or Common Area
by Landlord at its expense shall be a part of the realty and belong to
Landlord.
DEFAULT AND REMEDIES
13.1 EVENTS OF DEFAULT. The term "Default by Tenant" as used in this Lease
shall mean the occurrence of any of the following events:
(a) Tenant's failure to pay when due any Rentals or other sums payable
hereunder;
(b) Tenant's vacation or abandonment of the Premises;
(c) Commencement and continuation for at least thirty (30) days of any
case, action, or proceeding by, against, or concerning Tenant under any
federal or state bankruptcy insolvency, or other debtor's relief law,
including without limitation, (i) a case under Title 11 of the United
States Code concerning Tenant, whether under Chapter 7, 11, or 13 of such
Title or under any other Chapter or (ii) a case, action, or proceeding
seeking Tenant's financial reorganization or an arrangement with any of
Tenant's creditors;
(d) Voluntary or involuntary appointment of a receiver, trustee, keeper,
or other person who takes possession for more than thirty (30) days of
substantially all of Tenant's assets or of any asset used In Tenant's
business on the Premises, regardless of whether such appointment is as a
result of insolvency or any other cause;
/s/
INITIALS
7
<PAGE> 11
(e) Execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction
of judgment creditors;
(f) Commencement of proceedings for winding up or dissolving (whether
voluntary or involuntary) the entity of Tenant, if Tenant is a corporation
or a partnership;
(g) Levy of a writ of attachment or execution on Tenant's interest under
this Lease, if such writ continues for a period of ten (10) days;
(h) Any transfer or attempted transfer of this Lease or the Premises by
Tenant contrary to the provisions of Paragraph 23 below, or
(i) Breach by Tenant of any term, covenant, condition, warranty, or
provision contained in this Lease or of any other obligation owing or due
to Landlord.
13.2 REMEDIES. Upon any Default by Tenant, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law, to
which Landlord may resort cumulatively, or in the alterative:
13.2.1 TERMINATION. Upon any Default by Tenant, Landlord shall have the right
(but not the obligation) to give written notice to Tenant of such default and
terminate this Lease and Tenant's right to possession of the Premises if (i)
such default is in the payment of Rentals and is not cured within three (3) days
after any such notice, or, (ii) with respect to the defaults referred to in
subparagraphs 13.1(b), (e), (f), (h) and (i), and such default is not cured
within thirty (30) days after any such notice (or if a default under
subparagraph 13.1(b) or (i) cannot be reasonably cured within thirty (30) days,
if Tenant does not commence to cure the default within the thirty (30) day
period or does not diligently and in good faith prosecute the cure to
completion), or, (iii) with respect to the defaults specified in subparagraph
13.1(c), (d) and (g) such default is not cured within the respective time
periods specified in those subparagraphs. The parties agree that any notice
given by landlord to Tenant pursuant to this Paragraph 13.2.1 shall be
sufficient notice for purposes of California Code of Civil Procedure Section
1161 and Landlord shall not be required to give any additional notice in order
to be entitled to commence an unlawful detainer proceeding. Upon termination of
this Lease, Landlord shall have the right to recover from Tenant:
(a) The worth at the time of award of the unpaid Rentals which had been
earned at the time of termination;
(b) The worth at the time of award of the amount by which the unpaid
Rentals which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided;
(c) The worth at the time of award (computed by discounting at the
discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent) of the amount by which the unpaid Rentals for the
balance of the Lease Term after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided; and
(d) Any other amounts necessary to compensate Landlord for detriment
proximately caused by the Default by Tenant or which in the ordinary
course of events would likely result, including without limitation in the
following:
(i) Expenses in retaking possession of the Premises;
(ii) Expenses for cleaning, repairing or restoring the Premises;
(iii) Any unamortized real estate brokerage commissions paid In
connection with this Lease;
(iv) Expenses for removing, transporting, and storing any of
Tenant's property left at the Premises (although Landlord shall
have no obligation to remove, transport, or store any such
property);
(v) Expenses of reletting the Premises, including without
limitation, brokerage commissions, advertising costs, and
attorneys' fees;
(vi) Attorneys' fees and court costs; and
(vii) Cost of carrying the Premises, such as repairs, maintenance,
taxes and insurance premiums, utilities and security
precautions (if any).
(e) The "worth at the time of award" of the amounts referred to in
subparagraphs (a) and (b) of this Paragraph 13.2.1 is computed by allowing
interest at an annual rate equal to the greater of (i) 10% or, (ii) 5%
plus the rate established by the Federal Reserve Bank of San Francisco, as
of the 25th day of the month immediately preceding the Default by Tenant,
on advances to member banks under Sections 13 and 13(a) of the Federal
Reserve Act, as now in effect or hereafter from time to time amended, not
to exceed the maximum rate allowable by law.
13.2.2 CONTINUANCE OF LEASE. Upon Default by Tenant and unless and until
Landlord elects to terminate this Lease pursuant to Paragraph 13.2.1 above,
this Lease shall continue in effect after the Default by Tenant and Landlord
may enforce all rights and remedies under this Lease, including without
limitation, the right to recover payment of Rentals as they become due. Neither
efforts by Landlord to mitigate damages caused by a Default by Tenant nor the
acceptance of any Rentals shall constitute a waiver by Landlord of any of
Landlord's rights or remedies, including the rights and remedies specified in
Paragraph 13.2.1 above.
DAMAGE OR DESTRUCTION
14.1 DEFINITION OF TERMS. For the purposes of this Lease, the term: (a)
"Insured Casualty" means damage to or destruction of the Premises from a cause
actually insured against, for which the insurance proceeds paid or made
available to Landlord are sufficient to rebuild or restore the Premises under
then-existing building codes to the condition existing immediately prior to the
damage or destruction; and (b) "Uninsured Casualty" means damage to or
destruction of the Premises from a cause not actually insured against, or from
a cause actually insured against but for which the insurance proceeds paid or
made available to Landlord are for any reason insufficient to rebuild or
restore the Premises under then-existing building codes to the condition
existing immediately prior to the damage or destruction, or from a cause
actually insured against but for which the insurance proceeds are not paid or
made available to Landlord within sixty (60) days of the event of damage or
destruction.
14.2 INSURED CASUALTY.
14.2.1 REBUILDING REQUIRED. In the event of an Insured Casualty where the
extent of damage or destruction is less than twenty percent (20%) of the then
full replacement cost of the Premises, Landlord shall rebuild or restore the
Premises to the condition existing immediately prior to the damage or
destruction, provided the damage or destruction was not a result of a negligent
or willful act of Tenant, and that there exist no governmental codes or
regulations that would interfere with Landlord's ability to so rebuild or
restore.
14.2.2 LANDLORD'S ELECTION. In the event of an Insured Casualty where the
extent of damage or destruction is equal to or greater than twenty percent
(20%) of the then full replacement cost of the Premises, Landlord may, at its
option and at its sole discretion, rebuild or restore the Premises to the
condition existing immediately prior to the damage or destruction, or terminate
this Lease. Landlord shall notify Tenant in writing within thirty (30) days
from the event of damage or destruction of Landlord's election to either
rebuild or restore the Premises or terminate this Lease.
14.2.3 CONTINUANCE OF LEASE. If Landlord is required to rebuild or restore the
Premises pursuant to Paragraph 14.2.1 or if Landlord elects to rebuild or
restore the Premises pursuant to Paragraph 14.2.2, this Lease shall remain in
effect and Tenant shall have no claim against Landlord for compensation for
inconvenience or loss of business during any period of repair or restoration.
14.3 UNINSURED CASUALTY.
14.3.1 LANDLORD'S ELECTION. In the event of an Uninsured Casualty, Landlord
may, at its option and at its sole discretion (i) rebuild or restore the
Premises as soon as reasonably possible at Landlord's expense (unless the
damage or destruction was caused by a negligent or willful act of Tenant, in
which event Tenant shall pay all costs of rebuilding or restoring), in which
event this Lease shall continue in full force and effect or (ii) terminate this
Lease, in which event Landlord shall give written notice to Tenant within
/s/
INITIALS
8
<PAGE> 12
sixty (60) days after the event of damage or destruction of Landlord's election
to terminate this Lease as of the date of the event of damage or destruction,
and it the damage or destruction was caused by a negligent or willful act of
Tenant, Tenant shall be liable therefor to Landlord,
14.12 TENANT'S ABILITY TO CONTINUE LEASE. If Landlord elects to terminate this
Lease and the extent of damage or destruction is less than twenty percent (20%)
of the then full replacement cost of the Premises or the proceeds paid or made
available to Landlord are for any reason insufficient to rebuild or restore the
Premises under then-existing building codes to the condition existing
immediately prior to the damage or destruction, and if there exist no
governmental codes or regulations that would interfere with Landlord's
ability to so repair or restore, then Tenant may nevertheless cause the Lease
to continue in effect by (i) notifying Landlord in writing within ten (10) days
of Landlord's notice of termination of Tenant's agreement to pay all costs of
rebuilding or restoring not covered by insurance, and (ii) providing Landlord
with reasonable security for or assurance of such payment. Tenant shall pay to
Landlord in cash no later than thirty (30) days prior to the date of
commencement of construction the reasonable estimated cost of rebuilding or
restoring. In the event Tenant fails to pay such cost to Landlord by the date
specified, Landlord may immediately terminate the Lease and recover from Tenant
all costs incurred by Landlord in preparation for construction. If the actual
cost of rebuilding or restoring exceeds the estimated cost of such work, Tenant
shall pay the difference to Landlord in cash upon notification by Landlord of
the final cost. If the cost of rebuilding or restoring is less than the
estimated cost of such work, Tenant shall be entitled to a refund of the
difference upon completion of the rebuilding or restoring and determination of
final cost.
14.4 TENANT'S ELECTION. Notwithstanding anything to the contrary contained in
this Paragraph 14, Tenant may elect to terminate this Lease in the event the
Premises are damaged or destroyed and, in the reasonable opinion of Landlord's
architect or construction consultants, the restoration of the Premises cannot
be substantially completed within one hundred eighty (180) days after the event
of damage or destruction. Tenant's election shall be made by written notice to
Landlord within ten (10) days after Tenant receives from Landlord the estimate
of the time needed to complete repair or restoration of the Premises. If Tenant
does not deliver said notice within said ten (10) day period, Tenant may not
thereafter terminate this Lease even if substantial completion of the
rebuilding or restoration occurs subsequent to said one hundred eighty (180)
day period, provided that Landlord is proceeding with diligence to rebuild or
restore the Premises. If Tenant delivers said notice within said ten (10) day
period, this Lease shall terminate as of the date of the event of damage or
destruction.
14.5 DAMAGE OR DESTRUCTION NEAR END OF LEASE TERM. Notwithstanding anything to
the contrary contained in this Paragraph 14, in the event the Premises are
damaged or destroyed in whole or in part (regardless of the extent of damage)
from any cause during the last twelve (12) months of the Lease Term, Landlord
may, at Landlord's option, terminate this Lease as of the date of the event of
damage or destruction by giving written notice to Tenant of Landlord's election
to do so within thirty (30) days after the event of such damage or destruction.
For purposes of this Paragraph 14.5, if Tenant has been granted an option to
extend or renew the Lease Term pursuant to another provision of this Lease,
then the damage or destruction shall be deemed to have occurred during the last
twelve (12) months of the Lease Term if Tenant falls to exercise its option to
extend or renew within twenty (20) days of the event of damage or destruction.
14.6 TERMINATION OF LEASE. If the Lease is terminated pursuant to this
Paragraph 14, the unused balance of the Security Deposit shall be refunded to
Tenant. The current Rent shall be proportionately reduced during the period
following the event of damage or destruction until the date on which Tenant
surrenders the Premises, based upon the extent to which the damage or
destruction interferes with Tenant's business conducted in the Premises, as
reasonably determined by Landlord, and the extent to which such loss is covered
as an insured peril by the insurance carried by Landlord pursuant to Paragraph
7.1. All other Rentals due hereunder shall continue unaffected during such
period. The proceeds of insurance carried by Tenant pursuant to Paragraph 7.2
shall be paid to Landlord and Tenant, as their interests appear.
14.7 ABATEMENT OF RENTALS. If the Premises are to be rebuilt or restored
pursuant to this Paragraph 14, the then current Rent shall be proportionately
reduced during the period of repair or restoration, based upon the extent to
which the making of repairs interferes with Tenant's business conducted in the
Premises, as reasonably determined by Landlord, and the extent to which such
loss is covered as an insured peril by the insurance carried by Landlord
pursuant to Paragraph 7.1. All other Rentals due hereunder shall continue
unaffected.
