FORM 10-KSB
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] Annual report pursuant to section 13 or 15(d) of the Securities Exchange
Act of 1934 For the fiscal year ended December 31, 1999 or
[ ] Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File Number 0-24829
FULL TILT SPORTS, INC.
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(Exact name of registrant as specified in its charter)
Colorado 84-1416864
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
212 North Wahsatch, Suite 205 Colorado Springs, Colorado 80903
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (719) 630-0980
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Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Title of each class
Common Shares, $.001 par value
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Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the 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
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Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B in this form, and no disclosure will be contained, to the best of
the registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [ ]
The Registrant's revenues for the most recent fiscal year were $289,180.
The aggregate market value of the 1,462,261 Common Shares held by nonaffiliates
of the Company as of March 27, 2000, was approximately $1,462,261 based upon the
last reported sale of the Company's Common Shares of $1.00 per share.
The total number of Common Shares outstanding as of December 31, 1999 was
3,933,722.
DOCUMENTS INCORPORATED BY REFERENCE:
None
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Transitional Small Business Disclosure Format: Yes No X
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TABLE OF CONTENTS
PART I Page
Items 1 and 2. Business and Properties............................1
Item 3. Legal Proceedings..................................8
Item 4. Submission of Matters to a Vote of
Security Holders .............................8
PART II
Item 5. Market for Registrant's Securities and Related
Shareholders Matters...............................9
Item 6. Management's Discussion and Analysis or
Plan of Operation.................................10
Item 7. Financial Statements and Supplementary Data.......12
Item 8. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure.......12
PART III
Item 9. Directors, Executive Officers and Compliance
with Section 16(a) of the Exchange Act ...........14
Item 10. Executive Compensation.....................................16
Item 11. Security Ownership of Certain Beneficial
Owners and Management.............................18
Item 12. Certain Relationships and Related Transactions.............19
PART IV
Item 13. Exhibits, Reports on Form 8-K and
And Financial Statements.....................21
Signature Page.................................................23
Index to Financial Statements..................................24
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Additional Information
Descriptions in this Report are qualified by reference to the contents
of any contract, agreement or other documents and are not necessarily complete.
Reference is made to each such contract, agreement or document filed as an
exhibit to this Report, or previously filed by the Company pursuant to
regulations of the Securities and Exchange Commission (the "Commission"). (See
"Item 13. Exhibits, Financial Statements, Schedules and Reports on Form 8-K.")
Special Note Regarding Forward Looking Statements
Certain statements contained herein constitute "forward looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward looking statements include without limitation statements
regarding the Company's plan of business operations and related expenditures,
potential contractual arrangements, anticipated revenues and related
expenditures. Factors that could cause actual results to differ materially
include, among others, the following: acceptability of the Company's products in
the retail market place, general economic conditions, tax legislation and the
overall state of the retail clothing industry. Most of these factors are outside
the control of the Company. Investors are cautioned not to put undue reliance on
forward looking statements. Except as otherwise required by applicable
securities statutes or regulations, the Company disclaims any intent or
obligation to update publicly these forward looking statements, whether as a
result of new information, future events or otherwise.
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ITEMS 1 and 2. BUSINESS AND PROPERTIES
General
Full Tilt Sports, Inc., was founded in 1997 as a Colorado corporation to
sell designer sportswear and accessories emphasizing an aggressive, active
attitude and lifestyle, as expressed in our "Flip The Switch" and "FTS"
trademarks and logos. This last year was our second year of operation, and we
have continued pursuing our original goals of promoting our products and selling
them in retail stores on a large scale.
Our stock has been traded in the over-the-counter market since March, 1999
and is quoted on the NASD Bulletin Board under the symbol "FTSX". This is the
only trading market for our stock. Currently we have 140 shareholders.
Description of Business
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We are in the business of selling high quality casual sportswear and
accessories, focusing on athletic and active lifestyle clothing. All of our
products prominently display our "Flip The Switch" and "FTS" trademarks and
logos. We market our products with a sports orientated approach, primarily by
endorsements from professional athletes and sports personalities. Our target
market is retail buyers of casual active clothing of both sexes and all ages.
