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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-Q
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[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 2000
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-27459
DIGITAL INSIGHT CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 77-0493142
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
26025 Mureau Road, Calabasas, California 91302
(Address of principal executive offices, including zip code)
(818) 871-0000
(Registrant's telephone number, including area code)
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Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date:
Common Stock, $0.001 par value
23,256,250 shares outstanding as of May 1, 2000
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DIGITAL INSIGHT CORPORATION
FORM 10-Q
TABLE OF CONTENTS
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Page
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PART I--FINANCIAL INFORMATION
ITEM 1 Consolidated Financial Statements............................... 2
. Consolidated balance sheets as of March 31, 2000 and December
31, 1999..................................................... 2
. Consolidated statements of operations for the three months
ended March 31, 2000 and 1999................................ 3
. Consolidated statements of cash flows for the three months
ended March 31, 2000 and 1999................................ 4
. Notes to consolidated financial statements................... 5
ITEM 2 . Management's Discussion and Analysis of Financial Condition
and Results of Operations.................................... 9
. Risk Factors that May Affect our Financial Condition and
Results of Operations........................................ 12
ITEM 3 Quantitative and Qualitative Disclosures about Market Risk...... 21
PART II--OTHER INFORMATION
ITEM 2 Changes in Securities and Use of Proceeds....................... 22
ITEM 4 Submission of Matters to a Vote of Security Holders............. 22
ITEM 6 Exhibits and Reports on Form 8-K................................ 23
SIGNATURES............................................................. 24
</TABLE>
<PAGE>
PART I -- FINANCIAL INFORMATION
ITEM 1. Financial Statements
DIGITAL INSIGHT CORPORATION
CONSOLIDATED BALANCE SHEETS
(unaudited)
(in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
--------- ------------
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Assets
- ------
Current assets:
Cash and cash equivalents............................. $ 57,467 $ 79,031
Accounts receivable, net.............................. 8,975 7,741
Accumulated implementation costs...................... 33 279
Other current assets.................................. 2,355 3,781
-------- --------
Total current assets................................ 68,830 90,832
Property and equipment, net........................... 15,400 12,363
Deposits.............................................. 307 231
Other assets.......................................... 214 62
-------- --------
TOTAL ASSETS........................................ $ 84,751 $103,488
======== ========
Liabilities and Stockholders' Equity (Deficit)
- ----------------------------------------------
Current liabilities:
Accounts payable...................................... $ 3,931 $ 4,060
Accrued compensation and related benefits............. 2,057 3,675
Current portion of lease obligation................... 355 360
Deferred revenue...................................... 7,316 5,937
Other accruals........................................ 3,739 2,879
-------- --------
Total current liabilities........................... $ 17,398 $ 16,911
Long-term portion of lease obligation................... 998 393
-------- --------
$ 18,396 $ 17,304
Stockholders' equity (deficit):
Common stock.......................................... $ 3,347 $ 15
Additional paid-in capital............................ 113,484 116,779
Notes receivable from stockholders.................... (219) (216)
Deferred stock-based compensation..................... (2,950) (3,279)
Accumulated deficit................................... (47,307) (27,115)
-------- --------
Total stockholders' equity (deficit)................ 66,355 86,184
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.......... $ 84,751 $103,488
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
2
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DIGITAL INSIGHT CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
(in thousands, except per share data)
<TABLE>
<CAPTION>
Year-to-date
Three months ended through
March 31, March 31,
-------------------- -----------------
2000 1999 2000 1999
--------- --------- -------- -------
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Revenues:
Implementation fees................. $ 3,078 $ 1,196 $ 3,078 $ 1,196
Service fees........................ 7,341 2,979 7,341 2,979
--------- -------- -------- -------
Total revenues........................ 10,419 4,175 10,419 4,175
--------- -------- -------- -------
Cost of revenues:
Implementation...................... 2,380 892 2,380 892
Service............................. 3,709 1,812 3,709 1,812
--------- -------- -------- -------
Total cost of revenues.............. 6,089 2,704 6,089 2,704
Gross profit.......................... 4,330 1,471 4,330 1,471
Operating expenses:
Sales, general and administrative... 9,016 2,574 9,016 2,574
Research and development............ 3,718 1,362 3,718 1,362
Amortization of stock-based
compensation....................... 329 234 329 234
Merger-related expenses............. 12,658 -- 12,658 --
--------- -------- -------- -------
Total operating expenses............ 25,721 4,170 25,721 4,170
--------- -------- -------- -------
Loss from operations.................. (21,391) (2,699) (21,391) (2,699)
--------- -------- -------- -------
Interest and other income (expense),
net.................................. 995 44 995 44
--------- -------- -------- -------
Net loss.............................. $ (20,396) $ (2,655) $(20,396) $(2,655)
========= ======== ======== =======
Taxes................................. -- -- -- --
Net loss after taxes.................. $ (20,396) $ (2,655) $(20,396) $(2,655)
========= ======== ======== =======
Basic and diluted net loss per share.. (0.89) (0.26) (0.89) (0.26)
Shares used in computing basic and
diluted net loss per share........... 22,803 10,347 22,803 10,347
Excluding stock-based compensation:
- -----------------------------------
Net loss.............................. $ (20,067) $ (2,421) $(20,067) $(2,421)
Basic and diluted net loss per share.. $ (0.88) $ (0.16) $ (0.88) $ (0.16)
Pro forma loss per share.............. $ (0.88) $ (0.16) $ (0.88) $ (0.16)
Shares used in computing weighted
average net loss per share........... 22,803 15,457 22,803 15,457
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
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DIGITAL INSIGHT CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands)
<TABLE>
<CAPTION>
Three months ended
March 31,
--------------------
2000 1999
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<S> <C> <C>
Cash flows from operating activities:
Net loss................................................. $( 20,396) $( 1,839)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................... 927 239
Amortization of debt issuance cost...................... -- 9
Amortization of deferred stock-based compensation....... 329 234
Interest income on stockholder notes.................... (3) (3)
Changes in operating assets and liabilities:
Accounts receivable.................................... (1,234) (519)
Tax refund receivable.................................. (664) --
Unbilled receivables................................... -- (288)
Accumulated implementation cost........................ 21 28
Inventory.............................................. 11 --
Other assets........................................... 2,194 (179)
Deposits............................................... (76) (9)
Accounts payable....................................... (603) 205
Accrued compensation and related benefits.............. (1,111) 50
Deferred revenue....................................... 1,379 663
Other accruals......................................... 515 477
--------- --------
Net cash used in operating activities................. (18,711) (932)
--------- --------
Cash flows from investing activities:
Acquisition of property and equipment.................... (3,274) (528)
--------- --------
Net cash used in investing activities................. (3,274) (528)
--------- --------
Cash flows from financing activities:
Proceeds from note payable............................... 474 109
Principal payments of lease obligations.................. (90) (49)
Issuance of common stock................................. 15 50
Proceeds from exercise of stock options.................. 22 124
--------- --------
Net cash provided by financing activities............. 421 234
--------- --------
Net increase (decrease) in cash........................... (21,564) (1,226)
--------- --------
Cash and cash equivalents, beginning of period............ 79,031 6,679
--------- --------
Cash and cash equivalents, end of period.................. $ 57,467 $ 5,453
========= ========
Supplementary disclosures of cash flow information:
Cash paid during the year for interest................... $ 13 $ 9
Non-cash financing activities:
Capital lease obligation incurred....................... 682 493
Series B warrants issued in conjunction with capital
lease.................................................. -- 147
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
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DIGITAL INSIGHT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The Company and Summary of its Significant Accounting Policies
The Company
Digital Insight Corporation (the "Company"), incorporated in March 1997,
provides Internet banking services to credit unions, small to mid-sized banks
and savings and loans. Its Internet banking services include home banking for
individual customers, business banking for commercial customers, a target
marketing program to increase financial services to end users, and customized
web site design and implementation services. Substantially all of the
Company's revenues are derived from these services.
The Company originally operated as Digital Insight LLC, a Minnesota limited
liability company, which was formed in July 1995. On March 18, 1997, all
members of Digital Insight LLC converted their capital balances to shares of
Series A mandatorily redeemable convertible preferred and common stock of
Digital Insight Corporation, a Delaware corporation, in accordance with a
Member Control Agreement.
Revenue recognition
Recurring fees are recognized as services are provided, and relate to the
number of end users or end user transactions and for hosting and maintaining
web sites. One-time implementation fees consist of salaries for implementation
personnel and fees for third parties, including bill payment and data
processing vendors. These fees are recognized upon completion of
implementation and customer approval. Implementation generally occurs over a
two- to four-month period. Costs and related revenues are deferred on the
balance sheet until that time. Accumulated implementation costs consist
primarily of salaries for implementation personnel in advance of related
billings. Losses on implementation, if any, are recognized in the period when
such losses are identified.
Net loss per share
The Company computes net loss per share in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings per Share," and
Securities and Exchange Commission ("SEC") Staff Accounting Bulletin No. 98
("SAB 98"). Under the provisions of SFAS No. 128 and SAB 98, basic and diluted
net loss per share is computed by dividing the net loss available to common
stockholders for the period by the weighted average number of shares of common
stock outstanding during the period. Shares of common stock issued in
connection with the conversion of members' capital pursuant to the Member
Control Agreement have been considered outstanding for all periods presented.
The calculation of diluted net loss per share excludes potential common shares
if the effect is antidilutive. Potential common shares are composed of common
stock subject to repurchase rights and incremental shares of common stock
issuable upon the exercise of stock options and warrants and upon conversion
of Series A, Series B, and Series C mandatorily redeemable convertible
preferred stock.
Pursuant to SAB 98, common shares issued in each of the periods presented
for nominal consideration, if any, would be included in the per share
calculations as if they were outstanding for all periods presented. No such
shares have been issued.
Pro forma net loss per share
Pro forma net loss per share for the three months ended March 31, 2000 and
March 31, 1999 is computed using the weighted average number of common shares
outstanding, including the pro forma effects of the automatic conversion of
the Company's mandatorily redeemable convertible Series A, Series B, and
Series C preferred stock into shares of the Company's common stock effective
upon the closing of the Company's initial public offering as if such
conversion occurred on January 1, 1999, or at date of original issuance if
later. The resulting pro forma adjustment includes an increase in the weighted
average shares used to compute basic net loss per share of $0.89 and $0.26 for
the three months ended March 31, 2000 and the three months ended
5
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DIGITAL INSIGHT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
March 31, 1999, respectively. Pro forma diluted net loss per share is computed
using the pro forma weighted average number of common and common equivalent
shares outstanding. Pro forma common equivalent shares, consisting of common
stock subject to repurchase and incremental common shares issuable upon the
exercise of stock options and warrants, are excluded from diluted net loss per
share as they are antidilutive.
Pro forma stockholders' equity
Effective upon the closing of the Company's initial public offering in
October 1999, the outstanding shares of mandatorily redeemable convertible
preferred stock automatically converted into 4,775,455 shares of common stock.
New accounting standards
In December 1999, the SEC issued Staff Accounting Bulletin 101 ("SAB 101"),
"Revenue Recognition," which provides guidance on the recognition,
presentation and disclosure of revenue in financial statements filed with the
SEC. SAB 101 outlines the basic criteria that must be met to recognize revenue
and provides guidance for disclosure related to revenue recognition policies.
At this time, the Company is still assessing the impact of SAB 101 and its
effect (if any) on the Company's financial position, results of operations and
cash flows.
2. Basis of Presentation
The consolidated financial statements are unaudited and, in the opinion of
management, reflect all adjustments (consisting only of normal recurring
adjustments) that are necessary for a fair presentation of the results for the
periods shown. The results of operations for such periods are not necessarily
indicative of the results expected for the full fiscal year or for any future
period. These consolidated financial statements should be read in conjunction
with the financial statements as of December 31, 1999 and related notes
included in the Company's Annual Report on Form 10-K, filed with the SEC on
March 28, 2000.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the consolidated financial
statements. Actual results may differ from those estimates.
3. nFront Business Combination
On February 10, 2000, the Company consummated its merger with nFront upon
obtaining regulatory and stockholder approval. The merger was accounted for as
a pooling of interests and was effected by the exchange of 8,253,735 shares of
Digital Insight common stock for all of the outstanding shares of nFront
common stock. In addition, the Company converted the nFront stock options into
options to purchase 627,926 shares of Digital Insight common stock.
The financial results for Digital Insight and nFront have been combined for
the historical periods presented in accordance with the pooling of interests
method. In addition, the Company recorded a one-time charge of approximately
$12.7 million for merger costs comprised of direct transaction costs and
nonrecurring redundant costs.
4. Acquisitions
On March 30, 2000, the Company entered into a definitive agreement to
acquire all of the outstanding stock of AnyTime Access, Inc., a company based
in Sacramento, California that provides services and solutions that allow
credit unions, banks and other financial institutions to outsource their
consumer loan origination and
6
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DIGITAL INSIGHT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
processing functions. Upon the closing of the transaction, the Company will
issue approximately 2,126,755 shares in the form of common stock and shares
underlying options and warrants to purchase common stock in exchange for all
of the outstanding shares, options and warrants of AnyTime Access. The number
of shares is based on a valuation of approximately $140 million at $66.3685
per share of the Company's common stock. The acquisition is to be accounted
for using the purchase method of accounting and will be consummated upon the
receipt of necessary regulatory and shareholder approvals, which are
anticipated to be obtained by June 30, 2000.
On April 8, 2000, the Company entered into a definitive agreement to acquire
the outstanding shares of 1View Network Corporation, a company based in San
Francisco that provides electronic information aggregation solutions for the
financial services market. The purchase price is to be comprised of $5 million
in cash and 1.1 million shares of the Company's common stock. The acquisition
is to be accounted for using the purchase method of accounting and will be
consummated upon the receipt of necessary regulatory and stockholder
approvals, which are anticipated to be obtained by June 30, 2000.
5. Balance Sheet Components
Short-term investments are comprised of the following:
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
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<S> <C> <C>
U.S. Government obligations......................... $ 9,478 $ 7,402
Commercial paper.................................... 12,703 15,344
Others.............................................. 2,998 6,519
------- -------
$25,179 $29,265
======= =======
</TABLE>
Property and equipment are comprised of the following:
<TABLE>
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March 31, December 31,
2000 1999
--------- ------------
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Leasehold improvements............................. $ 650 $ 479
Data processing equipment.......................... 14,002 11,916
Furniture and fixtures............................. 1,698 1,388
Construction in process............................ 2,529 1,125
------- -------
Less accumulated depreciation and amortization..... (3,479) (2,545)
------- -------
$15,400 $12,363
======= =======
</TABLE>
7
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DIGITAL INSIGHT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
6. Income Taxes
As a result of net losses and the Company's inability to recognize a benefit
for its deferred tax assets, the Company did not record a provision for income
taxes in either the three months ended March 31, 2000 or the three months
ended March 31, 1999.
7. Westlake Village Facility Lease
The Company entered into a lease on March 6, 2000 for a 52,130 square foot
facility in Westlake Village, California. The lease expires on March 31, 2005.
The annual basic rental is approximately $845,000, plus triple net obligations
based on 49.26% allocable share. In connection with the lease, the Company
provided a letter of credit in the amount of $760,000 as a security deposit.
The Company began construction to adapt the facility to its intended use as
general office space, including data center operations, storage, and research
and development.
8
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ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
This Quarterly Report on Form 10-Q contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934, including, without
limitation, statements regarding our expectations, beliefs, intentions or
future strategies that are signified by the words "expects," "anticipates,"
"intends," "plans," "believes" or other similar expressions. Our actual
results could differ materially from those discussed in this document. All
forward-looking statements included in this document are based on information
available to us on the date hereof, and we assume no obligation to update any
such forward-looking statements. The cautionary statements made in this
document should be read as being applicable to all related forward-looking
statements wherever they appear in this document.
Overview
Digital Insight is the leading provider of Internet banking solutions for
community financial institutions, with over 767 financial institution
customers as of March 31, 2000. We offer these community financial
institutions an outsourced service, branded in their name, which includes home
banking for their individual customers, business banking for their commercial
customers, a target marketing program to enable them to sell additional
financial services, and customized web site design and implementation
services. Since inception, substantially all of our revenues have been derived
from our Internet home banking services, associated features and web site
development. In February 2000, we acquired nFront, Inc., a company based in
Atlanta, Georgia that provides Internet banking and other financial services.
With the acquisition of nFront and its proprietary "fat server" architecture,
we now offer unparalleled expertise in both real time and batch processing.
Our revenues consist primarily of recurring monthly service fees and, to a
lesser extent, one-time implementation fees. Our recurring revenues consist of
service fees paid to us by our financial institution customers based on the
number of end users or end user transactions, and fees for hosting and
maintaining their web sites and other monthly services. To the extent that our
installed base of customers continues to grow, we expect recurring service
fees to represent an increasing percentage of our revenues in the future. Our
customer contracts range from one to five years.
We require a 50% non-refundable cash deposit of product implementation fees,
payable at the time that a contract is signed. We record these deposits as
deferred revenues and, together with the balance of the implementation fees,
we recognize them upon completion of implementation and customer approval.
Recognition is usually two to four months from the contract date. Upon
completion of implementation and customer approval, we begin to receive and
recognize recurring service fees. For the three months ended March 31, 2000,
no single customer accounted for more than 5% of our revenues.
Cost of revenues consists of implementation and service costs.
Implementation costs are comprised primarily of salaries for implementation
personnel and fees paid to third parties, including bill payment and data
processing vendors. Service costs consist primarily of salaries and related
personnel expenses, network costs, expenses related to the operation of our
data center and fees paid to third parties, including bill payment vendors,
data processing vendors and communication services providers. Gross margin is
affected by the relative proportion of lower margin implementation fees and
higher margin service fees we generate, the mix of products we sell,
competitive pricing pressures and the size and complexity of our
implementations.
Sales, general and administrative expenses consist primarily of salaries and
related expenses for executive, sales, marketing, finance, human resources and
administrative personnel and other general corporate expenses. In addition,
these expenses include marketing expenses such as trade shows and promotional
costs.
Research and development expenses consist primarily of salaries, related
personnel expenses and consultant fees related to the design, development,
testing and enhancement of both our products and our data processing vendor
interface software. We expense all research and development costs as incurred.
9
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On February 10, 2000, we completed our acquisition of nFront, Inc., which
was accounted for as a pooling of interests. The results of operation data for
the three months ended March 31, 1999 and the balance sheet data as of
December 31, 1999 have been adjusted to reflect the nFront acquisition. Under
the terms of the acquisition, we exchanged 8,253,735 shares of Digital Insight
common stock for all of nFront's outstanding shares.
Comparisons of Quarters Ended March 31, 2000 and March 31, 1999
Revenues. Revenues increased from $4.2 million for the quarter ended March
31, 1999 to $10.4 million for the quarter ended March 31, 2000, a 149.6%
increase. This increase was primarily due to the growth in service fees from
$3.0 million to $7.3 million. The number of active home banking end users
increased over the same period from over 372,000 to approximately 950,000, up
155% from a year earlier and 27% from the prior quarter. Implementation fees
increased from $1.2 million for the quarter ended March 31, 1999 to
$3.1 million for the quarter ended March 31, 2000. During the first quarter of
2000, we added a total of 154 new financial institution customers, including
151 new Internet banking contracts and 76 new cash management contracts. At
March 31, 2000, we had contracts with a total of 880 customers, 767 of which
had contracted for our Internet banking service and 282 of which had
contracted for our cash management service. As of March 31, 2000, the total
number of potential end users of contracted Internet banking institutions was
18.5 million versus 7.9 million a year earlier. End user penetration of live
Internet banking institutions was 6.7% at March 31, 2000 versus 4.7% a year
earlier.
Gross Profit. Gross profit increased from $1.5 million for the quarter ended
March 31, 1999 to $4.3 million for the quarter ended March 31, 2000. Gross
margin improved from 35.2% to 41.6% primarily due to leverage of our
implementation costs as a result of higher implementation fees generated
during the quarter, and service fees margin improved due to continued end user
growth without a corresponding increase in costs. Implementation gross margin
declined from 25.4% to 22.7%, and service gross margin improved from 39.1% to
49.5%. Implementation gross margin may vary from period to period based upon
fluctuations in our implementation revenues and increases in our
implementation infrastructure. However, such fluctuations should not have a
significant impact on overall gross margin.
Sales, General and Administrative. Sales, general and administrative
expenses increased from $2.6 million for the quarter ended March 31, 1999 to
$9.0 million for the quarter ended March 31, 2000. This increase was primarily
due to an increase in sales commissions associated with higher revenues and
higher personnel expenses for sales and marketing staff and, to a lesser
extent, due to our corporate branding effort, other promotional expenses and
expenses for additional marketing support programs. This increase was also due
to increased staffing for finance and accounting, new senior management
positions and growth in recruiting and human resources expenses resulting from
the merger with nFront, Inc. Sales, general and administrative expenses as a
percentage of revenues increased from 61.7% for the quarter ended March 31,
1999 to 86.5% for the quarter ended March 31, 2000.
Research and Development. Research and development expenses increased from
$1.4 million for the quarter ended March 31, 1999 to $3.7 million for the
quarter ended March 31, 2000. This increase was primarily due to higher
personnel expenses related to more full-time software engineering staff
required for the functional enhancement of existing products and, to a lesser
extent, due to the development of new products. Research and development
expenses as a percentage of revenues increased from 32.6% for the quarter
ended March 31, 1999 to 35.7% for the quarter ended March 31, 2000, primarily
as a result of an increase in revenues.
Amortization of Stock-Based Compensation. Amortization of stock-based
compensation increased from $234,000 for the quarter ended March 31, 1999 to
$329,000 for the quarter ended March 31, 2000. This increase was primarily due
to the hiring of new employees and related stock option grants during the
first nine months of 1999, prior to our initial public offering, when the
grant price and the deemed fair value of our common stock differed.
Merger-related Expenses. One-time merger-related expenses represent merger
costs comprised of direct transaction costs and redundant costs related to the
nFront merger consummated on February 10, 2000.
Interest Income. Interest income increased from $44,000 for the quarter
ended March 31, 1999 to $995,000 for the quarter ended March 31, 2000. This
increase was primarily due to higher average cash balances in the quarter
ended March 31, 2000.
10
<PAGE>
Net Loss. Net loss for the quarter ended March 31, 2000 was $20.4 million,
which includes non-recurring merger-related costs of $12.7 million. Net loss
for the quarter, excluding non-recurring merger-related expenses and
amortization of stock-based compensation, was $7.4 million, or a loss of $0.32
per share based on the weighted average number of 22.8 million shares of
common stock outstanding, versus a consensus estimate of a $0.34 loss per
share. As of March 31, 2000, we had an accumulated deficit of approximately
$47.3 million.
Provision for Income Taxes
We incurred operating losses through March 31, 2000, and therefore have not
recorded any significant provision for income taxes. We have recorded a
valuation allowance for the full amount of our net operating loss carry-
forwards, as future realization of the tax benefit is not currently likely.
Liquidity and Capital Resources
Prior to our initial public offering, we financed our operations primarily
through the private placement of equity securities, raising approximately
$20.8 million, including $8.4 million raised in May 1999. On October 6, 1999,
we completed our initial public offering by issuing 4,025,000 shares of common
stock (including the exercise of the underwriters' over-allotment option) and
realized proceeds, net of underwriting discounts, commissions and issuance
costs, of $54.5 million. In conjunction with the initial public offering, our
mandatorily convertible preferred stock converted to common stock and all
warrants to purchase preferred stock became warrants to purchase common stock.
At March 31, 2000, we had cash and cash equivalents of $57.5 million. We
have a $2.0 million equipment leasing line of credit with a bank, under which
$621,000 was outstanding at March 31, 2000. At March 31, 2000, we also had an
additional $64,000 in equipment financing outstanding with an equipment
leasing company.
Net cash used in operating activities was $18.7 million for the quarter
ended March 31, 2000 and $932,000 for the quarter ended March 31, 1999. The
increases in cash used in operating activities were primarily due to increases
in net loss and merger-related costs.
Net cash used in investing activities was $3.3 million for the quarter ended
March 31, 2000 and $528,000 for the quarter ended March 31, 1999. The
increases in cash used in investing activities were primarily due to an
increase in short-term investments and a $1.2 million expenditure for
computers and other equipment.
We have no material commitments other than obligations under our credit
facilities and operating and capital leases, which include a sublease we
entered into in August 1999 to occupy additional space in our principal
facility in Calabasas, California beginning on December 1, 1999, a lease for
the Norcross, Georgia facility we assumed on February 10, 2000 through the
nFront acquisition, and a lease for the Westlake Village, California facility
we entered into on March 6, 2000. Commitments for base rent under our
Calabasas, Norcross and Westlake Village facility leases are $1,840,000,
$2,309,000 and $2,180,000, respectively, for the next three years. Future
capital requirements will depend upon many factors, including the timing of
research and product development efforts and the expansion of our marketing
efforts. We expect to continue to expend significant amounts on expansion of
facility infrastructure, ongoing research and development, computer and
related data center equipment, and personnel.
We believe that our cash and cash equivalents balances and funds available
under our existing lines of credit will be sufficient to satisfy our cash
requirements for at least the next 18 months. We intend to invest our cash in
excess of current operating requirements in short-term, interest-bearing,
investment grade securities.
Impact of Year 2000
Many computers, software and other equipment include computer code in which
calendar year data is abbreviated to only two digits. As a result of this
design decision, some of these systems may have failed to operate or produce
correct results if "00" is interpreted to mean 1900, rather than 2000. These
problems were commonly referred to as the "Year 2000" problem.
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The Year 2000 problem affects the computers, software, other equipment that
we use, operate or maintain for our operations, and services provided by
third-party vendors. As a result, we formalized our Year 2000 compliance plan,
which was implemented by a team of employees led by our internal information
technology staff. This staff was responsible for monitoring the assessment,
including potential effects and costs, of our Year 2000 projects and
remediation of any Year 2000 problems. As part of our Year 2000 compliance
plan, we contacted our third-party vendors of products and services integrated
into our products to identify and, to the extent possible, resolve issues
relating to the Year 2000 problem. To date, we have not experienced any
significant Year 2000 problems in our operations or services provided by
third-party vendors. However, we cannot assure you that problems will not
develop in the future.
Our costs to address Year 2000 compliance have been approximately $250,000
and were included in operating expenses for the year ended December 31, 1999,
as reported in our Annual Report on Form 10-K, filed with the SEC on March 28,
2000.
Subsequent Events
On March 30, 2000, we entered into a definitive agreement to acquire all of
the outstanding stock of AnyTime Access, Inc., a company based in Sacramento,
California that provides services and solutions that allow credit unions,
banks and other financial institutions to outsource their consumer loan
origination and processing functions. Upon the closing of the transaction, we
will issue a total of approximately 2,126,755 shares of our common stock and
shares underlying options and warrants to purchase our common stock in
exchange for all of the outstanding shares, options and warrants of AnyTime
Access. The number of shares is based on a valuation of approximately $140
million at $66.3685 per share of our common stock. The acquisition is to be
accounted for using the purchase method of accounting and will be consummated
upon the receipt of necessary regulatory and shareholder approvals, which are
anticipated to be obtained by June 30, 2000.
On April 8, 2000, we entered into a definitive agreement to acquire the
outstanding shares of 1View Network Corporation, a company based in San
Francisco that provides electronic information aggregation solutions for the
financial services market. The purchase price is to be comprised of $5 million
in cash and 1.1 million shares of our common stock. The acquisition is to be
accounted for using the purchase method of accounting and will be consummated
upon the receipt of necessary regulatory and stockholder approvals, which are
anticipated to be obtained by June 30, 2000.
Risk Factors that May Affect our Financial Condition and Results of Operations
You should carefully consider the following risks in your evaluation of
Digital Insight. The risks and uncertainties described below are not the only
ones we face. Additional risks and uncertainties may also adversely impact and
impair our business. If any of the following risks actually occur, our
business, results of operations or financial condition would likely suffer. In
such case, the trading price of our common stock could decline.
We have a limited operating history in an early-stage market and, as a
result, our business strategy may not prove to be successful.
We began operations in July 1995. Accordingly, we have a limited operating
history, and our business and prospects must be considered in light of the
early-stage, rapidly evolving and uncertain Internet banking market in which
we operate. As a result:
. fluctuations in our operating results may be significant relative to our
revenues;
. community financial institutions may not widely adopt Internet banking
in general or our solution in particular;
. the Internet and the systems and networks of third parties may not
operate efficiently; and
. competition and rapid technological change in the industry could
adversely affect market acceptance of all of our products and services.
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As a result, our business strategy may not prove to be successful.
We have a history of losses, expect future losses and cannot assure you that
we will achieve profitability.
Although our revenues have increased in every quarter since 1996, we have
not achieved profitability and cannot be certain that we will realize
sufficient revenue to achieve profitability. We incurred net losses of
$712,000 in the year ended December 31, 1996, $2.5 million in the year ended
December 31, 1997, $4.4 million in the year ended December 31, 1998 and $7.5
million in the year ended December 31, 1999. As of March 31, 2000, we had an
accumulated deficit of approximately $47.3 million. We plan to increase our
operating expenses to expand our sales and marketing operations, broaden our
customer support capabilities and continue to build our operational
infrastructure. If growth in our revenues does not outpace the increase in
these expenses, we may not achieve or sustain profitability.
The expected fluctuations of our operating results could cause our stock
price to fluctuate.
We expect that our operating results may fluctuate significantly in the
future based upon a number of factors, many of which are not within our
control. We base our operating expenses on anticipated revenue growth and our
operating expenses are relatively fixed in the short term. The implementation
and utilization of our products involves a commitment of resources and
recurring expense by our customers and us. Among other things, we generally
provide a significant level of education to prospective customers regarding
the use and benefits of our products. We may expend substantial funds and
management resources during the sales cycle and fail to make the sale.
Accordingly, our results of operations for a particular period may be
adversely affected if the sales forecasted for that period are delayed or do
not occur. As a result, if our revenues are lower than we expect in some
future period, our operating results may be below the expectations of market
analysts or investors. If this occurs, the price of our common stock would
likely decrease.
Our operating results may also fluctuate in the future due to a variety of
other factors, including:
. the overall level of demand for Internet banking services by consumers
and businesses and the demand for our products, product enhancements and
services in particular;
. spending patterns and budgetary resources of community financial
institutions and their end user customers;
. technical difficulties, system downtime, system failures or reductions
in service levels;
. the timing of upgrades to our computer hardware infrastructure;
. increases in operating costs beyond anticipated levels;
. the timing of customer product implementations or our failure to timely
complete scheduled product implementations;
. delays in purchasing decisions or product implementations or decreases
in demand for Internet banking by financial institutions due to Year
2000 concerns; and
. governmental actions affecting Internet operations or content.
We may not achieve the benefits we expected from the acquisition of nFront,
which may have a material adverse effect on our business, financial condition
and operating results and/or could result in loss of key personnel.
We completed our acquisition of nFront, Inc. on February 10, 2000. We are
continuing to overcome significant challenges in order to realize the benefits
and synergies from the acquisition, including the timely, efficient and
successful execution of a number of post-merger events. Key events include:
. integrating the operations of the two companies;
. retaining and assimilating the key personnel of each company;
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. offering the existing services of each company to the other company's
customers;
. retaining the existing customers and strategic partners of each company;
. developing new services that utilize the assets of both companies; and
. maintaining uniform standards, controls, procedures and policies.