14.8 LIABILITY FOR PERSONAL PROPERTY. In no event shall Landlord have any
liability for, nor shall it be required to repair or restore, any injury or
damage to any improvements, alterations or additions to the Premises made by
Tenant, trade fixtures, equipment, merchandise, furniture, of any other
property installed by Tenant or at the expense of Tenant. If Landlord or Tenant
do not elect to terminate this Lease pursuant to this Paragraph 14, Tenant
shall be obligated to promptly rebuild or restore the same to the condition
existing immediately prior to the damage or destruction in accordance with the
provisions of Paragraph 12.1
14.9 WAIVER OF CIVIL CODE REMEDIES. Landlord and Tenant acknowledge that the
rights and obligations of the parties upon damage or destruction of the
Premises are as set forth herein; therefore Tenant hereby expressly waives any
rights to terminate this lease upon damage or destruction of the Premises,
except as specifically provided by this Lease, including without limitation any
rights pursuant to the provisions of Subdivision 2 of Section 1932 and
Subdivision 4 of Section 1933 of the California Civil Code, as amended from
time to time, and the provisions of any similar law hereinafter enacted, which
provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
14.10 DAMAGE OR DESTRUCTION TO THE BUILDING. The foregoing notwithstanding, in
the event the Building is damaged or destroyed to the extent of more than
thirty-three and one-third percent (33 1/3%) of the then replacement cost
thereof, Landlord may elect to terminate this Lease, whether or not the
Premises are injured.
CONDEMNATION
15.1 DEFINITION OF TERMS. For the purpose of this Lease, the term: (a) "Taking"
means a taking of the Premises, Common Area, or Building or damage related to
the exercise of the power of eminent domain and includes without limitation a
voluntary conveyance, in lieu of court proceedings, to any agency; authority,
public utility, person or corporate entity empowered to condemn property; (b)
"Total Taking" means the Taking of the entire Premises or so much of the
Premises, Building, Parcel or Common Area as to prevent or substantially impair
the use thereof by Tenant for the uses herein specified; provided, however,
that in no event shall a Taking of less than twenty percent (20%) of the
Premises or fifty percent (50%) of the Building or Common Area be considered a
Total Taking; (c) "Partial Taking" means the Taking of only a portion of the
Premises, Building or Common Area which does not constitute a Total Taking; (d)
"Date of Taking" means the date upon which title to the Premises, Building or
Common Area or a portion thereof, passes to and vests in the condemnor or the
effective date of any order for possession if issued prior to the date title
vests in the condemnor; and (a) "Award" means the amount of any award made,
consideration paid, or damages ordered as a result of a Taking.
15.2 RIGHTS. The parties agree that in the event of a Taking of rights between
them or in and to an Award shall be asset for them herein.
15.3 TOTAL TAKING. In the event of a Total Taking during the Lease Term: (a)
the rights of Tenant under this Lease and the leasehold estate of Tenant in and
to the Premises shall cease and terminate as of the Date of Taking; (b) Landlord
shall refund to Tenant any prepaid Rent and the unused balance of the Security
Deposit; (c) Tenant shall pay Landlord any Rentals due Landlord under the
Lease, prorated as of the Date of Taking; (d) to the extent the Award is not
payable to the beneficiary or mortgagee of a deed of trust or mortgage affecting
the Premises, Tenant shall receive from the Award those portions of the Award
attributable to trade fixtures of Tenant; and (a) the remainder of the Award
shall be paid to and be the property of Landlord.
15.4 PARTIAL TAKING. In the event of a Partial Taking during the Lease
Term: (a) the rights of Tenant under the Lease and the lease hold estate of
Tenant in and to the portion of the Premises taken shall cease and terminate as
of the Date of Taking; (b) from and after the Date of Taking, the Rent shall be
the product obtained by multiplying the then current Rent by the quotient
obtained by dividing the fair market value of the Premises immediately after
the Taking by the fair market value of the Premises immediately
/s/
INITIALS
9
<PAGE> 13
prior to the Taking; (c) to the extent the Award is not payable to the
beneficiary or mortgagee of a deed of trust or mortgage affecting the Premises,
Tenant shall receive from the Award those portions of the Award attributable to
trade fixtures of Tenant; and (d) the remainder of the Award shall be paid to
and be the property of Landlord. Each party waives the provisions of California
Code of Civil Procedure Section 1265.130 allowing either party to petition the
Superior Court to terminate this Lease in the event of a Partial Taking.
LIENS
16.1 PREMISES TO BE FREE OF LIENS. Tenant shall pay for all labor and services
performed for, and all materials used by or furnished to Tenant, Tenant's
agents, or any contractor employed by Tenant with respect to the Premises.
Tenant shall indemnify and hold Landlord harmless from and keep the Premises,
Building, Common Area and Land free from any liens, claims, demands,
encumbrances, or judgments, including all costs, liabilities and attorneys' fees
with respect thereto, created or suffered by reason of any labor or services
performed for, or materials used by or furnished to Tenant or Tenant's agents or
any contractor employed by Tenant with respect to the Premises. Landlord shall
have the right, at all times, to post and keep posted on the Premises any
notices permitted or required by law, or which Landlord shall deem proper for
the protection of Landlord and the Premises, Building, Common Area and Land, and
any other party having an interest therein, from mechanics and materialmen's
liens, including without limitation a notice of nonresponsibility. In the event
Tenant is required to post an improvement bond with a public agency in
connection with any work performed by Tenant on or to the Premises, Tenant shall
include Landlord as an additional obligee.
16.2 NOTICE OF LIEN; BOND. Should any claims of lien be filed against, or any
action be commenced affecting the Premises, Tenant's interest in the Premises
or the Building, Common Area or Land, Tenant shall give Landlord notice of such
lien or action within three (3) business days after Tenant receives notice of
the filing of the lien or the commencement of the action. In the event that
Tenant shall not, within twenty (20) days following the date on which Tenant
receives notice of the filing of any such lien, cause such lien to be released
of record by payment or posting of a proper bond, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as Landlord
shall deem proper, including payment of the claim giving rise to such lien or
posting of a proper bond. All such sums paid by Landlord and all expenses
incurred by Landlord in connection therewith, including attorney's fees and
costs, shall be payable to Landlord by Tenant as Additional Rent on demand.
LANDLORD'S RIGHT OF ACCESS TO PREMISES
17 Landlord reserves and shall have the right and Tenant and Tenant's agents
shall permit Landlord and Landlord's agents to enter the Premises at any
reasonable time for the purpose of (i) supplying any cleaning, maintenance,
repair or janitorial services to be provided by Landlord pursuant to the terms
hereof; (ii) inspecting the Premises; (iii) protecting the Premises in the
event of an emergency; (iv) exhibiting the Premises to prospective lenders,
purchasers or tenants; (v) posting notices of non-responsibility, "for lease"
and "for sale" signs; and (vi) altering, improving or repairing the Premises or
any portion of the Building or Common Area. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned by any entry into the Premises in accordance with this
Paragraph 17 or any other provision of this Lease. For each of the aforesaid
purposes, Landlord shall, at all times, have and retain a key with which to
unlock all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order to
obtain entry to the Premises. Any entry to the Premises by Landlord as
permitted by this Lease shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, the Premises,
or an eviction of Tenant from the Premises or any portion thereof nor give
Tenant the right to abate the Rentals payable under this Lease.
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
18 Except as otherwise provided herein, if Tenant shall at any time fail to
make any payment or perform any other act required to be made or performed by
Tenant under this Lease, Landlord may upon ten (10) days written notice to
Tenant, but shall not be obligated to and without waiving or releasing Tenant
from any obligation under this Lease, make such payment or perform such other
act to the extent that Landlord may deem desirable, and in connection
therewith, pay expenses and employ counsel. All sums so paid by Landlord and
all penalties, interest and costs in connection therewith shall be due and
payable by Tenant as Additional Rent upon demand.
LENDER REQUIREMENTS
19.1 SUBORDINATION. This Lease, at Landlord's option, shall be subject and
subordinate to the lien of any mortgages or deeds of trust (including all
advances thereunder, renewals, replacements, modifications, supplements,
consolidations, and extensions thereof) in any amount or amounts whatsoever now
or hereafter placed on or against or affecting the Premises, Building or Land,
or Landlord's interest or estate therein, without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. If any mortgagee or beneficiary shall elect to
have this Lease prior to the lien of its mortgage or deed of trust, and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage or deed of trust, whether this Lease is dated prior or subsequent to
the date of said mortgage or deed of trust, or the date of the recording
thereof.
19.2 SUBORDINATION AGREEMENTS. Tenant shall execute and deliver, without charge
therefor, such further instruments evidencing subordination of this Lease to
the lien of any mortgages or deeds of trust affecting the Premises, Building or
Land as may be required by Landlord within ten (10) days following Landlord's
request therefor; provided that such mortgagee or beneficiary under such
mortgage or deed of trust agrees in writing that this Lease shall not be
terminated in the event of any foreclosure if Tenant is not in default under
this Lease. Failure of Tenant to execute such instruments evidencing
subordination of this Lease shall constitute a Default by Tenant hereunder.
19.3 APPROVAL BY LENDERS. Tenant recognizes that the provisions of this Lease
may be subject to the approval of any financial institution that may make a
loan secured by a new or subsequent deed of trust or mortgage affecting the
Premises, Building or Land. If the financial institution should require, as a
condition to such financing, any modifications of this Lease in order to
protect its security interest in the Premises including without limitation,
modification of the provisions relating to damage to and/or condemnation of the
Premises, Tenant agrees to execute the appropriate amendments; provided,
however, that no modification shall substantially change the size, location or
dimension of the Premises, or increase the Rentals payable by Tenant hereunder.
If Tenant refuses to execute any such amendment, Landlord may, in Landlord's
discretion, terminate this Lease.
19.4 ATTORNMENT. In the event of foreclosure or the exercise of the power of
sale under any mortgage or deed of trust made by the Landlord and covering the
Premises, Building or parcel, Tenant shall attorn to purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease, provided such purchaser expressly agrees in writing to be bound by the
terms of the Lease, including, but not limited to the quiet enjoyment
provisions of Paragraph 39.
19.5 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
(a) DELIVERY BY TENANT. At all times during the Lease Term, Tenant shall,
within ten (10) days following request by Landlord therefor and without
charge, execute, acknowledge and deliver to Landlord any and all
documents, estoppel certificates, and current financial statements of
Tenant requested by Landlord in connection with the sale or financing of
the Premises, Building or Land or requested by a lender making a loan
affecting the Premises. Landlord may require that Tenant in any estoppel
certificate shall (i) certify that this Lease is unmodified, in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect)
and has not been assigned, (ii) certify the date to which Rentals are paid
in advance, if any, (iii) acknowledge that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed, (iv) evidence the status of
this Lease as may be required either by a lender making a loan to Landlord
to be secured by a deed of trust or mortgage affecting the Premises or a
purchaser of the Premises, Building or Land from Landlord, (v) warrant
that in the event any beneficiary of any security instrument encumbering
the Premises, Building or Land forecloses on the security instrument or
sells the Premises, Building or Land pursuant to any power of sale
contained in such security instrument, such beneficiary shall not be
liable for the Security Deposit, (vi) certify the date Tenant entered into
occupancy of the Premises and that Tenant is open and conducting business
at the Premises, (vii) certify that all improvements which were to be
constructed on the Premises by Landlord have been substantially completed
except for punch list items which do not prevent Tenant from using the
Premises for its intended use, and (viii) certify such other matters
relating to this Lease and/or the Premises as may be requested by a lender
making a loan to Landlord or a purchaser
/s/
INITIALS
10
<PAGE> 14
of the Premises, Building or Land from Landlord. Any such estoppel
certificate may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Premises, Building or Land. Any financial
statements of Tenant shall include an opinion of a certified public
accountant (if available) and a balance sheet and profit and loss
statement for the most recent fiscal year, all prepared in accordance
with generally accepted accounting principles consistently applied.