Our product line includes high quality shirts, jackets, vests, pants and caps in
various styles and colors that we believe are attractive and appealing to this
group of consumers.
A full line of these items have been manufactured and are for sale in many
retail clothing and sportswear stores, predominantly in Colorado and other
western states. Although most of our retailers are small to medium size and have
lower sale volumes, we presently have limited orders to sell our products with
JC Penney Co. Inc., a national department store. Selling our products in high
volume outlets, like JC Penney, is necessary to achieve the volume of sales and
revenues we need to be successful.
Our products are also sold to amateur sports teams, mostly in the Colorado
Springs and Colorado Front Range region. These customers are mostly soccer,
hockey, football and baseball clubs and teams, who place orders for their
uniforms and accessories. These sales help exposure and promotion of our
products.
Although we are using conventional types of advertising, the emphasis of
our marketing is endorsement by professional athletes and other sports
personalities. We believe that having these sports personalities wearing our
clothing, being featured in our advertisements and appearing in person at our
promotions will encourage sports orientated retail customers to buy our clothing
line. We have made substantial progress in securing these endorsements as we
have
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entered into agreements with over a dozen athletes and sport personalities
in the last year. We have also retained the services of several employees and
consultants who have a great deal of experience in marketing this type of
clothing, including two former executives with No Fear, a highly successful
clothing producer.
However, we are still a development stage company in a new venture. All
prospective investors need to be aware of the difficulties and risks in this
type of new business. These risks include lack of experience, the need for
additional capital, limited market recognition and intense competition.
Production
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We are not in the business of manufacturing our clothing line. Instead, we
contract with independent overseas and domestic manufacturers, whose products we
have tested and approved. We decide all specifications for our products,
including style, color and materials. We are producing only high quality
garments and accessories to appeal to the demanding consumer. We hope that the
specifications we have chosen for our clothing and accessories will make them
more distinctive and superior in quality compared to most sportswear currently
available, and therefore more attractive to customers. Our current manufacturers
have performed to our standards in quality, cost and time of manufacturing and
delivery, but we don't have written contracts with these manufactures. However,
we feel confident that they, or someone else, will be able to fill our orders.
The products that we have had produced to date are:
o golf shirts
o t-shirts
o long sleeve shirts
o sweat shirts
o fleece jackets
o pants
o shorts
o caps
Although, we have to pay in advance for our product orders, we hope to have
a letter of credit in place for future orders, working capital permitting. We
place our larger orders with the overseas manufacturers when we can plan in
advance. These manufacturers have more favorable prices but take longer to fill
our orders and deliver our products. For smaller custom orders, that are
required on short notice such as for tournaments and team sales, we use a local
Colorado company which can manufacture the clothing on short notice. However,
using a local manufacturer is more costly and we therefore try to avoid this
whenever possible. We have already placed an order with our manufacturers for a
spring line of clothing. We are currently in the process of placing a
manufacturing order for our fall line, which we hope will be significantly
larger than our spring line order. However, we have no firm orders from our
customers for our fall line at this time.
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Marketing
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The focus of our marketing, and what we believe sets us apart from most
other clothing companies, is that we have many different professional athletes
and sports personalities wearing and promoting our clothing. The concept is that
by having popular professional athletes, ballplayers and sports personalities
wearing our clothing and looking attractive in them, the fans of these athletes
and sports personalities will want to wear them as well. Hopefully this exposure
will also attract other types of consumers as well.
We have been successful in signing these endorsement contracts particularly
because several members of our management have been minor league professional
baseball players. They personally know many professional athletes and have
contacts in professional sports to be introduced to many others. We have been
successful in signing contracts with about 20 athletes and sports figures so
far. These athletes include professional football players, baseball players,
boxers and popular former professionals as well.