The successful execution of these post-merger events involves considerable
risk and we may not be successful in executing them. These risks include:
. the potential disruption of our ongoing business and distraction of its
management;
. the difficulty of incorporating acquired technology and rights into the
combined company's products and services;
. unanticipated expenses related to technology integration;
. the impairment of relationships with employees and customers as a result
of any integration of new management personnel; and
. potential unknown liabilities associated with the acquired business.
We may not succeed in addressing these risks or any other problems
encountered during the integration process.
We currently rely on two independent data centers to provide our Internet
banking products and services; any failure in either data center could cause
us to lose customers.
In the event of a failure or interruption in our systems, our reputation
could be materially adversely harmed and we could lose many of our current and
potential customers. Following the acquisition of nFront, all of our
communications and network equipment is currently located at our corporate
headquarters in Calabasas, California and at our regional data center in
Norcross, Georgia. We plan to integrate these two data centers to provide
system redundancy and emergency backup capability. We have also contracted to
establish functional backup and failover capabilities for our Internet banking
with an outside data center provider in Herndon, Virginia for the Calabasas
facility and another data center in Sterling, Virginia for the Norcross
facility. We cannot assure that these data centers will become fully
integrated as scheduled or that, when fully integrated, these data centers
will provide system redundancy and failover backup as expected. We do not
currently have sufficient backup facilities to provide Internet services if
either the Calabasas facility or the Norcross facility is not functioning. A
natural disaster, such as a fire, an earthquake or a flood, at either of our
facilities could result in failures or interruptions in providing our Internet
banking products and services to our customers. In addition, our systems are
vulnerable to computer viruses, physical or electronic break-ins, power loss,
telecommunications failure and similar events. For example, in April 1999, a
failure of a critical router in our Internet banking data center caused an
outage of approximately six hours while the problem was corrected. We have
also contracted to provide a certain level of service to our customers, and a
failure or interruption of our system has in the past caused and in the future
could cause us to refund fees to some of our customers to compensate for
decreased levels of service. Even with the integration of our two facilities
and the installation of the third-party data centers, we could experience a
failure or interruption in our systems, which could lead to delays, loss of
data or the inability to provide our services to our customers.
We are dependent on the widespread adoption of Internet banking by community
financial institutions, which have historically been slow to do so.
We expect that we will continue to depend on Internet banking products and
services for substantially all of our revenues in the foreseeable future.
However, the market for Internet banking has only recently begun to develop.
To date, Internet banking has developed slowly within financial institutions,
and purchasing decisions for Internet banking products are often delayed due
to uncertainties relating to cost, return on investment and
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customer acceptance. In particular, community financial institutions have been
slower to adopt Internet banking than larger banks. We cannot predict the size
of the market for Internet banking among community financial institutions, the
rate at which that market will grow, or whether there will be widespread end
user acceptance of Internet banking products and services such as ours.
We also depend on our financial institution customers to market and promote
our products to their end user customers. Neither we nor our financial
institution customers may be successful in marketing our current or future
Internet banking products and services. Moreover, financial institutions
generally agree to use our products and services pursuant to contracts with
durations that range from one to five years. Upon expiration, these contracts
may be discontinued. Unless our Internet banking products and services are
successfully deployed and marketed by a large number of community financial
institutions and achieve widespread market acceptance by their end user
customers for a significant period of time, we will not be able to achieve our
business objectives and increase our revenues.
We depend on the efficient operation of the Internet, other networks and
systems of third parties; if they do not operate efficiently, we will not be
able to effectively provide our products and services.
We depend on the efficient operation of network connections from our
customer financial institutions and their data processing vendors to our
systems. Further, portions of our revenue are dependent on continued usage by
end users of Internet banking services and their connections to the Internet.
Each of these connections, in turn, depends on the efficient operation of web
browsers, Internet service providers and Internet backbone service providers,
all of which have had periodic operational problems or have experienced
outages. In addition, the majority of our services depend on real time
connections to the systems of financial institutions and data processing
vendors. Any operational problems or outages in these systems would cause us
to be unable to provide a real time connection to these systems and we would
be unable to process transactions for end users, resulting in decreased
revenues. In addition, any system delays, failures or loss of data, whatever
the cause, could reduce customer satisfaction with our products and services
and harm our sales.
We depend on cooperation from data processing vendors for financial
institutions, some of whom have resisted efforts in the past to allow the
integration of our products and services with their systems.
Our products involve integration with products and systems developed by data
processing vendors that serve financial institutions. If any of our products
fail to be supported by our customers' data processing vendors, we would have
to redesign our products to suit these customers. We cannot assure that any
redesign could be accomplished in a cost-effective or timely manner. We rely
on these vendors to jointly develop technology with us and to disclose source
code specifications to enable our products to integrate effectively with their
products and systems. In the past, some vendors have resisted integrating our
products or have caused delays or other disruptions in the implementation
process. Several of these data processing vendors offer or are planning to
offer Internet banking products and services that are directly competitive
with our products and services and have resisted efforts to allow us to
integrate our products and services with their systems in the past. In
addition, our customers' data processing vendors may develop new products and
systems that are incompatible with our products. Our failure to integrate our
products effectively with our customers' data processing vendors could result
in higher implementation costs or the loss of potential customers.
Competition from third parties could reduce or eliminate demand for our
products and services.
The market for Internet banking services is highly competitive, and we
expect that competition will intensify in the future. We may not be able to
compete successfully against our current or future competitors and,
accordingly, we cannot be certain that we will be able to expand the number of
our customers and end users, or retain our current customers or third-party
service providers. We face competition from four main areas: other companies
with Internet banking products aimed at community financial institutions,
vendors who primarily target the largest financial institutions, vendors of
data processing services to financial institutions, and smaller, local online
service outsourcing companies. Many of our current and potential competitors
have longer operating
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histories and may be in a better position to produce and market their services
due to their greater financial, technical, marketing and other resources, as
well as their significantly greater name recognition and larger installed
bases of customers. In addition, many of our competitors have well-established
relationships with our current and potential community financial institution
customers and have extensive knowledge of our industry.
Security breaches could damage our reputation and business.
Our networks may be vulnerable to unauthorized access, computer viruses and
other disruptive problems. We transmit confidential financial information in
providing our services. Users of Internet banking and other electronic
commerce services are concerned about the security of transmissions over
public networks. Therefore, it is critical that our facilities and
infrastructure remain secure and that our facilities and infrastructure are
perceived by the marketplace to be secure. A material security breach
affecting us could damage our reputation, deter financial institutions from
purchasing our products, deter their customers from using our products, or
result in liability to us. Further, any material security breach affecting our
competitors could affect the marketplace's perception of Internet banking in
general and have the same effects.
Concerns over security and the privacy of users may inhibit the growth of
the Internet and other online services generally, especially as a means of
conducting commercial transactions. Any well-publicized compromise of security
could deter people from using the Internet or using it to conduct transactions
that involve transmitting confidential information. We may need to expend
significant capital or other resources to protect against the threat of
security breaches or to alleviate problems caused by breaches. Although we
intend to continue to implement state-of-the-art security measures, persons
may be able to circumvent the measures that we implement in the future.
Eliminating computer viruses and alleviating other security problems may
result in interruptions, delays or cessation of service to users accessing web
sites that deliver our services, any of which could harm our business.
Our failure to respond to rapid change in the market for Internet banking
could cause us to lose revenue and harm our business.
The market for Internet banking services is new and unproven and is subject
to rapid change. Our success will depend substantially upon our ability to
enhance our existing products and to develop and introduce, on a timely and
cost-effective basis, new products and features that meet changing financial
institution and end user requirements and incorporate technological
advancements. If we are unable to develop new products and enhanced
functionalities or technologies to adapt to these changes or if we cannot
offset a decline in revenues of existing products by sales of new products,
our business would suffer. In addition, our product development process
involves a number of risks. Developing technologically advanced products is a
complex and uncertain process requiring innovation as well as the accurate
anticipation of technology and market trends. We budget our research and
development expenditures based on planned product introductions and
enhancements. If we fail to timely and cost-effectively develop new products
that respond to new technologies and the needs of the Internet banking
services market, we will lose revenue and our business will suffer.
Newly introduced products may contain undetected or unresolved defects.
Any new or enhanced products we introduce may contain undetected or
unresolved software or hardware defects when they are first introduced or as
new versions are released. In the past, we have discovered errors in our
products and it is possible that design defects will occur in new products.
These defects could result in a loss of sales and additional costs as well as
damage to our reputation and the loss of relationships with our customers.
The demand for our products and services could be negatively affected by
reduced growth of commerce over the Internet or delays in the development of
the Internet infrastructure.
Our future success depends heavily on the Internet being accepted and widely
used for commerce. If Internet commerce does not continue to grow or grows
more slowly than expected, our business would suffer. There are a number of
reasons that consumers and businesses may reject the Internet as a viable
commercial medium in
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general, or as a suitable vehicle for banking transactions in particular.
These reasons include potentially inadequate network infrastructure, security
concerns, slow development of enabling technologies, reliability and quality
problems, and issues relating to ease and cost of access. In particular, the
Internet infrastructure may not be able to support the demands placed on it by
increased Internet usage and data transmission capacity requirements. In
addition, delays in the development or adoption of new standards and protocols
required to handle increased levels of Internet activity, or increased
government regulation could cause the Internet to lose its viability as a
commercial medium. Even if the required infrastructure, standards, protocols
or complementary products, services or facilities are developed, we may incur
substantial expenses adapting our solutions to changing or emerging
technologies.
We could be subject to potential liability claims related to use of our
products and services.
Financial institutions use our products and services to provide Internet
banking services to their customers. Any errors, defects or other performance
problems in our products and services could result in financial or other
damages to these financial institutions for which we are liable. A product
liability claim brought against us, even if not successful, would likely be
time consuming, result in costly litigation and could seriously harm our
business. Although our contracts typically contain provisions designed to
limit our exposure to liability claims, existing or future laws or unfavorable
judicial decisions could negate these limitation of liability provisions.
Moreover, we may be liable for transactions executed using Internet services
based on our products and services even if the errors, defects or other
problems are unrelated to our products and services.
We are currently experiencing a period of significant growth that is placing
a strain on our resources.
We have recently experienced significant growth, including expansion in the
number of our employees, and we anticipate that additional expansion may be
required in order to continue our growth. This growth places a significant
demand on our management and operational resources. Our management, personnel,
systems, procedures, controls and customer service may be inadequate to
support our existing and future operations. We continue to invest heavily in
our technological infrastructure and to build and scale our systems in order
to meet the demands of our growing customer base.
Our stock price is volatile.
The market price of our common stock could fluctuate widely in response to
the following particular factors:
. actual or anticipated variations in operating results;
. announcements by us or our competitors of new products, significant
contracts, acquisitions, or relationships;
. additions or departures of key personnel;
. future equity or debt offerings or our announcements of these offerings;
and
. economic well being of community financial institutions.
In addition, in recent years, the stock market in general, and the Nasdaq
National Market and the securities of technology companies in particular, have
experienced extreme price and volume fluctuations. These fluctuations have
often been unrelated or disproportionate to the operating performance of
individual companies. These broad market fluctuations may materially adversely
affect our stock price, regardless of our operating results.
Government regulation of our business could cause it to incur significant
expenses, and failure to comply with certain regulations, if adopted, could
make our business less efficient or impossible.
The financial services industry is subject to extensive and complex federal
and state regulation. Financial institutions such as commercial banks, savings
and loans and credit unions operate under high levels of
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governmental supervision. Our customers must ensure that our services and
related products work within the extensive and evolving regulatory
requirements applicable to them. We do not represent that our systems comply
with such regulations.
Neither federal depository institution regulators nor other regulators of
financial services require us to obtain any licenses. We are subject to
examination by federal depository institution regulators under the Bank
Service Company Act and the Examination Parity and Year 2000 Readiness for
Financial Institutions Act. These regulators have broad supervisory authority
to remedy any shortcomings identified in any such examination.
Federal, state or foreign authorities could adopt laws, rules or regulations
relating to the financial services industry that affect our business, such as
by requiring us to comply with data, record keeping and processing and other
requirements. It is possible that laws and regulations may be enacted with
respect to the Internet, covering issues such as user privacy, pricing,
content, characteristics, taxation and quality of services and products.
Existing regulations may be modified. If enacted or deemed applicable to us,
these laws, rules or regulations could be imposed on our activities or our
business, thereby rendering our business or operations more costly,
burdensome, less efficient or impossible and requiring us to modify our
current or future products or services.
Failure to attract and retain experienced personnel and senior management
could harm our ability to grow.
We believe that our future success will depend in large part upon our
continued ability to identify, hire, retain and motivate highly skilled
employees, who are in great demand. In particular, we believe that we must
expand our research and development, marketing, sales and customer support
capabilities in order to effectively serve the evolving needs of our present
and future customers. Competition for these employees is intense and we may
not be able to hire additional qualified personnel in a timely manner and on
reasonable terms. In addition, our success depends on the continuing
contributions of our senior management and technical personnel, all of whom
would be difficult to replace. The loss of any one of them could adversely
affect our ability to execute our business strategy.
Our limited ability to protect our proprietary technology may adversely
affect our ability to compete, and we may be found to infringe proprietary
rights of others, which could harm our business.
Our future success and ability to compete depends in part upon our
proprietary technology. None of our technology is currently patented. Instead,
we rely on a combination of contractual rights and copyright, trademark and
trade secret laws to establish and protect our proprietary technology. We
generally enter into confidentiality agreements with our employees,
consultants, resellers, customers and potential customers. We also limit
access to and distribution of our source code, and further limit the
disclosure and use of other proprietary information. We cannot assure that the
steps taken by us in this regard will be adequate to prevent misappropriation
of our technology or that our competitors will not independently develop
technologies that are substantially equivalent or superior to our technology.
Despite our efforts to protect our proprietary rights, unauthorized parties
may attempt to copy or otherwise obtain or use our products or technology.
Monitoring unauthorized use of our products is difficult, and while we are
unable to determine the extent to which piracy of our software products
exists, software piracy can be expected to be a persistent problem. In
addition, the laws of some foreign countries do not protect our proprietary
rights to the same extent as do the laws of the United States.
We are also subject to the risk of claims and litigation alleging
infringement of the intellectual property rights of others. Third parties may
assert infringement claims in the future with respect to our current or future
products. Any assertion, regardless of its merit, could require us to pay
damages or settlement amounts and could require us to develop non-infringing
technology or pay for a license for the technology that is the subject of the
asserted infringement. Any litigation or potential litigation could result in
product delays, increased costs or both. In addition, the cost of litigation
and the resulting distraction of our management resources could adversely
affect our operating results. We also cannot assure that any licenses for
technology necessary for our business will be available or that, if available,
these licenses can be obtained on commercially reasonable terms.
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Consolidation of the banking and financial services industry could cause our
sales to fall.
Consolidation of the banking and financial services industry could result in
a smaller market for our products and services. A variety of factors could
cause our customers to reassess their purchase or potential purchase of our
products and could result in termination of services by existing customers.
After consolidation, banks and other financial institutions may experience a
realignment of management responsibilities and a reexamination of strategic
and purchasing decisions. We may lose relationships with key constituencies
within our customer's organization due to budget cuts, layoffs, or other
disruptions following a consolidation. In addition, consolidation may result
in a change in the technological infrastructure of the combined entity. Our
products and services may not integrate with this new technological
infrastructure. The acquiring institution may also have its own in-house
system or outsource to competitors. For example, in May 1999, we lost Home
Savings of America as a customer after it was acquired by Washington Mutual,
which decided to integrate Home Savings' end users into its existing home
banking system.
Future sales of our shares could affect the stock price.
The market price of our common stock could fall dramatically if stockholders
sell large amounts of stock in the public market. These sales, or the
possibility that these sales may occur, could affect the market price of our
common stock and could make it more difficult for us to sell equity or equity-
related securities in the future. As of May 1, 2000, there were 23,256,250
shares of our common stock outstanding. Of these, 1,365,436 shares are limited
by restrictions under applicable securities laws. These shares will be
eligible for sale in the public market as follows:
<TABLE>
<CAPTION>
First Eligible Sale Date Number of Shares
------------------------ ----------------
<S> <C>
May 25, 2000............................................ 521,400
May 26, 2000............................................ 844,036
</TABLE>
In addition, approximately 13,504,833 shares held by our affiliates are
subject to certain conditions and restrictions under federal securities laws,
including satisfying applicable holding periods, filing appropriate notices,
the availability of current public information about us, and complying with
certain limitations on the volume of sales.
As of May 1, 2000, options to purchase 3,252,432 shares of common stock were
outstanding and 1,248,438 shares of common stock were available for future
grant pursuant to our stock plans. Our 1999 Stock Plan is subject to annual
increases beginning on March 1, 2001, equal to the lesser of 750,000 shares,
5% of our shares on that date, or a lesser amount determined by the board of
directors. We have registered the shares of common stock underlying
outstanding options and those reserved for issuance under our stock option
plans and under our employee stock purchase plans. Accordingly, shares
underlying vested options and stock purchase rights will be eligible for
resale upon their exercise.
In addition, there are 22,222 shares underlying outstanding warrants that
will be eligible for resale in the public market upon expiration of the
warrant holders' respective one-year holding periods under Rule 144, which
will begin upon the date of exercise, or, in the case of a net exercise, on
the date of grant of the warrant.
Potential acquisitions involve risks.
We intend to continuously evaluate our position within our industry, and we
may acquire complementary technologies or businesses in the future. Due to
consolidation trends within the Internet banking services industry, failure to
adopt and successfully implement a long-term acquisition strategy could damage
our competitive position. On April 14, 2000, we filed a Current Report on Form
8-K announcing our agreements to acquire AnyTime Access, Inc. and 1View
Network Corporation. These transactions are expected to be completed in the
second quarter of 2000. Future acquisitions, including the AnyTime Access and
1View Network transactions, may involve large one-time write-offs and
amortization expenses related to goodwill and other
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intangible assets. Any of these factors could adversely affect our operating
results or stock price. Acquisitions involve numerous risks, including:
. difficulties in assimilating the operations, products, technology,
information systems and personnel of the acquired company with our
operations;
. diverting our management's attention from other business concerns;
. impairing relationships with our employees, affiliates, strategic
marketing alliances and content providers;
. inability to maintain uniform standards, controls, procedures and
policies;
. entering markets in which we have no direct prior experience; and
. losing key employees of the acquired company.
Some or all of these risks could result in a material adverse effect on our
business, financial condition and operating results. In addition, we cannot
assure you that the AnyTime Access or 1View Network transactions will close as
scheduled, or at all, or that we will be able to identify other suitable
acquisition candidates that are available for sale at reasonable prices. We
may elect to finance future acquisitions using some or all of the proceeds
from our initial public offering. We may also elect to finance future
acquisitions with debt financing, which would increase our debt service
requirements, or through the issuance of additional common or preferred stock,
which could result in dilution to our stockholders. There can be no assurance
that we will be able to arrange adequate financing for any acquisitions on
acceptable terms.
Our charter and bylaws and Delaware law contain provisions which could
discourage a takeover.
Provisions of our charter and bylaws may make it more difficult for a third
party to acquire, or may discourage a third party from attempting to acquire,
control of us, even if doing so would be beneficial to our stockholders. These
provisions could limit the price that investors might be willing to pay in the
future for shares of our common stock. These provisions include:
. division of the board of directors into three separate classes;
. elimination of cumulative voting in the election of directors;
. prohibitions on our stockholders from acting by written consent and
calling special meetings;
. procedures for advance notification of stockholder nominations and
proposals; and
. the ability of the board of directors to alter our bylaws without
stockholder approval.
In addition, our board of directors has the authority to issue up to
5,000,000 shares of preferred stock and to determine the price, rights,
preferences, privileges and restrictions, including voting rights, of those
shares without any further vote or action by the stockholders. The issuance of
preferred stock, while providing flexibility in connection with possible
financings or acquisitions or other corporate purposes, could have the effect
of making it more difficult for a third party to acquire a majority of our
outstanding voting stock.
We are also subject to Section 203 of the Delaware General Corporation Law
which, subject to exceptions, prohibits a Delaware corporation from engaging
in any business combination with any interested stockholder for a period of
three years following the date that this stockholder became an interested
stockholder. The preceding provisions of our charter and bylaws, as well as
Section 203 of the Delaware General Corporation Law, could discourage
potential acquisition proposals, delay or prevent a change of control and
prevent changes in our management.
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Members of management and our board of directors, and their affiliates,
control 58.07% of our common stock.
As of May 1, 2000, members of our executive management team and our board of
directors, and their affiliates, controlled approximately 58.07% of our common
stock. As a result, these management members and directors will be able to
significantly influence matters requiring stockholder approval. Moreover, this
concentration of ownership could have the effect of delaying or preventing a
change in control.
ITEM 3. Quantitative and Qualitative Disclosures about Market Risk
We are exposed to the impact of interest rate changes and changes in the
market values of our investments. Our interest income is sensitive to changes
in general level of U.S. interest rates. In this regard, changes in U.S.
interest rates affect the interest earned on our cash equivalents. Our
exposure to market rate risk for changes in interest rates relates primarily
to our investment portfolio. We have not used derivative financial instruments
in our investment portfolio. We invest our excess cash in debt instruments of
the U.S. Government and its agencies, and in high-quality corporate issuers
and, by policy, limit the amount of credit exposure to any one issuer. We
protect and preserve our invested funds by limiting default, market and
reinvestment risk. Investments in both fixed rate and floating rate interest
earning instruments carry a degree of interest rate risk. Fixed rate
securities may have their fair market value adversely impacted due to a rise
in interest rates, while floating rate securities may produce less income than
expected if interest rates fall. Due in part to these factors, our future
investment income may fall short of expectations due to changes in interest
rates, or we may suffer losses in principal if forced to sell securities which
have declined in market value due to changes in interest rates.
21
<PAGE>
PART II -- OTHER INFORMATION
ITEM 2. Changes in Securities and Use of Proceeds
(c) Recent Sales of Unregistered Securities. During the quarter ended March
31, 2000, upon the exercise of a warrant to purchase shares of common stock,
we issued 21,648 shares of common stock for a purchase price equivalent of
approximately $75,119. The holder of the warrant elected to exercise through a
cashless exercise method by reducing the number of shares eligible for
purchase by that number of shares equal to the aggregate purchase price. The
offer and sale of those shares was exempt from the registration requirements
of the Securities Act of 1933 by virtue of Sections 3(a)(9) and 4(2) thereof
or Regulation D promulgated thereunder.
(d) Use of Proceeds From Sales of Registered Securities. The effective date
of our first registration statement, filed on Form S-1 under the Securities
Act of 1933 (No. 333-81547) relating to our initial public offering of our
common stock, was September 30, 1999. A total of 4,025,000 shares of our
common stock were sold at the closing at a price of $15.00 per share to an
underwriting syndicate led by Morgan Stanley Dean Witter, Incorporated,
Deutsche Bank Securities Inc., Banc of America Securities LLC and Friedman,
Billings, Ramsey & Co., Inc. Public trading commenced on October 1, 1999, and
the offering closed on October 6, 1999. The initial public offering resulted
in gross proceeds of $60.4 million, $4.2 million of which was applied toward
underwriting discount and commissions. Expenses related to the offering
totaled approximately $1.7 million. We received net proceeds in the amount of
$54.5 million. We have used the net proceeds from our initial public offering
to invest in interest bearing investment grade instruments and have used our
previously existing cash balances to fund our general operations. In
connection with the acquisition of nFront, Inc., the proceeds from the initial
public offering were also used in effectuating the transaction and in
integrating our two companies following the merger. We may also use a portion
of the net proceeds for acquisitions of complementary businesses, services and
technology. None of the net proceeds of our public offering were paid directly
or indirectly to any director, officer, or general partner of Digital Insight
or their associates, to any person owning 10% or more of any class of equity
securities of Digital Insight, or to any affiliate of Digital Insight.
ITEM 4. Submission of Matters to a Vote of Security Holders
At a special meeting of stockholders held on February 10, 2000, our
stockholders voted with respect to the following matters:
. To approve the issuance of shares of Digital Insight common stock in the
merger of a wholly owned subsidiary of Digital Insight with and into
nFront, Inc. as contemplated by the Agreement and Plan of Merger and
Reorganization, dated as of November 21, 1999, among Digital Insight,
Black Transitory Corporation and nFront, as amended by Amendment No. 1
to the Agreement and Plan of Merger and Reorganization, dated January 6,
2000.
<TABLE>
<S> <C>
Votes for:................................................... 12,230,559
Votes against:............................................... 10,328
Abstentions:................................................. 1,684
Broker non-votes:............................................ 0
</TABLE>
. To approve an amendment to our 1999 Stock Plan to increase the number of
shares of common stock reserved for issuance under the plan from
1,500,000 to 2,500,000 shares.
<TABLE>
<S> <C>
Votes for:................................................... 11,443,541
Votes against:............................................... 796,846
Abstentions:................................................. 2,184
Broker non-votes:............................................ 0
</TABLE>
22
<PAGE>
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The following exhibits are filed as part of, or incorporated by reference
into, this Quarterly Report on Form 10-Q:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
2.1* Agreement and Plan of Merger, dated as of March 30, 2000, by and among
Digital Insight Corporation, ATA Acquisition Corp., and AnyTime
Access, Inc.
2.2 First Amendment to Agreement and Plan of Merger, dated as of May 2,
2000, by and among Digital Insight Corporation, ATA Acquisition Corp.,
and AnyTime Access, Inc.
2.3* Agreement and Plan of Merger, dated as of April 8, 2000, by and among
Digital Insight Corporation, Calabasas Acquisition Corp., and 1View
Network Corporation.
10.1 Lease, dated as of July 9, 1998, between Schneider Atlanta, L.P. and
nFront, Inc.
10.2 Standard Office Lease, dated as of March 6, 2000, by and between Arden
Realty Finance Partnership, L.P. and Digital Insight Corporation.
27.1 Financial Data Schedule.
</TABLE>
- --------
* Incorporated by reference to the exhibits filed with the Registrant's
Current Report on Form 8-K, filed with the SEC on April 14, 2000.
(b) Reports on Form 8-K
On February 23, 2000, we filed a Current Report on Form 8-K announcing the
completion of our acquisition of nFront, Inc.
23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DIGITAL INSIGHT CORPORATION
Date: May 12, 2000 By: /s/ Kevin McDonnell
----------------------------------
Kevin McDonnell
Senior Vice President, Finance &
Administration, Chief Financial
Officer and Secretary (Principal
Financial and Accounting Officer
and Duly Authorized Officer)
24
<PAGE>
EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
dated as of May 2, 2000 and entered into by and among DIGITAL INSIGHT
CORPORATION, a Delaware corporation ("Parent"), ATA ACQUISITION CORP., a
California corporation and a wholly-owned subsidiary of Parent ("Merger Sub"),
and ANYTIME ACCESS, INC., a California corporation ("Company"), and is made with
reference to that certain Agreement and Plan of Merger, dated as of March 30,
2000 (the "Merger Agreement"), by and among Parent, Merger Sub and Company.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Merger Agreement.
RECITALS
WHEREAS, Parent, Merger Sub and Company have entered into the Merger
Agreement; and
WHEREAS, Parent, Merger Sub and Company desire to amend the Merger
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE MERGER AGREEMENT
1.1 Amendments to Section 1.6: Effect on Capital Stock. Subsections
---------------------------------------------------
1.6(b)(ii) through 1.6(b)(vii) of the Merger Agreement are hereby amended by
deleting such subsections in their entirety and substituting therefor the
following:
"(ii) the "Common Stock Applicable Fraction" shall be equal to
0.046151;
(iii) the "Series A Preferred Stock Applicable Fraction" shall be
equal to 0.049541;
(iv) the "Series B Preferred Stock Applicable Fraction" shall be
equal to 0.079676;
(v) the "Series C Preferred Stock Applicable Fraction" shall be
equal to 0.075909;
(vi) the "Merger Shares" shall mean the shares of Parent Common
Stock to be issued upon the exchange and conversion of Company Stock in
accordance with Section 1.6(a); and
(vii) the "Aggregate Merger Consideration" shall mean the aggregate
of 1,900,749 shares of Parent Common Stock to be issued in exchange for
Company Stock
1
<PAGE>
pursuant to Section 1.6(a), upon exercise of Company Stock Options,
Employee Options and Warrants pursuant to Sections 5.8 and 5.10, and the
Holdback Shares (as defined in Section 1.6(d)) (as reduced by any Holdback
Shares transferred to Parent to satisfy indemnification claims pursuant to
the Shareholder Agreements)."
1.2 Acknowledgment and Amendment to Section 2.3: Capitalization. Parent
------------------------------------------------------------
and Merger Sub hereby acknowledge and agree that Section 2.3(a)(ii)(B) of the
Merger Agreement mistakenly stated that 71,109 shares of Company's Series B
Preferred Stock have been reserved for issuance upon exercise of outstanding
warrants. Section 2.3(a)(ii)(B) of the Merger Agreement is hereby amended by
deleting such subsection in its entirety and substituting therefor the
following:
"(B) 6,304,927 shares have been designated Series B Preferred Stock,
of which 6,233,818 shares are issued and outstanding and 87,609 shares have
been reserved for issuance upon exercise of outstanding warrants, and"
1.3 Amendment to Section 7.1: Termination. Subsection 7.1(b) of the
--------------------------------------
Merger Agreement is hereby amended by deleting such subsection in its entirety
and substituting therefor the following:
"(b) by either Company or Parent if the Merger shall not have been
consummated by June 30, 2000 (or, if a Commissioner Refusal has occurred,
then 60 days after the date of such Commissioner Refusal) for any reason;
provided, however, that the right to terminate this Agreement under this
Section 7.1(b) shall not be available to any party whose action or failure
to act has been a principal cause of or resulted in the failure of the
Merger to occur on or before such date and such action or failure to act
constitutes a breach of this Agreement;"
Section 2. REPRESENTATIONS AND WARRANTIES
Parent, Merger Sub and Company each represent and warrant to the other
parties hereto that the following statements are true, correct and complete as
of the date of this Amendment:
2.1 Corporate Power and Authority. Such party has all necessary corporate
-----------------------------
power and authority to execute and deliver this Amendment and, subject to
Company obtaining the approval of the Merger by the shareholders of Company, to
perform its obligations under the Merger Agreement as amended by this Amendment
(the "Amended Agreement").
2.2 Authorization of Agreement. This Amendment has been duly and validly
--------------------------
executed and delivery of this Amendment by such party and the consummation by
such party of the transactions contemplated by the Amended Agreement have been
duly and validly authorized by all necessary corporate action on the part of
such party.
2.3 Binding Obligation. This Amendment and the Amended Agreement have
------------------
been duly and validly executed and delivered by such party, and, assuming the
due authorization, execution and delivery by the other parties hereto,
constitute legal and binding obligations of such party, enforceable against such
party in accordance with the terms hereof and thereof,
2
<PAGE>
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights generally,
or by general equitable principles (regardless of whether enforcement is sought
in a proceeding at law or in equity), and to the extent any indemnification or
contribution provisions hereof or thereof may be limited by applicable federal
or state securities laws.
Section 3. MISCELLANEOUS
3.1 Reference to and Effect on the Merger Agreement and the Other Merger
--------------------------------------------------------------------
Documents.
- ---------
(a) On and after the date of this Amendment, each reference in the
Merger Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Merger Agreement, and each reference
in the other documents and agreements executed in connection with the
Merger Agreement (the "Merger Documents") to the "Merger Agreement",
"thereunder", "thereof" or words of like import referring to the Merger
Agreement shall mean and be a reference to the Amended Agreement.