(b) NONDELIVERY BY TENANT. Tenant's failure to deliver an estoppel
certificate as requited pursuant to Paragraph 19.5(a) above shall be
conclusive upon Tenant that (i) this Lease is in full force and effect,
without modification except as may be represented by Landlord and has not
been assigned, (ii) there are now no uncured defaults in Landlord's
performance, (iii) no Rentals have been paid in advance except those that
are set forth in this Lease, (iv) no beneficiary of any security
instrument encumbering the Premises, Building or Land shall be liable for
the Security Deposit in the event of a foreclosure or sale under such
security instrument, (v) the improvements which were to be constructed on
the Premises by Landlord have been substantially completed except for
punch list items which do not prevent Tenant from using the Premises for
its intended use, and (vi) Tenant has entered into occupancy of the
Premises on such date as may be represented by Landlord and is open and
conducting business at the Premises. Tenant's failure to deliver any
financial statements, estoppel certificates or other documents as required
pursuant to Paragraph 19.5(a) above shall be a Default by Tenant.
HOLDING OVER
20 This Lease shall terminate without further notice at the expiration of the
Lease Term. It is the desire of Landlord either to enter into a new lease with
Tenant prior to the termination hereof, or to have Tenant vacate the Premises
upon expiration of the Lease Term pursuant to Paragraph 34 below. Therefore,
any holding over by Tenant after Lease Termination shall not constitute a
renewal or extension of the Lease Term, nor give Tenant any rights in or to the
Premises except as expressly provided in this Lease. Any holding over after
Lease Termination with the consent of Landlord, shall be construed to be a
tenancy from month to month, at 200% of the monthly Rent for the month
preceding Lease Termination in addition to all Additional Rent payable hereun-
der, and shall otherwise be on the terms and conditions herein specified
insofar as applicable. If Tenant remains in possession of the Premises after
Lease Termination without Landlord's consent, Tenant shall indemnify Landlord
against any loss or liability resulting from Tenant's failure to surrender the
Premises, including without limitation, any claims made by any succeeding
tenant based upon delay in the availability of the Premises.
NOTICES
21 Any notice required or desired to be given under this Lease shall be in
writing, and all notices shall be given by personal delivery or mailing. All
notices personally given to Tenant may be delivered to any person apparently in
charge at the Premises, to any corporate officer or agent of Tenant if Tenant
is a corporation, or to any one signatory party if more than one party signs
this Lease on behalf of Tenant. Any notice so given shall be binding upon all
signatory parties as if served upon each such party personally. Any notice
given pursuant to this Paragraph 21 shall be deemed to have been given when
personally delivered, or if mailed, when seventy-two hours have elapsed from
the time when such notice was deposited in the United States mail, certified or
registered mail and postage prepaid, addressed to the party at the last address
given for purposes of notice pursuant to the provisions of this Paragraph 21.
At the date of execution of this Lease, the addresses of Landlord and Tenant
are set forth in Paragraph 1.12 above.
ATTORNEYS' FEES
22 In the event either party hereto shall bring any action or legal proceeding
for damages for an alleged breach of any provision of this Lease, to recover
Rentals, to enforce an indemnity obligation, to terminate the tenancy of the
Premises, or to enforce, protect, interpret, or establish any term, condition,
or covenant of this Lease or right to remedy of either party, the prevailing
party shall be entitled to recover, as a part of such action or proceeding,
reasonable attorneys' fees and court costs, including attorneys' fees and costs
for appeal, as may be fixed by the court or jury.
ASSIGNMENT, SUBLETTING AND HYPOTHECATION
23.1 IN GENERAL. Tenant shall not voluntarily sell, assign or transfer all or
any part of Tenant's interest in this Lease or in the Premises or any part
thereof, sublease all or any part of the Premises, or permit all or any part of
the Premises to be used by any person or entity other than Tenant or Tenant's
employees, except as specifically provided in this Paragraph 23.
23.2 VOLUNTARY ASSIGNMENT AND SUBLETTING
(a) NOTICE TO LANDLORD. Tenant shall, by written notice, advise Landlord
of Tenant's desire on a stated date (which date shall not be less than
thirty (30) days nor more than ninety (90) days after the date of
Tenant's notice) to assign this Lease or to sublet all or any part of the
Premises for any part of the Lease Term. Said notice shall state that the
notice constitutes an offer to terminate the Lease or Tenant's interest in
the portion of the Premises specified pursuant to Paragraph 23.2(b) if the
notice applies to a proposed assignment of the Lease or Tenant's interest
therein, a proposed sublease of all or any part of the Premises for more
than fifty percent (50%) of the remainder of the Lease Term, or a proposed
sublease of more than fifty percent (50%) of the Premises for any period.
Tenant's notice shall state the name, legal composition and address of
the proposed assignee or subtenant, and Tenant shall provide the
following information to Landlord with said notice: a true and complete
copy of the proposed assignment agreement or sublease; an audited
financial statement of the proposed assignee or subtenant prepared in
accordance with generally accepted accounting principles within one year
prior to the proposed effective date of the assignment or sublease; the
nature of the proposed assignee's or subtenant's business to be carried on
in the Premises; the payments to be made or other consideration to be
given on account of the assignment or sublease; a current financial
statement of Tenant; and such other pertinent information as may be
requested by Landlord, all in sufficient detail to enable Landlord to
evaluate the proposed assignment or sublease and the prospective assignee
or subtenant. Tenant's notice shall not be deemed to have been served or
given until such time as Tenant has provided Landlord with all
information reasonably requested by Landlord pursuant to this Paragraph
23.2(a). Tenant shall immediately notify Landlord of any modification to
the proposed terms of such assignment or sublease. Tenant may withdraw
its notice at any time prior to exercise by Landlord of Landlord's right
to terminate as described in Paragraph 23.2(b).
(b) OFFER TO TERMINATE. If Tenant notifies Landlord of its desire to
assign this Lease or any interest herein, to sublet all or any part of the
Premises for more than fifty percent (50%) of the remainder of the Lease
Term, or to sublet more than fifty percent (50%) of the Premises for any
period, Tenant's notice shall constitute an offer to terminate this Lease
or Tenant's interest in the portion of the Premises specified and Landlord
shall have the right, to be exercised by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's notice, to terminate the
Lease (i) entirely, in the event of a proposed assignment or a sublease of
the entire Premises for the remainder of the Lease Term, (ii) as to the
portion of the Premises which is the subject of a proposed sublease for
more than fifty percent (50%) of the remainder of the Lease Term, or (iii)
as to the portion of the Premises which is the subject of a proposed
sublease of more than fifty percent (50%) of the Premises for any period,
as specified in Tenant's notice. For purposes of this Paragraph 23.2(b),
the term of a proposed sublease shall include all options to extend or
renew, and a proposed sublease shall be deemed to be for the remainder of
the Lease Term if the term of the proposed sublease will expire within one
year of the end of the Lease Term. If Tenant's notice specifies all of the
Premises and Landlord elects to terminate, this Lease shall terminate on
the date stated in the notice given by Tenant pursuant to Paragraph
23.2(a), subject to any obligations which have accrued and are
unfulfilled as of such date. If Tenant's notice specifies less than all of
the Premises and Landlord elects to terminate, this Lease shall
terminate on the date stated with respect to that portion of the Premises,
and Rent and Tenant's percentage share of excess Direct Costs shall be
adjusted, based upon the number of net leasable square feet retained by
Tenant after the termination as compared to the total number of net
leasable square feet in the entire Premises excluding any areas of the
Premises designated in the proposed sublease for ingress and egress and
common areas, if any. The Lease as so amended shall continue thereafter in
full force and effect. Landlord and Tenant shall execute an amendment to
this Lease specifying the new Premises, the adjusted Rent, and Tenant's
adjusted percentage share of excess Direct Costs; provided, however, that
failure by either party to execute such an amendment shall not affect the
validity of this Lease.
(c) LANDLORD'S CONSENT If Landlord does not exercise its right to
terminate pursuant to Paragraph 23.2(b) within thirty (30) days after
receipt of Tenant's notice or if a proposed sublease is not subject to the
provisions of Paragraph 23.2(b), Landlord shall not unreasonably withhold
its consent to the proposed assignment or sublease, on the terms and
conditions specified in said notice. If Tenant's notice fails to state
that it constitutes an offer to terminate the Lease as may be required
pursuant to Paragraph 23.2(a), such notice shall be deemed insufficient
for the purposes of this Paragraph 23.2, and Landlord may withhold its
consent to the proposed assignment or subletting in Landlord's absolute
discretion. Without otherwise limiting the criteria upon which
/s/
INITIALS
<PAGE> 15
Landlord may withhold its consent to any proposed assignment or sublease,
if Landlord withholds its consent where Tenant is in default at the time
of the giving of Tenant's notice or at any time thereafter, or where
the net worth of the proposed assignee or subtenant (according to
generally accepted accounting principles) is less than the greater of (i)
the net worth of Tenant immediately prior to the assignment or sublease
(ii) or the net worth of Tenant at the time this Lease is executed, such
withholding of consent shall be presumptively reasonable. Any and all rent
paid by an assignee or subtenant, including but not limited to, any rent
in excess of the Rentals to be paid under this Lease (prorated in the
event of a sublease of less than the entire Premises), shall be paid
directly to Landlord, as Additional Rent, at the time and place specified
in this Lease. For the purposes of this Paragraph 23, the term "rent"
shall include any consideration of any kind received, or to be received,
by Tenant from an assignee or subtenant, if such sums are related to
Tenant's interest in this Lease or in the Premises, including, but not
limited to, key money, bonus money, and payments (in excess of the fair
market value thereof) for Tenant's assets, fixtures, trade fixtures,
inventory, accounts, goodwill, equipment, furniture, general intangibles,
and any capital stock or other equity ownership interest of Tenant. Any
assignment or subletting without Landlord's consent shall be voidable at
Landlord's option, and shall constitute a Default by Tenant. Landlord's
consent or inaction with respect to any one assignment or sublease shall
not constitute a waiver of the provisions of this Paragraph 23 as to any
subsequent assignment or sublease nor a consent to any subsequent
assignment or sublease. in any event, Landlord's consent to an assignment
or sublease shall not release Tenant from Tenant's obligations under this
Lease, and Tenant shall remain jointly and severally liable with the
assignee or subtenant.
(d) ASSUMPTION OF OBLIGATIONS. In the event Landlord consents to any
assignment, such consent shall be conditioned upon the assignee expressly
assuming and agreeing to be bound by each of Tenant's covenants,
agreements, and obligations contained in this Lease, pursuant to a written
assignment and assumption agreement in a form approved by Landlord.
Landlord's consent to any assignment or sublease shall be evidenced by
Landlord's signature on said assignment and assumption agreement or on said
sublease or by a separate written consent. In the event Landlord consents
to a proposed assignment or sublease, such assignment or sublease shall be
valid and the assignee or subtenant shall have the right to take possession
of the Premises only if an executed original of the assignment or sublease
is delivered to Landlord, and such document contains the same terms and
conditions as stated in Tenant's notice to Landlord given pursuant to
Paragraph 23.2(a) above, except for any such modifications to which
Landlord has consented in writing.
23.3 COLLECTION OF RENT. Tenant hereby irrevocably gives to and confers upon
Landlord, as security for Tenant's obligations under this Lease, the right,
power and authority to collect all rents from any assignee or subtenant of all
or any part of the Premises as permitted by this Paragraph 23, or otherwise,
and Landlord, as assignee of Tenant, or a receiver for Tenant appointed on
Landlord's application, may collect such rent and apply it toward Tenant's
obligations under this Lease; provided, however, that until the occurrence of
any Default by Tenant or except as provided by the provisions of Paragraph
23.2(c) above, Tenant shall have the right to collect such rent. Upon the
occurrence of any Default by Tenant, Landlord may at any time without notice in
Landlord's own name sue for or otherwise collect such rent, including rent past
due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, toward Tenant's obligations
under this Lease. Landlord's collection of such rents shall not constitute an
acceptance by Landlord of attornment by such subtenants. in the event of a
Default by Tenant, Landlord shall have all rights provided by this Lease and by
law, and Landlord may, upon re-entry and taking possession of the Premises,
eject all parties in possession or eject some and not others, or eject none, as
Landlord shall determine in Landlord's sole discretion.
23.4 NO BONUS VALUE. It is the intent of the parties hereto that this Lease
shall confer upon Tenant only the right to use and occupy the Premises, and to
exercise such other rights as are conferred upon Tenant by this Lease. The
parties agree that this Lease is not intended to have a bonus value, nor to
serve as a vehicle whereby Tenant may profit by a future assignment or sublease
of this Lease or the right to use or occupy the Promises as a result of any
favorable terms contained herein or any future changes in the market for leased
space. It is the intent of the parties that any such bonus value that may
attach to this Lease shall be and remain the exclusive property of Landlord.