Some of the professional athletes endorsing our products include:
o Ed McCaffrey of the Denver Broncos football team
o Bill Romanowski of the Denver Broncos football team
o Glenn Cadez of the Denver Broncos football team
o Ray Crockett of the Denver Broncos football team
o Mike DeJean of the Colorado Rockies baseball team
o Trevor Hoffman of the San Diego Padres baseball team
o Andy Pettitte of the World Series champion New York Yankees
baseball team
o Rick "Goose" Gossage, a former professional baseball player
o Floyd Mayweather, Jr., a professional boxer
o Michael Grant, a professional boxer
These athletes have contracted to wear our clothing during interviews and
during other appearances where they will be seen by the public in person and in
the media. They will also appear at promotional events held at retail stores and
at sporting events where they will wear our clothing and sign autographs. We
will also be able to use photographs of them in our advertisements. The boxers
have worn robes, shorts and accessories with our trademark and logo in televised
prizefights and have been photographed for magazines such as Sports Illustrated
in these garments.
We also have begun using other methods to promote our product line in
addition to endorsement by professional athletes and sports personalities. The
methods we have already used include:
o Sponsorship of sporting events, especially golf tournaments
o Sponsorship of team sports
o Radio advertisements
o Newspaper advertisements
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o Internet advertisements
Radio advertisements have been broadcast for the past year on a syndicated
radio show on over 200 AM and FM radio stations nationally. Advertisements are
also taken out in local newspapers whenever we are conducting a promotional
event, such as an appearance and autograph signing by one of our professional
athletes. We have also sponsored local sporting events in the Colorado and
neighboring states, in particular golf tournaments in Colorado and Arizona. At
these events we display our products, put up signs and posters and give away
some promotional items like t-shirts as well as have our products displayed for
sale. On the Internet our web page advertises our products and will eventually
be able to accept orders.
We have an agreement with Michael Grant, a professional boxer, who will
wear robes, boxing trunks and other accessories with our trademark and logo
during a title fight with Lennox Lewis on April 29 of this year. This prize
fight will be televised and there will be a great deal of media coverage on
television and in the press.
To assist our marketing efforts, we employed Robert (Bobby) Stephenson as
Vice President of Sales and Marketing and have retained the services of several
individuals and consulting companies with sales and marketing experience in the
sportswear business. Our two new consultants, Britt Galland and John Rich, will
provide a great deal of assistance in reaching these objectives. They are former
executives with No Fear, an industry leader in the sale of sportswear apparel.
Their contacts within professional sports and the sportswear industry should
open up new doors and they should be able to direct us in promoting our products
more effectively and in different ways.
Additional new promotion is planned using product placements. This is where
our products might be used in movies and television shows as background items.
This will give our products exposure in a new medium. Britt Galland and John
Rich have experience and contacts in this field to implement this promotion.
Distribution and Sales
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The focus of our distribution and sales will be through retail department
and sporting goods stores. We are dependent on sales in these markets to achieve
the sale volumes we need to be profitable. We are selling our products in other
markets as well, which give us more exposure and acceptance in the marketplace.
Different sales avenues we are selling our products through include:
o Department stores
o Clothing stores
o Sporting good stores
o Team sales
o Sporting events and tournaments
o Catalogue
o Internet
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Retail Store Sales. Our products are most suited for department stores,
clothing stores and sporting goods stores, but we are also selling our products
in related athletic and health orientated stores such as nutrition stores. Last
year we started selling our products with only one retailer, and by the end of
the year our products were being sold with seven retailers who have locations in
seven states. The number of store locations that each retailer has ranges from
one to as many as eleven. In the case of JC Penney Co., Inc., we were test
marketed in three stores this past year. The sales potential for each retailer
varies greatly as their locations range from kiosks to department stores.
Payment arrangements vary with each retailer, but generally retailers pay for
their orders 30 days after delivery. The retail stores where our products have
been sold in this last year include:
o JC Penney
o Sportsfan
o PrimeTime Sports
o Mr. K Sportsworld
o Will Power Nutrition
o Shoe Extreme
o Italian Connection
Sportsfan was the first retailer to carry our line of products. Our
products went on sale at Sportsfan beginning in April 1999. Sportsfan has 10
stores in Colorado, one store in Wyoming and one store in Arizona. PrimeTime
Sports has eleven stores in Colorado, Wyoming and New Mexico. Will Power
Nutrition has eight locations in Colorado and sells their products from kiosks
in malls and other locations.