(b) Except as specifically amended by this Amendment, the Merger
Agreement and the other Merger Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Parent, Merger Sub, or Company under, the Merger Agreement or any of the
other Merger Documents.
3.2 Headings. Section and subsection headings in this Amendment are
--------
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
3.3 Applicable Law. This Amendment shall be governed and construed in
--------------
accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
3.4 Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized respective officers as of the date first
written above.
DIGITAL INSIGHT CORPORATION
By: /s/ John Dorman
----------------------------------------
John Dorman
President
By: /s/ Kevin McDonnell
----------------------------------------
Kevin McDonnell
Chief Financial Officer
ATA ACQUISITION CORP.
By: /s/ John Dorman
----------------------------------------
John Dorman
President
By: /s/ Kevin McDonnell
----------------------------------------
Kevin McDonnell
Chief Financial Officer
ANYTIME ACCESS, INC.
By: /s/ Thomas R. Bollum
----------------------------------------
Thomas R. Bollum
President
By: /s/ Steven R. Mills
----------------------------------------
Steven R. Mills
Chief Financial Officer
S-1
<PAGE>
EXHIBIT 10.1
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE
THIS LEASE, made this 9th day of July, 1998, between SCHNEIDER ATLANTA,
L.P., a Georgia limited partnership, (hereinafter called "Lessor"), and nFRONT,
INC., a Georgia Corporation, (hereinafter called "Lessee");
WITNESSETH: THAT,
WHEREAS, Lessor is the owner of that certain building situated at 520
Guthridge Court, Norcross, Gwinnett County, Georgia (hereinafter called the
"Building") and located on the property (hereinafter called the "Land"; the Land
and the Building are herein collectively called the "Property") described on
EXHIBIT "A", attached hereto and by this reference incorporated herein; and
WHEREAS, Lessee wishes to lease from Lessor approximately 13,747
rentable square feet of the Building, which area is outlined in red on the
diagram marked EXHIBIT "B", attached hereto and by this reference incorporated
herein and made a part hereof (hereinafter called the "Premises");
NOW, THEREFORE, in consideration of the payment of the rent and the
keeping and performance of the covenants and agreements by Lessee as hereinafter
set forth, Lessor does hereby lease to Lessee, and Lessee does hereby lease from
Lessor, the Premises. Lessee hereby accepts the Premises in their condition
existing as of the date hereof (except as outlined in Section 10.1 hereof) and
hereby acknowledges that Lessor has not made any representation or warranty as
to the suitability of the Premises for the conduct of Lessee's business. No
easement for light or air is included in the Premises.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid,
the parties hereby covenant and agree as follows:
1. TERM. Subject to Section 22 hereof, the term (hereinafter called the
"Lease Term") of this Lease shall commence on the sooner of August 1, 1998 or
upon completion of improvements (hereinafter called the "Commencement Date")
and, unless sooner terminated pursuant to the provisions hereof, shall expire at
11:59 p.m. on the day before the date which is five (5) years after the
Commencement Date.
2. RENT.
2.1 The annual base rental (hereinafter called "Annual Base Rental") for
the Premises shall be as per the following schedule. The Annual Base Rental
shall be payable in monthly installments per the schedule below (hereinafter
called "Monthly Base Rent") in advance on the first day of each and every
calendar month during the lease term. The Monthly Base Rent shall be prorated at
the rate of 1/30th of the Monthly Base Rent per day for any partial month.
<PAGE>
<TABLE>
<CAPTION>
YEAR ANNUAL RENT PER/SF TOTAL ANNUAL RENT MONTHLY BASE RENT
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
1 $14.50 $199,331.50 $16,610.95
- -----------------------------------------------------------------------------
2 $14.93 $205,242.71 $17,103.55
- -----------------------------------------------------------------------------
3 $15.38 $211,428.86 $17,619.07
- -----------------------------------------------------------------------------
4 $15.84 $217,752.48 $18,146.04
- -----------------------------------------------------------------------------
5 $16.32 $224,351.04 $18,695.92
- -----------------------------------------------------------------------------
</TABLE>
2.2 Lessee shall pay the rent and all other sums, amounts,
liabilities, and obligations which Lessee herein assumes or agrees to pay
(whether designated Base Rent, additional rent, costs, expenses, damages,
losses, or otherwise) (all of which are hereinafter called "Amount Due") as
herein provided promptly at the times and in the manner herein specified without
deduction, setoff, abatement, counterclaim, or defense. If any Amount Due is not
received by Lessor within ten (10) days following the date on which it is due,
Lessee shall pay Lessor a late charge equal to five percent (5%) of the amount
of such past due payment, notwithstanding the date on which such payment is
actually paid to Lessor. If such Amount Due is not paid within thirty (30) days
of the date on which it was originally due, then, in addition to such late
charge, Lessee shall pay Lessor interest on such Amount Due from the date on
which it was originally due until the date it is actually paid at a rate per
annum equal to the lesser of (i) the prime rate of interest announced by
Wachovia Bank of Georgia, N.A., or its successors, from time to time for 90-day
unsecured loans to its best commercial customers plus five percent (5%) or (ii)
the maximum rate permitted by applicable law. Any such late charge and interest
shall be due and payable at the time of actual payment of the Amount Due. Any
Amount Due payable to Lessor by Lessee shall be paid in cash or by check at the
office of Lessor, c/o Technology Park/Atlanta, Inc., Suite 150, 11555 Medlock
Bridge Road, Duluth, Georgia 30155, or at such other place or places as Lessor
may from time to time designate in writing.
3. INTENTIONALLY DELETED.
4. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease,
Lessee shall pay Lessor a security deposit in the amount of TWENTY-FIVE THOUSAND
AND 00/100 DOLLARS ($25,000.00) (hereinafter called the "Security Deposit") to
be held by Lessor without interest for the performance by Lessee of Lessee's
covenants and obligations under this Lease. If Lessee is then in full compliance
with this Lease, and Lessor has not previously applied any portion of such
Security Deposit to cure any default of Lessee, then within thirty (30) days
after the date which is twelve (12) months after the Commencement Date, Lessor
shall return a portion of said Security Deposit, being the amount of $8,389.05,
to Tenant. If Lessee shall at any time fail to pay any Amount Due, and such
failure shall continue beyond the expiration of any applicable grace or cure
period, Lessor may, but shall not be obligated to, from time to time and without
prejudice to any other remedy, apply all or any portion of the Security Deposit
to the extent necessary toward the payment of any such Amount Due. In the event
Lessor applies the Security Deposit or a portion thereof as provided in this
Section 4, Lessee shall immediately upon notice from Lessor of such application
pay the amount so applied to Lessor, it being the intent of the parties that the
Security Deposit held by Lessor always be in the amount stated above. It is
expressly understood and agreed, however, that the Security Deposit shall not be
considered an advance payment of rent or a measure of Lessor's damages in the
event of any default by Lessee. If, at the expiration or other termination of
this Lease, Lessee is not in default of any of its covenants, the Security
Deposit shall be returned by Lessor to Lessee without interest.
-2-
<PAGE>
5. USE.
5.1 Lessee (and its permitted assignees and subtenants) shall use the
Premises only for general business, administrative and sales and related
purposes, not in violation of the restrictive covenants hereinafter referred to,
and for no other purpose without the prior written consent of Lessor. Lessee
shall operate its business in the Premises during the entire Lease Term and in a
reputable manner in compliance with all applicable laws, ordinances,
regulations, covenants, restrictions, and other matters shown on the public
records, now in force or hereafter enacted. Lessee will not permit, create, or
maintain any disorderly conduct, trespass, noise, or nuisance whatsoever about
the Premises which has a tendency to annoy or disturb any persons occupying
adjacent premises either within or without the Building.
5.2 Lessee shall not place or maintain machines, equipment, or other
apparatus which causes vibrations or noise that may be transmitted to the
Building structure or to any space to such a degree as to be reasonably
objectionable to Lessor or to any tenant, occupant, or other person in the
Building. Neither Lessee nor any of Lessee's employees, agents or invitees shall
place or maintain within the Premises any stoves, ovens or space heaters, except
that Lessee may maintain one (1) microwave oven within the Premises so long as
such microwave oven uses standard 110V electrical service. Lessee shall not make
or permit any odor that is objectionable to the public or to other occupants of
the Building, to emanate from the Premises, and shall not create, permit, or
maintain a nuisance thereon, and shall not do any act tending to injure the
reputation of the Building.
5.3 Lessee shall cause all loading and unloading of any goods or
materials delivered to or sent from the Premises to be done only in the loading
dock area of the Premises or, if no loading dock area is located at the
Premises, then at the loading dock area of the Building or such other dock area
as Lessor may designate. Under no circumstances shall Lessee allow any goods or
materials delivered to or sent from the Premises to be stored on, accumulate on
or obstruct the loading dock area, dumpster pad, sidewalks, driveways, parking
areas, entrances or other public areas or spaces of the Building or the
Property. Lessee acknowledges that violations of this Paragraph 5.3 shall
constitute a material breach of this Lease.
5.4 Lessee shall not perform or permit any work, including, but not
limited to, assembly, construction, mechanical work, painting, drying, layout,
cleaning, or repair of goods or materials, to be done on the loading dock,
sidewalks, driveways, parking areas, landscaped areas of the Building or the
Property.
5.5 Lessee shall not use, handle, store, deal in, discharge, or
fabricate any environmentally hazardous wastes, substances or materials as the
same are now or hereafter may be defined or classified by any local, state, or
federal environmental protection legislation or regulation issued pursuant
thereto.
5.6 Lessee shall not abandon or vacate the Premises at any time during
the Lease Term. Notwithstanding anything to the contrary contained in this
Lease, if Lessee deserts or vacates the Premises, Lessor's sole remedy for such
default shall be to terminate this Lease without further liability on the part
of the Lessor or Lessee. The preceding sentence is not intended and shall not be
deemed to waive or limit any of Lessor's rights or remedies in connection with
or based on any default other than vacation or desertion.
6. UTILITIES AND SERVICE.
6.1 Except to the extent directly contracted for by Lessee, Lessor shall
furnish or cause to be furnished to the Premises between 7:00 a.m. and 6:00 p.m.
Monday through Friday and between 8:00 a.m. and 1:00 p.m. on Saturdays,
exclusive of all holidays, subject to any rules and regulations of the Building,
water and sewer services suitable for Lessee's intended use of the Premises,
electricity as set forth in Paragraph 6.2 hereof, and heat and air conditioning
required in Lessor's reasonable judgment for the comfortable use and
-3-
<PAGE>
occupation of the Premises. As used in this Paragraph 6.1, the term "holiday"
shall mean New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Should Lessee desire either heating or air
conditioning at other times, Lessor agrees to provide same upon reasonable
advance request by Lessee, but at Lessee's expense, at such hourly rates as
reasonably may be determined from time to time by Lessor, which charge Lessee
shall pay within thirty (30) days after being billed therefor. Lessor shall
provide lighting facilities for the common entries, hallways, stairways, and
restroom facilities in the Building. Lessee will install and pay for its own
telephone service.
6.2 Lessor, at Lessor's sole cost and expense, shall cause to be
furnished to the Premises sufficient power for building standard fluorescent
lighting, personal computers, normal office copying machines, typewriters, voice
writers, calculating machines, and other normal office machines of similar low
electrical consumption; but not including electricity required for electronic
data processing equipment, special lighting, or any other item of electrical
equipment which singly consumes more than 0.25 kilowatts at rated capacity or
requires a voltage other than 120 volts single phase except as expressly
provided in this Lease. Lessor shall provide Lessee an electrical allowance with
up to $1.60/ft. per year ($21,995.20) for electricity, and any cost of
electrical consumption in excess of such allowance shall be the expense of
Lessee. Lessee shall pay any excess electrical charges to Lessor at the end of
the first year of occupancy by Lessee. In years 2 - 5 of the Lease Term, Lessee
shall pay to Lessor on a monthly basis an estimate of the excess electrical
costs, which shall be based on the previous year's actual cost with appropriate
adjustments based upon any increases in electrical rates by the provider of such
utility. At the end of each Lease year, Lessor shall provide Lessee with an
accounting of the electrical usage and reconcile with Lessee on actual versus
budgeted. If there is money due Lessee in any year, Lessor shall within thirty
(30) days provide Lessee with the difference. As well if monies are owed to
Lessor in any year then Lessee shall within thirty (30) days provide Lessor with
the amount of the shortfall. It is understood by Lessee that Lessor currently
sub meters the entire first floor and that for purposes of calculating Lessee's
power consumption the electrical consumption costs for all other tenants on the
floor will b calculated at $1.60 p.s.f. per year throughout their lease terms
and assuming no coverage by such other tenants on the floor. Lessee shall not
install or use any equipment using electric power other than that described in
this paragraph without the prior written consent of Lessor which consent shall
not be unreasonably withheld or delayed, and, if Lessor gives written consent,
then Lessee shall pay the cost of the power to operate the equipment, as
determined by Lessor, and if the installation of such electrical equipment
requires additional air conditioning capacity above that provided by the
building standard system, then the additional air conditioning installation and
operating costs will be the obligation of Lessee.
6.3 Lessor shall not be held liable for any damage or injury suffered by
Lessee or by any of Lessee's invitees, licensees, agents, servants, employees,
contractors, or subcontractors or any other person or entity engaged, invited,
or allowed to come onto the Premises by Lessee (hereinafter collectively
referred to as "Lessee Parties"), resulting directly, indirectly, proximately,
or remotely from the installation, use, or interruption of any utility service
to the Premises or Building, including, but not limited to, temporary failure to
supply any heating, air conditioning, electrical, water, or sewer services, or
any of them. No temporary failure to provide services shall relieve Lessee from
fulfillment of any covenant of this Lease, including, without limitation, the
covenant to pay any Amount Due in the manner and amounts, and promptly at the
times set forth herein.
6.4 Lessor shall furnish Lessee janitorial service five (5) days per
week, exclusive of holidays, in a manner that Lessor reasonably deems to be
consistent with the first-class standard of the Building.
-4-
<PAGE>
7. MAINTENANCE.
7.1 Except for damage arising from the negligence of Lessee or the
Lessee Parties, Lessor shall keep the roof, foundation, exterior walls, common
areas, and all sewer and utility lines of the Building, including all sewer
connections, plumbing, heating appliances, wiring, and glass, in good order and
repair, shall furnish Lessee all Building standard fluorescent bulb replacement
in all areas and all incandescent bulb replacement in the common areas and
service areas within the Building. Notwithstanding anything to the contrary
contained herein and except as otherwise provided in the preceding sentence,
Lessor shall have no obligation to maintain, replace, or repair any other
improvements located within the Premises, the maintenance of which is and shall
be the responsibility of Lessee.
7.2 Lessor shall have no obligation to make any repairs unless and until
Lessee notifies Lessor in writing of the necessity thereof, in which event
Lessor shall have reasonable time in which to make such repairs; however, Lessee
may notify Lessor verbally of any minor, routine or day-to-day repairs which
need to be made.
7.3 Subject to Lessor's obligation to provide janitorial services,
Lessee shall keep the Premises free from all litter, dirt, debris, and
obstructions and in a clean and sanitary condition. Except as otherwise provided
in the first sentence of paragraph 7.1 hereof, Lessee shall maintain, replace,
and repair all improvements located within the Premises, including, but not
limited to, finishes, wall coverings, carpets, floor coverings, utility lines,
sewer connections, plumbing, wiring and glass, which are or were installed for
Lessee. At the expiration or other termination of this Lease, Lessee shall
surrender the Premises (and keys thereto) in as good condition as when received,
loss by fire or other casualty not the result of any act or omission by Lessee
or ordinary wear and tear excepted only.
8. FORCE MAJEURE. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive government laws or regulations, riots,
insurrection, war, or other reason of a like nature other than finance not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of the delay. The provisions of
this Section 8 shall not cancel, postpone, or delay the due date of any payment
to be made by Lessee hereunder, nor operate to excuse Lessee from prompt payment
of any Amount Due required by the terms of this Lease.
9. PROPERTY AND LIABILITY INSURANCE.
9.1 Throughout the Lease Term, Lessor will insure for full replacement
value, the Building (excluding foundations and excavations), the Building
standard leasehold improvements, and the machinery, boilers, and equipment
contained therein owned by Lessor (excluding any property Lessee is obliged to
insure pursuant to Paragraph 9.3 below) against damage by fire and the perils
insured in the standard extended coverage endorsement. Lessor shall also,
throughout the Lease Term, carry public liability insurance in an amount not
less than $1,000,000 for any one occurrence with respect to the ownership and
operation of the Building.
9.2 Lessee shall comply with all insurance regulations so the lowest
fire, extended coverage, and liability insurance rates available for use of the
Building as normal office space may be obtained by Lessor and will not use or
keep any substance or material in or about the Premises which may vitiate or
endanger the validity of insurance on the Building, increase the hazard or the
risk beyond that for a normal office building, or result in an increase in
premium on the insurance on the Building. If any insurance policy upon the
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Premises or the Building or any part thereof shall be canceled or shall be
threatened by the insurer to be canceled, the coverage thereunder reduced or
threatened to be reduced, or the premium therefor increased or threatened to be
increased in any way by the insurer by reason of the use and occupation of the
Premises by Lessee or by any assignee or subtenant of Lessee and if Lessee fails
to remedy the condition giving rise to the cancellation, reduction, or premium
increase or threat thereof within twenty-four (24) hours after notice thereof by
Lessor, Lessor may, at its option, do any one of the following:
9.2.1 Declare a default by Lessee, and thereupon the provisions of
Section 12 shall apply; or
9.2.2 Enter upon the Premises and remedy the condition giving rise
to the cancellation, reduction, or premium increase or threat thereof, and in
such event, Lessee shall forthwith pay the cost thereof to Lessor as additional
rent; and if Lessee fails to pay such cost, Lessor may declare a default by
Lessee and thereupon the provisions of Section 12 shall apply (Lessor shall not
be liable for any damage or injury caused to any property of Lessee or of others
located on the Premises as a result of the re-entry); or
9.2.3 If the sole action taken by the insurer is to raise the
premium or other monetary cost of the insurance, demand payment from Lessee of
the premium or other cost as additional rent hereunder, and if Lessee fails to
pay the increase to Lessor within ten (10) days of demand by Lessor, Lessor may
declare a default by Lessee and thereupon the provisions of Section 12 shall
apply. Lessee acknowledges that it has no right to receive any proceeds from any
insurance policies carried by Lessor and that such insurance will be for the
sole benefit of Lessor with no coverage for Lessee for any risk insured against.
9.3 Lessee shall, during its occupancy of the Premises and during the
entire Lease Term, at its sole cost and expense, obtain, maintain, and keep in
full force and effect, and with Lessee, Lessor, and Lessor's mortgagees named as
additional insured therein as their respective interests may appear, the
following types and kinds of insurance:
9.3.1 Upon property of every description and kind owned by Lessee
and located in the Building or for which Lessee is legally liable or which was
installed by or on behalf of Lessee, including, without limitation, furniture,
fittings, installations, alterations, additions, partitions, and fixtures
(excluding, however, those improvements, if any, installed by Lessor in
accordance with paragraph 10.1 hereof), against all risk of loss in an amount
not less than one hundred percent (100%) of the full replacement cost thereof;
9.3.2 Public liability insurance in an amount not less than
$1,000,000.00 for any one occurrence or such higher limits as Lessor may
reasonably require from time to time; the insurance shall include coverage
against liability for bodily injuries or property damage arising out of the use
by or on behalf of Lessee of owned, non-owned, or hired automobiles and other
vehicles for a limit not less than that specified above; and shall also include
coverage for "Fire Legal" liability with respect to the Premises in an amount
not less than $100,000 or such higher limits as Lessor may reasonably require
from time to time.
9.3.3 Workers' compensation insurance in the amount required by law
to protect Lessee's employees; and
9.3.4 Any other form or forms of insurance that Lessor may
reasonably require from time to time, in form, in amounts, and for insurance
risks against which a prudent tenant would protect itself.
9.4 All insurance policies shall be taken out with companies acceptable
to Lessor licensed and registered to operate in the State of Georgia and in form
reasonably satisfactory to Lessor. The insurance may be by blanket insurance
policy or policies. Lessee shall deliver certificates evidencing the insurance
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policies and any endorsement, rider, or renewal thereof, to Lessor. Certificates
evidencing renewals shall be delivered to Lessor no later than fifteen (15) days
after each renewal, as often as renewal occurs, and in no event less than
fifteen (15) days prior to the date on which the policy would otherwise expire.
All insurance policies shall require the insurer to notify Lessor and Lessor's
mortgagees in writing thirty (30) days prior to any material change,
cancellation, or termination thereof.
9.5 Lessor and Lessee hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured or insurable (whether or not such
insurance is obtained) in policies of fire and extended coverage insurance
covering such property even if such loss or damage shall have been caused by the
fault or negligence of the other party, or any one for whom such party may be
responsible (other than acts, such as intentional wrongdoing or criminal
conduct, that are not waived in the standard waiver of subrogation provision in
commercial property insurance at the time of the loss or damage).
10. ALTERATIONS AND IMPROVEMENTS.
10.1 Lessor shall improve the Premises in accordance with working
drawings to be approved by Lessee and Lessor prior to commencement of
construction. The Premises will be prepared generally in accordance with the
plans shown on EXHIBIT "C", attached hereto and by this reference made a part
hereof. Notwithstanding the above Lessor shall provide Lessee a tenant
improvement allowance equal to $9.00 per square foot or $123,723. These monies
are to be used toward the improvement of the Premises subject to Lessor's
reasonable approval and the above allowance shall also be applied toward the
costs associated with architectural design, engineering, and construction
supervision (5%) to complete the tenant improvement work. Any cost to improve
the Premises in excess of the allowance provided for herein will be at the
expense of Lessee.
10.2 Lessee shall not make any alterations, additions, or improvements
in or to the Premises, nor install or attach fixtures in or to the Premises,
without the prior written consent of Lessor, which consent Lessor shall not
unreasonably withhold, delay or condition. If Lessor does not respond in writing
to Lessee's request for consent within ten (10) business days of receipt of
Lessee's request therefor, Lessee shall be deemed to have given consent. All
alterations, additions, or improvements made, installed in, or attached to the
Premises by Lessee, upon the consent specified above, shall be made at Lessee's
expense in a good and workmanlike manner, strictly in accordance with the plans
and specifications approved by Lessor, all applicable laws, ordinances,
regulations, and other requirements of any appropriate governmental authority,
and any applicable covenants or other restrictions. Prior to the commencement of
any such work, Lessee shall deliver to Lessor certificates issued by insurance
companies licensed and registered to operate in the State of Georgia evidencing
that workers' compensation insurance and public liability insurance, all in
amounts satisfactory to Lessor, are in force and effect and maintained by all
contractors and subcontractors engaged by Lessee to perform the work.
10.3 Lessee shall keep the Premises free from all liens, preliminary
notices of liens, right to liens, or claims of liens of contractors,
subcontractors, mechanics, or material men for work done or materials furnished
to the Property at the request of Lessee. Whenever and so often as any such lien
shall attach or claims or notices thereof shall be filed against the Property or
any part thereof as a result of work done or materials furnished to the Property
at the request of Lessee, Lessee shall, within ten (10) days after Lessee has
notice of the claim or notice of lien, cause it to be discharged of record,
which discharge may be accomplished by deposit or bonding proceedings. If Lessee
shall fail to cause the lien, or such claim or notice thereof, to be discharged
within the ten-day period, then, in addition to any other right or remedy,
Lessor may, but shall not be obligated to, discharge it either by paying the
amount claimed to be due or by procuring the discharge of the
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lien, or claim or notice thereof, by deposit or bonding proceedings. Any amount
so paid by Lessor and all costs and expenses, including, without limitation,
attorneys' fees, incurred by Lessor in connection therewith, shall constitute
additional rent payable by Lessee under this Lease and shall be paid by Lessee
in full on demand of Lessor together with interest thereon at the rate set forth
in paragraph 2.2 hereof from the date it was paid by Lessor. Lessee shall not
have the authority to subject the interest or estate of Lessor to any liens,
rights to liens, or claims of liens for services, materials, supplies, or
equipment furnished to Lessee, and all persons contracting with Lessee are
hereby charged with notice that they must look to Lessee and to Lessee's
interest only to secure payment.
10.4 All alterations, additions, or improvements, including, but not
limited to, fixtures, partitions, counters, and window and floor coverings,
which may be made or installed by either of the parties hereto upon the
Premises, irrespective of the manner of annexation, and irrespective of which
party may have paid the cost thereof, excepting only movable office furniture
and shop equipment put in at the expenses of Lessee, shall be the property of
Lessor, and shall remain upon and be surrendered with the Premises as a part
thereof at the expiration or other termination of this Lease, without
disturbance, molestation, or injury. Notwithstanding the foregoing, however,
Lessor may elect that any or all installations made or installed by or on behalf
of Lessee be removed at the end of the Lease Term, and, if Lessor so elects, it
shall be Lessee's obligation to restore the Premises to the condition they were
prior to the alterations, additions, or improvements on or before the expiration
or other termination of this Lease; provided, however, that Lessor shall make
such election to require Lessee to remove installations at the time Lessor gives
its consent to allow Lessee to install same. Such removal and restoration shall
be at the sole expense of Lessee. Further, notwithstanding anything contained
herein to the contrary except as otherwise provided in paragraph 9.3.1 hereof,
Lessor shall be under no obligation to insure the alterations, additions, or
improvements or anything in the nature of a leasehold improvement made or
installed by or on behalf of Lessee, the Lessee Parties, or any other person,
and such improvements shall be on the Premises at the risk of Lessee only.
10.5 In the event Lessor makes any capital investment, major structural
repairs or improvements in or to the Premises or Building which are required due
to any willful act or omission of Lessee or any of the Lessee Parties, any and
all cost and expenses incurred by Lessor in making the capital investment, major
structural repairs, or improvements shall constitute additional rent payable by
Lessee under this Lease and shall be paid by Lessee in full on demand of Lessor,
together with interest thereon from the date of the demand at the rate set forth
in paragraph 2.2 hereof.
11. ASSIGNMENT OR SUBLETTING.
11.1 Lessee shall not assign this Lease, or any interest herein, or
sublet or allow any other person, firm, or corporation to use or occupy the
Premises, or any part thereof, without the prior written consent of Lessor,
which consent will not be unreasonably withheld or delayed. If Lessor does not
respond in writing to Lessee's request for consent within ten (10) business days
of receipt of Lessee's request therefor, Lessor shall be deemed to have given
consent. Lessor shall have the right to make such investigations as it deems
reasonable and necessary in determining the acceptability of the proposed
assignee or subtenant. Such investigations may include inquiries into the
financial background, business history, capability of the proposed assignee or
subtenant in its line of business, and the quality of its operations. Under no
circumstances shall Lessor be obligated to consent to the assignment of this
Lease or the subletting of the Premises to any entity whose operations violate
the restrictive covenants described in Section 26 hereof. Lessee shall provide
to Lessor such information as Lessor may reasonably require to enable it to
determine the acceptability of the proposed assignee or subtenant, including
information concerning all of the foregoing matters, and Lessor shall have no
obligation to consent to any assignment or subletting unless it has received
from Lessee (at no cost or expense to Lessor) the most recent audited financial
statements of the proposed assignee or subtenant and such other information as
Lessor reasonably requires. For purposes of this Section 11, an assignment of
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stock or other ownership interest in Lessee shall be deemed an assignment within
the meaning of and be governed by this Paragraph. No assignment or subletting
(with or without the consent of Lessor) shall release Lessee from its
obligations under this Lease nor shall Lessee permit this Lease or any interest
herein or in the tenancy hereby created to become vested in or owned by any
other person, firm, or corporation by operation of law or otherwise. The power
of Lessor to give or withhold its consent to any assignment or subletting shall
not be exhausted by the exercise thereof on one or more occasions, but shall be
a continuing right and power with respect to any type of transfer, assignment or
subletting.
11.2 If Lessee shall assign this Lease or sublet the Premises in any way
not authorized by the terms hereof, the acceptance by Lessor of any Amount Due
from any person claiming as assignee, sublease, or otherwise shall not be
construed as a recognition of or consent to the assignment or subletting or as a
waiver of the right of Lessor thereafter to collect any rent from Lessee, it
being agreed that Lessor may at any time accept any Amount Due under this Lease
from any person offering to pay it without thereby acknowledging the person so
paying as a lessee in place of Lessee herein named, and without releasing Lessee
from the obligations of this Lease, and without recognizing the claims under
which such person offers to pay any Amount Due, but it shall be taken to be a
payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this Lease,
Lessee shall have the right, without the prior consent of Lessor but subject to
Lessor's rights to notice and prohibitions contained herein, to assign this
Lease or sublet the whole or any part of the Premises to a corporation or entity
which: (1) is Lessee's parent corporation; or (2) is a wholly-owned subsidiary
of Lessee or Lessee's parent corporation; or (3) is a corporation of which
Lessee or Lessee's parent corporation owns in excess fifty percent (50%) of the
outstanding capital stock; or (4) is a result of consolidation or merger with
Lessee and/or Lessee's parent corporation; or (5) is a corporation to which
substantially all of Lessee's assets have been transferred. Any transfer
pursuant to 1, 2, 3, 4 or 5 above, shall be subject to the following conditions:
(a) Lessee shall remain fully liable during the unexpired term of this Lease;
and (b) any such assignment, sublease or transfer shall be subject to all of the
terms, covenants and conditions of this Lease, and such assignee, sublessee or
transferee shall expressly assume the obligations of Lessee under this Lease by
a document reasonably satisfactory to Lessor. Lessee shall have the obligation
to give Lessor prior written notice of its intent of any such arrangement, and
if Lessor reasonably determines that the proposed assignee or sublessee is
engaged in a business which would materially interfere with the operation of the
Property or that permitting the assignment or subletting would cause a violation
by Lessor of its obligations under any lease covering a portion of the property,
Lessor shall have the right to prohibit such arrangement based upon the issue of
the business of the proposed assignee or sublessee or the compatability of the
proposed assignee or sublessee with the businesses in the Building.
12. DEFAULTS.
12.1 In the event that (i) Lessee shall fail to pay the Base Rent or any
other Amount Due for more than ten (10) days after its due date, or (ii) Lessee
shall fail to comply with any of the terms, covenants, conditions, or agreements
herein contained or any of the rules and regulations now or hereafter
established for the government of the Building and such failure to comply
continues for thirty (30) days after Lessor's written notice to Lessee thereof,
or (iii) Lessee shall fail for more than thirty (30) days after written notice
thereof from Lessor to Lessee to comply (or fail to diligently pursue within
thirty (30) days compliance which cannot reasonably be completed with such
thirty (30) day period and within sixty (60) days comply with) with any term,
provision, condition or covenant of any other agreement between Lessor and
Lessee; then Lessor shall have the option, but not the obligation, to do any one
or more of the following in addition to, and not in limitation of, any other
remedy permitted by law, in equity or by this Lease:
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12.1.1 Terminate this Lease, in which event Lessee shall surrender
the Premises to Lessor immediately upon expiration of ten (10) days from the
date of the service upon Lessee of written notice to that effect, without any
further notice or demand. In the event Lessor shall become entitled to the
possession of the Premises by any termination of this Lease herein provided, and
Lessee shall refuse to surrender or deliver up possession of the Premises after
the service of such notice, then Lessor may, without further notice or demand,
enter into and upon the Premises, or any part thereof, and take possession of
and repossess the Premises as Lessor's former estate, and expel, remove, and put
out of possession Lessee and its effects, using such help, assistance and force
in so doing as may be needful and proper, without being liable for prosecution
or damages therefor, and without prejudice to any remedy allowed by law
available in such cases. Lessee shall indemnify Lessor for all loss, cost,
expense, and damage which Lessor may suffer by reason of the termination,
whether through inability to relet the Premises, or through decrease in rent or
otherwise. In the event of such termination, Lessor may, at its option, recover
forthwith as damages a sum of money equal to the total of (a) the cost of
recovering the Premises (including, without limitation, attorneys' fees and cost
of suit), (b) the unpaid rent earned at the time of termination, plus late
charges and interest thereon at the rate specified in paragraph 2.2 hereof, (c)
the present value (discounted at the rate of 8% per annum) of the balance of the
rent for the remainder of the Lease Term less the present value (discounted at
the same rate) of the fair market rental value of the Premises for said period,
and (d) any other sum of money and damages owed by Lessee to Lessor.