23.5 CORPORATIONS AND PARTNERSHiPS. If Tenant is a partnership, any withdrawal
or substitution (whether voluntary, involuntary, or by operation of law and
whether occurring at one time or over a period of time) of any partner(s)
owning fifty percent (50%) or more of the partnership, any assignment(s) of
fifty percent (50%) or more (cumulatively) of any interest in, the capital or
profits of the partnership, or the dissolution of the partnership shall be
deemed an assignment of this Lease requiring the prior written consent of
Landlord. If Tenant is a corporation, any dissolution, merger, consolidation or
other reorganization of Tenant, any sale or transfer (or cumulative sales or
transfers) of the capital stock of Tenant in excess of fifty percent (50%), or
any sale (or cumulative sales) of all of the assets of Tenant shall be deemed
an assignment of this Lease requiring the prior written consent of Landlord.
Any such withdrawal or substitution of partners or assignment of any interest
in or dissolution of a partnership tenant, and any such sale of stock or assets
of a corporate tenant without the prior written consent of Landlord shall be a
Default by Tenant hereunder. The foregoing notwithstanding, the sale or
transfer of any or all of the capital stock of a corporation, the capital
stock of which is publicly traded at the time of such sale or transfer, shall
not be deemed an assignment of this Lease.
23.6 REASONABLE PROVISIONS. Tenant expressly agrees that the provisions of this
Paragraph 23 are not unreasonable standards or conditions for purposes of
Section 1951.4(b)(2) of the California Civil Code, as amended from time to
time.
23.7 ATTORNEY'S FEES AND COSTS. Tenant shall pay, as Additional Rent,
Landlord's actual costs and attorney's fees for reviewing, investigating,
processing and/or documenting any requested assignment or sublease, whether or
not Landlord's consent is granted.
23.8 INVOLUNTARY TRANSFER. No interest of Tenant in this Lease shall be
assignable by operation of law, including, without limitation, the transfer of
this Lease by testacy or intestacy, Each of the following acts shall be
considered an involuntary assignment:
(a) if Tenant is or becomes bankrupt or insolvent, makes an assignment for
the benefit of creditors, or a proceeding under the Bankruptcy Act is
instituted in which Tenant is the bankrupt; or, if Tenant is a partnership
or consists of more than one person or entity, if any partner of the
partnership or other person or entity is or becomes bankrupt or insolvent,
or makes an assignment for the benefit of creditors;
(b) Levy of a writ of attachment or execution on this Lease;
(c) Appointment of a receiver with authority to take possession of the
Premises in any proceeding or action to which Tenant is a party; or
(d) Foreclosure of any lien affecting Tenant's interest in the Premises,
which lien was not consented to by Landlord pursuant to Paragraph 23.9.
An involuntary assignment shall constitute a Default by Tenant and Landlord
shall have the right to terminate this Lease, in which case this Lease shall
not be treated as an asset of Tenant. In the event the Lease is not terminated,
the provisions of Paragraph 23.2(c) regarding rents paid by an assignee or
subtenant and Paragraph 23.4 shall apply. If a writ of attachment or execution
is levied on this Lease, or if any involuntary proceeding in bankruptcy is
brought against Tenant or a receiver is appointed, Tenant shall have thirty
(30) days in which to cause the attachment or execution to be removed, the
involuntary proceeding dismissed, or the receiver removed.
23.9 HYPOTHECATION Tenant shall not hypothecate, mortgage or encumber Tenant's
interest in this Lease or in the Premises or otherwise use this Lease as a
security device in any manner without the consent of Landlord, which consent
Landlord may withhold in its absolute discretion. Consent by Landlord to any
such hypothecation or creation of a lien or mortgage shall not constitute
consent to an assignment or other transfer of this Lease following foreclosure
of any permitted lien or mortgage.
23.10 BINDING ON SUCCESSORS. The provisions of this Paragraph 23 expressly
apply to all heirs, successors, sublessees, assignees and transferees of
Tenant.
/s/
INITIALS
12
<PAGE> 16
SUCCESSORS
24 Subject to the provisions of Paragraph 23 above and Paragraph 29.2(a) below,
the covenants, conditions, and agreements contained in this Lease shall be
binding on the parties hereto and to their respective heirs, successors and
assigns.
LANDLORD DEFAULT; MORTGAGEE PROTECTION
25 Landlord shall not be in default under this Lease unless Tenant shall have
given Landlord written notice of the breach and, within thirty (30) days after
notice, Landlord has not cured the breach or, if the breach is such that it
cannot reasonably be cured under the circumstances within thirty (30) days, has
not commenced diligently to prosecute the cure to completion. Any money
judgment obtained by Tenant based upon Landlord's breach of this Lease shall be
satisfied only out of the proceeds of the sale or disposition of Landlord's
interest in the Premises (whether by Landlord or by execution of judgment). In
the event of any default on the part of Landlord under this Lease, Tenant shall
give notice by registered mail to any beneficiary or mortgagee of a deed of
trust or mortgage encumbering the Premises, Building and/or Land whose address
shall have been furnished to it, and shall offer such beneficiary or mortgagee
a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or judicial foreclosure, if such
should prove necessary to effect a cure.
EXHIBITS
26 All exhibits to this Lease shall be deemed to be incorporated herein by the
individual reference to each such exhibit, and all such exhibits shall be
deemed to be a part of this Lease as though set forth in full in the body
of the Lease. In the event of any conflict between the terms of any exhibit and
the terms of any of the terms and conditions of the Lease, the terms and
conditions of this Lease shall control.
SURRENDER OF LEASE NOT MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to Landlord of any or all such
subleases or subtenancies.
WAIVER
28 The waiver by Landlord of any breach of any term, covenant or condition
herein contained (or the acceptance by Landlord of any performance by Tenant
after the time the same shall become due) shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach thereof or of any
other term, covenant or condition herein contained, unless otherwise expressly
agreed to by Landlord in writing. The acceptance by Landlord of any sum less
than that which is required to be paid by Tenant shall be deemed to have been
received only on account of the obligation for which it is paid (or for which
it is allocated by Landlord, in Landlord's absolute discretion, if Tenant does
not designate the obligation as to which the payment should be credited), and
shall not be deemed an accord and satisfaction notwithstanding any provisions
to the contrary written on any check or contained in any letter of transmittal.
The acceptance by Landlord of any sum tendered by a purported assignee or
transferee of Tenant shall not be deemed a consent by Landlord to any
assignment or transfer of Tenant's interest herein. No custom or practice which
may arise between the parties hereto in the administration of the terms of this
Lease shall be construed as a waiver or diminution of Landlord's right to
demand performance by Tenant in strict accordance with the terms of this Lease.
GENERAL
29.1 CAPTIONS AND HEADINGS. The captions and paragraph headings used in this
Lease are for convenience of reference only. They shall not be construed to
limit or extend the meaning of any part of this Lease, and shall not be deemed
relevant in resolving any question of interpretation or construction of any
paragraph of this Lease.
29.2 DEFINITIONS.
(a) LANDLORD. The term Landlord as used in this Lease, so far as the
covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner at the time in question of the
fee title to the Premises. in the event of any transfer(s) of such
interest, the Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall have no further
liability under this Lease to Tenant except as to matters of liability
which have accrued and are unsatisfied as of the date of such transfer,
it being intended the covenants and obligations contained in this Lease on
the part of Landlord, shall be binding on Landlord and its successors and
assigns only during and in respect of their respective period of ownership
of the fee; provided that any funds in the possession of Landlord or the
then grantor and as to which Tenant has an interest, less any deductions
permitted by law or this Lease, shall be turned over to the grantee. The
covenants and obligations contained in this Lease on the part of Landlord
shall, subject to the provisions of this Paragraph 29.2(a), be binding
upon each Landlord and such Landlord's heirs, personal representatives,
successors and assigns only during its respective period of ownership.
Except as provided in this Paragraph 29.2(a), this Lease shall not be
affected by any transfer of Landlord's interest in the Premises, and
Tenant shall attorn to any transferee of Landlord provided that all of
Landlord's obligations hereunder are assumed in writing by such
transferee.
(b) AGENTS. For purposes of this Lease and without otherwise affecting the
definition of the word "agent" or the meaning of an "agency", the term
"agents" shall be deemed to include the agents, employees, officers,
directors, servants, invitees, contractors, successors, representatives,
subcontractors, guests, customers, suppliers, partners, affiliated
companies, and any other person or entity related in any way to the
respective party, Tenant or Landlord.
(c) INTERPRETATION OF TERMS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words in the
neuter gender include the masculine and feminine and words in the
masculine or feminine gender include the neuter
29.3 COPIES. Any executed copy of this Lease shall be deemed an original for
all purposes.
29.4 TIME OF ESSENCE. time is of the essence as to each and every provision of
this Lease requiring performance within a specified time, except as to the
conditions relating to the delivery of possession of the Premises to Tenant.
29.5 SEVERABILITY. in case any one or more of the provisions of this Lease
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
However if Tenant's obligation to pay the Rentals is determined to be invalid
or unenforceable, this Lease at the option of Landlord shall terminate.
29.6 GOVERNING LAW. This Lease shall be construed and enforced in accordance
with the laws of the State of California.
29.7 JOINT AND SEVERAL LIABILITY. if the Tenant is more than one person or
entity, each person or entity shall be jointly and severally liable for the
obligations of Tenant hereunder. if Tenant is a husband and wife, the
obligations hereunder shall extend to their sole and separate property as well
as community property.
29.8 CONSTRUCTION OF LEASE PROVISIONS. Although printed provisions of this
Lease were prepared by Landlord, this Lease shall not be construed either for
or against Tenant or Landlord, but shall be construed in accordance with the
general tenor of the language to reach a fair and equitable result.
29.9 CONDITIONS. All agreements by Tenant contained in this Lease, whether
expressed as covenants or conditions, shall be construed to be both covenants
and conditions, conferring upon Landlord, in the event of a breach thereof, the
right to terminate this Lease.
29.10 TENANTS FINANCIAL STATEMENTS. Tenant hereby warrants that all financial
statements delivered by Tenant to Landlord are true, correct, and complete, and
prepared in accordance with generally accepted accounting principles. Tenant
acknowledges and agrees that Landlord is relying on such financial statements
in accepting this Lease, and that a breach of Tenant's warranty as to such
financial statements shall constitute a Default by Tenant.
29.11 WITHHOLDING OF LANDLORD'S CONSENT. Notwithstanding any other provision
of this Lease, where Tenant is required to obtain the consent (whether written
or oral) of Landlord to do any act, or to refrain from the performance of any
act, Tenant agrees that if Tenant is in default with respect to any term,
condition, covenant or provision of this Lease, then Landlord shall be deemed
to have acted reasonably in withholding its consent if said consent is, in
fact, withheld.
/s/
INITIALS
13
<PAGE> 17
SIGNS; DIRECTORY
30 SIGNS; DIRECTORY.
(a) SIGNS. Tenant shall not place or permit to be placed any sign or
decoration on the Land or the exterior of the Building or that would be
visible from the exterior of the Building or Premises, without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld. In no event shall any such sign revolve, rotate, move or create
the illusion of revolving, rotating or moving or be internally illuminated
and there shall be no exterior spotlighting or other illumination on any
such sign. Tenant, upon written notice by Landlord, shall immediately
remove any of Tenant's signs or decorations that are visible from the
exterior of the Building or Premises or that Tenant has placed or permitted
to be placed on the Land or the exterior of the Building without the prior
written consent of Landlord. If Tenant fails to so remove such sign or
decoration within five (5) days after Landlord's written notice, Landlord
may enter the Premises and remove such sign or decoration and Tenant shall
pay Landlord, as Additional Rent upon demand, the cost of such removal. All
signs placed on the Promises, Building or Land by Tenant shall comply with
all recorded documents affecting the Premises, including but not limited to
any Declaration of Conditions, Covenants and Restrictions; the sign
criteria attached hereto as Exhibit "E" if applicable (as the same may be
amended from time to time); and applicable statutes, ordinances, rules and
regulations of governmental agencies having jurisdiction thereof. At
Landlord's option, Tenant shall at Lease Termination remove any sign which
it has placed on the Premises, Land or the Building, and shall, at its sole
cost, repair any damage caused by the installation or removal of such sign.
(b) BUILDING DIRECTORY Tenant shall be named in the Building directory at
no cost to Tenant. Additional names may be placed in or removed from the
directory at the discretion of Landlord but at the sole expense of Tenant.
LANDLORD AS PARTY DEFENDANT
31 If, by reason of any act or omission by Tenant or Tenant's agents, Landlord
is made a party defendant concerning this Lease, the Premises, or the Building,
Tenant shall indemnify Landlord against all liability incurred by (or
threatened against) Landlord as a party defendant, including all damages, costs
and attorneys' fees.