The biggest retailer to sell our products has been JC Penney Co., Inc. JC
Penney is a national department chain and is the type of large volume retailer
we need in our efforts to generate significant revenue and profits. In their
test market of our products at three locations in Colorado over three months, we
were number one in sales and gross margins for the young men's department. JC
Penney has placed their order for this year and will sell our products in 14 of
their stores in Southern California, Colorado, Arizona, New Mexico and Salt Lake
City. If our initial spring line order is successful, we hope that JC Penney
will place a larger order for our fall line and introduce sales nationwide.
Team Sales. We have also been marketing our products to amateur sports
teams, mostly in the Colorado Springs and Colorado Front Range region, where we
are located and have the most local contacts and exposure. These customers are
mostly soccer, hockey, football and baseball clubs and teams. We take orders
from these teams and clubs for their uniforms and accessories to their
specifications, and place the orders with our local manufactures who produce the
products with our trademark and logo. In addition to generating revenue, these
sales help exposure and promotion to hopefully encourage sales in retail stores.
These sales have accounted for about 10% of our sales in this last year.
Additional Sales. There are also a small number of sales at the golf
tournaments that we have sponsored. We participate in these events primarily for
marketing and promotion.
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However, we do offer our products for sale at these events and have sold a
limited amount of our product in this manner. In the next year, we also plan to
add catalogue sales. The catalogue should be completed within the next year,
which will allow us to have direct sales to the customers and obtain a greater
profit margin on those sales. Sales may also be made on the Internet. Presently
we have a web page which advertises our products. We are in the process of
changing the web page for on line purchases.
Trademark
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The distinctiveness of our clothing and accessories lies in our "Flip The
Switch" concept. We are emphasizing and promoting a certain concept associated
with this trademark. We therefore want to take precautions so that another
company does not use our trademark. Trademark registration applications have
been filed with the U.S. Patent and Trademark Office that we expect to be
approved in 2000 or 2001. These trademark registrations will give us the right
to use the trademarks in any state and challenge anyone who infringes on our
trademarks. If any other company starts to use a similar trademark to sell
clothes, we can challenge them in court and demand that they cease.
Research and Development
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We have not conducted formal market or feasibility studies for the sale of
our products. These studies would cost too much at this time. Instead we have
relied on the direction of experienced sales consultants who have directed us in
our business. Our consultants have also assisted us in designing our clothing
and choosing styles and colors, based upon their experience and knowledge of
current trends and popularity in sportswear.
Risk Factors
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In addition to our status as a development stage enterprise, we face
numerous risks in our business, including competition from established
businesses, lack of a proven market for our products, lack of an assured
manufacturer for our product, dependence on endorsements of professional
athletes and dependence on key personnel. While we will do our best to mitigate
these risks in our business plan, there is no assurance such efforts will be
successful.
1. Limited Capitalization and Lack of Working Capital. We have extremely
limited capitalization and are dependent on the proceeds of stock sales,
achieving profitable operations and receiving additional financing to continue
as a going concern. Proceeds raised in the stock offerings have been budgeted
for a limited period of time and we will likely require additional capital from
outside sources. Although we will endeavor to finance our working capital needs
through additional debt or equity financing, there is no assurance that this
financing can be obtained on acceptable terms.
2. No Assurance of Product Acceptance.We have no certainty that the
marketplace will continue to accept our products as a desirable retail clothing
and accessory
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item, or if the Company's "Flip The Switch" trademark and concept as endorsed by
professional athletes will be accepted and desired by consumers. We have no
assurance that the acceptance of our products will be in sufficient numbers to
achieve sufficient revenues and profit.