12.1.2 Without terminating this Lease, retake possession of the
Premises and rent the Premises, or any part thereof, for such term or terms and
for such rent and upon such conditions as Lessor may, in its sole discretion,
think best, making such changes, improvements, alterations, and repairs to the
Premises as may be required. All rent received by Lessor from any reletting
shall be applied first to the payment of any indebtedness other than rent due
hereunder from Lessee; second, to the payment of any costs and expenses of the
reletting, including but not limited to brokerage fees, attorneys' fees and
costs of such changes, improvements, alterations, and repairs; third, to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Lessor and applied in payment of future rent or damage as they may become due
and payable hereunder. If the rent received from the reletting during the Lease
Term is at any time insufficient to cover the costs, expenses, and payments
enumerated above, Lessee shall pay any deficiency to Lessor, as often as it
shall arise, on demand.
12.1.3 Correct or cure the default and recover any amount expended
in so doing, together with interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor resulting
directly, indirectly, proximately, or remotely from the default, including but
not limited to reasonable attorneys' fees.
12.2 In addition to any other rights which Lessor may have, Lessor, in
person or by agent, may enter upon the Premises and take possession of all or
any part of Lessee's property in the Premises, and may sell all or any part of
such property at a public or private sale, in one or successive sales, with or
without notice, to the highest bidder for cash, and, on behalf of Lessee, sell
and convey all or part of the property to the highest bidder, delivering to the
highest bidder all of Lessee's title and interest in the property sold to him.
The proceeds of the sale of the property shall be applied by Lessor toward the
reasonable costs and expenses of the sale, including, without limitation,
attorneys' fees, and then toward the payment of all sums then due by Lessee to
Lessor under the terms of this Lease. Any excess remaining shall be paid to
Lessee or any other person entitled thereto by law. Such sale shall bar Lessee's
right of redemption.
12.3 In the event of a default or threatened default under this Lease by
Lessee, Lessor shall be entitled to all equitable remedies, including, without
limitation, injunction and specific performance.
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12.4 Pursuit of any of the remedies herein provided shall not preclude
the pursuit of any other remedies herein provided or any other remedies provided
at law or in equity. Failure by Lessor to enforce one or more of the remedies
herein provided shall not be deemed or construed to constitute a waiver of any
default, or any violation or breach of any of the terms, provisions, or
covenants herein contained.
13. BANKRUPTCY. The filing or preparation for filing by or against Lessee of
any petition in bankruptcy, insolvency, or for reorganization under the Federal
Bankruptcy Code, any other federal or state law now or hereafter relating to
insolvency, bankruptcy, or debtor relief, or an adjudication that Lessee is
insolvent, bankrupt, or an issuance of an order for relief with respect to
Lessee under the Federal Bankruptcy Code, any other federal or state law now or
hereafter relating to insolvency, bankruptcy, or debtor relief, or the execution
by Lessee of a voluntary assignment for the benefit of, or a transfer in fraud
of, its general creditors, or the failure of Lessee to pay its debts as they
mature, or the levying on under execution of the interest of Lessee under this
Lease, or the filing or preparation for filing by Lessee of any petition for a
reorganization under the Federal Bankruptcy Code, or for the appointment of a
receiver or trustee for a substantial part of Lessee's assets or to take charge
of Lessee's business, or of any other petition or application seeking relief
under any other federal or state laws now or hereafter relating to insolvency,
bankruptcy, or debtor relief, or the appointment of a receiver or trustee for a
substantial part of Lessee's assets or to take charge of Lessee's business,
shall automatically constitute a default in this Lease by Lessee for which
Lessor may, at any time or times thereafter, at its option, exercise any of the
remedies and options provided to Lessor in Section 12 hereof; provided, however,
that if such petition be filed by a third party against Lessee, and Lessee
desires in good faith to defend against the petition and is not in any way in
default of any obligation hereunder at the time of filing the petition, and
Lessee within ninety (90) days thereafter procures a final adjudication that it
is solvent and a judgment dismissing the petition, then this Lease shall be
fully reinstated as though the petition had never been filed. In the event
Lessor elects to terminate this Lease as provided for in this Section, Lessee
shall pay forthwith to Lessor as liquidated damages, the difference between the
unpaid rent reserved in this Lease at the time of such termination and the then
reasonable rental value of the Premises for the balance of the Lease Term, and
Lessee acknowledges that said sum is reasonable and shall not be construed as a
penalty.
14. DAMAGE AND CONDEMNATION.
14.1 In the event during the Lease Term the Premises are damaged by fire
or other casualty, but not to such an extent that repairs and rebuilding cannot
reasonably be completed within one hundred twenty (120) days of the date of the
event causing the damage, Lessor may, at Lessor's option, repair and rebuild the
Premises. If Lessor elects to repair and rebuild the Premises, this Lease shall
remain in full force and effect, but Lessor may require Lessee temporarily to
vacate the Premises while they are being repaired and, subject to the provisions
of this Paragraph 14.1, rent shall abate during this period to the extent that
the Premises are untenantable; provided, however, that Lessor shall not be
liable to Lessee for any damage or expense which temporarily vacating the
Premises may cause Lessee. If the Premises are not repaired, rebuilt, or
otherwise made suitable for occupancy by Lessee within the aforesaid one hundred
twenty (120) day period, Lessee shall have the right, by written notice to
Lessor, to terminate this Lease, in which event rent shall be abated for the
unexpired Lease Term, effective as of the date of the written notification, but
the other terms and conditions of this Lease shall continue and remain in full
force and effect until Lessee shall have vacated the Premises, removed all
Lessee's personal property therefrom and delivered peaceable possession thereof
to Lessor. If Lessor elects not to repair and rebuild the Premises or if the
Building or any part thereof be so damaged that repairs and rebuilding cannot
reasonably be completed within one hundred twenty (120) days of the date of the
event causing the damage, Lessor may by written notice to Lessee terminate this
Lease in which event rent shall be abated for the unexpired Lease Term,
effective as of the date of the written notification, but the other terms and
conditions of this Lease shall continue and remain in full force and effect
until Lessee shall have vacated the Premises, removed all Lessee's personal
property therefrom and delivered peaceable possession thereof to Lessor. Failure
by Lessee to comply with any provision of this Paragraph 14.1 shall
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subject Lessee to such costs, expenses, damages, and losses as Lessor may incur
by reason of Lessee's breach hereof. Notwithstanding any provision of this Lease
to the contrary, if the Premises, the Building, or any part thereof are damaged
by fire or other casualty caused by or materially contributed to by the
negligence or misconduct of Lessee or any of the Lessee Parties, Lessee shall be
fully responsible, to the extent not covered by insurance, for repairing,
restoring, or paying for the damage as Lessor shall direct and this Lease shall
remain in full force and effect without reduction or abatement of rent.
14.2 In the event the Building shall be taken, in whole or in part, by
condemnation or the exercise of the right of eminent domain, or if in lieu of
any formal condemnation proceedings or actions, if any, Lessor shall sell and
convey the Premises, or any portion thereof, to the governmental or other public
authority, agency, body, or public utility, seeking to take the Premises, the
Property or any portion thereof, then Lessor, at its option, may terminate this
Lease upon ten (10) days' prior written notice to Lessee and prepaid rent shall
be proportionately refunded from the date of possession by the condemning
authority. All damages awarded for the taking, or paid as the purchase price for
the sale and conveyance in lieu of formal condemnation proceedings, whether for
the fee or the leasehold interest, shall belong to and be the property of
Lessor; provided, however, Lessee shall have the sole right to reclaim and
recover from the condemning authority, but not from Lessor, such compensation as
may be separately awarded or recoverable by Lessee in Lessee's own right on
account of any and all costs or loss (including loss of business) to which
Lessee might be put in removing Lessee's merchandise, furniture, fixtures,
leasehold improvements, and equipment to a new location. Lessee shall execute
and deliver any instruments, at the expense of Lessor, that Lessor reasonably
may deem necessary to expedite any condemnation proceedings, to effectuate a
proper transfer of title to such governmental or other public authority, agency,
body or public utility seeking to take or acquire the lands and Premises, or any
portion thereof. Lessee shall vacate the Premises, remove all Lessee's personal
property therefrom and deliver up peaceable possession thereof to Lessor or to
such other party designated by Lessor in the aforementioned notice. Failure by
Lessee to comply with any provisions of this Paragraph 14.2 shall subject Lessee
to such costs, expenses, damages, and losses as Lessor reasonably may incur by
reason of Lessee's breach hereof. If Lessor chooses not to terminate this Lease,
then to the extent and availability of condemnation proceeds received by Lessor
and subject to the rights of any mortgagee thereto, Lessor shall, at the sole
cost and expense of Lessor and with due diligence and in a good and workmanlike
manner, restore and reconstruct the Premises within one hundred twenty (120)
days after the date of the physical taking, and such restoration and
reconstruction shall make the Premises reasonably tenantable and suitable for
the general use being made by Lessee prior to the taking and shall restore the
Premises to its condition immediately prior to the taking, reasonable wear and
tear expected; provided, however, that Lessor shall have no obligation to
restore and reconstruct Lessee's leasehold improvements unless and to the extent
that Lessor receives an award of condemnation proceeds specifically designated
as compensation for such improvements. Notwithstanding the foregoing, if Lessor
has not completed the restoration and reconstruction within one hundred twenty
(120) days after the date of physical taking, Lessee, in addition to any other
rights and remedies Lessee may have, shall have the right to cancel this Lease.
If this Lease continues in effect after the physical taking, the rent payable
hereunder shall be equitably adjusted in proportion to the percentage of the
Premises taken or rendered unusable as a result of such taking, both during the
period of restoration and reconstruction and during the unexpired portion of the
Lease Term.
14.3 In the event Lessor, during the Lease Term, shall be required by any
governmental authority or the order or decree of any court, to repair, alter,
remove, reconstruct, or improve (hereinafter collectively called "Repairs") any
part of the Premises, then the Repairs may be made by and at the expense of
Lessor and shall not in any way affect the obligations or covenants of Lessee
herein contained, and Lessee hereby waives all claims for damages or abatement
of rent because of the Repairs. If the Repairs shall render the Premises
untenantable and if the Repairs are not completed within one hundred twenty
(120) days after the date of the notice, requirement, order, or decree, either
party hereto upon written notice to the other party given not later than one
hundred thirty (130) days after the date of the notice, requirement, order, or
decree, may
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terminate this Lease, in which case rent shall be apportioned and paid to the
date the Premises were rendered untenantable; provided however that where the
requirement by a governmental authority having jurisdiction to repair, alter,
remove, reconstruct, or improve any part of the Premises arises out of any act
or omission by Lessee, then the Repairs shall be effected promptly at the sole
cost and expense of Lessee and there shall not, in any event, be any abatement
of rent nor any right in Lessee to terminate this Lease whether or not the
completion of the Repairs takes more than one hundred twenty (120) days.
15. TAXES. Lessor shall pay all taxes, assessments, and other governmental
charges, general or special, ordinary or extraordinary, foreseen or unforeseen,
including any installments thereof, levied, assessed, or otherwise imposed by
any lawful authority or payable with respect to the Property or the Building.
16. LIABILITY OF LESSOR.
16.1 Subject to paragraph 9.5 hereof, Lessee shall indemnify, defend,
and hold harmless Lessor, at Lessee's expense, against (a) any default by Lessee
or any permitted assignee or subtenant hereunder; (b) any act or negligence of
Lessee, Lessee's licensees, agents, servants, employees, contractors or
subcontractors; (c) any act or negligence of the Lessee's invitees or any other
person or entity invited or allowed to come onto the Premises by Lessee,
occurring within the Premises; and (d) all claims for damages to persons or
property by reason of Lessee's use or occupancy of the Premises. Lessee shall
not be liable to Lessor, or Lessor's agents, servants, employees, contractors,
customers or invitees for any damage to person or property caused by any act,
omission or neglect of Lessor, its agents, servants or employees. Moreover,
Lessor shall not be liable for any damage, injury, destruction, or theft to or
of the Premises, the personal property of Lessee or any of the Lessee Parties,
Lessee, or any of the Lessee Parties arising from any use or condition of the
Premises, or any sidewalks, entrance ways, or parking areas serving the
Premises, or the act or neglect of co-tenants or any other person, or the
malfunction of any equipment or apparatus serving the Premises, or any loss
thereof by mysterious disappearance or otherwise, except for such resulting from
the negligence or willful act of Lessor. Any and all claims against Lessor for
any damage referred to, but not excepted, in this Section 16 are hereby waived
and released by Lessee.
16.2 Lessee expressly agrees to look solely to Lessor's interest in the
Property for the recovery of any judgment against Lessor, it being agreed that
Lessor (and its partners and shareholders) shall never be personally liable for
any such judgment. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Lessee might otherwise have to
obtain injunctive relief against Lessor or Lessor's successors-in-interest.
17. RIGHT OF ENTRY.
17.1 Lessor reserves the right, for itself, its mortgagees, or their
respective agents and duly authorized representatives, following reasonable
notice to Lessee except in the case of emergency in which case no notice should
be required, to enter and be upon the Premises at any time and from time to time
to inspect the Premises and to repair, maintain, alter, improve, and remodel,
but Lessor shall not materially interfere with Lessee's normal operation except
in case of an emergency. Lessee shall not be entitled to any compensation,
damages, or abatement or reduction in rent on account of any such repairs,
maintenance, alterations, improvements or remodeling. Except as otherwise
provided in this Lease, nothing contained in this Paragraph 17.1 shall imply any
duty on the part of Lessor to repair, maintain, alter, improve, or remodel.
17.2 After notice to Lessee, Lessee shall permit Lessor or Lessor's
agents at any reasonable hour of the day to enter into or upon and go through
and view the Premises and to exhibit the Premises to prospective purchasers or
tenants.
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18. BUILDING RULES AND REGULATIONS. Lessor reserves the right to establish
commercially reasonable rules and regulations pertaining to the use and
occupancy of the Building, which rules and regulations may be changed by Lessor
from time to time. Lessee shall comply with any rules and regulations
established by Lessor pursuant to this Section 18. Building Rules and
Regulations are stated on EXHIBIT "F", attached hereto and by this reference
made a part hereof.
19. PROPERTY LEFT ON THE PREMISES. Upon the expiration of this Lease, or if
the Premises should be abandoned by Lessee, or if this Lease should terminate
for any cause, or if Lessee should be dispossessed after default, if at the time
of any such expiration, abandonment, termination or dispossession, Lessee or its
assignees, subtenants, agents, servants, employees, contractors, or any other
person controlled by Lessee or claiming under Lessee should leave any property
of any kind or character in or upon the Premises, if such property remains in
the Premises for ten (10) days after Lessor has given notice to Lessee pursuant
to Paragraph 34 herein, such property shall be the property of Lessor and the
fact of such leaving of property in or upon the Premises shall be conclusive
evidence of the intent by Lessee or such person to abandon such property so left
in or upon the Premises, and such leaving shall constitute abandonment of the
property. It is understood and acknowledged by the parties hereto that none of
Lessor's servants, agents, or employees, have or shall have the actual or
apparent authority to waive any portion of this Section 19, and neither Lessee
nor any other person designated above shall have any right to leave any such
property upon the Premises beyond the time set forth herein without the written
consent of Lessor. Lessor, its agents or attorneys, shall have the right and
authority, if such property remains in the Premises for ten (10) days after
Lessor has given notice to Lessee pursuant to Paragraph 34 herein, to remove and
destroy, store, sell or otherwise dispose of, such property, or any part
thereof, without being in any way liable to Lessee or anyone else therefor.
Lessee shall be liable to Lessor for all reasonable and necessary expenses
incurred in such removal and destruction, storage, sale or other disposition of
such property. The said property removed or the proceeds from the sale or other
disposition thereof shall belong to the Lessor as compensation for the removal
and disposition of said property.
20. OTHER INTERESTS.
20.1 This Lease and Lessee's interest hereunder shall at all times be
subject and subordinate to the lien and security title of any deeds to secure
debt, deeds of trust, mortgages, or other interests heretofore or hereafter
granted by Lessor or which otherwise encumber or affect the Premises and to any
and all advances to be made thereunder and to all renewals, modifications,
consolidations, replacements, substitutions, and extensions thereof (all of
which are hereinafter called the "Mortgage"). Except as expressly set forth in
Section 20.3 to the contrary, this clause shall be self-operative and no further
instrument of subordination need be required by any holder of any Mortgage. In
confirmation of such subordination, however, Lessee shall, within ten (10)
business days after Lessor's request, promptly execute, acknowledge, and deliver
any instrument which may be required to evidence subordination to any Mortgage
and, to the holder thereof, and, in the event of a failure so to do, Lessor may,
in addition to any other remedies for breach of covenant hereunder, execute,
acknowledge, and deliver the instrument as the agent or attorney-in-fact of
Lessee, and Lessee hereby irrevocably constitutes Lessor its attorney-in-fact
for such purpose, Lessee acknowledging that the appointment is coupled with an
interest and is irrevocable. Lessee hereby waives and releases any claim it
might have against Lessor or any other party for any actions lawfully taken by
the holder of any Mortgage. At the option of any holder of a Mortgage or any
purchaser at a purchase sale of any Mortgage, Lessee shall attorn to and
recognize such holder or purchaser as the Lessor under this Lease for the
remainder of the term hereof, provided that such holder or purchaser recognizes
Lessee as the Lessee of the Premises for the remainder of the term hereof in
accordance with the provisions of this Lease; provided however, that such holder
or purchaser shall not be subject to any offsets or defenses which Lessee might
have against any prior Lessor and shall not be liable for any act or omission of
any prior Lessor. Lessee shall, at the option of such holder or purchaser and
within ten (10) business days after request is made therefor, execute,
acknowledge and deliver any instrument which reasonably may be required to
evidence such attornment on the foregoing terms.
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20.2 In the event of a sale or conveyance by Lessor of Lessor's
interest in the Premises other than a transfer for security purposes only,
Lessor shall be relieved, from and after the date of transfer, of all
obligations and liabilities accruing thereafter on the part of Lessor, provided
that any funds in the hands of Lessor at the time of transfer in which Lessee
has an interest shall be delivered to the successor of Lessor. This Lease shall
not be affected by any such sale and Lessee shall attorn to the purchaser or
assignee.
20.3 Notwithstanding paragraph 20.1, with respect to Mortgages entered
into by Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "NON-DISTURBANCE AGREEMENT") from the holder of such Mortgage,
which Non-Disturbance Agreement provides that Lessee's possession of the
Premises, and this Lease, including any options to extend the term hereof, will
not be disturbed so long as Lessee is not in breach hereof and attorns to the
record owner of the Premises, at its option as provided in paragraph 20.1.
Further, within sixty (60) days after the execution of this Lease, Lessor shall
use its commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the holder of any pre-existing Mortgage which is secured by the Premises.
In the event that Lessor is unable to provide the Non-Disturbance Agreement
within said sixty (60) days, then Lessee may, at Lessee's option, directly
contact Lessor's lender and attempt to negotiate for the execution and delivery
of a Non-Disturbance Agreement.
21. INTENTIONALLY OMITTED.
22. DELAYED POSSESSION. If Lessor shall fail to deliver to Lessee actual
possession of the Premises by August 1, 1998, rent shall abate until possession
is given, but Lessor shall not be liable to Lessee for such failure, and the
Commencement Date shall become the date on which possession is given.
23. HOLDING OVER. There shall be no renewal, extension, or reinstatement of
this Lease by operation of law. In the event of holding over by Lessee after the
expiration or sooner termination of this Lease, with Lessor's acquiescence and
without any express agreement of the parties, Lessee shall be a tenant at
sufferance and all of the terms, covenants, and conditions of this Lease shall
be applicable during that period, except that Lessee shall pay Lessor as Base
Rent for the period of the hold over an amount equal to one and one-half times
the Base Rent which would have been payable by Lessee under Paragraph 2.1
hereof, as adjusted in accordance with paragraph 3.1 hereof, had the hold-over
period been part of the original Lease Term, together with all additional rent
due hereunder and together with any other Amount Due under this Lease. The rent
payable by Lessee during the hold-over period shall be payable to Lessor on
demand. If Lessee holds over as a tenant at sufferance, Lessee shall vacate and
deliver the Premises to Lessor upon demand. In the event Lessee fails to
surrender the Premises to Lessor upon expiration or other termination of this
Lease or of such tenancy at sufferance, then Lessee shall indemnify Lessor
against any and all loss or liability resulting from any delay of Lessee in
surrendering the Premises, including, but not limited to, any amounts required
to be paid to third parties who were to have occupied the Premises and any
reasonable attorneys' fees related thereto.
24. NO WAIVER. Lessee understands and acknowledges that no assent, express
or implied, by Lessor to any breach of any one or more of the terms, covenants
or conditions hereof shall be deemed or taken to be a waiver of any succeeding
or other breach, whether of the same or any other term, covenant or condition
hereof.
25. BINDING EFFECT. All terms and provisions of this Lease shall be binding
upon and apply to the successors, permitted assigns, and legal representatives
of Lessor and Lessee or any person claiming by, through, or under either of them
or their agents or attorneys, subject always, as to Lessee, to the restrictions
contained in Section 11 hereof.
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26. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and without in any
way limiting any of the other provisions of this Lease, Lessee shall comply with
any protective covenants now or hereafter of record against the Building or the
Property and with any changes to the covenants duly adopted. It is expressly
acknowledged that all uses of the Building and Premises are subject to the
covenants, conditions and restrictions of Technology Park/Atlanta, Inc. filed at
Deed Book 389, Page 636, Gwinnett County, Georgia, records, as amended and
extended.
27. SIGNS. Lessee shall not install, paint, display, inscribe, place, or
affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
common areas of the Building, the interior surface of glass and any other
location which could be visible from outside of the Premises without first
securing written consent from Lessor therefor, which consent shall not be
unreasonably withheld as to Signs in the Premises visible from outside or on its
exterior. Any Sign permitted by Lessor shall at all times conform with all
municipal ordinances or other laws, regulations, deed restrictions, and
protective covenants applicable thereto. Lessee shall remove all Signs at the
expiration or other termination of this Lease, at Lessee's sole risk and
expense, and shall in a good and workmanlike manner properly repair any damage
caused by the installation, existence, or removal of Lessee's Signs.
28. DIRECTORY BOARD. Lessee shall be entitled to have its name shown upon
the Directory Board of the Building. Lessor shall designate the style of the
Directory Board as well as the amount of space to be allocated to Lessee, which
Board shall be located in an area designated by Lessor in the main lobby of the
Building. As well Lessee may have its name placed upon the monument sign subject
to TPA's Design Control Committee, and that of Lessor.
29. ESTOPPEL CERTIFICATE. Lessee shall, at any time and from time to time,
upon not less than ten (10) business days' prior written notice from Lessor,
execute, acknowledge, and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if modified,
stating the nature of the modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rent and other
charges are paid, and acknowledging that Lessee is paying rent on a current
basis with no offsets or claims, and that there are not, to Lessee's knowledge,
any uncured defaults on the part of Lessor hereunder (or specifying the offsets,
claims, or defaults, if any are claimed), and such other information (including,
but not limited to most recent, financial statements) reasonably required by
Lessor. It is expressly understood and acknowledged that any such statement may
be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Property or by any other person to whom it is delivered.
30. SEVERABILITY. The terms, conditions, covenants, and provisions of this
Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but the other
clauses or provisions shall remain in full force and effect.
31. ENTIRE AGREEMENT. Lessee acknowledges that there are no covenants,
representations, warranties, or conditions, express or implied, collateral or
otherwise, forming part of or in any way affecting or relating to this Lease
save as expressly set out in this Lease and that this Lease together with the
Exhibits attached hereto constitutes the entire agreement between the parties
hereto and may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by Lessor and
Lessee.
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32. CUMULATIVE REMEDIES. In the event of any default, breach, or threatened
breach by Lessee of any of the covenants or provisions hereto, Lessor shall, in
addition to all other remedies as provided by this Lease, have the right of
injunction and/or damages and the right to invoke any remedy allowed at law or
in equity, and may have any one or more of the remedies contemporaneously. The
various rights, remedies, powers, options, and elections of Lessor reserved,
expressed, or contained in this Lease are cumulative and no one of them shall be
deemed to be exclusive of the others, or of such other rights, remedies, powers,
options, or elections as are now, or may hereafter, be conferred upon Lessor by
law.
33. PARKING AREAS AND COMMON AREA CONTROL.
33.1 Lessee acknowledges and agrees that the common areas of the
Building including, without limiting the generality of the foregoing, lawns,
gardens, parking areas, sidewalks, driveways, foyers, hallways, washrooms, and
stairwells not within the Premises shall at all times be subject to the
exclusive control and management of Lessor. Lessor shall provide Lessee, at no
charge to Lessee, parking at a ratio of four (4) parking spaces per 1,000
rentable square feet (Lessee's "Proportionate Share") on a non-reserved, non-
exclusive basis for the Lease Term including any extension thereof. Lessor shall
have the right to change the area, level, location, and arrangement of all
common areas so long as in so doing Lessor does not materially and adversely
affect ingress to and egress from the Building or the Premises.
33.2 Lessee and the Lessee Parties shall not use more than Lessee's
proportionate share of the parking spaces in the parking areas made available to
the Building by Lessor. Lessee covenants and agrees to fully cooperate with
Lessor in the enforcement of any program of rules and regulations designed for
the orderly control and operation of parking areas.
34. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered in person three
(3) days after being deposited in the United States mail, return receipt
requested or the next business day after being placed in a nationally recognized
overnight courier (i.e., Federal Express) for next business day morning
delivery, addressed to the parties at the respective addresses set out below:
If to Lessee: nFRONT, Inc.
520 Guthridge Court
Norcross, GA 30092
Attn: President
If to Lessor: Schneider Atlanta, L.P.
c/o Lambert Smith Hampton
3520 Piedmont Road
Suite 410
Atlanta, Georgia 30305
With copy to: Schneider Atlanta, L.P.
c/o Technology Park/Atlanta, Inc.
Suite 150
11555 Medlock Bridge Road
Duluth, Georgia 30097
Attention: President
or to such other addresses as the parties may direct from time to time by thirty
(30) days' written notice. However, the time period in which a response to any
notice, demand, or request must be given, if any, shall
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commence to run from the date of receipt of the notice, demand, or request by
the addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice, demand, or request sent.
35. RECORDING. Neither this Lease nor any portion hereof shall be recorded
unless both parties hereto agree to the recording.
36. ATTORNEYS' FEES. Lessee agrees to pay Lessor's reasonable attorneys'
fees, collection costs and other costs and expenses which Lessor incurs in
enforcing any of the obligations of Lessee under this Lease, if Lessor prevails
in such proceedings.
37. HOMESTEAD. Lessee waives all homestead rights and exemptions which it
may have under any law as against any obligations owing under this Lease. Lessee
hereby assigns to Lessor its homestead right and exemption.
38. TIME OF ESSENCE. Time is of the essence of this Lease.
39. NO ESTATE IN LAND. This Lease shall create the relationship of landlord
and tenant between Lessor and Lessee, and nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent, or of partnership, or of joint venture,
or of any relationship other than landlord and tenant, between the parties
hereto. No estate shall pass out of Lessor and Lessee has only a usufruct not
subject to levy and sale.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the Base Rent, additional rent, or any other Amount Due
herein stipulated shall be deemed to be other than on account of the earliest of
such amount then due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept the check or payment without prejudice to
Lessor's right to recover the balance of the rent or pursue any other remedy
provided in this Lease.
41. BROKERS' FEES. With the exception of Technology Park/Atlanta, Inc.,
broker representing Lessor and William Leonard Company, broker representing
Lessee; Lessor and Lessee warrant and represent, each to the other, that it has
had no dealings with any broker or agent in connection with this Lease, and
Lessor and Lessee hereby indemnify each other against, and agree to hold each
other harmless from, any liability or claim (and all expenses, including
attorneys' fees, incurred in defending any such claim or in enforcing this
indemnity) for a real estate brokerage commission or similar fee or compensation
arising out of or in any way connected with any claimed dealings with the
indemnitor and relating to this Lease or the negotiation thereof. Lessor
acknowledges that Lessor shall be responsible for any and all commissions
payable to Technology Park/Atlanta, Inc. and William Leonard & Company, which
will be paid commissions pursuant to separate agreements in accordance with the
terms thereof, on account of the transaction contemplated by this Lease.
42. MISCELLANEOUS.
42.1 Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural unless the context otherwise requires.
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42.2 The captions are inserted in this Lease for convenience only, and
in no way define, limit, or describe the scope or intent of this Lease, or of
any provision hereof, nor in any way affect the interpretation of this Lease.
42.3 This Lease is made and delivered in the State of Georgia and shall
be governed by and construed in accordance with the laws of the State of
Georgia.