LANDLORD NOT A TRUSTEE
32 Landlord shall not be deemed to be a trustee of any funds paid to Landlord
by Tenant (or held by Landlord for Tenant) pursuant to this Lease, including
without limitation the Security Deposit. Landlord shall not be required to keep
any such funds separate from Landlord's general funds or segregated from any
funds paid to Landlord by (or held by Landlord for) other tenants of the
Building. Any funds hold by Landlord pursuant to this Lease shall not bear
interest.
INTEREST
33 Any payment due from Tenant to Landlord, except for Rent received by
Landlord within thirty (30) days after the same is due, shall bear interest
from the date due until paid, at an annual rate equal to the greater of: ten
percent (10%); or five percent (5%) plus the rate established by the Federal
Reserve Bank of San Francisco, as of the twenty-fifth (25th) day of the month
immediately preceding the due date, on advances to member banks under Sections
13 and 13(a) of the Federal Reserve Act, as now in effect or hereafter from
time to time amended. In addition, Tenant shall pay all costs and
attorneys' fees incurred by Landlord in the collection of such amounts.
SURRENDER OF PREMISES
34 On the last day of the Lease Term or upon the sooner termination of this
Lease, Tenant shall, to the reasonable satisfaction of Landlord, surrender the
Premises to Landlord in good condition (reasonable wear and tear excepted) with
all originally painted interior walls washed, or re-painted if marked or
damaged and other interior walls cleaned and repaired or replaced, all
carpets cleaned and in good condition, and all floors cleaned and waxed. Tenant
shall remove all Tenant's personal property and trade fixtures from the
Premises, and all property not so removed shall be deemed abandoned by Tenant.
Furthermore, Tenant shall immediately repair all damage to the Premises,
Building and Common Area caused by any such removal. If the Premises are not so
surrendered at Lease Termination, Tenant shall indemnify Landlord against any
loss or liability resulting from delay by Tenant in so surrendering the
Premises including, without limitation, any claims made by any succeeding
tenant or losses to Landlord due to lost opportunities to lease to succeeding
tenants.
RIGHTS RESERVED BY LANDLORD
35 Landlord shall have the exclusive right in its sole discretion, without
abatement of Rentals and without limiting Landlord's other rights under this
Lease, to:
(a) Designate the name, address, or other designation of the Building,
without notice or liability to Tenant, and Tenant shall not use any name,
picture, or representation of the Building in connection with Tenant's
business except as Tenant's address;
(b) Effect any other tenancies in the Building, or the Project, and grant
anyone the exclusive right to conduct any particular business or
enterprise in the Building, or the Project, provided Tenant is not thereby
prevented from conducting its business or enterprise on the Premises as
conducted by Tenant as of the Commencement Date;
(c) Have access through the Premises, and take through the Premises all
material required for any work permitted by this Lease;
(d) Close entrances, doors, corridors, elevators, escalators or other
Building facilities or temporarily abate their operation;
(e) Change or revise the business hours of the Building; or
(f) Expand, suspend, close, eliminate, adjust, or replace any portion of
the Building or Common Area or any services within the Building or Common
Area.
OBSERVANCE OF RULES AND REGULATIONS
36 Tenant and Tenant's agents shall observe the Rules and Regulations attached
hereto as Exhibit "F" ("Rules and Regulations"). Any failure by Tenant or
Tenant's agents to observe and comply with the Rules and Regulations shall be a
Default by Tenant. If there is a conflict between the Rules and Regulations and
any provisions of this Lease, the provisions of this Lease shall control. The
Rules and Regulations may be amended with or without advance notice from time
to time, and all such amendments shall be effective as to Tenant and binding on
Tenant and Tenant's agents upon delivery of notice thereof to Tenant. Tenant
agrees to observe and comply with the Rules and Regulations, and to enforce the
Rules and Regulations upon Tenant's agents. Any failure by Tenant or Tenant's
agents to observe and comply with the Rules and Regulations shall be a Default
by Tenant. Landlord shall not be responsible for the non-performance of the
Rules and Regulations by any tenants or occupants of the Building, nor shall
Landlord be liable to any one tenant by reason of the non-compliance with or
violation of the Rules and Regulations by any other tenant.
BUILDING PLANS
37 Tenant acknowledges that any plan of the Building or Common Area which may
have been displayed or furnished to Tenant or which may be a part of Exhibit
"A" or Exhibit "B" is tentative; Landlord may change the shape, size, location,
number, and extent of the improvements shown on any such plan and eliminate or
add any improvements to the Building and/or Common Area, in Landlord's sole
discretion.
RELOCATION OF TENANT
38 Landlord shall have the absolute right to relocate the Promises within the
Project before the Commencement Date and during the Lease Term provided:
(a) Landlord gives Tenant no less than sixty (60) days prior written
notice;
(b) The new premises are substantially similar in area and the interior
improvements are substantially similar to those shown on Exhibit C;
(c) Tenant shall incur no cost or expense in connection with the
relocation; and
(d) The Rentals shall be at the same rate per square foot.
If the relocation is accomplished during the Lease Term, Landlord shall remove
and place Tenant in the new premises at Landlord's sole cost. If relocation
occurs, this Lease shall remain in full force and effect, and the new premises
shall become the "Premises".
/s/
INITIALS
14
<PAGE> 18
QUIET ENJOYMENT
39 Landlord covenants and agrees with Tenant that upon Tenant paying Rentals
due under this Lease and performing its covenants and conditions hereunder,
Tenant shall and may peaceably and quietly have, hold and enjoy the Promises
for the Lease Term, subject, however, to the terms of this Lease and of any
of the ground or underlying leases, mortgages or deeds of trust affecting the
Premises and the rights reserved by Landlord hereunder. Any purchaser upon any
foreclosure or exercise of the power of sale under any mortgage or deed of
trust made by Landlord and covering the Premises, Building or Land to whom
Tenant attorns pursuant to Paragraph 19.4 above shall be bound by the terms of
this Paragraph 39.
ENTIRE AGREEMENT
40 Any agreements, warranties, or representations not expressly Contained
herein shall in no way bind either Landlord or Tenant, and Landlord and Tenant
expressly waive all claims for damages by reason of any statement,
representation, warranty, promise or agreement, if any, not contained in this
Lease. This Lease supersedes and cancels any and all agreements, negotiations,
arrangements, brochures and understandings, whether written or oral, between
Landlord and its agents and Tenant and its agents with respect to the Premises,
Building, Land or this Lease. This Lease constitutes the entire agreement
between the parties hereto and no addition to, or modification of, any term or
provision of this Lease shall be effective until and unless set forth in a
written instrument signed by both Landlord and Tenant.
LABOR DISPUTES
41 In the event Tenant shall in any manner be involved in or be the object of
a labor dispute which subjects the Premises or any part of the Building, Common
Area or Land to any picketing, work stoppage, or other concerted activity which
in the reasonable opinion of Landlord is in any manner detrimental to the
operation of the Building or its tenants, Landlord shall have the right to
require Tenant, at Tenant's own expense and within a reasonable period of time,
to use Tenant's best efforts to either resolve such labor dispute or terminate
or control any such picketing, work stoppage or other concerted activity to the
extent necessary to eliminate any interference with the operation of the
Building. To the extent such labor dispute interferes with the performance of
Landlord's duties hereunder, Landlord shall be excused from the performance of
such duties. Failure by Tenant to use its best efforts to so resolve such
dispute or terminate or control such picketing, work stoppage, or other
concerted activity within a reasonable period of time shall constitute a
Default by Tenant hereunder. Nothing contained in this Paragraph 41 shall be
construed as placing Landlord in an employer-employee relationship with any of
Tenant's employees or with any other employees who may be involved in such
labor dispute.
SUBMISSION OF LEASE
42 Submission of this instrument for Tenant's examination or execution does
not constitute a reservation of space nor an option to lease. This instrument
shall not be effective until executed by both Landlord and Tenant. Execution of
this Lease by Tenant shall constitute an offer by Tenant to lease the Premises,
which offer shall be deemed accepted by Landlord when this Lease is executed by
Landlord and delivered to Tenant.
NO PARTNERSHIP OR JOINT VENTURE
43 Nothing in this Lease shall be construed as creating a partnership or joint
venture between Landlord, Tenant, or any other party, or cause Landlord to be
responsible for the debts or obligations of Tenant or any other party.
AUTHORITY
44 The undersigned parties hereby warrant that they have proper authority and
are empowered to execute this Lease on behalf of Landlord and Tenant,
respectively. If Tenant is a corporation (or partnership), each individual
executing this Lease on behalf of said corporation (or partnership) represents
and warrants that he is duly authorized to execute and deliver this Lease on
behalf of said corporation in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the By-Laws of
said corporation or on behalf of said partnership in accordance with the
partnership agreement of such partnership, as the case may be, and that this
Lease is binding upon said corporation (or partnership) in accordance with its
terms. If Tenant is a corporation, Tenant shall, upon execution of this Lease,
deliver to Landlord a certified copy of a resolution of the Board of Directors
of said corporation authorizing or ratifying the execution of this Lease. in
the event Tenant should fail to deliver such resolution to Landlord upon
execution of this Lease, Landlord shall not be deemed to have waived its right
to require delivery of such resolution, and at any time during the Lease Term
Landlord may request Tenant to deliver the same, and Tenant agrees it shall
thereafter promptly deliver such resolution to Landlord. if Tenant is a
corporation, Tenant hereby represents, warrants, and covenants that:
(a) Tenant is a valid and existing corporation;
(b) Tenant is qualified to do business in California;
(c) All fees and all franchise and corporate taxes are paid to date, and
will be paid when due;
(d) All required forms and reports will be filed when due; and
(e) The signers of this Lease are properly authorized to execute this
Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
respective dates shown below.
LANDLORD:
El Dorado Holding Company
By /s/ JIMMY YANG
-----------------------------------
Jimmy Yang, Property Manager
By
-----------------------------------
Dated: 6/27/97
-------------------------------
TENANT:
Voice Plus, Inc., a California corporation
By /s/ JAMES S. GILLESPIE
-----------------------------------
James S. Gillespie
By President
-----------------------------------
Dated: June 23, 1997
-------------------------------
15
<PAGE> 19
ADDENDUM TO THAT CERTAIN LEASE AGREEMENT DATED JUNE 9,1997 BY AND BETWEEN
VOICE PLUS, INC., A CALIFORNIA CORPORATION, AS TENANT, AND EL DORADO HOLDING
COMPANY, INC., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, FOR CERTAIN
PREMISES LOCATED AT 39420 LIBERTY STREET, FREMONT, CALIFORNIA.
45. TENANT IMPROVEMENTS: Landlord to contribute $36,095.00 toward the tenant
improvements ($5.00 per usable square foot x 7,219 usable square feet) and
Tenant to contribute the remaining portion should additional tenant
improvement dollars be required. Tenant to pay to the Landlord their share
of the cost of the improvements immediately upon completion of the
improvements. Landlord's tenant improvement contribution will only be
applied toward the improvements.
46. OPTION TO EXTEND: In consideration for Tenant never having been in default
under this Lease, Landlord hereby grants to tenant one (1) three (3) year
option to extend the term of this Lease on the following terms and
conditions:
(i) Tenant must give Landlord notice in writing of its exercise of the
option to extend the Lease Term no earlier than nine (9) months nor later
than six (6) months before the date of the Lease Terms would end but for
said exercise. Time is of the essence.
(ii) Tenant may not extend the Lease Term pursuant to the options granted
by this Paragraph 46 if Tenant has been in default in the performance of
any of the terms and conditions of this lease at any time prior to the
date of Tenant's notice of exercise of these options, or if Tenant shall
have assigned or otherwise transferred its interest in this Lease and/or
the Premises whether or not Landlord's consent to such assignment or
transfer has been given. If Tenant is in default under this Lease on the
date that the extended term is to commence, then Landlord may elect to
terminate this Lease, notwithstanding any notice given by Tenant of an
exercise of its options to extend.
(iii) All terms and conditions of this Lease apply during the extended
term, except for this Paragraph 46 and except that the Base Rent for the
extended term, shall be determined in accordance with Paragraph (v) below.
(iv) Once Tenant delivers notice of its exercise of an option to extend
the Lease Term, Tenant may not withdraw such exercise and, subject to the
provisions of this Paragraph such notice shall operate to extend the
Lease Term. Upon an extension of the Lease Term pursuant to this
Paragraph, the term "Lease Term" as used in this Lease shall thereafter
include the extended term and the Lease Termination date shall be the
expiration date of the extended term.
(v) If Tenant elects to extend the Lease Term pursuant to this Paragraph
46, the annual rate for each extended term shall be an amount equal to the
fair market rental value of the Premises is relating to the market
conditions at the time of the extension (including, but not limited to,
rental rates for comparable space with comparable tenant improvements and
taking into consideration any adjustments to rent based upon direct costs
(operating expenses) and taxes, load factors, financing charges, and/or
costs of living or other rental adjustments; the relative strength of the
tenants; the size of the space; and any other factors which affect market
rental values at the time of extension); and provided further, that the
rent for each extended term shall in no event be lower then the Rent for
the month immediately preceding the extended term. The Rent for the first
Lease Year of the extended term shall be determined as follows:
<PAGE> 20
ADDENDUM TO THAT CERTAIN LEASE AGREEMENT DATED 9,1997 BY AND BETWEEN VOICE
PLUS, INC., A CALIFORNIA CORPORATION, AS TENANT, AND EL DORADO HOLDING COMPANY,
INC., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, FOR CERTAIN PREMISES
LOCATED AT 39420 LIBERTY STREET, FREMONT, CALIFORNIA.
(vi) After timely receipt by Landlord of Tenant's notice of exercise of an
option to extend the Lease Term, Landlord and Tenant shall have a period
of thirty (30) days in which to agree on the Rent for the extended term.
If Landlord and Tenant agree on said Rent during that period, they shall
immediately execute an Amendment to this lease stating the Rent of the
extended term. If Landlord and Tenant are unable to agree on the Rent for
the extended term as aforesaid, the provisions of Paragraph 46 (vii) below
shall apply.
(vii) Within five (5) days after the expiration of the thirty (30) day
period described in Paragraph 46 (vi) above, each party, at its costs and
by giving notice to the other party, shall appoint an M.A.I. real estate
appraiser, with at least five (5) years' full time commercial appraisal
experience in the area in which the premises are located, to appraise and
shall set the fair market rental value of the premises. If a party does
not appoint an appraiser within five (5) days after the other party has,
given notice of the name of its appraiser, the single appraiser appointed
shall be the sole appraiser and shall set the fair market rental value.
The cost of such sole appraiser shall be borne equally by the parties. If
two appraisers are appointed by the parties as provided in this Paragraph,
the two appraisers shall meet promptly and attempt to set the fair market
rental value. If they are unable to agree within twenty (20) days after
the appraiser has been appointed, then the two appraisers shall attempt to
select a third appraiser meeting the qualifications stated in this
Paragraph within ten (10) days after the last day the two appraisers are
given to set the fair market rental value. If they are unable to agree on
the third appraiser, either of the parties to this Lease, by giving ten
(10) days' notice to the other party, may apply to the presiding judge of
the Superior Court of Santa Clara County for a selection of a third
appraiser who meets the qualifications stated above. Each of the parties
shall bear one half (1/2) of the cost of appointing the third appraiser
and of paying the third appraiser's fee. The third appraiser, however
selected, shall be a person who has not previously acted in any capacity
for either party. Within twenty (20) days after the selection of the third
appraiser, the majority of the appraisers shall set the fair market rental
value. If the majority of the appraisers are unable to set the fair market
rental value within said twenty (20) day period, the three appraisals
shall be added together and the total divided by three; the resulting
quotient shall be the fair market value and shall be deemed incorporated
herein; provided, however, that if any appraisal differs from the median
appraisal shall be disregarded, and the average of the remaining
appraisals (or the remaining appraisal) shall be the fair market rental
value. In establishing the fair market value, the appraisal or appraisers
shall consider the reasonable market rental value for the highest and best
use of the Premises (including, but not limited to, rental rates for
comparable space with comparable tenant improvements and any adjustments
to rent based upon direct costs [operating expenses] and taxes, load
factors, financing charges, and/or cost of living or other rental
adjustments; the relative strength of the Tenants; and of size of the
space); without regard to the existence of this Lease but taking into
consideration the future adjustments to Rent pursuant to Paragraph 1.8
RENT.
47. (d) Normal electrical and water to be delivered to the suite 24 hours per
day. HVAC to run during standard building hours.
<PAGE> 21
ADDENDUM TO THAT CERTAIN LEASE AGREEMENT DATED JUNE 9,1997 BY AND BETWEEN
VOICE PLUS, INC., A CALIFORNIA CORPORATION, AS TENANT, AND EL DORADO HOLDING
COMPANY, INC., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, FOR CERTAIN
PREMISES LOCATED AT 39420 LIBERTY STREET, FREMONT, CALIFORNIA.
48. Should the parking area be reduced by a governmental regulation or
condemnation, Tenant's parking will be reduced by their pro rata share of
the building.
LANDLORD:
EL DORADO HOLDING COMPANY
a California liniited partnership
By /s/ JIMMY YANG
-----------------------------------
By Jimmy Yang 6/27/97
-----------------------------------
Its Property Manager
----------------------------------
TENANT:
VOICE PLUS, INC.,
a California corporation
By /s/ JAMES S. GILLESPIE
-----------------------------------
James S. Gillespie
Its President
----------------------------------
Date: June 23, 1997
----------------------------------
<PAGE> 22
DISCLOSURES AND ACKNOWLEDGMENT
Addendum to Leasing Listing Agreement/Real Estate Lease Agreement/Proposal
to lease
CB COMMERCIAL REAL ESTATE GROUP, INC.
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKER
Date: January 21, 1997
LESSOR El Dorado Holding Company
- --------------------------------------------------------------------------------
LESSEE Voice Plus, Inc.
- --------------------------------------------------------------------------------
PROPERTY 39420 Liberty Street, Suite 250, Fremont, CA
- --------------------------------------------------------------------------------
Street Address, City, State
Also known as: 39420 Liberty Street
- --------------------------------------------------------------------------------
I. NOTIFICATION RE: NATIONAL FLOOD INSURANCE PROGRAM (CBC Form 5230)
According to Flood Map Panel 6528 0030 B [specify source], this property [ ] is
- - [X] is not located in a Special Flood Hazard Area on United States Department
of Housing and Urban Development (HUD) "Special Flood Zone Area Maps." Federal
law requires that as a condition of obtaining federally related financing on
most properties located in "flood zones," banks, savings and loan associations,
and some insurance lenders require flood insurance to be carried where the
property, real or personal, is security for a loan. This requirement is
mandated by the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973. The purpose of the program is to provide flood
insurance to property owners at a reasonable cost. Cities or counties
participating in the National Flood Insurance Program may have adopted building
or zoning restrictions, or other measures, as part of their participation in
the program. You should contact the city or county in which the property is
located to determine any such restrictions. The extant of coverage available in
your area and the cost of this coverage may vary, and for further information,
you should consult your lender or insurance carrier. Lessee shall be solely
responsible for confirming the above stated Special Flood Hazard Area
designation, and for investigation of the impact of such designation on
Lessee's intended use of the Property. Flood Zone Designation: Zone_______.
II. ALQUIST-PRIOLO NOTIFICATION: ALQUIST-PRIOLO SPECIAL EARTHQUAKE FAULT ZONING
ACT (CBC Form 5228-5229)
According to Niles Quadrangle [specify source], the Property described above
[ ] IS - [X] IS NOT - [ ] MAY OR MAY NOT BE situated in an Earthquake Fault Zone
as designated under the Alquist-Priolo Earthquake Fault Zoning Act, Sections
2621-2630, inclusive, of the California Public Resources Code; and, as such,
the construction or development on the Property of any structure for human
occupancy may be subject to the findings of a geologic report prepared by a
geologist registered in the State of California, unless such report is waived
by the city or county under the terms of that Act. No representations on the
subject are made by Lessor or by CB COMMERCIAL REAL ESTATE GROUP, INC. or its
agents or employees, and the Lessee should make his/her/its own inquiry or
investigation. Lessee shall be solely responsible for confirming the above
stated Special Flood Hazard Area designation, and for investigation of the
impact of such designation on Lessee's intended use of the Property.
For further information you may wish to contact appropriate city or county
agencies: _________________________________________________
III. HAZARDOUS WASTES OR SUBSTANCES AND UNDERGROUND STORAGE TANKS
Comprehensive federal and state laws and regulations have been enacted in the
past several years in an effort to control the use, storage, handling,
clean-up, removal and disposal of hazardous wastes or substances. Some of these
laws and regulations (such as, for example, the Comprehensive Environmental
Response Compensation and Liability Act [CERCLA] provide for broad liability
on the part of owners, tenants, or other users of property for clean-up costs
and damages, regardless of fault. Another such statute is California Health and
Safety Code Section 25359.7(a), which provides in part that a lessor of
nonresidential real property who knows, or has reasonable cause to believe,
that any release of a hazardous substance has come to be located on or beneath
that real property shall, prior to the sale or lease, give written notice of
that condition to the lessee; and that failure of the lessor to provide written
notice as required shall subject the lessor to liability for damages. Other
laws and regulations set standards for the handling of asbestos, and establish
requirements for the use, modification, abandonment, and closure of underground
storage tanks.
It is not practical or possible to list all such laws and regulations in this
Notice. Therefore, Lessors and Lessees are urged to consult legal counsel to
determine their respective rights and liabilities with respect to the issues
described in this Notice, as well as all other aspects of the proposed
transaction. If hazardous wastes or substances have been, or are going to be
used, stored, handled or disposed on the Property, or if the Property has been
or may have underground storage tanks, it is essential that legal and technical
advice be obtained to determine, among other things, the nature of permits and
approvals which have been obtained or may be required; the estimated costs and
expenses associated with the use, storage, handling, clean-up, disposal or
removal of hazardous wastes or substances; and the nature and extent of
contractual provisions necessary or desirable in this transaction. Broker
recommends expert assistance and site investigation to determine past uses of
the property, which may provide valuable information as to the likelihood of
hazardous wastes or substances, or underground storage tanks, being on the
Property.
Lessor agrees to disclose to Broker and to Lessee any and all information which
he/she/it has regarding present and future zoning and environmental matters
affecting the Property and regarding the condition of the Property, including,
but not limited to structural, mechanical and soils conditions, the presence
and location of asbestos, PCB transformers, other toxic, hazardous or
contaminated substances, and underground storage tanks, in, on, or about the
Property. Broker hereby requests that such information be provided immediately
so that it may be timely communicated to the Lessee.
Broker has conducted no investigation regarding the subject matter hereof,
except as may be contained in a separate written document signed by Broker.
Broker makes no representations concerning the existence or nonexistence of
hazardous wastes or substances, or underground storage tanks, in, on, or about
the Property. Lessee should contact a professional, such as a civil engineer,
industrial hygienist or other persons with experience in these matters, to
advise on these matters.
The term "hazardous wastes or substances" is used herein in its very broadest
sense and includes, but is not limited to, petroleum based products, paints and
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonium
compounds, asbestos, PCBs and other chemical products. Hazardous wastes or
substances and underground storage tanks may be present on all types of real
property. This Notice is intended to apply to any transaction involving any
type of real property, whether improved or unimproved.
IV. BROKER DISCLOSURE
The parties hereby expressly acknowledge that Broker has made no independent
determination or investigation regarding the following: present or future use
or zoning of the property; environmental matters affecting the Property; the
condition of the Property, including, but not limited to structural, mechanical
and soils conditions, as well as issues surrounding hazardous wastes or
substances as set out above; violations of the Occupational Safety and Health
Act or any other federal, state, county or municipal laws, ordinances, or
statutes; measurements of land and/or buildings. Lessee agrees to make its own
investigation and determination regarding such items.
A REAL ESTATE BROKER IS QUALIFIED TO ADVISE ON REAL ESTATE. IF YOU DESIRE LEGAL
ADVICE, CONSULT YOUR ATTORNEY.
<PAGE> 23
V. AMERICANS WITH DISABILITIES ACT (ADA)
Owners or tenants of real property may be subject to the Americans with
Disabilities Act (ADA), a federal law codified at 42 USC Section 121 01 et seq.
Among other requirements of the ADA that could apply to your property, Title
III of the Act requires owners and tenants of "public accommodations" to remove
barriers to access by disabled persons and provide auxiliary aids and services
for hearing, vision or speech impaired persons. The regulations under Title III
of the ADA are codified at 28 CFR Part 36.
Broker recommends that you and your attorney review the ADA and the
regulations, and, if appropriate, your proposed purchase and sale agreement, to
determine if this law would apply to you and the nature of the requirements.