For additional terms and stipulations of this Lease, if any, see
EXHIBIT "D", attached hereto and by this reference incorporated herein.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR:
SCHNEIDER ATLANTA, L.P.
a Georgia limited partnership
By: S. A. Management, Inc.
a Georgia corporation, sole general partner
By: /s/ Robert M. Day
-------------------------
Name: Robert M. Day
Title: VP
[Corporate Seal]
LESSEE:
NFront, Inc.
a Georgia corporation
By: /s/ Tripp Rackley
-------------------------
Name: Tripp Rackley
Title: CEO
[Corporate Seal]
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EXHIBIT 10.2
STANDARD OFFICE LEASE
BY AND BETWEEN
ARDEN REALTY FINANCE PARTNERSHIP, L.P.
a California limited partnership,
AS LANDLORD,
AND
DIGITAL INSIGHT CORPORATION,
a Delaware corporation,
AS TENANT
Suite 100
5601 LINDERO CANYON ROAD
Initials: /s/ KM
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/s/ VC
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TABLE OF CONTENTS
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<TABLE>
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<S> <C> <C>
ARTICLE 1 BASIC LEASE PROVISIONS..................................... 1
ARTICLE 2 TERM/PREMISES.............................................. 2
ARTICLE 3 RENTAL..................................................... 2
(a) Basic Rental............................................... 2
(b) Increase in Direct Costs................................... 3
(c) Definitions................................................ 3
(d) Determination of Payment................................... 5
ARTICLE 4 SECURITY DEPOSIT........................................... 6
ARTICLE 5 HOLDING OVER............................................... 8
ARTICLE 6 PERSONAL PROPERTY TAXES.................................... 9
ARTICLE 7 USE........................................................ 9
ARTICLE 8 CONDITION OF PREMISES...................................... 9
ARTICLE 9 REPAIRS AND ALTERATIONS.................................... 10
ARTICLE 10 LIENS...................................................... 11
ARTICLE 11 PROJECT SERVICES........................................... 12
ARTICLE 12 RIGHTS OF LANDLORD......................................... 13
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY............ 13
(a) Indemnity.................................................. 13
(b) Exemption of Landlord from Liability....................... 14
ARTICLE 14 INSURANCE.................................................. 14
(a) Tenant's Insurance......................................... 14
(b) Form of Policies........................................... 14
(c) Landlord's Insurance....................................... 15
(d) Waiver of Subrogation...................................... 15
(e) Compliance with Law........................................ 15
ARTICLE 15 ASSIGNMENT AND SUBLETTING.................................. 15
ARTICLE 16 DAMAGE OR DESTRUCTION...................................... 18
ARTICLE 17 SUBORDINATION.............................................. 18
ARTICLE 18 EMINENT DOMAIN............................................. 19
ARTICLE 19 DEFAULT.................................................... 19
ARTICLE 20 REMEDIES................................................... 20
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST............................ 21
ARTICLE 22 BROKER..................................................... 22
ARTICLE 23 PARKING.................................................... 22
ARTICLE 24 WAIVER..................................................... 22
ARTICLE 25 ESTOPPEL CERTIFICATE....................................... 23
ARTICLE 26 LIABILITY OF LANDLORD...................................... 23
</TABLE>
Initials: /s/ KM
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/s/ VC
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(i)
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<TABLE>
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ARTICLE 27 INABILITY TO PERFORM....................................... 23
ARTICLE 28 HAZARDOUS WASTE............................................ 24
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY................. 25
ARTICLE 30 MISCELLANEOUS.............................................. 25
(a) Severability; Entire Agreement............................. 26
(b) Attorneys' Fees; Waiver of Jury Trial...................... 26
(c) Time of Essence............................................ 26
(d) Headings................................................... 26
(e) Reserved Area.............................................. 26
(f) NO OPTION.................................................. 26
(g) Use of Project Name; Improvements.......................... 27
(h) Rules and Regulations...................................... 27
(i) Quiet Possession........................................... 27
(j) Rent....................................................... 27
(k) Successors and Assigns..................................... 27
(l) Notices.................................................... 27
(m) Persistent Delinquencies................................... 27
(n) Right of Landlord to Perform............................... 27
(o) Access, Changes in Project, Facilities, Name............... 28
(p) Corporate Authority........................................ 28
(q) Identification of Tenant................................... 28
(r) Intentionally Deleted...................................... 29
(s) Survival of Obligations.................................... 29
(t) Confidentiality............................................ 29
(u) Exhibits and Addendum...................................... 29
(v) Americans With Disabilities Act and Seismic Requirements... 29
(w) Governing Law.............................................. 29
(x) Communication Equipment.................................... 29
ARTICLE 31 OPTION TO EXTEND........................................... 30
(a) Option Right............................................... 30
(b) Option Rent................................................ 30
(c) Exercise of Option......................................... 30
(d) Determination of Market Rent............................... 31
ARTICLE 32 RIGHT OF FIRST OFFER....................................... 31
(a) Procedure for Offer........................................ 32
(b) Procedure for Acceptance................................... 32
(c) Construction of First Offer Space.......................... 32
(d) Lease of First Offer Space................................. 32
(e) No Defaults................................................ 32
ARTICLE 33 SIGNAGE/DIRECTORY.......................................... 33
(a) Premises Identification/Monument Signage................... 33
(b) Building Top Sign.......................................... 33
(c) Miscellaneous Signage Provisions........................... 33
</TABLE>
Exhibit "A" Premises
Exhibit "B" Rules and Regulations
Exhibit "C" Notice of Lease Term Dates and Tenant's Proportionate Share
Exhibit "D" Tenant Work Letter
Exhibit "E" Letter of Credit
Initials: /s/ KM
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/s/ VC
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(ii)
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<TABLE>
<CAPTION>
INDEX
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Page(s)
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<S> <C>
Adjustment Dates................................................................ 7
Affiliate....................................................................... 17
Alterations..................................................................... 10
Applicant....................................................................... Exhibit E
Approved Working Drawings....................................................... Exhibit D
Architect....................................................................... Exhibit D
Base Year....................................................................... 1
Base, Shell and Core............................................................ Exhibit D
Basic Rental.................................................................... 1
Beneficiary..................................................................... Exhibit E
Brokers......................................................................... 2
Code............................................................................ Exhibit D
Commencement Date............................................................... 1
Comparison Area................................................................. 30
Construction Drawings........................................................... Exhibit D
Contractor...................................................................... Exhibit D
Control......................................................................... 17
Cosmetic Alterations............................................................ 10
Demolition Allowance............................................................ 1
Deposit Adjustment Dates........................................................ 6
Economic Terms.................................................................. 32
Engineers....................................................................... Exhibit D
Estimate........................................................................ 4
Estimate Statement.............................................................. 4
Estimated Direct Costs.......................................................... 4
Event of Default................................................................ 19
Expiration Date................................................................. 1
Final Retention................................................................. Exhibit D
Final Space Plan................................................................ Exhibit D
Final Working Drawings.......................................................... Exhibit D
First Month's Rent.............................................................. 2
First Offer Notice.............................................................. 31
First Offer Space............................................................... 31
Force Majeure................................................................... 23
Hazardous Material.............................................................. 24
HVAC System..................................................................... 12
Improvement Allowance........................................................... Exhibit D
Improvement Allowance Items..................................................... Exhibit D
Improvements.................................................................... 1
Increased Improvement Allowance................................................. Exhibit D
Interest Notice................................................................. 30
Landlord........................................................................ 1
Landlord Coordination Fee....................................................... Exhibit D
Landlord's Work................................................................. Exhibit D
Laws............................................................................ 24
Lease........................................................................... 1
Lease Year...................................................................... 2
Letter of Credit................................................................ 7
Market Rent..................................................................... 30
Monument Signage................................................................ 33
Operating Costs................................................................. 3
Option Rent..................................................................... 30
Option Rent Notice.............................................................. 30
Option Term..................................................................... 30
Options......................................................................... 30
Original Tenant................................................................. 30
Outside Agreement Date.......................................................... 31
Parking Passes.................................................................. 2
Partnership Tenant.............................................................. 28
</TABLE>
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(iii)
<PAGE>
<TABLE>
<CAPTION>
Page(s)
--------
<S> <C>
Permits......................................................................... Exhibit D
Permitted Assignee.............................................................. 17
Permitted Use................................................................... 1
Premises........................................................................ 1
Project......................................................................... 1
Real Property................................................................... 3
Rent Start Date................................................................. 2
Representative.................................................................. 23
Review Period................................................................... 5
Security Deposit................................................................ 1
Specifications.................................................................. Exhibit D
Square Footage.................................................................. 1
Standard Improvement Package.................................................... Exhibit D
Stated Amount................................................................... 7
Statement....................................................................... 5
Superior Lease.................................................................. 31
Superior Rights................................................................. 31
Tax Costs....................................................................... 3
Tenant.......................................................................... 1
Tenant Improvements............................................................. 10
Tenant's Acceptance............................................................. 30
Tenant's Agents................................................................. Exhibit D
Tenant's Proportionate Share.................................................... 1
Tenant's Signage................................................................ 33
Term............................................................................ 1
Transfer........................................................................ 16
Transfer Premium................................................................ 16
Transferee...................................................................... 16
</TABLE>
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(iv)
<PAGE>
STANDARD OFFICE LEASE
---------------------
This Standard Office Lease ("Lease") is made and entered into as of this
6th day of March, 2000, by and between ARDEN REALTY FINANCE PARTNERSHIP, L.P., a
California limited partnership ("Landlord"), and DIGITAL INSIGHT CORPORATION, a
Delaware corporation ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
premises known as Suite 100, and designated on the plan attached hereto and
incorporated herein as Exhibit "A" ("Premises"), located in the project
("Project") whose address is 5601 Lindero Canyon Road, Westlake Village,
California for the Term and upon the terms and conditions hereinafter set forth,
and Landlord and Tenant hereby agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
----------------------
A. Term: The period from the Commencement Date
through the Expiration Date.
Commencement Date: The date of full execution and delivery of
this Lease. Upon Tenant's occupancy of the
Premises, Landlord and Tenant agree to
execute and deliver a Commencement Letter
in a form substantially similar to that
attached hereto as Exhibit "C".
Expiration Date: March 31, 2005 (as such date may be
extended by Section 5.5 of the Tenant Work
Letter).
B. Square Footage: 52,130 rentable square feet.
C. Basic Rental:
<TABLE>
<CAPTION>
Annual Monthly Monthly Basic Rental
Lease Year Basic Rental Basic Rental Per Rentable Square Foot
- ---------- ------------ ------------ ------------------------
<S> <C> <C> <C>
1-5 $844,506.00* 70,375.50* $1.35*
</TABLE>
* Subject to abatement as set forth in Article 3 below and subject to increase
as provided in Section 2.1 of the Tenant Work Letter.
D. Base Year: Not applicable (Triple Net Lease)
E. Tenant's Proportionate Share: 49.26%
F. Security Deposit: A Letter of Credit or a cash Security
Deposit in the amount of $760,000.00 shall
be provided to Landlord upon Tenant's
execution of this Lease. Tenant will
deposit an additional Letter of Credit or
shall increase the amount of the existing
cash Security Deposit or Letter of Credit
in the event Tenant elects to exercise its
option pursuant to Section 2.1 of the
Tenant Work Letter.
G. Permitted Use: General office use, including data center
operations, storage and other legally
permitted uses attendant thereto so long
as such uses are compatible with an office
building of comparable quality in the
Comparison Area and do not conflict with
the terms of this Lease.
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<PAGE>
H. Brokers: Cushman & Wakefield of California, Inc.
I. Parking Passes: Tenant shall have the use of two hundred
(200) unreserved parking passes, as
provided in Article 23 hereof.
J. First Month's Rent: An amount equal to $59,175.50 shall be due
and payable by Tenant to Landlord upon
Tenant's execution of this Lease and shall
be applied to monthly Basic Rental
pursuant to Article 3.
ARTICLE 2
TERM/PREMISES
-------------
The Term of this Lease shall commence on the Commencement Date as set forth
in Article 1.A. of the Basic Lease Provisions and shall end on the Expiration
Date set forth in Article 1.A. of the Basic Lease Provisions. Notwithstanding
the fact that the Commencement Date has occurred, Tenant shall not be
responsible for the payment of rent during the period ("Abatement Period") from
the Commencement Date until the earlier of (i) the date Tenant commences to
conduct business from the Premises or (ii) April 1, 2000. For purposes of this
Lease, the term "Lease Year" shall mean each consecutive twelve (12) month
period during the Lease Term, with the first Lease Year commencing on the day
after the date of expiration of the Abatement Period; however, (a) if the day
after the date of expiration of the Abatement Period falls on a day other than
the first day of a calendar month, the first Lease Year shall end on the last
day of the eleventh (11th) month after the day after the date of expiration of
the Abatement Period and the second (2nd) and each succeeding Lease Year shall
commence on the first day of the next calendar month, and (b) the last Lease
Year shall end on the Expiration Date. If Landlord is unable to deliver
possession of the Premises to Tenant on or before the anticipated date of
expiration of the Abatement Period as a result of the failure of the existing
occupant to surrender all or any portion of such space or for any other reason,
Landlord shall not be subject to any liability for its failure to do so, and
such failure shall not affect the validity of this Lease nor the obligations of
Tenant hereunder. Landlord and Tenant hereby stipulate that the Premises
contains the number of rentable square feet specified in Section 1.B of the
Basic Lease Provisions.
ARTICLE 3
RENTAL
------
(a) Basic Rental. Commencing upon expiration of the Abatement Period,
------------
Tenant agrees to pay to Landlord during the Term hereof, at Landlord's office or
to such other person or at such other place as directed from time to time by
written notice to Tenant from Landlord, the initial monthly and annual sums as
set forth in Article 1.C of the Basic Lease Provisions, payable in advance on
the first day of each calendar month, without demand, setoff or deduction, and
in the event this Lease commences or the date of expiration of this Lease occurs
other than on the first day or last day of a calendar month, the rent for such
month shall be prorated. Notwithstanding anything to the contrary contained
herein and provided that Tenant faithfully performs all of the terms and
conditions of this Lease, Landlord hereby agrees to abate Tenant's obligation to
pay monthly Basic Rental through August 31, 2000 ("Rent Start Date") (as such
date may be extended by an "Uncontrollable Delay" and/or by a "Landlord Delay")
as those terms are defined in Section 5.5 of the Tenant Work Letter), and
monthly Basic Rental for the month of September, 2000 (or the month after the
Rent Start Date if such date is extended pursuant to Section 5.5 of the Tenant
Work Letter) shall be partially abated such that the monthly Basic Rental for
September, 2000 (or such later month) shall be reduced by an amount equal to
Eleven Thousand Two Hundred and 00/100 Dollars ($11,200.00) (i.e., in the event
there are no Uncontrollable Delays, Tenant shall pay monthly Basic Rental in the
amount of Fifty-Nine Thousand One Hundred Seventy-Five and 50/100 Dollars
($59,175.50) for the month of September). During such abatement period, Tenant
shall still be responsible for the payment of all of its other monetary
obligations under the Lease including, without limitation, Tenant's
Proportionate Share (based on the full square footage of the Premises) of Direct
Costs.
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<PAGE>
Notwithstanding the foregoing, the amount specified in Article 1.J. of the Basic
Lease Provisions shall be paid by Tenant to Landlord concurrently with Tenant's
execution of this Lease and shall be applied to Tenant's first obligations to
pay monthly Basic Rental under this Lease.
(b) Increase in Direct Costs. Tenant shall pay an additional sum for each
------------------------
subsequent calendar year equal to the product of the amount set forth in Article
1.E. of the Basic Lease Provisions multiplied by the amount of "Direct Costs."
In the event either the Premises and/or the Project is expanded or reduced, then
Tenant's Proportionate Share shall be appropriately adjusted, and as to the
calendar year in which such change occurs, Tenant's Proportionate Share for such
year shall be determined on the basis of the number of days during that
particular calendar year that such Tenant's Proportionate Share was in effect.
In the event this Lease shall terminate on any date other than the last day of a
calendar year, the additional sum payable hereunder by Tenant during the
calendar year in which this Lease terminates shall be prorated on the basis of
the relationship which the number of days which have elapsed from the
commencement of said calendar year to and including said date on which this
Lease terminates bears to three hundred sixty (360). Any and all amounts due and
payable by Tenant pursuant to Article 3(b),(c) and (d) hereof shall be deemed
"Additional Rent" and Landlord shall be entitled to exercise the same rights and
remedies upon default in these payments as Landlord is entitled to exercise with
respect to defaults in monthly Basic Rental payments.
(c) Definitions. As used herein the term "Direct Costs" shall mean the
-----------
sum of the following:
(i) "Tax Costs", which shall mean any and all real estate taxes and
other similar charges on real property or improvements, assessments, water and
sewer charges, and all other charges assessed, reassessed or levied upon the
Project and appurtenances thereto and the parking or other facilities thereof,
or the real property thereunder (collectively the "Real Property") or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed, reassessed or levied by the United States,
the State of California or any local government authority or agency or any
political subdivision thereof, and shall include Landlord's reasonable legal
fees, costs and disbursements incurred in connection with proceedings for
reduction of Tax Costs or any part thereof; provided, however, if at any time
after the date of this Lease the methods of taxation now prevailing shall be
altered so that in lieu of or as a supplement to or a substitute for the whole
or any part of any Tax Costs, there shall be assessed, reassessed or levied (a)
a tax, assessment, reassessment, levy, imposition or charge wholly or partially
as a net income, capital or franchise levy or otherwise on the rents, issues,
profits or income derived therefrom, or (b) a tax, assessment, reassessment,
levy (including but not limited to any municipal, state or federal levy),
imposition or charge measured by or based in whole or in part upon the Real
Property and imposed upon Landlord, or (c) a license fee measured by the rent
payable under this Lease, then all such taxes, assessments, reassessments or
levies or the part thereof so measured or based, shall be deemed to be included
in the term "Direct Costs."
(ii) "Operating Costs", which shall mean all costs and expenses
incurred by Landlord in connection with the maintenance, operation, replacement,
ownership and repair of the Project, the equipment, the intrabuilding network
cable, adjacent walks, malls and landscaped and common areas and the parking
structure, areas and facilities of the Project, including, but not limited to,
salaries, wages, medical, surgical and general welfare benefits and pension
payments, payroll taxes, fringe benefits, employment taxes, workers'
compensation, uniforms and dry cleaning thereof for all persons who perform
duties connected with the operation, maintenance and repair of the Project, its
equipment, the intrabuilding network cable and the adjacent walks and landscaped
areas, including janitorial (for the common areas of the Project only),
gardening, security, parking, operating engineer, elevator, painting, plumbing,
electrical (for the common areas of the Project only), carpentry, heating,
ventilation, air conditioning, window washing, hired services, a reasonable
allowance for depreciation of the cost of acquiring or the rental expense of
personal property used in the maintenance, operation and repair of the Project,
accountant's fees incurred in the preparation of rent adjustment statements,
legal fees, real estate tax consulting fees, personal property taxes on property
used in the maintenance and operation of the Project, capital expenditures
incurred to effect economies of operation and capital expenditures required by
government regulations, laws, or ordinances including, but not limited to the
Americans with Disabilities Act, which legal requirements are not in effect as
of the Commencement Date or which are not to cure violations of law which exist
on or prior to the Commencement Date; the cost of all charges for electricity,
gas, water and other utilities
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<PAGE>
furnished to the Project, including any taxes thereon; the cost of all charges
for fire and extended coverage, liability and all other insurance for the
Project carried by Landlord; the cost of all building and cleaning supplies and
materials; the cost of all charges for cleaning, maintenance and service
contracts and other services with independent contractors and administration
fees; a property management fee (which fee may be imputed if Landlord has
internalized management or otherwise acts as its own property manager) and
license, permit and inspection fees relating to the Project. In the event,
during any calendar year, the Project is less than ninety-five percent (95%)
occupied at all times, Operating Costs shall be adjusted to reflect the
Operating Costs of the Project as though ninety-five percent (95%) were occupied
at all times, and the increase or decrease in the sums owed hereunder shall be
based upon such Operating Costs as so adjusted. Notwithstanding anything to the
contrary set forth in this Article 3, when calculating Operating Costs for the
Base Year, unless and to the extent Operating Costs for the applicable
subsequent calendar year include the following items, Operating Costs shall
exclude (a) market-wide labor-rate increases due to extraordinary circumstances
including, but not limited to, boycotts and strikes, (b) utility rate increases
due to extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages, and (c) amortization of any
capital items including, but not limited to, capital improvements, capital
repairs and capital replacements (including such amortized costs where the
actual improvement, repair or replacement was made in prior years).
Notwithstanding anything above to the contrary, Operating Costs shall
not include (1) the cost of providing any service directly to and paid directly
by any tenant (outside of such tenant's Direct Cost payments); (2) the cost of
any items for which Landlord is reimbursed by insurance proceeds, condemnation
awards, a tenant of the Project, or otherwise to the extent so reimbursed; (3)
any real estate brokerage commissions or other costs incurred in procuring
tenants, or any fee in lieu of commission; (4) depreciation, amortization of
principal and interest on mortgages or ground lease payments (if any); (5) costs
of items considered capital repairs, replacements, improvements and equipment
under generally accepted accounting principles consistently applied except as
expressly included in Operating Costs pursuant to the definition above (i.e. the
only capital expenditures which may be included in Operating Costs are those
incurred to effect economies of operation and capital expenditures required by
government regulations, laws, or ordinances including, but not limited to the
Americans with Disabilities Act, which legal requirements are not in effect as
of the Commencement Date or which are not to cure violations of law which exist
on or prior to the Commencement Date); (6) costs incurred by Landlord due to the
violation by Landlord or any tenant of the terms and conditions of any lease of
space in the Project or any law, code, regulation, ordinance or the like; (7)
Landlord's general corporate overhead and general and administrative expenses;
(8) any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord (other than in the parking facility for the
Project); (9) costs incurred in connection with upgrading the Project to comply
with disability, life, seismic, fire and safety codes, ordinances, statutes, or
other laws in effect prior to the Commencement Date, including, without
limitation, the ADA, including penalties or damages incurred due to such non-
compliance; and (10) costs incurred to (i) comply with laws relating to the
removal of any "Hazardous Material," as that term is defined in Article 28 of
this Lease, which was in existence on the Project prior to the Commencement
Date, and was of such a nature that a federal, state or municipal governmental
authority, if it had then had knowledge of the presence of such Hazardous
Material, in the state, and under the conditions that it then existed on the
Project, would have then required the removal of such Hazardous Material or
other remedial or containment action with respect thereto, and (ii) to remove,
remedy, contain, or treat any Hazardous Material, which Hazardous Material is
brought onto the Project after the date hereof by Landlord or any other tenant
of the Project and is of such a nature, at that time, that a federal, state or
municipal governmental authority, if it had then had knowledge of the presence
of such Hazardous Material, in the state, and under the conditions, that it then
exists on the Project, would have then required the removal of such Hazardous
Material or other remedial or containment action with respect thereto.
(d) Determination of Payment.
------------------------
(i) Landlord shall give Tenant a yearly expense estimate statement
(the "Estimate Statement") which shall set forth Landlord's reasonable estimate
(the "Estimate") of what the total amount of Direct Costs for the then-current
calendar year shall be the "Estimated Direct Costs". The failure of Landlord to
timely furnish the Estimate Statement for any calendar year shall not preclude
Landlord from enforcing its rights to collect any Estimated Direct Costs under
this Article 3. Tenant shall pay, with its next installment of Monthly Basic
Rental due, a
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<PAGE>
fraction of the Estimated Direct Costs for the then-current calendar year
(reduced by any amounts paid pursuant to the last sentence of this Section
3(d)(ii)). Such fraction shall have as its numerator the number of months which
have elapsed in such current calendar year to the month of such payment, both
months inclusive, and shall have twelve (12) as its denominator. Until a new
Estimate Statement is furnished, Tenant shall pay monthly, with the Monthly
Basic Rental installments, an amount equal to one-twelfth (1/12) of the total
Estimated Direct Costs set forth in the previous Estimate Statement delivered by
Landlord to Tenant.
(ii) In addition, Landlord shall endeavor to give to Tenant on or
before the first day of April following the end of each calendar year, a
statement (the "Statement") which shall state the Direct Costs incurred or
accrued for such preceding calendar year. Upon receipt of the Statement for each
calendar year during the Term, if amounts paid by Tenant as Estimated Direct
Costs are less than Tenant's actual Proportionate Share of Direct Costs as
specified on the Statement, Tenant shall pay, with its next installment of
Monthly Basic Rental due, the full amount of Tenant's Proportionate Share of
Direct Costs for such calendar year, less the amounts, if any, paid during such
calendar year as Estimated Direct Costs. If, however, the Statement indicates
that amounts paid by Tenant as Estimated Direct Costs are greater than Tenant's
actual Proportionate Share of Direct Costs as specified on the Statement, such
overpayment shall be credited against Tenant's next installments of Estimated
Basic Rental. The failure of Landlord to timely furnish the Statement for any
calendar year shall not prejudice Landlord from enforcing its rights under this
Article 3. Even though the Term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Proportionate Share of the
Direct Costs for the calendar year in which this Lease terminates, if an Excess
is present Tenant has underpaid Direct Costs, Tenant shall immediately pay to
Landlord an amount as calculated pursuant to the provisions of this Article
3(d), and if Tenant has overpaid Direct Costs, such excess shall be immediately
refunded to Tenant. The provisions of this Section 3(d)(iii) shall survive the
expiration or earlier termination of the Term.
(iii) Within one hundred twenty (120) days after receipt of a
Statement by Tenant ("Review Period"), if Tenant disputes the amount set forth
in the Statement, Tenant's employees or an independent certified public
accountant (which accountant is a member of a nationally or regionally
recognized accounting firm), designated by Tenant, may, after reasonable notice
to Landlord and at reasonable times, inspect Landlord's records at Landlord's
offices, provided that Tenant is not then in default after expiration of all
applicable cure periods and provided further that Tenant and such accountant or
representative shall, and each of them shall use their commercially reasonable
efforts to cause their respective agents and employees to, maintain all
information contained in Landlord's records in strict confidence.
Notwithstanding the foregoing, Tenant shall only have the right to review
Landlord's records one (1) time during any twelve (12) month period. Tenant's
failure to dispute the amounts set forth in any Statement within the Review
Period shall be deemed to be Tenant's approval of such Statement and Tenant,
thereafter, waives the right or ability to dispute the amounts set forth in such
Statement. If after such inspection, but within thirty (30) days after the
Review Period, Tenant notifies Landlord in writing that Tenant still disputes
such amounts, a certification as to the proper amount shall be made, at Tenant's
expense, by an independent certified public accountant selected by Landlord and
who is a member of a nationally or regionally recognized accounting firm.
Landlord shall cooperate in good faith with Tenant and the accountant to show
Tenant and the accountant the information upon which the certification is to be
based. However, if such certification by the accountant proves that the Direct
Costs set forth in the Statement were overstated by more than ten percent (10%),
then the cost of the accountant and the cost of such certification shall be paid
for by Landlord. Promptly following the parties receipt of such certification,
the parties shall make such appropriate payments or reimbursements, as the case
may be, to each other, as are determined to be owing pursuant to such
certification.
(iv) If the Project is a part of a multi-building development,
those Direct Costs attributable to such development as a whole (and not
attributable solely to any individual building therein) shall be allocated by
Landlord to the Project and to the other buildings within such development on an
equitable basis.
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<PAGE>
ARTICLE 4
SECURITY DEPOSIT
----------------
Concurrently with Tenant's execution of this Lease, Tenant shall elect to
do one of the following:
(a) Cash Security Deposit. Tenant may deposit with Landlord cash in the
---------------------
amount set forth in Article 1.F. of the Basic Lease Provisions as security for
the full and faithful performance of every provision of this Lease to be
performed by Tenant. Upon the dates specified below ("Deposit Adjustment
Dates"), the cash Security Deposit may be reduced to the following amounts (and
Landlord shall refund the excess to Tenant):
<TABLE>
<CAPTION>
Month Security Deposit
----- ----------------
<S> <C>
March 31, 2001 $608,000.00
March 31, 2002 $456,000.00
March 31, 2003 $304,000.00
March 31, 2004 $152,000.00
</TABLE>
Further, in the event Tenant exercises its option to increase the
Improvement Allowance pursuant to Section 2.1 of the Tenant Work Letter, Tenant
shall increase the cash Security Deposit, subject to all terms set forth above
by an amount equal to the Increased Improvement Allowance (as defined in Section
2.1 of the Tenant Work Letter); provided, however, that upon the Deposit
Adjustment Dates specified below, the amount of the increase in cash Security
Deposit may be reduced to the following amounts (and Landlord shall refund the
excess to Tenant):
<TABLE>
<CAPTION>
Amount of Increase in
Month Security Deposit
----- ----------------
<S> <C>
March 31, 2001 80% of the amount of the
original increase
March 31, 2002 60% of the amount of the
original increase
March 31, 2003 40% of the amount of the
original increase
March 31, 2004 20% of the amount of the
original increase
</TABLE>
However, if (i) an Event of Default by Tenant occurs under this Lease, or
(ii) circumstances exist that would, with notice or lapse of time, or both,
constitute an Event of Default by Tenant, and Tenant has failed to cure such
default within the time period permitted by Section 19 or such lesser time as
may remain before the relevant Deposit Adjustment Dates as provided above, the
cash Security Deposit shall not thereafter be reduced unless and until such
default shall have been fully cured pursuant to the terms of this Lease, at
which time the Security Deposit may be reduced as hereinabove described. If
Tenant breaches any provision of this Lease, including but not limited to the
payment of rent, Landlord may use all or any part of the Security Deposit for
the payment of any rent or any other sums in default, or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall,
within five (5) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the Security Deposit to the amount prior to
such use or application. Tenant agrees that Landlord shall not be required to
keep the Security Deposit in trust, segregate it or keep it separate from
Landlord's general funds but Landlord may commingle the Security Deposit with
its general funds and Tenant shall not be entitled to interest on such deposit.
At the expiration of the Lease Term, and provided there exists no Event of
Default (after expiration of any applicable notice and cure period) by Tenant
hereunder, the Security Deposit or any balance thereof shall be returned to
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<PAGE>
Tenant (or, at Landlord's option, to Tenant's assignee), provided that
subsequent to the expiration of this Lease, Landlord may retain from said
security deposit any and all amounts permitted by law or this Article 4. Tenant
hereby waives the provisions of Section 1950.7 of the California Civil Code and
all other provisions of law, now or hereafter in effect, which provide that
Landlord may claim from a security deposit only those sums reasonably necessary
to remedy defaults in the payment of rent, to repair damage caused by Tenant or
to clean the Premises, it being agreed that Landlord may, in addition, claim
those sums specified in this Article 4 above and/or those sums reasonably
necessary to compensate Landlord for any other loss or damage, foreseeable or
unforeseeable, caused by the acts or omissions of Tenant or any officer,
employee, agent, contractor or invitee of Tenant.
(b) Letter of Credit. In the alternative, Tenant may deliver to Landlord
----------------
an unconditional, irrevocable and renewable letter of credit ("Letter of
Credit") in favor of Landlord in the form attached hereto as Exhibit E, issued
by a bank reasonably satisfactory to Landlord with a branch located in Southern
California, in the principal amount ("Stated Amount") specified below, as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. Tenant shall pay all expenses, points
and/or fees incurred by Tenant in obtaining the Letter of Credit. The Stated
Amount shall initially be Seven Hundred Sixty Thousand Dollars ($760,000.00);
provided, however, that upon the dates specified below ("Adjustment Dates"), the
Stated Amount may be reduced to the following amounts:
<TABLE>
<CAPTION>
Month Stated Amount
----- -------------
<S> <C>
March 31, 2001 $608,000.00
March 31, 2002 $456,000.00
March 31, 2003 $304,000.00
March 31, 2004 $152,000.00
</TABLE>
Further, in the event Tenant exercises its option to increase the
Improvement Allowance pursuant to Section 2.1 of the Tenant Work Letter, Tenant
shall deposit with Landlord a second Letter of Credit, subject to all terms set
forth above (or shall increase the amount of the initial Letter of Credit). The
Stated Amount with respect to such second Letter of Credit (or the increased
amount of the initial Letter of Credit) shall initially be equal to the
Increased Improvement Allowance (as defined in Section 2.1 of the Tenant Work
Letter); provided, however, that upon the Adjustment Dates specified below, the
Stated Amount as to such second Letter of Credit (or the increased amount of the
initial Letter of Credit) may be reduced to the following amounts:
<TABLE>
<CAPTION>
Month Stated Amount
----- -------------
<S> <C>
March 31, 2001 80% of the
Stated Amount
March 31, 2002 60% of the
Stated Amount
March 31, 2003 40% of the
Stated Amount
March 31, 2004 20% of the
Stated Amount
</TABLE>
However, if (i) an Event of Default by Tenant occurs under this Lease, or
(ii) circumstances exist that would, with notice or lapse of time, or both,
constitute an Event of Default by Tenant, and Tenant has failed to cure such
default within the time period permitted by Section 19 or such lesser time as
may remain before the relevant Adjustment Date as provided above, the Stated
Amount(s) shall not thereafter be reduced unless and until such default shall
have been fully cured pursuant to the terms of this Lease, at which time the
Stated Amount(s) may be reduced as hereinabove described. The Letter(s) of
Credit shall state that an authorized officer or other representative of
Landlord may make demand on Landlord's behalf for the Stated
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Amount(s) of the Letter(s) of Credit, or any portion thereof, and that the
issuing bank must immediately honor such demand, without qualification or
satisfaction of any conditions, except the proper identification of the party
making such demand. In addition, the Letter(s) of Credit shall indicate that it
is transferable in its entirety by Landlord as beneficiary and that upon
receiving written notice of transfer, and upon presentation to the issuing bank
of the original Letter(s) of Credit, the issuer or confirming bank will reissue
the Letter(s) of Credit naming such transferee as the beneficiary. If the term
of the Letter(s) of Credit held by Landlord will expire prior to the last day of
the Lease Term and it is not extended, or a new Letter(s) of Credit for an
extended period of time is not substituted, within thirty (30) days prior to the
expiration of the Letter(s) of Credit, and after providing Tenant with at least
three (3) business days prior written notice, Landlord shall be entitled to make
demand for the Stated Amount of said Letter(s) of Credit and, thereafter, to
hold such funds in accordance with this Article 4. The Letter(s) of Credit and
any such proceeds thereof shall be held by Landlord as security for the faithful
performance by Tenant of all of the terms, covenants and conditions of this
Lease. If an Event of Default by Tenant exists with respect to any provision of
this Lease, Landlord may (but shall not be required to) draw upon all or any
portion of the Stated Amount(s) of the Letter(s) of Credit, and Landlord may
then use, apply or retain all or any part of the proceeds for the payment of any
sum which is in default, or for the payment of any other amount which Landlord
may spend or become obligated to spend by reason of such Event of Default or to
compensate Landlord for any loss or damage which Landlord may suffer by reason
of such Event of Default. If any portion of the Letter(s) of Credit proceeds are
so used or applied, Tenant shall, within ten (10) days after demand therefor,
post an additional Letter of Credit in an amount to cause the aggregate amount
of the unused proceeds and such new Letter of Credit to equal the Stated
Amount(s) required in this Article 4 above. Landlord shall not be required to
keep any proceeds from the Letter(s) of Credit separate from its general funds.
Should Landlord sell its interest in the Premises during the Lease Term and if
Landlord deposits with the purchaser thereof the Letter(s) of Credit or any
proceeds of the Letter(s) of Credit, thereupon Landlord shall be discharged from
any further liability with respect to the Letter(s) of Credit and said proceeds.
Any remaining proceeds of the Letter(s) of Credit held by Landlord after
expiration of the Lease Term, after any deductions described in this Article 4
above, shall be returned to Tenant or, at Landlord's option, to the last
assignee of Tenant's interest hereunder, within thirty (30) days following the
expiration of the Lease Term. Notwithstanding anything contained in this Article
4, in the event Tenant initially elects to deposit a cash Security Deposit with
Landlord, Tenant may thereafter provide Landlord with a Letter of Credit meeting
the requirements of this Article 4, and upon delivery of such Letter of Credit,
Landlord shall promptly refund an unused portion of the cash Security Deposit to
Tenant.
(c) Reduction of Security Deposit. Notwithstanding anything to the
-----------------------------
contrary contained herein, in the event that at any time during the term of this
Lease, Tenant provides Landlord with reasonable written evidence which shows
that Tenant has achieved a net worth equal to $125,000,000.00 (exclusive of
goodwill), calculated in accordance with generally accepted accounting
principles, the schedules set forth in Sections 4(a) and 4(b) above shall be
amended to provide that the amount of the cash Security Deposit or the Stated
Amount of the then existing Letter of Credit (as applicable) shall thereafter be
reduced as of the annual dates set forth in such schedules, on a straight line
basis, so that upon expiration of the fourth (4th) Lease Year, the amount of the
cash Security Deposit or the Stated Amount of the Letter of Credit (as
applicable) shall be Seventy Thousand Three Hundred Seventy-Five and 50/100
Dollars ($70,375.50), which amount shall be maintained for the remainder of the
Term.
ARTICLE 5
HOLDING OVER
------------
Should Tenant, without Landlord's written consent, hold over after
termination of this Lease, Tenant shall become a tenant from month to month,
only upon each and all of the terms herein provided as may be applicable to a
month to month tenancy and any such holding over shall not constitute an
extension of this Lease. During such holding over, Tenant shall pay in advance,
monthly, rent at two one hundred fifty percent (150%) of the rate in effect for
the last month of the Term of this Lease, in addition to, and not in lieu of,
all other payments required to be made by Tenant hereunder including but not
limited to Tenant's Proportionate Share of any increase in Direct Costs.
Nothing contained in this Article 5 shall be construed as consent by Landlord to
any holding over of the Premises by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this
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Lease upon the expiration or earlier termination of the Term. If Tenant fails to
surrender the Premises upon the expiration or termination of this Lease, Tenant
agrees to indemnify, defend and hold Landlord harmless from all costs, loss,
expense or liability, including without limitation, claims made by any
succeeding tenant and real estate brokers claims and attorney's fees.
ARTICLE 6
PERSONAL PROPERTY TAXES
-----------------------
Tenant shall pay, prior to delinquency, all taxes assessed against or
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant located in the Premises. In the event any or all of Tenant's
trade fixtures, furnishings, equipment and other personal property shall be
assessed and taxed with property of Landlord, or if the cost or value of any
leasehold improvements in the Premises exceeds the cost or value of a Project-
standard buildout as determined by Landlord and, as a result, real property
taxes for the Project are increased, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property or above-standard improvements. Tenant shall assume and pay
to Landlord at the time of paying Basic Rental any excise, sales, use, rent,
occupancy, garage, parking, gross receipts or other taxes (other than net income
taxes) which may be imposed on or on account of letting of the Premises or the
payment of Basic Rental or any other sums due or payable hereunder, and which
Landlord may be required to pay or collect under any law now in effect or
hereafter enacted. Tenant shall pay directly to the party or entity entitled
thereto all business license fees, gross receipts taxes and similar taxes and
impositions which may from time to time be assessed against or levied upon
Tenant, as and when the same become due and before delinquency. Notwithstanding
anything to the contrary contained herein, any sums payable by Tenant under this
Article 6 shall not be included in the computation of "Tax Costs."
ARTICLE 7
USE
---
Tenant shall use and occupy the Premises only for the use set forth in
Article 1.G. of the Basic Lease Provisions and shall not use or occupy the
Premises or permit the same to be used or occupied for any other purpose without
the prior written consent of Landlord, which consent may be given or withheld in
Landlord's sole and absolute discretion, and Tenant agrees that it will use the
Premises in such a manner so as not to interfere with or infringe the rights of
other tenants in the Project. Tenant shall, at its sole cost and expense,
promptly comply with all laws, statutes, ordinances and governmental regulations
or requirements now in force or which may hereafter be in force relating to or
affecting (i) the condition, use or occupancy of the Premises or the Project
excluding structural changes to the Project not related to Tenant's particular
use of the Premises, and (ii) improvements installed or constructed in the
Premises by or for the benefit of Tenant. Tenant shall not do or permit to be
done anything which would invalidate or increase the cost of any fire and
extended coverage insurance policy covering the Project and/or the property
located therein and Tenant shall comply with all rules, orders, regulations and
requirements of any organization which sets out standards, requirements or
recommendations commonly referred to by major fire insurance underwriters.
Tenant shall promptly upon demand reimburse Landlord for any additional premium
charges for any such insurance policy assessed or increased by reason of
Tenant's failure to comply with the provisions of this Article.
ARTICLE 8
CONDITION OF PREMISES
---------------------
Tenant hereby agrees that, except as otherwise provided herein and in the
Tenant Work Letter attached hereto as Exhibit "D", the Premises shall be taken
"as is", "with all faults", "without any representations or warranties", and
Tenant hereby agrees and warrants that it has investigated and inspected the
condition of the Premises and the suitability of same for Tenant's purposes, and
Tenant does hereby waive and disclaim any objection to, cause of action based
upon, or claim that its obligations hereunder should be reduced or limited
because of the condition of the Premises or the Project or the suitability of
same for Tenant's purposes. Tenant acknowledges that neither Landlord nor any
agent nor any employee of Landlord has made any
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<PAGE>
representations or warranty with respect to the Premises or the Project or with
respect to the suitability of either for the conduct of Tenant's business and
Tenant expressly warrants and represents that Tenant has relied solely on its
own investigation and inspection of the Premises and the Project in its decision
to enter into this Lease and let the Premises in an "As Is" condition. The
existing leasehold improvements in the Premises as of the date of this Lease,
together with the improvement work to be performed pursuant to the Tenant Work
Letter, may be collectively referred to herein as the "Tenant Improvements." The
taking of possession of the Premises by Tenant shall conclusively establish that
the Premises and the Project were at such time in satisfactory condition. Tenant
hereby waives Sections 1941 and 1942 of the Civil Code of California or any
successor provision of law.
Landlord reserves the right from time to time, but subject to payment by
and/or reimbursement from Tenant as otherwise provided herein: (i) to install,
use, maintain, repair, replace and relocate for service to the Premises and/or
other parts of the Project pipes, ducts, conduits, wires, appurtenant fixtures,
and mechanical systems, wherever located in the Premises or the Project, (ii) to
alter, close or relocate any facility in the Premises or the Common Areas or
otherwise conduct any of the above activities for the purpose of complying with
a general plan for fire/life safety for the Project or otherwise and (iii) to
comply with any federal, state or local law, rule or order with respect thereto
or the regulation thereof not currently in effect. Landlord shall attempt to
perform any such work with the least inconvenience to Tenant as possible, but in
no event shall Tenant be permitted to withhold or reduce Basic Rental or other
charges due hereunder as a result of same or otherwise make claim against
Landlord for interruption or interference with Tenant's business and/or
operations.
ARTICLE 9
REPAIRS AND ALTERATIONS
-----------------------
(a) Repairs and Alterations. Landlord shall maintain the structural
-----------------------
portions of the Project including the foundation, floor/ceiling slabs, roof,
curtain wall, exterior glass (including water leaks), columns, beams, shafts,
stairs, stairwells, elevator cabs and common areas and shall also maintain and
repair the basic mechanical, electrical, lifesafety, plumbing, sprinkler systems
and heating, ventilating and air-conditioning systems (provided, however, that
Landlord's obligation with respect to any such systems shall be to repair and
maintain those portions of the systems located in the core of the Project or in
other areas outside of the Premises, but Tenant shall be responsible to repair
and maintain any distribution of such systems throughout the Premises, except
the existing HVAC System in the Premises, the responsibility for repair and
maintenance of which shall be as provided in Article 11 hereof). Except as
expressly provided as Landlord's obligation in this Article 9, Tenant shall keep
the Premises in good condition and repair. A Subject to the provisions of
Article 14 hereof, all damage or injury to the Premises or the Project resulting
from the act or negligence of Tenant, its employees, agents or visitors, guests,
invitees or licensees or by the use of the Premises shall be promptly repaired
by Tenant, at its sole cost and expense, to the satisfaction of Landlord;
provided, however, that for damage to the Project as a result of casualty or for
any repairs that may impact the mechanical, electrical, plumbing, heating,
ventilation or air-conditioning systems of the Project, Landlord shall have the
right (but not the obligation) to select the contractor and oversee all such
repairs. Landlord may make any repairs which are not promptly made by Tenant
after Tenant's receipt of written notice and the reasonable opportunity of
Tenant to make said repair within five (5) business days from receipt of said
written notice, and charge Tenant for the cost thereof, which cost shall be paid
by Tenant within five (5) days from invoice from Landlord. Tenant shall be
responsible for the design and function of all non-standard improvements of the
Premises, whether or not installed by Landlord at Tenant's request. Tenant
waives all rights to make repairs at the expense of Landlord, or to deduct the
cost thereof from the rent. Tenant shall make no alterations, changes or
additions in or to the Premises (collectively, "Alterations") without Landlord's
prior written consent, and then only by contractors or mechanics approved by
Landlord in writing and upon the approval by Landlord in writing of fully
detailed and dimensioned plans and specifications pertaining to the Alterations
in question, to be prepared and submitted by Tenant at its sole cost and
expense. Notwithstanding anything to the contrary contained herein, Tenant may
make strictly cosmetic changes to the finish work in the Premises (the "Cosmetic
Alterations"), without Landlord's consent, provided that the aggregate cost of
any such alterations does not exceed Fifty Thousand Dollars ($50,000.00) in any
twelve (12) month period, and further provided that such alterations do not (i)
require any structural or other substantial modifications to the Premises, (ii)
require any changes to, nor adversely affect, the systems and equipment, and
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<PAGE>
(iii) affect the exterior appearance of the Project. Tenant shall give Landlord
at least thirty (30) days prior notice of such Cosmetic Alterations, which
notice shall be accompanied by reasonably adequate evidence that such changes
meet the criteria contained in this Article 9. Tenant shall at its sole cost
and expense obtain all necessary approvals and permits pertaining to any
Alterations approved by Landlord. If Landlord, in approving any Alterations,
specifies a commencement date therefor, Tenant shall not commence any work with
respect to such Alterations prior to such date. Tenant hereby indemnifies,
defends and agrees to hold Landlord free and harmless from all liens and claims
of lien, and all other liability, claims and demands arising out of any work
done or material supplied to the Premises by or at the request of Tenant in
connection with any Alterations. If permitted Alterations are made, they shall
be made at Tenant's sole cost and expense and shall be and become the property
of Landlord, except that Landlord may, by written notice to Tenant given at
least thirty (30) days prior to the end of the Term, require Tenant at Tenant's
expense to remove all partitions, counters, railings and other Alterations
installed by Tenant, and to repair any damages to the Premises caused by such
removal. Any and all costs attributable to or related to the applicable
building codes of the city in which the Project is located (or any other
authority having jurisdiction over the Project) arising from Tenants plans,
specifications, improvements, alterations or otherwise shall be paid by Tenant
at its sole cost and expense. With regard to repairs, Alterations or any other
work arising from or related to this Article 9, Landlord shall be entitled to
receive an administrative/supervision fee (which fee shall vary depending upon
whether or not Tenant orders the work directly from Landlord) sufficient to
compensate Landlord for all overhead, general conditions, fees and other costs
and expenses arising from Landlord's involvement with such work.
(b) Backup Generator. Subject to Landlord's prior approval of all plans
----------------
and specifications, which approval shall not be unreasonably withheld, Landlord
shall permit Tenant to install and maintain, at Tenant's sole cost and expense,
a backup diesel-powered generator at a location designated by Landlord. Such
backup generator shall be used by Tenant only during (i) testing and regular
maintenance, and (ii) any period of electrical power outage in the Project.
Tenant shall be entitled to operate the generator for testing and regular
maintenance only upon notice to Landlord and at times reasonably approved by
Landlord. Tenant shall submit the specifications for design, operation,
installation and maintenance of the backup generator for Landlord's consent,
which consent shall not be unreasonably withheld or delayed and may be
conditioned on Tenant complying with such reasonable requirements imposed by
Landlord, based on the advice of Landlord's structural and mechanical engineers,
so that the Project's systems and equipment are not adversely affected. In
addition, Tenant shall ensure that the backup generator does not result in any
Hazardous Materials being introduced to the Project, and Section 28(a) will
apply to Tenant's use of the backup generator. Further, Tenant shall be
responsible for ensuring that the backup generator does not interfere with the
use of the Project by other tenants. In the event another tenant of the Project
or of a neighboring project complains of problems caused by the generator,
Tenant shall take whatever steps are reasonably necessary to remedy the problem
complained of, including removal of the backup generator if another solution is
not available. Tenant shall ensure that the design and installation of the
backup generator is performed in a manner so as to minimize or eliminate any
noise or vibration cause by such generator. The vent for the generator must be
higher than the roof line of the Project. Any repairs and maintenance of such
generator shall be the sole responsibility of Tenant and Landlord makes no
representation or warranty with respect to such generator. Tenant shall, at
Tenant's sole cost and expense, remove such generator upon the expiration or
earlier termination of the Lease Term and repair all damage to the Project
resulting from such removal. Such generator shall be deemed to be a part of the
Premises for purposes of Article 14 of this Lease.
ARTICLE 10
LIENS
-----
Tenant shall keep the Premises and the Project free from any mechanics'
liens, vendors liens or any other liens arising out of any work performed,
materials furnished or obligations incurred by Tenant, and agrees to defend,
indemnify and hold harmless Landlord from and against any such lien or claim or
action thereon, together with costs of suit and reasonable attorneys' fees
incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition or improvement to the Premises,
Tenant shall give Landlord at least ten (10) business days' written notice of
the proposed commencement of such work (to afford Landlord an opportunity to
post appropriate notices of non-responsibility). In the event that there shall
be recorded against the Premises or the Project or the property of which the
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<PAGE>
Premises is a part any claim or lien arising out of any such work performed,
materials furnished or obligations incurred by Tenant and such claim or lien
shall not be removed or discharged, by bond or otherwise, within ten (10) days
of Tenant's receipt of notice of such filing, Landlord shall have the right but
not the obligation to pay and discharge said lien without regard to whether such
lien shall be lawful or correct or to require that Tenant deposit with Landlord
in cash, lawful money of the United States, one hundred fifty percent (150%) of
the amount of such claim, which sum may be retained by Landlord until such claim
shall have been removed of record or until judgment shall have been rendered on
such claim and such judgment shall have become final, at which time Landlord
shall have the right to apply such deposit in discharge of the judgment on said
claim and any costs, including attorneys' fees incurred by Landlord, and shall
remit the balance thereof to Tenant.
ARTICLE 11
PROJECT SERVICES
----------------
(a) Tenant shall be solely responsible for performing due diligence with
regard to all building systems and utilities to ensure the same are adequate for
Tenant's intended use. Landlord shall provide electric current for normal
lighting and normal office machines, elevator service and water on the same
floor as the Premises for lavatory and drinking purposes in such reasonable
quantities as in the judgment of Landlord is reasonably necessary for general
office use. Effective as of April 1, 2000, all such electricity shall be
separately metered at Tenant's sole cost and expense and Tenant shall make
payment directly to the entity providing such electricity. All other utilities
used by Tenant in the Premises shall be separately metered at Tenant's sole cost
and expense and Tenant shall make payment directly to the entity providing such
utilities. Tenant shall have the right to reasonably designate the entity which
will provide electricity to the Premises, so long as there is no interference
with, or interruption of, the electricity to other tenants of the Project caused
by such designation or the providing of service by Tenant's designated provider.
Landlord shall have the right to approve any work to be done by such utility
provider prior to the commencement of such work in accordance with the terms and
conditions of Article 9 above. Tenant shall be responsible for employing a
janitorial and maintenance service, which contractor shall be reasonably
approved by Landlord, and Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide such services in the Premises. Landlord and
Tenant hereby acknowledge that an independent heating, ventilation and air
conditioning system ("HVAC System") is installed in the Premises and that Tenant
shall, at Tenant's sole cost and expense, maintain a service and/or maintenance
contract for such HVAC System with a contractor designated by Landlord in its
reasonable discretion, which contractor shall perform all maintenance and
repairs on the HVAC System, as such maintenance and repairs are reasonably
deemed necessary by Landlord. In addition to separately metered electricity and
the repair and maintenance obligations for such HVAC System, Tenant shall pay to
Landlord the sum of Two Hundred Twenty-Seven and 00/100 Dollars ($227.00) per
month, which sum represents Landlord's reasonable estimate of the amount of
increased wear and tear on the HVAC System caused by Tenant's above-standard
use. The parties hereby acknowledge that the above number is an estimate of the
wear and tear caused by Tenant's intended level of use and Tenant hereby agrees
that Tenant will not use more than one-third (1/3) of the HVAC System on a
twenty-four (24) hour per day, seven (7) day per week schedule, and the
remaining two-thirds (2/3) of the HVAC System capacity shall be used during
normal business hours (e.g. 8:00 a.m. - 6:00 p.m. Monday through Friday and 8:00
a.m. - 1:00 p.m. on Saturday). In the event Tenant's use of the HVAC System
exceeds the referenced amounts, Landlord shall adjust the monthly amount to
reflect such increased usage. Landlord shall cause such HVAC System (but not the
two (2) chillers on the north side of the Project) to be in good working order
as of the Commencement Date. For purposes of this Lease, the two (2) chillers on
the north side of the Project, together with the enclosed area which contains
the chillers shall be a part of the Premises and Tenant shall be responsible, at
Tenant's sole cost and expense, for any and all repairs and maintenance of such
chillers necessary for Tenant's use of such chillers. Neither Landlord nor
Tenant shall have any obligation to replace or retrofit the chillers in the
event such replacement or retrofit is necessary during the Term, or upon
expiration, of this Lease. Further, in the event Tenant desires to remove the
chillers from the Project, Tenant may do so at Tenant's sole cost and expense,
only after first providing written notice to Landlord and allowing Landlord a
reasonable opportunity to remove or take possession of such chillers. In the
event Tenant elects to remove the chillers and Landlord does not elect to remove
or take possession of the chillers, Tenant shall repair any damage to the
Premises or Project caused by
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<PAGE>
such removal. Tenant shall comply with all rules and regulations which Landlord
may reasonably establish for the proper functioning and protection of the common
area air conditioning, heating, elevator, electrical intrabuilding network cable
and plumbing systems. Landlord shall not be liable for, and there shall be no
rent abatement as a result of, any stoppage, reduction or interruption of any
such services caused by governmental rules, regulations or ordinances, riot,
strike, labor disputes, breakdowns, accidents, necessary repairs or other cause.
Except as specifically provided in this Article 11, Tenant agrees to pay for all
utilities and other services utilized by Tenant and additional building services
furnished to Tenant not uniformly furnished to all tenants of the Project at the
rate generally charged by Landlord to tenants of the Project.
(b) Tenant will not, without the prior written consent of Landlord, use
any apparatus or device in the Premises which will in any way increase the
amount of water usually furnished or supplied for use of the Premises as general
office space; nor connect any apparatus, machine or device with water pipes for
the purpose of using water.
(c) Landlord may impose a reasonable charge for any utilities or services
(other than electric current and heating, ventilation and/or air conditioning
which shall be governed by Articles 11(a) and (b) above) utilized by Tenant in
excess of the amount or type that Landlord reasonably determines is typical for
general office use.
(d) Tenant shall have the right to use the existing fiber optic cable in
the Project, or Tenant may elect to install new fiber optic cable; provided that
the installation of such new fiber optic cable does not interfere with any other
tenants of the Project, and further provided that Landlord shall have the right
to approve any work to be done by such fiber optics provider prior to the
commencement of such work in accordance with the terms and conditions of
Article 9 above.
(e) Subject to Landlord's security requirements, repairs made by
Landlord to the Project and Articles 16 and 18 below, Tenant shall have access
to the Premises twenty-four (24) hours per day, seven (7) days per week
throughout the Term.
ARTICLE 12
RIGHTS OF LANDLORD
------------------
Landlord and its agents shall have the right to enter the Premises at all
reasonable times upon twenty-four (24) hours prior notice (except in the case of
an emergency) for the purpose of cleaning the Premises, examining or inspecting
the same, serving or posting and keeping posted thereon notices as provided by
law, or which Landlord deems necessary for the protection of Landlord or the
Property, showing the same to prospective tenants (during the last nine (9)
months of the Term only), lenders or purchasers of the Project, in the case of
an emergency, and for making such alterations, repairs, improvements or
additions to the Premises or to the Project as Landlord may deem necessary or
desirable. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when such an entry by Landlord is necessary
or permitted hereunder, Landlord may enter by means of a master key or may enter
forcibly, only in the case of an emergency, without liability to Tenant and
without affecting this Lease. In exercising Landlord's rights under this
Article 12, Landlord shall use commercially reasonable efforts not to interfere
with Tenant's business operations.
ARTICLE 13
INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY
-----------------------------------------------
(a) Indemnity. Tenant shall indemnify, defend and hold Landlord
---------
harmless from any and all claims arising from Tenant's use of the Premises or
the Project or from the conduct of its business or from any activity, work or
thing which may be permitted or suffered by Tenant in or about the Premises or
the Project and shall further indemnify, defend and hold Landlord harmless 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 this Lease
or arising from any negligence of Tenant or any of its agents, contractors,
employees or invitees, patrons, customers or members in or about the Project and
from any and all costs, attorneys' fees, expenses and liabilities incurred in
the defense of any claim or any action or proceeding brought
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<PAGE>
thereon, including negotiations in connection therewith. Tenant hereby assumes
all risk of damage to property or injury to persons in or about the Premises
from any cause, and Tenant hereby waives all claims in respect thereof against
Landlord, excepting where the damage is caused solely by the gross negligence or
willful misconduct of Landlord.
(b) Exemption of Landlord from Liability. Landlord shall not be liable
------------------------------------
for injury to Tenant's business, or loss of income therefrom, or for damage that
may be sustained by the person, goods, wares, merchandise or property of Tenant,
its employees, invitees, customers, agents, or contractors, or any other person
in, on or about the Premises directly or indirectly caused by or resulting from
fire, steam, electricity, gas, water, or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning, light fixtures, or mechanical or electrical systems or from
intrabuilding network cable, whether such damage or injury results from
conditions arising upon the Premises or upon other portions of the Project or
from other sources or places and regardless of whether the cause of such damage
or injury or the means or repairing the same is inaccessible to Tenant, except
in connection with damage or injury resulting from the gross negligence or
willful misconduct of Landlord, or its authorized agents. Landlord shall not be
liable to Tenant for any damages arising from any act or neglect of any other
tenant of the building.
Tenant acknowledges that Landlord's election to provide mechanical
surveillance or to post security personnel in the Project is solely within
Landlord's discretion; Landlord shall have no liability in connection with the
decision whether or not to provide such services and Tenant hereby waives all
claims based thereon. Landlord shall not be liable for losses due to theft,
vandalism, or like causes. Tenant shall defend, indemnify, and hold Landlord
harmless from any such claims made by any employee, licensee, invitee,
contractor, agent or, other person whose presence in, on or about the Premises
or the Project is attendant to the business of Tenant.
ARTICLE 14
INSURANCE
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(a) Tenant's Insurance. Tenant, shall at all times during the Term of
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this Lease, and at its own cost and expense, procure and continue in force the
following insurance coverage: (i) Commercial General Liability Insurance with a
combined single limit for bodily injury and property damages of not less than
Two Million Dollars ($2,000,000) per occurrence and Three Million Dollars
($3,000,000) in the annual aggregate, including products liability coverage if
applicable, covering the insuring provisions of this Lease and the performance
of Tenant of the indemnity and exemption of Landlord from liability agreements
set forth in Article 13 hereof; (ii) a policy of standard fire, extended
coverage and special extended coverage insurance (all risks), including a
vandalism and malicious mischief endorsement, sprinkler leakage coverage and
earthquake sprinkler leakage where sprinklers are provided in an amount equal to
the full replacement value new without deduction for depreciation of all (A)
Tenant Improvements, Alterations, fixtures and other improvements in the
Premises and (B) trade fixtures, furniture, equipment and other personal
property installed by or at the expense of Tenant; (iii) Worker's Compensation
coverage as required by law; and (iv) business interruption, loss of income and
extra expense insurance covering failure of Tenant's telecommunications
equipment and covering all other perils, failures or interruptions. Tenant shall
carry and maintain during the entire Lease Term (including any option periods,
if applicable), at Tenant's sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article 14 and such
other reasonable types of insurance coverage and in such reasonable amounts
covering the Premises and Tenant's operations therein, as may be reasonably
required by Landlord.
(b) Form of Policies. The aforementioned minimum limits of policies and
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Tenant's procurement and maintenance thereof shall in no event limit the
liability of Tenant hereunder. The Commercial General Liability Insurance policy
shall name Landlord, Landlord's property manager, Landlord's lender(s) and such
other persons or firms as Landlord specifies from time to time, as additional
insureds' with an appropriate endorsement to the policy(s). All such insurance
policies carried by Tenant shall be with companies having a rating of not less
than A-VIII in Best's Insurance Guide. Tenant shall furnish to Landlord, from
the insurance companies, or cause the insurance companies to furnish,
certificates of coverage. No such policy shall be cancelable or subject to
reduction of coverage or other modification or cancellation except after
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thirty (30) days prior written notice to Landlord by the insurer. All such
policies shall be endorsed to agree that Tenant's policy is primary and that any
insurance covered by Landlord is excess and not contributing with any Tenant
insurance requirement hereunder. Tenant shall, at least twenty (20) days prior
to the expiration of such policies, furnish Landlord with renewals or binders.
Tenant agrees that if Tenant does not take out and maintain such insurance or
furnish Landlord with renewals or binders, Landlord may (but shall not be
required to) procure said insurance on Tenant's behalf and charge Tenant the
cost thereof, which amount shall be payable by Tenant upon demand with interest
(at the rate set forth in Section 20(e) below) from the date such sums are
extended. Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by Tenant, provided such blanket policies
expressly afford coverage to the Premises and to Tenant as required by this
Lease.
(c) Landlord's Insurance. Landlord shall, as a cost to be included in
--------------------
Operating Costs, procure and maintain at all times during the Term of this
Lease, a policy or policies of insurance covering loss or damage to the Project
in the amount of the full replacement costs without deduction for depreciation
thereof (exclusive of Tenant's trade fixtures, inventory, personal property and
equipment), providing protection against all perils included within the
classification of fire and extended coverage, vandalism coverage and malicious
mischief, sprinkler leakage, water damage, and special extended coverage on
building. Additionally, Landlord may (but shall not be required to) carry: (i)
Bodily Injury and Property Damage Liability Insurance and/or Excess Liability
Coverage Insurance; and (ii) Earthquake and/or Flood Damage Insurance; and (iii)
Rental Income Insurance at its election or if required by its lender from time
to time during the Term hereof, in such amounts and with such limits as Landlord
or its lender may deem appropriate. The costs of such insurance shall be
included in Operating Costs.
(d) Waiver of Subrogation. Landlord and Tenant each agree to have their
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respective insurers issuing the insurance described in Sections 14(a)(ii),
14(a)(iv) and the first sentence of Section 14(c) waive any rights of
subrogation that such companies may have against the other party.
Notwithstanding anything to the contrary contained in this Lease, Tenant hereby
waives any right that Tenant may have against Landlord and Landlord hereby
waives any right that Landlord may have against Tenant as a result of any loss,
liability or damage to the extent such loss, liability or damage is or normally
would be insurable under such policies or any other property insurance carried
by either party with respect to the Project.
(e) Compliance with Law. Tenant agrees that it will not, at any time,
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during the Term of this Lease, carry any stock of goods or do anything in or
about the Premises that will in any way tend to increase the insurance rates
upon the Project. Tenant agrees to pay Landlord forthwith upon demand the amount
of any increase in premiums for insurance against loss by fire that may be
charged during the Term of this Lease on the amount of insurance to be carried
by Landlord on the Project resulting from the foregoing, or from Tenant doing
any act in or about said Premises that does so increase the insurance rates,
whether or not Landlord shall have consented to such act on the part of Tenant.