These are legal issues. You are responsible for conducting your own independent
investigation of these issues.
VI. RESIDENTIAL LEAD PAINT HAZARD REDUCTION ACT
LEAD WARNING: Every Lessee of any interest in real property on which a
residential dwelling was built prior to 1978 is hereby notified that such
property may present exposure to lead from lead-based paint that may place
young children at risk of developing lead poisoning. Lead poisoning in young
children may produce permanent neurological damage, including learning
disabilities, reduced intelligence quotient, behavioral problems, and impaired
memory. Lead poisoning also poses a particular risk to pregnant women.
Federal law (42 USC Section 4851 et seq.) requires that the Lessor of all
"residential property" constructed prior to 1978 must provide to Lessees any
information on lead-based paint hazards from risk assessments or inspections in
the Lessor's possession, and must notify the Lessee of any known lead-based
paint hazards. For purposes of these statutes, "residential property" is
defined as any property which includes any residential dwelling unit(s).
A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE LEAD-BASED PAINT HAZARDS IS
RECOMMENDED PRIOR TO PURCHASE.
Lessors are required to sign a lead-based paint disclosure form(s), and the
Lessee must be provided with a copy of a booklet entitled "Protect Your Family
from Lead in Your Home."
Lessor hereby certifies that the above described property [ ] IS / [ ] IS NOT
"residential property" constructed prior to 1978, as described by the statute.
LEAD DISCLOSURE: Lessor hereby certifies that, to the best of Lessor's
knowledge, the property [ ] DOES / [ ] DOES NOT contain lead-based paint; and
that Lessor [ ] DOES [ ] DOES NOT possess risk assessment or inspection reports
relating thereto. Lessor hereby certifies to have disclosed to the Lessee and
Broker all information known to the Lessor regarding the presence of lead-based
paint and lead-based paint hazards within this target housing, as follows:
Date(s) of inspection(s) or report(s): _____________________
[ ] report attached
Additional information regarding lead-based paint hazards regarding
this property: [ ] additional pages attached
Lessor hereby agrees that it will provide the Lessee with any reports or
information related thereto now in its possession, or which it acquires prior
to the consummation of the transaction contemplated hereby.
The undersigned Lessee and Lessor acknowledge that CB COMMERCIAL REAL ESTATE
GROUP, INC. has delivered this disclosure to the undersigned; that they have
read and understand the LEAD WARNING contained herein; and, if this property is
residential property constructed prior to 1978, the Lessee hereby acknowledges
receipt of "Protect Your Family from Lead in Your Home".
VI. COMPLIANCE WITH LAWS
The parties hereto agree to comply with all applicable federal, state and local
laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
RECEIPT OF A COPY OF THESE DISCLOSURES IS HEREBY ACKNOWLEDGED.
LESSOR LESSEE
By /s/ JIM YANG By /s/ JAMES GILLESPIE
------------------------------------ ----------------------------------
Its Property Manager Its President
----------------------------------- ---------------------------------
Dated: June 27, 1997 Dated: June 23, 1997
--------------------------------- -------------------------------
This portion to be completed in conjunction with negotiation and/or
consummation of purchase and sale agreement:
XIII. BROKER REPRESENTATION DISCLOSURE AND ACKNOWLEDGMENT
CB Commercial Real Estate Group, Inc. herein represents _____________________
___________represents ______________________________________________________.
/s/ JY /s/ JG
- ----------------- -----------------
Lessor's initials Lessee's initials
- --------------------------------------------------------------------------------
CONSULT YOUR ADVISORS NO REPRESENTATION OR RECOMMENDATION IS MADE BY CB
COMMERCIAL REAL ESTATE GROUP, INC. OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
EFFECT, INTERPRETATION, OR ECONOMIC CONSEQUENCES OF THIS AGREEMENT, THE
TRANSACTION CONTEMPLATED HEREUNDER, THE NATIONAL FLOOD INSURANCE PROGRAM AND
RELATED LEGISLATION, NOR OF OTHER LEGISLATION REFERRED TO HEREIN. THESE ARE
QUESTIONS THAT YOU SHOULD ADDRESS WITH YOUR CONSULTANTS AND ADVISORS.
- --------------------------------------------------------------------------------
<PAGE> 24
[PARKWAYCENTER LOGO]
[Site Plan]
DEVCON
CONSTRUCTION
INCORPORATED
555 Los Coches
Milpitas, CA 95035
/s/
-----------
INITIAL
EXHIBIT A
<PAGE> 25
EXHIBIT B
[FIRST FLOOR PLAN]
[SECOND FLOOR PLAN]
/s/
-----------
INITIAL
<PAGE> 26
EXHIBIT C
INTENTIONALLY DELETED
<PAGE> 27
EXHIBIT "D"
Re: Lease Commencement
Dear _____________________:
In regard to that certain Lease Agreement dated _____________by and between El
Dorado Holding Company, as Landlord, and yourself as Tenant, this letter will
confirm our understanding and agreements relative to the Lease commencement
date.
Notwithstanding anything to the contrary contained in the Lease, it is agreed
that the Lease will commence on _________________ and will end on
_________________.
Please acknowledge receipt of this letter and your agreement and approval of
the foregoing, by signing the enclosed copy of this letter and returning the
same to us.
Very truly yours,
El Dorado Holding Company
By Date
-------------------------------------- ------------------------------
ACCEPTED AND AGREED:
- ----------------------------------------
By Date
-------------------------------------- ------------------------------
<PAGE> 28
EXHIBIT E
PARKWAY CENTER II
EXTERIOR SIGN PROGRAM
SEPTEMBER 4 1985
REVISED:
SEPTEMBER 18 1985
OCTOBER 2 1985
OCTOBER 25 1985
/s/
-----------
INITIAL
<PAGE> 29
SCOTT ARCHITECTURAL GRAPHICS INC
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Fremont, CA
Sign Code/Type
Floor Plan
Exterior Signage
F - Interior Directory for Tenant Listing
G - Tenant and Elevator Identification Plaque
H - Men's Restroom Identification Plaque
I - Women's Restroom Identification Plaque
[FLOOR PLAN]
Note: 1st and 2nd Floor signage [illegible].
<PAGE> 30
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Fremont, CA
Sign Code/Type
Signage F-1/Interior
Tenant Directory
Quantity
Two (2) per Lobby
Material
Formica eased frame system w/black neg. face and brushed aluminum legends also
clear flex
Color
Almond w/light gray trim frame - neg. black face and brushed aluminum legends
Legend
Optima semi bold
Illumination/Voltage
None
Installation
Hanging jig-screw mounted
Location
@ entrance lobby in conspicuous location @ 65" to top of frame
Scale
3/8" = 1"
[DIRECTORY - 100 TENANT NAME PLAN]
<PAGE> 31
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Fremont, CA
Sign Code/Type
Signage G-1/Interior
Tenant ID and Elevator
Quantity
As needed (to be determined)
Material
Formica eased frame system w/black neg. face and brushed aluminum legends
also .060 acrylic (clear matt)
Color
Almond w/light gray trim frame - neg. black face and brushed aluminum legends
Legend
Optima semi bold
Illumination/Voltage
None
Installation
Hanging jig-screw
Location
@ door (knob side) entrance
@ 65" to top of frame
Scale
3/8" = 1"
[100 TENANT NAME - OTHER INFORMATION PLAN]
<PAGE> 32
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Fremont, CA
Sign Code/Type
C1, C2, C3, window graphics
Quantity
As needed
Material
Vinyl (Brushed alum.)
Color
Brushed Alum.
Legend
5 1/2" - Address No. (Optima)
2 1/3" - Tenants (Optima)
3/4" - No Soliciting (Hel. Med.)
Illumination/Voltage
N/A
Scale
?/4" = 1' - 0"
NOTE:
East side of building needs Liberty St.
address & tenants names (C2)
West side of building needs Walnut Ave.
address & tenants names (C1)
North side of building needs Walnut Ave.
address & tenants on right sign of door
& Liberty St. address on left side (C3)
[FRONT DOOR PLAN]
<PAGE> 33
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Fremont, CA
Sign Code/Type
A1, A2 Main Tenant Identification
Quantity
Two (2) D/F
Material
All aluminum sign structure w/brick plate faced concrete base
Color
Gloss black sign structure w/brick plate facing
Legend
Per corporate typestyle
Illumination/Voltage
None
Installation
Location
See site plan - one on Liberty St. and one on Walnut Ave.
Scale
3/4" = 1' - 0"
[MAIN TENANT IDENTIFICATION PLAN]
Page 2a
<PAGE> 34
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 North Dutton Avenue/Park Center 4
Santa Rosa, California 95401
707/545-4519
Project
Parkway Center II
Freemont, CA
Sign Code/Type
B-5 thru B-16 Building Tenant Identification
Quantity
3 sets of 4 tenants
12 names total
Material
Chrome paced 1/2" acrylic
Color
Chrome faces w/gloss black edges
Legend
Logo type
Illumination/Voltage
None
Installation
Silicone adhesive
Location
See site plan
Scale
3/32" = 1' - 0"
[BUILDING TENANT IDENTIFICATION PLAN]
NOTE: Brush artwork copy - final camera-ready
artwork to be provided
4 tenants @ each entrance,
3 separate building entrances,
12 total, possible names
Page 8
<PAGE> 35
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 NORTH DUTTON AVENUE / PARK CENTER 4
SANTA ROSA, CALIFORNIA 95401
707/545-4519
PROJECT
PARKWAY CENTER II
FREMONT, CA
SIGN CODE/TYPE
SIGNAGE A-1 & A2, OPTIONAL =
TENANT IDENTIFICATION
QUANTITY
TWO (2) D/F
MATERIAL
ALL ALUMINUM SIGN
STRUCTURE W/BRICK
FACED CONCRETE BASE,
LEGENDS-BRUSHED ALUM.
VINYLS
[SIGN DIMENSIONAL DRAWING]
[HUSTON CPA] COLOR
[IBM OFFICES]
[LANGFORD DISTRIBUTORS] GLASS BLACK SIGN
STRUCTURE W/BRICK
PLATE FACING
LEGEND, BRUSHED ALUM. VINYL
LEGEND
TENANT I.D.-OPTIMA (BRUSHED
ALUMINUM VINYLS)
ILLUMINATION/VOLTAGE
NONE
INSTALLATION
LOCATION
SEE SITE PLAN-ONE ON LIBERTY ST. AND ONE ON
WALNUT AVE.
SCALE
3/4" = 1' = 0"
Page 2b
<PAGE> 36
SCOTT ARCHITECTURAL GRAPHICS INC.
SCOTT SIGN COMPANY
1275 NORTH DUTTON AVENUE / PARK CENTER 4
SANTA ROSA, CALIFORNIA 95401
707/545-4519
PROJECT
PARKWAY CENTER II
FREMONT, CA
SIGN CODE/TYPE
B3 & B4, INDIVIDUAL CORP.
LOGO/NAME
QUANTITY
TWO (2) SETS POSSIBLE
MATERIAL
1/2" PLEX. & 1/8" BRUSHED ALUMINUM
[SIGN DIMENSIONAL DRAWING]
[THE TRA...] COLOR
BLACK FLEX.
BRUSHED ALUM. FACE
LEGEND
12" L.H. - CORPORATION LOGO
TYPE
ILLUMINATION/VOLTAGE
NONE
INSTALLATION
STUD MOUNTED & SILICONED
LOCATION
SEE SITE PLAN
SCALE
3/32" = 1' = 0" DETAIL 1" = 1' = 0"
Page 5
<PAGE> 37
RULES AND REGULATIONS
EXHIBIT "F"
1. WINDOWS. Tenant shall not use any blinds, shades, awnings, screens, or
window ventilators in connection with any window or door of the Premises
without the prior written consent of Landlord. Tenant shall not use any
drape or window covering facing any exterior glass surface other than
the standard drape or blinds established by Landlord. No articles shall be
kept or placed on window sills so as to be visible from the exterior of
the Building or Premises.
2. SERVICES ON THE PREMISES. Tenant shall not use upon the Premises any
waxing, cleaning, interior glass polishing, rubbish removal, linen, or
other similar services, nor accept barbering, bootblacking, catering, or
other like services on the Premises, except from persons authorized or
approved by Landlord and at the hours and under regulations fixed by
Landlord. No vending machines or other machines of any kind shall be
installed, maintained, or operated upon the Premises without the prior
written consent of Landlord.
3. SIGNS.
(a) BUILDING DIRECTORY. The bulletin board or directory of the Building
shall be provided exclusively for the display of the names and locations
of tenants only. Landlord reserves the right to exclude any other names
from the bulletin board or directory, and to limit the number of listings.