If Tenant installs upon the Premises any electrical equipment which constitutes
an overload of electrical lines of the Premises, Tenant shall at its own cost
and expense in accordance with all other Lease provisions, and subject to the
provisions of Article 9, 10 and 11, hereof, make whatever changes are necessary
to comply with requirements of the insurance underwriters and any governmental
authority having jurisdiction thereover, but nothing herein contained shall be
deemed to constitute Landlord's consent to such overloading. Tenant shall, at
its own expense, comply with all requirements of the insurance authority having
jurisdiction over the Project necessary for the maintenance of reasonable fire
and extended coverage insurance for the Premises, including without limitation
thereto, the installation of fire extinguishers or an automatic dry chemical
extinguishing system.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
-------------------------
Tenant shall have no power to, either voluntarily, involuntarily, by
operation of law or otherwise, sell, assign, transfer or hypothecate this Lease,
or sublet the Premises or any part thereof, or permit the Premises or any part
thereof to be used or occupied by anyone other than Tenant or Tenant's employees
without the prior written consent of Landlord which shall not be unreasonably
withheld. If Tenant is a corporation, unincorporated association, partnership
or limited liability company, the sale, assignment, transfer or hypothecation of
any class of stock or other ownership interest in such corporation, association,
partnership or limited liability
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company in excess of twenty-five percent (25%) in the aggregate shall be deemed
an assignment within the meaning and provisions of this Article 15. Tenant may
transfer its interest pursuant to this Lease only upon the following express
conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed transferee shall be subject to the prior written
consent of Landlord, which consent will not be unreasonably withheld but,
without limiting the generality of the foregoing, it shall be reasonable for
Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed transferee
is (a) not generally consistent with the character and nature of all other
tenancies in the Project, or (b) a use which conflicts with any so-called
"exclusive" then in favor of, or for any use which is the same as that stated in
any percentage rent lease to, another tenant of the Project or any other
buildings which are in the same complex as the Project, or (c) a use which would
be prohibited by any other portion of this Lease (including but not limited to
any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed transferee is not
reasonably satisfactory to Landlord or in any event not at least equal to those
which were possessed by Tenant as of the date of execution of this Lease;
(iii) The proposed transferee is either a governmental agency or
instrumentality thereof; or
(iv) Either the proposed transferee or any person or entity which
directly or indirectly controls, is controlled by or is under common control
with the proposed transferee (A) occupies space in the Project at the time of
the request for consent, or (B) is negotiating with Landlord or has negotiated
with Landlord during the six (6) month period immediately preceding the date of
the proposed transfer, to lease space in the Project.
(b) Whether or not Landlord consents to any such transfer, Tenant shall
pay to Landlord reasonable attorneys' fees incurred in connection with the
proposed transfer up to the sum of $1,500.00;
(c) That the proposed transferee shall execute an agreement pursuant to
which it shall agree to perform faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease applicable to
that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption
agreement or other transfer on a form reasonably approved by Landlord, shall be
delivered to Landlord within five (5) days after the execution thereof, and that
such transfer shall not be binding upon Landlord until the delivery thereof to
Landlord and the execution and delivery of Landlord's consent thereto. It shall
be a condition to Landlord's consent to any subleasing, assignment or other
transfer of part or all of Tenant's interest in the Premises (hereinafter
referred to as a "Transfer") that (i) upon Landlord's consent to any Transfer,
Tenant shall pay and continue to pay fifty percent (50%) of any "Transfer
Premium" (defined below), received by Tenant from the transferee; (ii) any
sublessee of part or all of Tenant's interest in the Premises shall agree that
in the event Landlord gives such sublessee notice that Tenant is in default
under this Lease, such sublessee shall thereafter make all sublease or other
payments directly to Landlord, which will be received by Landlord without any
liability whether to honor the sublease or otherwise (except to credit such
payments against sums due under this Lease), and any sublessee shall agree to
attorn to Landlord or its successors and assigns at their request should this
Lease be terminated for any reason, except that in no event shall Landlord or
its successors or assigns be obligated to accept such attornment; (iii) any such
Transfer and consent shall be effected on forms supplied by Landlord and/or its
legal counsel; (iv) Landlord may require that Tenant not then be in default
hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee
(collectively, "Transferee") shall agree to pay Landlord, upon demand, as
additional rent, a sum equal to the additional costs, if any, incurred by
Landlord for maintenance and repair as a result of any change in the nature of
occupancy caused by such subletting or assignment. "Transfer Premium" shall mean
all rent, additional rent or other consideration payable by a Transferee in
connection with a Transfer in excess of the rent and Additional Rent payable by
Tenant under this Lease during the term of the Transfer and if such Transfer is
less than all of the Premises, the Transfer Premium shall be calculated on a
rentable square foot basis. "Transfer Premium" shall
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<PAGE>
also include, but not be limited to, key money, bonus money or other cash
consideration paid by a transferee to Tenant in connection with such Transfer,
and any payment in excess of fair market value for services rendered by Tenant
to the Transferee and any payment in excess of fair market value for assets,
fixtures, inventory, equipment, or furniture transferred by Tenant to the
Transferee in connection with such Transfer. Any sale assignment, hypothecation,
transfer or subletting of this Lease which is not in compliance with the
provisions of this Article 15 shall be void and shall, at the option of
Landlord, terminate this Lease. In no event shall the consent by Landlord to an
assignment or subletting be construed as relieving Tenant, any assignee, or
sublessee from obtaining the express written consent of Landlord to any further
assignment or subletting, or as releasing Tenant from any liability or
obligation hereunder whether or not then accrued and Tenant shall continue to be
fully liable therefor. No collection or acceptance of rent by Landlord from any
person other than Tenant shall be deemed a waiver of any provision of this
Article 15 or the acceptance of any assignee or subtenant hereunder, or a
release of Tenant (or of any successor of Tenant or any subtenant).
Notwithstanding anything to the contrary in this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably withheld or delayed
its consent under this Article 15 or otherwise has breached or acted
unreasonably under this Article 15, their sole remedies shall be a declaratory
judgment and an injunction for the relief sought without any monetary damages,
and Tenant hereby waives all other remedies, including, without limitation, any
right at law or equity to terminate this Lease, on its own behalf and, to the
extent permitted under all applicable laws, on behalf of the proposed
Transferee.
(e) The term "Affiliate" shall mean (i) any entity that is controlled by,
controls or is under common control with, Tenant or (ii) any entity that merges
with, is acquired by, or acquires Tenant through the purchase of stock or assets
and where the net worth of the surviving entity as of the date such transaction
is completed is at least equal to the net worth of Tenant as of the date of this
Lease calculated under generally accepted accounting principles. Notwithstanding
anything to the contrary contained in this Article 15, an assignment or
subletting of all or a portion of the Premises to an Affiliate of Tenant shall
not be deemed a Transfer under this Article 15, provided that Tenant notifies
Landlord of any such assignment or sublease and promptly supplies Landlord with
any documents or information requested by Landlord regarding such assignment or
sublease, and further provided that such assignment or sublease is not a
subterfuge by Tenant to avoid its obligations under this Lease. An assignee to
whom Tenant's entire interest in this Lease is assigned pursuant to this Section
15(e) may be referred to herein as a "Permitted Assignee." "Control," as used in
this Section 15(e), shall mean the ownership, directly or indirectly, of greater
than fifty percent (50%) of the voting securities of, or possession of the right
to vote, in the ordinary direction of its affairs, of greater than fifty percent
(50%) of the voting interest in, an entity.
Notwithstanding anything to the contrary contained in this Article 15,
Landlord shall have the option, by giving written notice to Tenant within thirty
(30) days after Landlord's receipt of a request for consent to a proposed
Transfer in which either (i) the proposed Transfer is for a period of eighteen
(18) months or longer or (ii) the Transfer consists of more than twenty-five
percent (25%) of the rentable square footage of the initial Premises, to
terminate this Lease as to the portion of the Premises that is the subject of
the Transfer; provided, however, that Tenant shall have the option to withdraw
such request and remain in possession of the Premises by giving written notice
of such election to Landlord within ten (10) days after receipt of Landlord's
election to terminate. If this Lease is so terminated with respect to less than
the entire Premises, the Basic Rental and Tenant's Proportionate Share shall be
prorated based on the number of rentable square feet retained by Tenant as
compared to the total number of rentable square feet contained in the original
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon the request of either party, the parties shall execute
written confirmation of the same.
ARTICLE 16
DAMAGE OR DESTRUCTION
---------------------
If the Project is damaged by fire or other insured casualty and the
insurance proceeds have been made available therefor by the holder or holders of
any mortgages or deeds of trust covering the Premises or the Project, the damage
shall be repaired by Landlord to the extent such insurance proceeds are
available therefor and provided such repairs can, in Landlord's sole opinion, be
completed within two hundred seventy (270) days after the necessity for repairs
as a result of such damage becomes known to Landlord without the payment of
overtime or other
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premiums, and until such repairs are completed rent shall be abated in
proportion to the part of the Premises which is unusable by Tenant in the
conduct of its business (but there shall be no abatement of rent by reason of
any portion of the Premises being unusable for a period equal to one (1) day or
less). However, if the damage is due to the fault or neglect of Tenant, its
employees, agents, contractors, guests, invitees and the like, there shall be no
abatement of rent except to the extent of any rental loss insurance maintained
by Landlord with respect to the Premises. Upon the occurrence of any damage to
the Premises, Tenant shall assign to Landlord (or to any party designated by
Landlord) all insurance proceeds payable to Tenant under Section 14(a)(ii)(A)
above; provided, however, that if the cost of repair of improvements within the
Premises by Landlord exceeds the amount of insurance proceeds received by
Landlord from Tenant's insurance carrier, as so assigned by Tenant, such excess
costs shall be paid by Tenant to Landlord prior to Landlord's repair of such
damage. If repairs cannot, in Landlord's opinion, be completed within two
hundred seventy (270) days after the necessity for repairs as a result of such
damage becomes known to Landlord without the payment of overtime or other
premiums, Landlord may, at its option, either (i) make them in a reasonable time
and in such event this Lease shall continue in effect and the rent shall be
abated, if at all, in the manner provided in this Article 16, or (ii) elect not
to effect such repairs and instead terminate this Lease, by notifying Tenant in
writing of such termination within sixty (60) days after Landlord learns of the
necessity for repairs as a result of damage, such notice to include a
termination date giving Tenant sixty (60) days to vacate the Premises. In
addition, Landlord may elect to terminate this Lease if the Project shall be
damaged by fire or other casualty or cause, whether or not the Premises are
affected, and the damage is not fully covered, except for deductible amounts, by
Landlord's insurance policies. Finally, if the Premises or the Project is
damaged to any substantial extent during the last twelve (12) months of the
Term, then notwithstanding anything contained in this Article 16 to the
contrary, Landlord shall have the option to terminate this Lease by giving
written notice to Tenant of the exercise of such option within sixty (60) days
after Landlord learns of the necessity for repairs as the result of such damage;
provided, however, that Landlord shall not have such option if Tenant, at the
time of such damage, has an express option to extend the Term, and Tenant
exercises such option by written notice to Landlord in accordance with the terms
and conditions of Article 31 hereof, within twenty (20) days following Tenant's
receipt of Landlord's notice of termination. A total destruction of the Project
shall automatically terminate this Lease. Except as provided in this Article 16,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business or property arising from
such damage or destruction or the making of any repairs, alterations or
improvements in or to any portion of the Project or the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant understands that Landlord
will not carry insurance of any kind on Tenant's furniture, furnishings, trade
fixtures or equipment, and that Landlord shall not be obligated to repair any
damage thereto or replace the same. Except for proceeds relating to Tenant's
furniture, furnishings, trade fixtures and equipment, Tenant acknowledges that
Tenant shall have no right to any proceeds of insurance relating to property
damage. With respect to any damage which Landlord is obligated to repair or
elects to repair, Tenant, as a material inducement to Landlord entering into
this Lease, irrevocably waives and releases its rights under the provisions of
Sections 1932 and 1933 of the California Civil Code.
ARTICLE 17
SUBORDINATION
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Landlord agrees to use commercially reasonable efforts to obtain a
commercially reasonable nondisturbance agreement in favor of Tenant from the
current lender of the Project. This Lease is subject and subordinate to all
ground or underlying leases, mortgages and deeds of trust which affect the
property or the Project, including all renewals, modifications, consolidations,
replacements and extensions thereof; provided, however, if the lessor under any
such lease or the holder or holders of any such mortgage or deed of trust shall
advise Landlord that they desire or require this Lease to be prior and superior
thereto, upon written request of Landlord to Tenant, Tenant agrees to promptly
execute, acknowledge and deliver any and all documents or instruments which
Landlord or such lessor, holder or holders deem necessary or desirable for
purposes thereof. Landlord shall have the right to cause this Lease to be and
become and remain subject and subordinate to any and all ground or underlying
leases, mortgages or deeds of trust which may hereafter be executed covering the
Premises, the Project or the property or any renewals, modifications,
consolidations, replacements or extensions
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<PAGE>
thereof, for the full amount of all advances made or to be made thereunder and
without regard to the time or character of such advances, together with interest
thereon and subject to all the terms and provisions thereof; provided, however,
that Landlord obtains from the lender or other party in question a written
subordination, non-disturbance and attornment agreement in favor of Tenant to
the effect that such lender or other party will not disturb Tenant's right of
possession under this Lease if Tenant is not then or thereafter in breach of any
covenant or provision of this Lease. Tenant agrees, within ten (10) days after
Landlord's written request therefor, to execute, acknowledge and deliver upon
request any and all documents or instruments requested by Landlord or necessary
or proper to assure the subordination of this Lease to any such mortgages, deed
of trust, or leasehold estates. Tenant agrees that in the event any proceedings
are brought for the foreclosure of any mortgage or deed of trust or any deed in
lieu thereof, to attorn to the purchaser or any successors thereto upon any such
foreclosure sale or deed in lieu thereof as so requested to do so by such
purchaser and to recognize such purchaser as the lessor under this Lease; Tenant
shall, within five (5) days after request execute such further instruments or
assurances as such purchaser may reasonably deem necessary to evidence or
confirm such attornment. Tenant agrees to provide copies of any notices of
Landlord's default under this Lease to any mortgagee or deed of trust
beneficiary whose address has been provided to Tenant and Tenant shall provide
such mortgagee or deed of trust beneficiary a commercially reasonable time after
receipt of such notice within which to cure any such default. Tenant waives the
provisions of any current or future statute, rule or law which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligations of the Tenant hereunder in the event of
any foreclosure proceeding or sale.
ARTICLE 18
EMINENT DOMAIN
--------------
If the whole of the Premises or the Project or so much thereof as to render
the balance unusable by Tenant shall be taken under power of eminent domain, or
is sold, transferred or conveyed in lieu thereof, this Lease shall automatically
terminate as of the date of such condemnation, or as of the date possession is
taken by the condemning authority, at Landlord's option. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns to
Landlord any award which may be made in such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising in or to the same or
any part thereof; provided, however, that nothing contained herein shall be
deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property and trade
fixtures belonging to Tenant and removable by Tenant at the expiration of the
Term hereof as provided hereunder or for the interruption of, or damage to,
Tenant's business. In the event of a partial taking described in this Article
18, or a sale, transfer or conveyance in lieu thereof, which does not result in
a termination of this Lease, the rent shall be apportioned according to the
ratio that the part of the Premises remaining useable by Tenant bears to the
total area of the Premises. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code of Civil
Procedure.
ARTICLE 19
DEFAULT
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Each of the following acts or omissions of Tenant or of any guarantor of
Tenant's performance hereunder, or occurrences, shall constitute an "Event of
Default":
(a) Failure or refusal to pay Basic Rental, Additional Rent or any other
amount to be paid by Tenant to Landlord hereunder within five (5) calendar days
after notice that the same is due or payable hereunder; said five (5) day period
shall be in lieu of, and not in addition to, the notice requirements of
Section 1161 of the California Code of Civil Procedure or any similar or
successor law;
(b) Except as set forth in items (a) above and (c) through and including
(f) below, failure to perform or observe any other covenant or condition of this
Lease to be performed or observed within thirty (30) days following written
notice to Tenant of such failure. Such thirty (30) day notice shall be in lieu
of, and not in addition to, any required under Section 1161 of the California
Code of Civil Procedure or any similar or successor law;
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<PAGE>
(c) The taking in execution or by similar process or law (other than by
eminent domain) of the estate hereby created;
(d) The filing by Tenant or any guarantor hereunder in any court pursuant
to any statute of a petition in bankruptcy or insolvency or for reorganization
or arrangement for the appointment of a receiver of all or a portion of Tenant's
property; the filing against Tenant or any guarantor hereunder of any such
petition, or the commencement of a proceeding for the appointment of a trustee,
receiver or liquidator for Tenant, or for any guarantor hereunder, or of any of
the property of either, or a proceeding by any governmental authority for the
dissolution or liquidation of Tenant or any guarantor hereunder, if such
proceeding shall not be dismissed or trusteeship discontinued within thirty (30)
days after commencement of such proceeding or the appointment of such trustee or
receiver; or the making by Tenant or any guarantor hereunder of an assignment
for the benefit of creditors. Tenant hereby stipulates to the lifting of the
automatic stay in effect and relief from such stay for Landlord in the event
Tenant files a petition under the United States Bankruptcy laws, for the purpose
of Landlord pursuing its rights and remedies against Tenant and/or a guarantor
of this Lease;
(e) Tenant's failure to cause to be released, by bond or otherwise, any
mechanics liens filed against the Premises or the Project within twenty (20)
days after the date that Tenant receives notice that the same shall have has
been filed or recorded; or
(f) Tenant's failure to observe or perform according to the provisions of
Articles 17 or 25 within five (5) business days after notice from Landlord.
All defaults by Tenant of any covenant or condition of this Lease shall be
deemed by the parties hereto to be material.
ARTICLE 20
REMEDIES
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(a) Upon the occurrence of an Event of Default under this Lease as
provided in Article 19 hereof, Landlord may exercise all of its remedies as may
be permitted by law, including but not limited to the remedy provided by Section
1951.4 of the California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse or
elsewhere at the risk, expense and for the account of Tenant. If Landlord elects
to terminate this Lease, Landlord shall be entitled to recover from Tenant the
aggregate of all amounts permitted by law, including but not limited to (i) the
worth at the time of award of the amount of any unpaid rent which had been
earned at the time of such termination; plus (ii) the worth at the time of award
of the amount by which the unpaid rent 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; plus (iii) the worth at the
time of award of the amount by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, specifically
including but not limited to, brokerage commissions and advertising expenses
incurred, expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special concessions
made to obtain a new tenant; and (v) at Landlord's election, such other amounts
in addition to or in lieu of the foregoing as may be permitted from time to time
by applicable law. The term "rent" as used in this Article 20(a) shall be deemed
to be and to mean all sums of every nature required to be paid by Tenant
pursuant to the terms of this Lease, whether to Landlord or to others. As used
in items (i) and (ii), above, the "worth at the time of award" shall be computed
by allowing interest at the rate set forth in item (e), below, but in no case
greater than the maximum amount of such interest permitted by law. As used in
item (iii), above, the "worth at the time of award" shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
(b) Nothing in this Article 20 shall be deemed to affect Landlord's right
to indemnification for liability or liabilities arising prior to the termination
of this Lease for
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personal injuries or property damage under the indemnification clause or clauses
contained in this Lease.
(c) Notwithstanding anything to the contrary set forth herein, Landlord's
re-entry to perform acts of maintenance or preservation of or in connection with
efforts to relet the Premises or any portion thereof, or the appointment of a
receiver upon Landlord's initiative to protect Landlord's interest under this
Lease shall not terminate Tenant's right to possession of the Premises or any
portion thereof and, until Landlord does elect to terminate this Lease, this
Lease shall continue in full force and effect and Landlord may enforce all of
Landlord's rights and remedies hereunder including, without limitation, the
remedy described in California Civil Code Section 1951.4 (lessor may continue
lease in effect after lessee's breach and abandonment and recover rent as it
becomes due, if Lessee has the right to sublet or assign, subject only to
reasonable limitations). Accordingly, if Landlord does not elect to terminate
this Lease on account of any default by Tenant, Landlord may, from time to time,
without terminating this Lease, enforce all of its rights and remedies under
this Lease, including the right to recover all rent as it becomes due.
(d) All rights, powers and remedies of Landlord hereunder and under any
other agreement now or hereafter in force between Landlord and Tenant shall be
cumulative and not alternative and shall be in addition to all rights, powers
and remedies given to Landlord by law, and the exercise of one or more rights or
remedies shall not impair Landlord's right to exercise any other right or
remedy.
(e) Any amount due from Tenant to Landlord hereunder which is not paid
when due shall bear interest at the lower of eighteen percent (18%) per annum or
the maximum lawful rate of interest from the due date until paid, unless
otherwise specifically provided herein, but the payment of such interest shall
not excuse or cure any default by Tenant under this Lease. In addition to such
interest: (a) if Basic Rental is not paid within ten (10) days after the same is
due, a late charge equal to ten percent (10%) of the amount overdue or $100,
whichever is greater, shall be assessed and shall accrue for each calendar month
or part thereof until such rental, including the late charge, is paid in full,
which late charge Tenant hereby agrees is a reasonable estimate of the damages
Landlord shall suffer as a result of Tenant's late payment and (b) an additional
charge of $25 shall be assessed for any check given to Landlord by or on behalf
of Tenant which is not honored by the drawee thereof; which damages include
Landlord's additional administrative and other costs associated with such late
payment and unsatisfied checks and the parties agree that it would be
impracticable or extremely difficult to fix Landlord's actual damage in such
event. Such charges for interest and late payments and unsatisfied checks are
separate and cumulative and are in addition to and shall not diminish or
represent a substitute for any or all of Landlord's rights or remedies under any
other provision of this Lease.
ARTICLE 21
TRANSFER OF LANDLORD'S INTEREST
-------------------------------
In the event of any transfer or termination of Landlord's interest in the
Premises or the Project by sale, assignment, transfer, foreclosure, deed-in-lieu
of foreclosure or otherwise whether voluntary or involuntary, Landlord shall be
automatically relieved of any and all obligations and liabilities on the part of
Landlord from and after the date of such transfer or termination, including
furthermore without limitation, the obligation of Landlord under Article 4 and
California Civil Code 1950.7 above to return the security deposit, provided said
security deposit is transferred to said transferee. Tenant agrees to attorn to
the transferee upon any such transfer and to recognize such transferee as the
lessor under this Lease and Tenant shall, within five (5) days after request,
execute such further instruments or assurances as such transferee may reasonably
deem necessary to evidence or confirm such attornment.
ARTICLE 22
BROKER
------
In connection with this Lease, Tenant warrants and represents that it has
had dealings only with firm(s) set forth in Article 1.H. of the Basic Lease
Provisions and that it knows of no other person or entity who is or might be
entitled to a commission, finder's fee or other like
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payment in connection herewith and does hereby indemnify and agree to hold
Landlord, its agents, members, partners, representatives, officers, affiliates,
shareholders, employees, successors and assigns harmless from and against any
and all loss, liability and expenses that Landlord may incur should such
warranty and representation prove incorrect, inaccurate or false.
ARTICLE 23
PARKING
-------
Tenant shall have the right to use, commencing on the Commencement Date,
the number of unreserved parking spaces set forth in Section 1(I) of the Basic
Lease Provisions, which parking spaces shall pertain to the Project parking
facility and shall be free and in common throughout the initial Term. Tenant
shall be responsible for the payment of any taxes applicable to the use of the
Project parking facility and/or such parking passes in the event any such taxes
are later assessed. In the event Tenant exercises its right of first offer set
forth in this Lease, Tenant shall be given additional parking passes in the same
ratio as those given with regard to the initial Premises Tenant's continued
right to use the parking passes is conditioned upon Tenant abiding by all rules
and regulations which are prescribed from time to time for the orderly operation
and use of the parking facility where the parking passes are located, including
any sticker or other identification system established by Landlord, Tenant's
cooperation in seeing that Tenant's employees and visitors also comply with such
rules and regulations, and Tenant not being in default under this Lease.
Landlord specifically reserves the right to change the size, configuration,
design, layout and all other aspects of the Project parking facility at any time
and Tenant acknowledges and agrees that Landlord may, without incurring any
liability to Tenant and without any abatement of rent under this Lease, from
time to time, close-off or restrict access to the Project parking facility for
purposes of permitting or facilitating any such construction, alteration or
improvements. Landlord may delegate its responsibilities hereunder to a parking
operator or a lessee of the parking facility in which case such parking operator
or lessee shall have all the rights of control attributed hereby to the
Landlord. The parking passes rented by Tenant pursuant to this Article 23 are
provided to Tenant solely for use by Tenant's own personnel and such passes may
not be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval.
ARTICLE 24
WAIVER
------
No waiver by Landlord of any provision of this Lease shall be deemed to be
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. No provision of this Lease may be waived by
Landlord, except by an instrument in writing executed by Landlord. Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act of Tenant, whether or not similar
to the act so consented to or approved. No act or thing done by Landlord or
Landlord's agents during the Term of this Lease shall be deemed an acceptance of
a surrender of the Premises, and no agreement to accept such surrender shall be
valid unless in writing and signed by Landlord. Any payment by Tenant or
receipt by Landlord of an amount less than the total amount then due hereunder
shall be deemed to be in partial payment only thereof and not a waiver of the
balance due or an accord and satisfaction, notwithstanding any statement or
endorsement to the contrary on any check or any other instrument delivered
concurrently therewith or in reference thereto. Accordingly, Landlord may
accept any such amount and negotiate any such check without prejudice to
Landlord's right to recover all balances due and owing and to pursue its other
rights against Tenant under this Lease, regardless of whether Landlord makes any
notation on such instrument of payment or otherwise notifies Tenant that such
acceptance or negotiation is without prejudice to Landlord's rights.
ARTICLE 25
ESTOPPEL CERTIFICATE
--------------------
Tenant shall, at any time and from time to time, upon not less than ten
(10) days' prior written notice from Landlord, execute, acknowledge and deliver
to Landlord a statement in writing certifying the following information, (but
not limited to the following information in the
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event further information is requested by Landlord): (i) that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease, as modified, is in full force
and effect); (ii) the dates to which the rental and other charges are paid in
advance, if any; (iii) the amount of Tenant's security deposit, if any; and (iv)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, and no events or conditions then in existence
which, with the passage of time or notice or both, would constitute a default on
the part of Landlord hereunder, or specifying such defaults, events or
conditions, if any are claimed. It is expressly understood and agreed that any
such statement may be relied upon by any prospective purchaser or encumbrancer
of all or any portion of the Real Property. Tenant's failure to deliver such
statement within such time shall constitute an admission by Tenant that all
statements contained therein are true and correct. Tenant agrees to execute all
documents required in accordance with this Article 25 within ten (10) days after
delivery of said documents. Tenant hereby irrevocably appoints Landlord as
Tenant's attorney-in-fact and in Tenant's name, place and stead to execute any
and all documents described in this Article 25 if Tenant fails to do so within
the specified time period.
ARTICLE 26
LIABILITY OF LANDLORD
---------------------
Notwithstanding anything in this Lease to the contrary, any remedy of
Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder or any claim, cause of action or obligation, contractual, statutory or
otherwise by Tenant against Landlord concerning, arising out of or relating to
any matter relating to this Lease and all of the covenants and conditions or any
obligations, contractual, statutory, or otherwise set forth herein, shall be
limited solely and exclusively to an amount which is equal to the lesser of (i)
the interest of Landlord in and to the Project, and (ii) the interest Landlord
would have in the Project if the Project were encumbered by third party debt in
an amount equal to ninety percent (90%) of the then current value of the Project
(as such value is reasonably determined by Landlord). No other property or
assets of Landlord, or any member, officer, director, shareholder, partner,
trustee, agent, servant or employee of Landlord (the "Representative") shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, Landlord's obligations
to Tenant, whether contractual, statutory or otherwise, the relationship of
Landlord and Tenant hereunder, or Tenant's use or occupancy of the Premises.
Tenant further understands that any liability, duty or obligation of Landlord to
Tenant, shall automatically cease and terminate as of the date that Landlord or
any of Landlord's Representatives no longer have any right, title or interest in
or to the Project.
ARTICLE 27
INABILITY TO PERFORM
--------------------
This Lease and the obligations of Tenant hereunder shall not be affected or
impaired because Landlord is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability or delay is caused by reason of any
prevention, delay, stoppage due to strikes, lockouts, acts of God, or any other
cause previously, or at such time, beyond the reasonable control or anticipation
of Landlord (collectively, a "Force Majeure") and Landlord's obligations under
this Lease shall be forgiven and suspended by any such Force Majeure.
ARTICLE 28
HAZARDOUS WASTE
---------------
(a) Tenant shall not cause or permit any Hazardous Material (as defined in
Article 28(c) below) to be brought, kept or used in or about the Project by
Tenant, its agents, employee, contractors, or invitees, except for normal and
customary quantities and types of janitorial and office supplies (including
copier toner, cleaning agents and the like). Tenant indemnifies Landlord from
and against any breach by Tenant of the obligations stated in the preceding
sentence, and agrees to defend and hold Landlord harmless from and against any
and all claims, judgments, damages, penalties, fines, costs, liabilities, or
losses (including, without limitation, diminution in value of the Project,
damages for the loss or restriction or use of
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rentable or usable space or of any amenity of the Project, damages arising from
any adverse impact or marketing of space in the Project, and sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees) which
arise during or after the Term of this Lease as a result of such breach. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Project. Without limiting
the foregoing, if the presence of any Hazardous Material on the Project caused
or permitted by Tenant results in any contamination of the Project and subject
to the provisions of Articles 9, 10 and 11, hereof, Tenant shall promptly take
all actions at its sole expense as are necessary to return the Project to the
condition existing prior to the introduction of any such Hazardous Material and
the contractors to be used by Tenant for such work must be approved by Landlord,
which approval shall not be unreasonably withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect on the
Project and so long as such actions do not materially interfere with the use and
enjoyment of the Project by the other tenants thereof.
(b) It shall not be unreasonable for Landlord to withhold its consent to
any proposed Transfer if (i) the proposed transferee's anticipated use of the
Premises involves the generation, storage, use, treatment, or disposal of
Hazardous Material; (ii) the proposed Transferee has been required by any prior
landlord, lender, or governmental authority to take remedial action in
connection with Hazardous Material contaminating a property if the contamination
resulted from such Transferee's actions or use of the property in question; or
(iii) the proposed Transferee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
Hazardous Material.
(c) As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material, or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance which is (i) defined as "Hazardous Waste," "Extremely Hazardous
Waste," or "Restricted Hazardous Waste" under Sections 25115, 25117 or 25122.7,
or listed pursuant to Section 25140, of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"Hazardous Substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act), (iii) defined as a "Hazardous Material," "Hazardous Substance," or
"Hazardous Waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as a "Hazardous Substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed under
Article 9 or defined as Hazardous or extremely hazardous pursuant to Article 11
of Title 22 of the California Administrative Code, Division 4, Chapter 20,
(viii) designated as a "Hazardous Substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. (S) 1317), (ix) defined as a
"Hazardous Waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. (S) 6901 et seq. (42 U.S.C. (S) 6903), or (x)
defined as a "Hazardous Substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601 et
seq. (42 U.S.C. (S) 9601).
(d) As used herein, the term "Laws" mean any applicable federal, state or
local laws, ordinances, or regulations relating to any Hazardous Material
affecting the Project, including, without limitation, the laws, ordinances, and
regulations referred to in Article 28(c) above.
(e) In the event any Hazardous Materials are found to exist on or about
the Project, Tenant shall not be responsible for the costs incurred for the
removal, remediation, or other actions which are necessary to cause such
Hazardous Materials to comply with applicable Laws, except to the extent such
Hazardous Materials are the responsibility of Tenant pursuant to Section 28(a)
above.
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ARTICLE 29
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
------------------------------------------
(a) The voluntary or other surrender of this Lease by Tenant to Landlord,
or a mutual termination hereof, shall not work a merger, and shall at the option
of Landlord, operate as an assignment to it of any or all subleases or
subtenancies affecting the Premises.
(b) Upon the expiration of the Term of this Lease, or upon any earlier
termination of this Lease, Tenant shall quit and surrender possession of the
Premises to Landlord in as good order and condition as the same are now and
hereafter may be improved by Landlord or Tenant, reasonable wear and tear,
damage caused by casualty or condemnation, Hazardous Materials not released or
emitted by Tenant or its agents, employees or contractors, and repairs which are
Landlord's obligation excepted, and shall, without expense to Landlord, remove
or cause to be removed from the Premises all debris and rubbish, all furniture,
equipment, business and trade fixtures, free-standing cabinet work, moveable
partitioning and other articles of personal property owned by Tenant or
installed or placed by Tenant at its own expense in the Premises, and all
similar articles of any other persons claiming under Tenant unless Landlord
exercises its option to have any subleases or subtenancies assigned to it, and
Tenant shall repair all damage to the Premises resulting from the installation
and removal of such items to be removed.
(c) Whenever Landlord shall reenter the Premises as provided in Article 12
hereof, or as otherwise provided in this Lease, any property of Tenant not
removed by Tenant upon the expiration of the Term of this Lease (or within
forty-eight (48) hours after a termination by reason of Tenant's default), as
provided in this Lease, shall be considered abandoned and Landlord may remove
any or all of such items and dispose of the same in any manner or store the same
in a public warehouse or elsewhere for the account and at the expense and risk
of Tenant, and if Tenant shall fail to pay the cost of storing any such property
after it has been stored for a period of ninety (90) days or more, Landlord may
sell any or all of such property at public or private sale, in such manner and
at such times and places as Landlord, in its sole discretion, may deem proper,
without notice or to demand upon Tenant, for the payment of all or any part of
such charges or the removal of any such property, and shall apply the proceeds
of such sale as follows: first, to the cost and expense of such sale, including
reasonable attorneys' fees for services rendered; second, to the payment of the
cost of or charges for storing any such property; third, to the payment of any
other sums of money which may then or thereafter be due to Landlord from Tenant
under any of the terms hereof; and fourth, the balance, if any, to Tenant. (d)
All fixtures, equipment, Alterations and/or appurtenances attached to or built
into the Premises prior to or during the Term, whether by Landlord or Tenant and
whether at the expense of Landlord or Tenant, or of both, shall be and remain
part of the Premises and shall not be removed by Tenant at the end of the Term
unless otherwise expressly provided for in this Lease or unless such removal is
required by Landlord pursuant to the provisions of Article 9, above. Such
fixtures, equipment, alterations, additions, improvements and/or appurtenances
shall include but not be limited to: all floor coverings, drapes, paneling,
built-in cabinetry, molding, doors, vaults (including vault doors), plumbing
systems, electrical systems, lighting systems, silencing equipment,
communication systems, all fixtures and outlets for the systems mentioned above
and for all telephone, radio, telegraph and television purposes, and any special
flooring or ceiling installations.
ARTICLE 30
MISCELLANEOUS
-------------
(a) Severability; Entire Agreement. Any provision of this Lease which
------------------------------
shall prove to be invalid, void, or illegal shall in no way affect, impair or
invalidate any other provision hereof and such other provisions shall remain in
full force and effect. This Lease and the Exhibits and any Addendum attached
hereto constitute the entire agreement between the parties hereto with respect
to the subject matter hereof, and no prior agreement or understanding pertaining
to any such matter shall be effective for any purpose. No provision of this
Lease may be amended or supplemented except by an agreement in writing signed by
the parties hereto or their successor in interest. This Lease shall be governed
by and construed in accordance with the laws of the State of California.
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(b) Attorneys' Fees; Waiver of Jury Trial.
-------------------------------------
(i) In any action to enforce the terms of this Lease, including any
suit by Landlord for the recovery of rent or possession of the Premises, the
losingparty shall pay the successful party a reasonable sum for attorneys' fees
in such suit and such attorneys' fees shall be deemed to have accrued prior to
the commencement of such action and shall be paid whether or not such action is
prosecuted to judgment.
(ii) Should Landlord, without fault on Landlord's part, be made a
party to any litigation instituted by Tenant or by any third party against
Tenant, or by or against any person holding under or using the Premises by
license of Tenant, or for the foreclosure of any lien for labor or material
furnished to or for Tenant or any such other person or otherwise arising out of
or resulting from any act or transaction of Tenant or of any such other person,
Tenant covenants to save and hold Landlord harmless from any judgment rendered
against Landlord or the Premises or any part thereof and from all costs and
expenses, including reasonable attorneys' fees incurred by Landlord in
connection with such litigation.
(iii) When legal services are rendered by an attorney at law who is
an employee of a party, attorneys' fees incurred by that party shall be deemed
to include an amount based upon the number of hours spent by such employee on
such matters multiplied by an appropriate billing rate determined by taking into
consideration the same factors, including but not limited by, the importance of
the matter, time applied, difficulty and results, as are considered when an
attorney not in the employ of a party is engaged to render such service.
(iv) EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS LEASE, FOR DAMAGES
FOR ANY BREACH UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF ANY RIGHT OR
REMEDY HEREUNDER.
(c) Time of Essence. Each of Tenant's covenants herein is a condition
---------------
and time is of the essence with respect to the performance of every provision of
this Lease.
(d) Headings. The article headings contained in this Lease are for
--------
convenience only and do not in any way limit or amplify any term or provision
hereof. The terms "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular, the neuter shall include the masculine and
feminine genders and the obligations herein imposed upon Tenant shall be joint
and several as to each of the persons, firms or corporations of which Tenant may
be composed.
(e) Reserved Area. Tenant hereby acknowledges and agrees that the
-------------
exterior walls of the Premises and the area between the finished ceiling of the
Premises and the slab of the floor of the project thereabove have not been
demised hereby and the use thereof together with the right to install, maintain,
use, repair and replace pipes, ducts, conduits and wires leading through, under
or above the Premises in locations which will not materially interfere with
Tenant's use of the Premises and serving other parts of the Project are hereby
excepted and reserved unto Landlord.
(f) NO OPTION. THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT OR
---------
REPRESENTATIVE FOR EXAMINATION OR EXECUTION BY TENANT DOES NOT CONSTITUTE
AN OPTION OR OFFER TO LEASE THE PREMISES UPON THE TERMS AND CONDITIONS
CONTAINED HEREIN OR A RESERVATION OF THE PREMISES IN FAVOR OF TENANT, IT
BEING INTENDED HEREBY THAT THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE
EXECUTION HEREOF BY LANDLORD AND DELIVERY OF A FULLY EXECUTED LEASE TO
TENANT.
(g) Use of Project Name; Improvements. Tenant shall not be allowed to use
---------------------------------
the name, picture or representation of the Project, or words to that effect, in
connection with any business carried on in the Premises or otherwise (except as
Tenant's address) without the prior written consent of Landlord. In the event
that Landlord undertakes any additional improvements on the Real Property
including but not limited to new construction or renovation or additions to the
existing improvements, Landlord shall not be liable to Tenant for any noise,
dust, vibration or interference with access to the Premises or disruption in
Tenant's business caused thereby.
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(h) Rules and Regulations. Tenant shall observe faithfully and comply
---------------------
strictly the Rules and Regulations attached to this Lease as Exhibit "B" and
made a part hereof, and such other Rules and Regulations as Landlord may from
time to time reasonably adopt for the safety, care and cleanliness of the
Project, the facilities thereof, or the preservation of good order therein.
Landlord shall not be liable to Tenant for violation of any such Rules and
Regulations, or for the breach of any covenant or condition in any lease by any
other tenant in the Project. A waiver by Landlord of any Rule or Regulation for
any other tenant shall not constitute nor be deemed a waiver of the Rule or
Regulation for this Tenant.
(i) Quiet Possession. Upon Tenant's paying the Basic Rent, Additional
----------------
Rent and other sums provided hereunder and observing and performing all of the
covenants, conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the
entire Term hereof, subject to all of the provisions of this Lease.
(j) Rent. All payments required to be made hereunder to Landlord shall be
----
deemed to be rent, whether or not described as such.
(k) Successors and Assigns. Subject to the provisions of Article 15
----------------------
hereof, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(l) Notices. Any notice required or permitted to be given hereunder shall
-------
be in writing and may be given by personal service evidenced by a signed receipt
or sent by registered or certified mail, return receipt requested, addressed to
Tenant at the Premises or to Landlord at the management office for the Project,
with a copy to Landlord, c/o Arden Realty, Inc., 11601 Wilshire Boulevard,
Fourth Floor, Los Angeles, California 90025, Attn: Legal Department and which
shall be effective upon proof of delivery. Either party may by notice to the
other specify a different address for notice purposes except that, upon Tenant's
taking possession of the Premises, the Premises shall constitute Tenant's
address for notice purposes. A copy of all notices to be given to Landlord
hereunder shall be concurrently transmitted by Tenant to such party hereafter
designated by notice from Landlord to Tenant. Any notices sent by Landlord
regarding or relating to eviction procedures, including without limitation three
day notices, may be sent by regular mail.
(m) Persistent Delinquencies. In the event that Tenant shall be
------------------------
delinquent by more than fifteen (15) days in the payment of rent on three (3)
separate occasions in any twelve (12) month period, Landlord shall have the
right to terminate this Lease by thirty (30) days written notice given by
Landlord to Tenant within thirty (30) days of the last such delinquency.
(n) Right of Landlord to Perform. All covenants and agreements to be
----------------------------
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue beyond any applicable cure
period set forth in this Lease, Landlord may, but shall not be obligated to,
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed as is in this Lease provided. All sums so paid by Landlord and all
reasonable incidental costs, together with interest thereon at the rate of ten
percent (10%) per annum from the date of such payment by Landlord, shall be
payable to Landlord on demand and Tenant covenants to pay any such sums, and
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of the rent.
(o) Access, Changes in Project, Facilities, Name.
--------------------------------------------
(i) Every part of the Project except the inside surfaces of all
walls, windows and doors bounding the Premises (including exterior building
walls, core corridor walls and doors and any core corridor entrance), and any
space in or adjacent to the Premises used for shafts, stacks, pipes, conduits,
fan rooms, ducts, electric or other utilities, sinks or other building
facilities, and the use thereof, as well as access thereto through the Premises
for the purposes of operation, maintenance, decoration and repair, are reserved
to Landlord.
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(ii) Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within the walls, columns and ceilings of the
Premises.
(iii) Landlord reserves the right, without incurring any liability to
Tenant therefor, to make such changes in or to the Project and the fixtures and
equipment thereof, as well as in or to the street entrances, halls, passages,
elevators, stairways and other improvements thereof, as it may deem necessary or
desirable.
(iv) Landlord may adopt any name for the Project and Landlord
reserves the right to change the name or address of the Project at any time.
(p) Corporate Authority. If Tenant is a corporation, each individual
-------------------
executing this Lease on behalf of said corporation represents and warrants that
he or she 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, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation, said corporation and each individual
executing this Lease on behalf of said corporation covenants that Tenant shall
provide to Landlord a copy of such resolution of the Board of Directors
authorizing the execution of this Lease on behalf of such corporation, which
copy of resolution shall be duly certified by the secretary or an assistant
secretary of the corporation to be a true copy of a resolution duly adopted by
the Board of Directors of said corporation. In the event Tenant fails to comply
with the requirements set forth in this subparagraph (p), then each individual
executing this Lease shall be personally liable for all of Tenant's obligations
in this Lease.
(q) Identification of Tenant.
------------------------
(i) If Tenant constitutes more than one person or entity, (A) each of
them shall be jointly and severally liable for the keeping, observing and
performing of all of the terms, covenants, conditions and provisions of this
Lease to be kept, observed and performed by Tenant, (B) the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally,
and (C) the act of or notice from, or notice or refund to, or the signature of,
any one or more of them, with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons or
entities executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
(ii) If Tenant is a partnership (or is comprised of two or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a partnership) pursuant to Article
15 hereof (any such partnership and such persons hereinafter referred to in this
Article 30(q)(ii) as "Partnership Tenant"), the following provisions of this
Lease shall apply to such Partnership Tenant:
(A) The liability of each of the parties comprising Partnership
Tenant shall be joint and several.
(B) Each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed, changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Premises to the
Landlord, and by notices, demands, requests or other communication which may
hereafter be given, by Partnership Tenant or any of the parties comprising
Partnership Tenant.
(C) Any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties.
(D) If Partnership Tenant admits new partners, all of such new
partners shall, by their admission to Partnership Tenant, be deemed to have
assumed performance of all
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<PAGE>
of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed.
(E) Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new partners, and, upon demand of Landlord, shall
cause each such new partner to execute and deliver to Landlord an agreement in
form satisfactory to Landlord, wherein each such new partner shall assume
performance of all of the terms, covenants and conditions of this Lease on
Partnership Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall terminate the provisions
of clause (D) of this Article 30(q)(ii) or relieve any such new partner of its
obligations thereunder).
(r) Intentionally Deleted.
---------------------
(s) Survival of Obligations. Any obligations of Tenant occurring prior to
-----------------------
the expiration or earlier termination of this Lease shall survive such
expiration or earlier termination.
(t) Confidentiality. Tenant acknowledges that the content of this Lease
---------------
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's financial,
legal and space planning consultants and any proposed subtenants or assignees.
(u) Exhibits and Addendum. The Exhibits and Addendum, if applicable,
---------------------
attached hereto are incorporated herein by this reference as if fully set forth
herein.
(v) Americans With Disabilities Act and Seismic Requirements. Landlord
--------------------------------------------------------
shall, at its sole cost and expense, take the necessary steps to comply with
what Landlord reasonably believes are the requirements of the ADA and any
applicable seismic requirements in effect as of the Commencement Date of this
Lease as such laws pertain to the Premises and the common areas of the Project.
Further, Operating Costs shall not include any cost incurred by Landlord in
connection with upgrading the Project or the Premises, to comply with the
requirements of the ADA or any seismic requirements that are in effect as of the
date of this Lease, including penalties or damages incurred due to such
noncompliance.
(w) Governing Law. This Lease shall be governed by and construed in
-------------
accordance with the laws of the State of California. No conflicts of law rules
of any state or country (including, without limitation, California conflicts of
law rules) shall be applied to result in the application of any substantive or
procedural laws of any state or country other than California. All
controversies, claims, actions or causes of action arising between the parties
hereto and/or their respective successors and assigns, shall be brought, heard
and adjudicated by the courts of the State of California, with venue in the
County of Ventura. Each of the parties hereto hereby consents to personal
jurisdiction by the courts of the State of California in connection with any
such controversy, claim, action or cause of action, and each of the parties
hereto consents to service of process by any means authorized by California law
and consent to the enforcement of any judgment so obtained in the courts of the
State of California on the same terms and conditions as if such controversy,
claim, action or cause of action had been originally heard and adjudicated to a
final judgment in such courts. Each of the parties hereto further acknowledges
that the laws and courts of California were freely and voluntarily chosen to
govern this Lease and to adjudicate any claims or disputes hereunder.
(x) Communication Equipment. If Tenant desires to use the roof of the
-----------------------
Project to install communication equipment to be used from the Premises, Tenant
may negotiate with Landlord's rooftop management company (currently APEX) for a
license to install such equipment. Any communication equipment installed by
Tenant shall not exceed three (3) feet in height or diameter, shall be at a
location reasonably designated by Landlord and shall be subject to all
governmental laws, rules and regulations and covenants, conditions and
restrictions. Tenant's communication equipment license will be memorialized
pursuant to a separate license agreement between Tenant and such management
company. Tenant's rights pursuant to this Section 30(x) are contingent upon
availability of space on the roof of the Project and the negotiation of a
mutually acceptable license agreement. The rent payable by Tenant for such
rooftop communication equipment shall be the prevailing rates charged for such
use; provided that in the event Tenant installs equipment measuring (i) up to
eighteen (18) inches in diameter,
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<PAGE>
the rent payable shall be One Hundred Fifty Dollars ($150.00) per month, (ii)
more than eighteen (18) and less than twenty-four (24) inches in diameter, the
rent payable shall be Two Hundred Dollars ($200.00) per month, or (iii) twenty-
four (24) up to thirty-six (36) inches in diameter, the rent payable shall be
Three Hundred Dollars ($300.00) per month. Notwithstanding anything to the
contrary contained herein, the communication equipment permitted by this Section
30(x) is equipment for Tenant's own use (e.g. DirectTV and vsats communicating
with home offices), and is not intended to allow Tenant to install communication
equipment which would result in Tenant making a profit from such communication
equipment. In the event Tenant wishes to install communication equipment outside
the scope of the immediately preceding sentence, such as Wireless ISP
installations, such use would be subject to Landlord's approval and Tenant's
negotiation of a separate license agreement directly with the Corporate
Communications Director of Landlord, currently Scott Lyle, and would be subject
to the parties' negotiation of a mutually acceptable license agreement for such
use.
ARTICLE 31
OPTION TO EXTEND
----------------
(a) Option Right. Landlord hereby grants the Tenant named in this Lease
------------
(the "Original Tenant") two (2) options ("Options") to extend the Lease Term for
the entire Premises for a period of five (5) years each (each, an "Option
Term"), which options shall be exercisable only by written notice delivered by
Tenant to Landlord set forth below. The second Option shall only be exercisable
in the event Tenant has properly exercised its first Option pursuant to this
Article 31. The rights contained in this Article 31 shall be personal to the
Original Tenant and any Permitted Assignee and may only be exercised by the
Original Tenant or a Permitted Assignee (and not any other assignee, sublessee
or other transferee of the Original Tenant's interest in this Lease) if the
Original Tenant or such Permitted Assignee occupies the entire Premises as of
the date of Tenant's Acceptance (as defined in Section 31(c) below).
(b) Option Rent. The rent payable by Tenant during the applicable Option
-----------
Term ("Option Rent") shall be equal to the "Market Rent" (defined below), but in
no event shall the Option Rent be less than Tenant is paying under the Lease on
the month immediately preceding the applicable Option Term for monthly Basic
Rental, including all escalations, Direct Costs, additional rent and other
charges. "Market Rent" shall mean the applicable monthly Basic Rental, including
all escalations, Direct Costs, additional rent and other charges at which
tenants, as of the commencement of the applicable Option Term, are leasing non-
sublease, non-encumbered, space comparable in size, location and quality to the
Premises in non-renewal transactions for a term comparable to the Option Term
which comparable space is located in office buildings comparable to the Project
in Calabasas, Agoura Hills, Westlake Village and Thousand Oaks, California ("the
Comparison Area)", taking into consideration the value of the existing
improvements in the Premises to Tenant, as compared to the value of the existing
improvements in such comparable space, with such value to be based upon the age,
quality and layout of the improvements and the extent to which the same could be
utilized by Tenant with consideration given to the fact that the improvements
existing in the Premises are specifically suitable to Tenant.
(c) Exercise of Option. The Options shall be exercised by Tenant only in
------------------
the following manner: (i) Tenant shall not have caused an Event of Default after
the expiration of any applicable notice and cure period, and an Event of Default
shall not have occurred under this Lease more than once after expiration of any
applicable notice and cure period, on the delivery date of the Interest Notice
and Tenant's Acceptance; (ii) Tenant shall deliver written notice ("Interest
Notice") to Landlord not more than twelve (12) months nor less than nine (9)
months prior to the expiration of the Lease Term (or the first Option Term, as
applicable), stating that Tenant is interested in exercising the Option, (iii)
within fifteen (15) business days of Landlord's receipt of Tenant's written
notice, Landlord shall deliver notice ("Option Rent Notice") to Tenant setting
forth the Option Rent (including any improvement allowance being offered as part
of the Market Rent); and (iv) if Tenant desires to exercise such Option, Tenant
shall provide Landlord written notice within five (5) business days after
receipt of the Option Rent Notice ("Tenant's Acceptance") and upon, and
concurrent with such exercise, Tenant may, at its option, object to the Option
Rent contained in the Option Rent Notice. Tenant's failure to deliver the
Interest Notice or Tenant's Acceptance on or before the dates specified above
shall be deemed to constitute Tenant's election not to exercise the Option. If
Tenant timely and properly exercises its Option, the Lease Term (or first Option
Term) shall be extended for the Option
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<PAGE>
Term upon all of the terms and conditions set forth in this Lease, except that
the rent for the applicable Option Term shall be as indicated in the Option
Rent Notice unless Tenant, concurrently with Tenant's acceptance, objects
to the Option Rent contained in the Option Rent Notice, in which case the
parties shall follow the procedure and the Option Rent shall be determined,
as set forth in Section 31(d) below.
(d) Determination of Market Rent. If Tenant timely and appropriately
----------------------------
objects to the Market Rent in Tenant's Acceptance, Landlord and Tenant shall
attempt to agree upon the Market Rent using their best good-faith efforts. If
Landlord and Tenant fail to reach agreement within twenty-one (21) days
following Tenant's Acceptance ("Outside Agreement Date"), then each party shall
make a separate determination of the Market Rent which shall be submitted to
each other and to arbitration in accordance with the following items (i)
through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of
the Outside Agreement Date, one arbitrator who shall by profession be a current
real estate broker or appraiser of commercial high-rise properties in the
immediate vicinity of the Project, and who has been active in such field over
the last five (5) years. The determination of the arbitrators shall be limited
solely to the issue of whether Landlord's or Tenant's submitted Market Rent is
the closest to the actual Market Rent as determined by the arbitrators, taking
into account the requirements of item (b), above.
(ii) The two arbitrators so appointed shall within five (5) business
days of the date of the appointment of the last appointed arbitrator agree upon
and appoint a third arbitrator who shall be qualified under the same criteria
set forth hereinabove for qualification of the initial two arbitrators.
(iii) The three arbitrators shall within fifteen (15) days of the
appointment of the third arbitrator reach a decision as to whether the parties
shall use Landlord's or Tenant's submitted Market Rent, and shall notify
Landlord and Tenant thereof.
(iv) The decision of the majority of the three arbitrators shall be
binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator
within ten (10) days after the applicable Outside Agreement Date, the
arbitrator appointed by one of them shall reach a decision, notify Landlord
and Tenant thereof, and such arbitrator's decision shall be binding upon
Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third
arbitrator, or both parties fail to appoint an arbitrator, then the appointment
of the third arbitrator or any arbitrator shall be dismissed and the matter to
be decided shall be forthwith submitted to arbitration under the provisions of
the American Arbitration Association, but subject to the instruction set forth
in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant
equally.
ARTICLE 32
RIGHT OF FIRST OFFER
--------------------
Landlord hereby grants to Tenant a right of first offer with respect to
all space on the second (/2nd/) floor of the Project ("First Offer Space").
Notwithstanding the foregoing (i) such first offer right of Tenant shall
commence only following the expiration or earlier termination of any existing
lease pertaining to the First Offer Space (the "Superior Lease"), including any
renewal or extension of such existing lease, whether or not such renewal or
extension is pursuant to an express written provision in such lease, and
regardless of whether any such renewal or extension is consummated pursuant to a
lease amendment or a new lease, and (ii) such first offer right shall be
subordinate and secondary to all rights of expansion, first refusal, first offer
or similar rights granted to the tenant of the Superior Lease ( the "Superior
Rights"). Tenant's right of first offer shall be on the terms and conditions
set forth in this Section 32.
(a) Procedure for Offer. Landlord shall notify Tenant (the "First Offer
-------------------
Notice") from time to time when Landlord determines that Landlord shall commence
the marketing of any First Offer Space because such space shall become available
for lease to third parties, where no
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<PAGE>
holder of a Superior Right desires to lease such space. The First Offer Notice
shall describe the space so offered to Tenant and shall set forth Landlord's
proposed economic terms and conditions applicable to Tenant's lease of such
space (collectively, the "Economic Terms"). Notwithstanding the foregoing,
Landlord's obligation to deliver the First Offer Notice shall not apply during
the last nine (9) months of the initial Lease Term (or first Option Term, as
applicable) unless Tenant has delivered an Interest Notice to Landlord pursuant
to Section 31(c) above nor shall Landlord be obligated to deliver the First
Offer Notice during the last eight (8) months of the initial Lease Term (or
first Option Term, as applicable) unless Tenant has timely delivered Tenant's
Acceptance to Landlord pursuant to Section 31(c) above.
(b) Procedure for Acceptance. If Tenant wishes to exercise Tenant's right
------------------------
of first offer with respect to the space described in the First Offer Notice,
then within five (5) business days after delivery of the First Offer Notice to
Tenant, Tenant shall deliver notice to Landlord of Tenant's intention to
exercise its right of first offer with respect to the entire space described in
the First Offer Notice. If concurrently with Tenant's exercise of the first
offer right, Tenant notifies Landlord that it does not accept the Economic Terms
set forth in the First Offer Notice, Landlord and Tenant shall, for a period of
fifteen (15) days after Tenant's exercise, negotiate in good faith to reach
agreement as to such Economic Terms. If Tenant does not so notify Landlord that
it does not accept the Economic Terms set forth in the First Offer Notice
concurrently with Tenant's exercise of the first offer right, the Economic Terms
shall be as set forth in the First Offer Notice. In addition, if Tenant does not
exercise its right of first offer within the five (5) business day period, or,
if Tenant exercises its first offer right but timely objects to Landlord's
determination of the Economic Terms and if Landlord and Tenant are unable to
reach agreement on such Economic Terms within said fifteen (15) day period, then
Landlord shall be free to lease the space described in the First Offer Notice to
anyone to whom Landlord desires on any terms Landlord desires and Tenant's right
of first offer shall terminate as to the First Offer Space described in the
First Office Notice. Notwithstanding anything to the contrary contained herein,
Tenant must elect to exercise its right of first offer, if at all, with respect
to all of the space offered by Landlord to Tenant at any particular time, and
Tenant may not elect to lease only a portion thereof.
(c) Construction of First Offer Space. Tenant shall take the First Offer
---------------------------------
Space in its "as-is" condition, and Tenant shall be entitled to construct
improvements in the First Offer Space in accordance with the provisions of
Article 9 of this Lease.
(d) Lease of First Offer Space. If Tenant timely exercises Tenant's
--------------------------
right to lease the First Offer Space as set forth herein, Landlord and Tenant
shall execute an amendment adding such First Offer Space to this Lease upon the
same non-economic terms and conditions as applicable to the initial Premises,
and the economic terms and conditions as provided in this Section 32. Tenant
shall commence payment of rent for the First Offer Space and the Lease Term of
the First Offer Space shall commence upon the date of delivery of such space to
Tenant. The Lease Term for the First Offer Space shall expire co-terminously
with Tenant's lease of the initial Premises.
(e) No Defaults. The rights contained in this Section 32 shall be
-----------
personal to the Original Tenant or any Permitted Assignee pursuant to
Article 15, and may only be exercised by the Original Tenant and such Permitted
Assignee (and not any other assignee, sublessee or other transferee of the
Original Tenant's interest in this Lease) if Tenant or such Permitted Assignee
occupies the entire Premises as of the date of the First Offer Notice. Tenant
shall not have the right to lease First Office Space as provided in this Section
32 if, as of the date of the First Offer Notice, or, at Landlord's option, as of
the scheduled date of delivery of such First Offer Space to Tenant, an Event of
Default exists (after the expiration of any applicable notice and cure period),
or there has been an Event of Default under this Lease more than once after
expiration of any applicable notice and cure period.
ARTICLE 33
SIGNAGE/DIRECTORY
-----------------
(a) Premises Identification/Monument Signage. Provided Tenant is not in
----------------------------------------
default hereunder, Tenant shall be entitled, at Tenant's sole cost and
expense, to install (i) a Project-standard suite identification sign at a
location adjacent to Tenant's entry door reasonably designated by Landlord,
(ii) Project-standard signage in the Project lobby reasonably approved
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<PAGE>
by Landlord, and (iii) a Project standard sign at the main entrance to the
Project. In addition, provided Tenant is not in default hereunder, Tenant shall
have the right, at Tenant's sole cost and expense, to install a strip on the
Project's monument sign, which sign shall be at a location at the Project
reasonably designated by Landlord ("Monument Signage") in the event the
conditions set forth below are met. Tenant's Monument Signage is conditioned
upon Landlord obtaining all necessary governmental permits and approvals to
install a multi-tenant monument sign at the Project. The cost of Tenant's strip
on the monument sign shall be paid for by Tenant, and Tenant shall pay its
prorata share of the cost to construct such multi-monument sign (based upon the
number of signs for which the monument is designed); provided that Landlord
shall not charge Tenant any rent for Tenant's Monument Signage. The position of
Tenant's strip on the monument sign shall be reasonably designated by Landlord,
and Tenant's strip may be moved, at Landlord's sole cost, in the event a larger
tenant (measured by number of rentable square feet leased) is granted monument
signage rights.
(b) Building Top Sign. In addition to the Monument Signage, to the extent
-----------------
such signage is available, Tenant shall have the nonexclusive right to install
Project-top signage, subject to the rights of any existing tenants to such
signage. The Project-top sign installed by Tenant shall be subject to all terms
and conditions of this Article 33.
(c) Miscellaneous Signage Provisions. Tenant's Monument Signage
--------------------------------
together with Tenant's Project-top signage and the signage described in Section
33(a) above may be collectively referred to herein as "Tenant's Signage."
Tenant's Signage shall be subject to Landlord's approval as to size, design,
location, graphics, materials, colors and similar specifications and shall be
consistent with the exterior design, materials and appearance of the monument
sign, the Project and the Project's signage program and shall be further subject
to all applicable local governmental laws, rules, regulations, codes and
Tenant's receipt of all permits and other approvals and any applicable
covenants, conditions and restrictions. Tenant's Signage shall be personal to
the Original Tenant and may not be assigned to any assignee or sublessee, or any
other person or entity. Landlord has the right, but not the obligation, to
oversee the installation of Tenant's Signage. The cost to maintain and operate,
if any, Tenant's Signage shall be paid for by Tenant, and if applicable Tenant
shall be separately metered for such expense (the cost of separately metering
any utility usage shall also be paid for by Tenant). Upon the expiration of the
Lease Term, or other earlier termination of this Lease, Tenant shall be
responsible for any and all costs associated with the removal of such signage,
including, but not limited to, the cost to repair and restore the Project to its
original condition, normal wear and tear excepted.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Lease, consisting of the
foregoing provisions and Articles, including all exhibits and other attachments
referenced therein, as of the date first above written.
"LANDLORD" ARDEN REALTY FINANCE PARTNERSHIP,
L.P., a California limited partnership
By: ARDEN REALTY FINANCE, INC.,
a California corporation
Its sole general partner
By: /s/ Victor J. Coleman
--------------------------------
Victor J. Coleman
Its: President and COO
By: /s/ Robert C. Peddicort
--------------------------------
Its: Senior Vice President
"TENANT" DIGITAL INSIGHT CORPORATION,
a Delaware corporation
By: /s/ Kevin McDonnell
------------------------------------
Print Name: Kevin McDonnell
Its: CFO
By:
-------------------------------------
Print Name:-----------------------------
Its:-----------------------------
Initials: /s/ KM
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<PAGE>
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<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
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0
0
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