(b) ON PREMISES. No signs, names, posters, advertisements or notices shall
be painted or affixed, on any part of, or so as to be visible from the
outside of the Premises or Building unless first approved by Landlord in
regard to color, size, style and location. All approved signs or lettering
on doors shall be printed, painted, affixed or inscribed at the expense
of Tenant by a person approved by Landlord, which approval shall not be
unreasonably withheld. Any signs, notices, logos, pictures, names, or
advertisements, which are installed that have not been individually
approved by the Landlord may be removed by the Landlord at the sole
expense of the Tenant.
4. ACCESS TO THE BUILDING
(a) IN GENERAL. The sidewalks, corridors or halls, lobbies,
courts, exits, entrances, escalators, elevators, stairways and other
common access areas of the Building shall not be obstructed by Tenant
or its agents or used by Tenant or its agents for any purpose other
than ingress and egress. Landlord shall in all cases and at all times
have the right to operate, control and prevent or limit access to the
sidewalks, halls, lobbies, passages, exits, entrances, escalators,
elevators, stairway, balconies, and other common access areas by all
persons whose presence, in the sole discretion of Landlord, shall be
prejudicial to the safely, protection, character, reputation, and
interests of the Building and its tenants, provided that Landlord
shall not restrict such access to persons with whom Tenant normally
deals in the ordinary course of Tenant's business unless such persons
are engaged in abusive or illegal activities. Neither Tenant nor
Tenant's agents shall go upon the roof of the Building. In the event
of strike, mob, riot, public excitement or other circumstances
rendering such action advisable in Landlord's opinion, Landlord
reserves the right to prevent access to the Building during the
continuance of the same by such action as Landlord may deem
appropriate.
(b) AFTER REGULAR HOURS. Landlord shall furnish Tenant with a
key to the Building entrance and exit doors. Landlord reserves the
right to close and keep locked all entrance and exit doors and
otherwise regulate access of all persons to the halls, corridors,
elevators, and stairways in the Building on Saturdays, Sundays, and
legal holidays, and on other days before and after the regular hours
that the Building is open. After regular Building hours, access to the
Premises may be refuse unless the person seeking access has a pass or
is known or otherwise properly identified to the person then in charge
of the Building. Tenant shall be responsible for all persons for whom
it requests passes and shall be liable to Landlord for all acts of
such persons. Landlord may require any person to register as a
condition of access to the Building. Landlord shall in no case be
liable damages for any error with regard to the admission or exclusion
of any person from the Building.
5. KEYS AND LOCKS. Tenant, upon the termination of its tenancy, shall deliver
to Landlord the key of offices, rooms, and lavatories which shall have been
furnished to Tenant or which Tenant shall have had made, and Tenant shall
pay Landlord for lost keys. Tenant shall not alter any lock or install any
new or additional locks or any bolts on any doors or windows of the
premises without prior written consent of Landlord.
6. USE OF LAVATORIES. The lavatories, toilets, urinals, wash bowls, and
other plumbing fixtures and apparatus shall not be used for any purpose
other than that for which they are intended, and no foreign substance of
any kind shall be put into such facilities. Tenant shall pay the cost of
repairs required by reason of plumbing stoppage or damage caused by Tenant
or Tenant's agents' misuse of such plumbing fixtures and apparatus.
7. WALL MARKINGS. Tenant shall not, except for decorative items, mark on,
drive nails or screws into, drill into, or deface the walls, ceilings,
floors, woodwork, or plaster of the Premises or the Building. If Tenant
desires to install on the walls, ceilings, floors, woodwork, or plaster of
the Premises, items other than decorative items, Tenant shall seek
Landlord's prior written consent to such installation, which consent
Landlord agrees not to unreasonably withhold.
8. MATERIALS INTO THE BUILDING. All moving into or out of the Building
shall be via the Building's freight handling facilities, unless otherwise
directed by Landlord, at such times and in such manner as Landlord shall
prescribe. Any hand trucks used in the Building must be equipped with soft
rubber tires and rubber side guards.
9. SAFES AND HEAVY EQUIPMENT. Tenant shall endeavor not to overload the floor
of the Premises. Landlord shall not be responsible for loss of or damage
to any safe or property from any cause, and all damage done to the
Building or Premises by moving or maintaining any safe or other property
shall be repaired at the expense of Tenant.
10. JANITORIAL SERVICES. Tenant shall not, without Landlord's prior written
approval, hire any person(s) for the purpose of cleaning the Premises,
other than the janitorial contractor hired by Landlord. Landlord shall not
be responsible to Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the properly or effects of Tenant by
Landlord's agents, including without limitation Landlord's janitorial
contractor. Any janitorial services furnished by Landlord shall not
include shampooing of carpets or rugs, moving of furniture, or other
special services. Janitorial services shall not be furnished on nights
when the Premises are occupied after 9:30 p.m.
11. NOXIOUS MATERIALS; OFFENSIVE CONDUCT. Tenant shall not use or keep (nor
permit to be used or kept) any foul or noxious gas or substance in the
Premises. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline, or other flammable, explosive, or combustible fluid or
material other than limited quantities thereof reasonably necessary for
the operation or maintenance of office equipment. Tenant shall not permit
or suffer the Premises to be occupied or used in any manner which is
offensive or objectionable to Landlord or other occupants of the Building
or neighboring properly by reason of noise, odor, or vibrations. No
animals may be brought into the Premises or the Building.
<PAGE> 38
12. PROHIBITIONS ON USE OF PREMISES. No cooking shall be done or permitted by
Tenant on the Premises, except that for the preparation of lunches, snacks,
coffee, tea, hot chocolate and similar beverages, provided such equipment
and use is in accordance with all applicable federal, state and city laws,
codes, ordinances, rules and regulations. The Premises shall not be used
for the manufacture of merchandise, for any improper, objectionable, or
immoral purposes or for lodging. Tenant shall at all times keep the
Premises neat and clean, and in an orderly condition consistent with the
uses permitted by the Lease. No bicycles of vehicles of any kind shall be
brought into or kept in or about the Premises or Building in other than
designated areas. The Premises shall not be used for the storage of
merchandise except as such storage may be incidental to the use of the
Premises for general office purposes.
13. CONNECTION OF EQUIPMENT. Landlord will direct electricians as to where and
how telephone, telegraph, and other communication facilities are to be
introduced and installed. No boring or cutting of stringing of wires will
be allowed without the prior written consent of Landlord, unless such work
is shown on Exhibit "C" to the Lease. The location of telephones, call
boxes, and other office equipment affixed to the Premises shall be subject
to the approval of Landlord.
14. FLOOR COVERINGS. Linoleum, tile, carpet and other floor coverings shall be
deemed an improvement to the Premises and shall be left by Tenant at Lease
Termination. Tenant shall use a carpet protector under all desk chairs.
15. CLOSING OF PREMISES. Tenant shall see that the doors of the Premises are
closed and securely locked before leaving the Building. On multi-tenant
floors, corridor doors, when not in use, shall be kept closed. Tenant
assumes any and all responsibility for protecting the Premises from theft,
robbery and pilferage. Tenant shall observe strict care and caution that
all water faucets or other regulated plumbing, and all electricity, gas,
or air conditioning to the Premises are entirely shut off before Tenant or
Tenant's agents leave the Building.
16. TRASH AND GARBAGE. Tenant shall store all trash and garbage within the
interior of the Premises. No material shall be placed in trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in the city in which the Premises are located without
violation of any law or ordinance governing such disposal. All trash,
garbage and refuse disposal shall be made only through entryways and
elevators provided for such purposes and at such times as Landlord shall
designate. Boxes and containers used in moving the tenant into the
building shall be disposed of at Tenant's expense and not be put into the
on-site trash receptacles.
17. REQUEST OF TENANT. The requirements of tenant shall be attended to only
upon application at the business office of Landlord. Landlord's agents
shall not perform any work nor do anything outside of their regular duties
unless under special instructions from Landlord.
18. PASSENGER ELEVATORS. No person shall be allowed to transport or carry on
any passenger elevator items that cannot be conveniently and easily
carried by one person alone. The transportation of such items shall be by
means of the service elevators or in such manner as prescribed by
Landlord.
19. HEATING AND AIR CONDITIONING. Tenant shall not in any way obstruct, alter
or impair the efficient operation of Landlord's heating, ventilating, and
air conditioning systems. Tenant shall not tamper with or change the
setting of any thermostats or temperature control valves, unless said
temperature controls are located within Tenant's office. Tenant shall not
use any method of heating or air conditioning the Premises other than that
supplied by Landlord nor shall Tenant waste electricity, water or air
conditioning.
20. ADVERTISING. Landlord shall have the right to prohibit any advertising by
Tenant (in any manner, medium, or location) which, in Landlord's sole
opinion, tends to impair the reputation of the Building or its
desirability as a location for offices. Upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
21. OCCUPANCY RESTRICTIONS. Landlord reserves the right to exclude or expel
from the Building any person who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of the rules and regulations of the
Building.
22. SOLICITING IN THE BUILDING. Canvassing, soliciting, or peddling in the
Building is prohibited unless specifically approved by Landlord. No person
shall be allowed to distribute in the Building handbills, petitions,
notices, or advertisements,
23. COMMON AREAS. All facilities and common areas forming a part of the
Building shall be under the sole and absolute control of Landlord with
exclusive right to regulate and control these areas. Tenant shall conform
to the Rules and Regulations that may be established by Landlord for such
areas.
24. COOPERATION OF TENANT. Tenant shall cooperate with Landlord to prevent
prohibited activities within the Building and the Premises. Tenant shall
comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.
25. PARKING. Tenant or Tenant's agents shall park in Building parking areas
between designated parking lines only, and shall not occupy two parking
spaces with one car. Vehicles in violation of the above shall be, after
receipt of prior written notice of the infraction and failure to promptly
abate the violation, subject to tow-away, at the vehicle owner's expense.
26. ADDRESS. Landlord shall have the right, exercisable without notice and
without liability to Tenant, to change the name and street address of the
building of which the premises are a part.
27 AMENDMENTS TO RULES AND REGULATIONS. Landlord reserves the right to make,
eliminate, augment, amend, revise or modify these Rules and Regulations as
in Landlord's sole judgment may be necessary or reasonable. Any amendments
or revisions to these Rules and Regulations shall be effective upon the
receipt thereof by Tenant.
28. RELATIONSHIP OF RULES AND REGULATIONS TO LEASE.
(a) INCONSISTENCIES. In the event that any of the provisions of these
Rules and Regulations are inconsistent with any of the provisions of
the Lease as to which these Rules and Regulations relate, the
provisions of the Lease shall control to the extent of such
inconsistency
(b) DEFINITIONS. Defined terms as used in these Rules and Regulations
shall have the same meaning as when those terms are used in the
Lease.
/s/
INITIALS
<PAGE> 1
EXHIBIT 11
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
---------------------- ------------------------
June 30 June 30 June 30 June 30
1996 1997 1996 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Shares outstanding at beginning of period, exclusive
of cheap stock 93,225 4,228,500 93,225 612,800
Weighted average shares:
Issued pursuant to Staff Accounting Bulletin No. 83 931,390 931,390
Issued in connection with the VPI Acquisition 1,064,583
Issued in the IPO, including the over-allotment 1,633,944
Issued to convert debt to common shares 207,994
Common stock equivalent shares related to stock options 96,467 78,140
--------- --------- --------- ---------
Weighted average shares outstanding at end of period 1,024,615 4,324,967 1,024,615 3,597,461
========= ========= ========= =========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S UNAUDITED FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED JUNE 30, 1997
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 2,641,200
<SECURITIES> 0
<RECEIVABLES> 2,220,100
<ALLOWANCES> 50,000
<INVENTORY> 604,600
<CURRENT-ASSETS> 5,860,400
<PP&E> 649,400
<DEPRECIATION> 168,700
<TOTAL-ASSETS> 12,234,800
<CURRENT-LIABILITIES> 2,699,600
<BONDS> 0
0
0
<COMMON> 42,300
<OTHER-SE> 17,628,200
<TOTAL-LIABILITY-AND-EQUITY> 12,234,800
<SALES> 4,072,100
<TOTAL-REVENUES> 4,072,100
<CGS> 2,159,400
<TOTAL-COSTS> 2,159,400
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 67,900
<INCOME-PRETAX> 144,600
<INCOME-TAX> 29,900
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 114,700
<EPS-PRIMARY> .03
<EPS-DILUTED> .02
</TABLE>