3. Dependence on Key Personnel; Lack of Operating Experience. Due in part
to our lack of operating history, our success will depend upon the management
efforts and expertise of certain of our officers, Messrs. Roger Burnett and
Joseph DeBerry. These individuals are responsible for overseeing manufacturing,
marketing and distribution of our products and merchandise, operation of the
business and expansion into additional markets. However, they have little
experience in the operation our business. All of these individuals are former
members of professional baseball organizations and have spent a majority of
their adult life participating in baseball. Messrs. Burnett and DeBerry have
retained the services of outside consultants to assist in management and
operation of the business where appropriate. While we believe we have the
necessary expertise to operate this business, there is no assurance that these
efforts will be profitable. Further, the loss of any of these individuals could
adversely effect our business. We do not intend to obtain key man insurance on
the life of any of our officers or directors.
4. Intense Competition. Competition in the apparel industry is very
intense. There are numerous manufacturers and distributors marketing sporting
apparel throughout the United States, most with substantially greater personnel
and financial resources. There already exists many apparel lines which base
their marketing on a name or slogan, such as Nike, Mossimo, No Fear and Reebok
which currently dominate the industry. Many of these apparel lines are well
established in the marketplace with the consumers and the retail outlets. Our
general concept is not unique and we will have to establish ourselves as a
desirable apparel line of clothing in an established marketplace. Due to the our
status as a development stage enterprise, we are at a competitive disadvantage
with regard to financial and personnel resources, vis-a-vis our competitors.
Investors should be aware of the competitive environment in which our business
operates.
Employees
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As of fiscal year end December 31, 1999, we employed six full time
employees. Roger Burnett, President and Joseph DeBerry, Vice President currently
serve on a full-time basis and are responsible for our day-to-day operations and
the marketing, production and distribution of the our products, as well as
strategic planning and expansion of the Company's business. Robert (Bobby)
Stephenson serves as Vice President of Sales and Marketing and is responsible
for sales, special events and trade shows. Fisher DeBerry, Executive Vice
President and a director of the Company, currently devotes only a minor portion
of his time to the Company and assists in marketing and promotion. We also have
three additional full time employees, each responsible respectively for
accounting, team sales and graphics.
We do not expect any additional significant changes in the number of
employees over the next twelve months. From time-to-time, we engage the services
of outside consultants to assist in the Company's business, including attorneys,
accountants, and marketing and advertising personnel. We may engage the services
of additional individuals in the future as our business needs dictate and our
financial resources permit.
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Facilities
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Commencing on February 1, 2000, we changed the location of our principal
offices to 212 N. Wahsatch Ave., Suite 205, Colorado Springs, Colorado 80903 and
have executed a three year lease agreement for this location. The offices are
located in 6,000 square feet of office and warehouse space and are leased for
the monthly rental of $7,750 per month, from a company controlled by one of our
shareholders who owns 98,000 shares. We anticipate that this office space will
be adequate for the term of the lease.
ITEM 3. LEGAL PROCEEDINGS
We, or our officers or directors in their capacities, do not have any
material legal proceedings in progress or pending against us or our property,
and we do not know of any potential or threatened legal proceeding.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
We did not hold a shareholder's meetings during the fiscal year covered by
this Report.
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PART II
ITEM 5. MARKET FOR OUR SECURITIES AND RELATED SHAREHOLDER MATTERS
As of March 18, 1999, the Company's Common Shares began trading in the
over-the-counter market and were quoted on the NASD Bulletin Board under the
symbols "FTSX ". Prior to that, there was no established trading market for the
Common Stock.
The following table sets forth the range of high and low bid quotations as
reported for the Common Shares of the Company, for the period last fiscal year
to the date of the filing of this Report. Quotations represent prices between
dealers, do not include retail markups, markdowns or commissions and do not
necessarily represent prices at which actual transactions were effected.
Common Shares
FISCAL YEAR 1999 High Low
First Quarter $3.00 $2.00
(March 18 through March 31)
Second Quarter $3.875 $2.25
(April 1 through June 30)
Third Quarter $3.50 $ .8125
(July 1 through September 30)
Fourth Quarter $1.8125 $ .75
(October 1 through December 31)
FISCAL YEAR 2000
First Quarter $1.50 $ .625
(Jan. 1 through March 30)
The number of record holders of the Common Shares as of December 31, 1999
was 140, including nominees of beneficial owners. The Company estimates that
there are approximately 200 beneficial owners of its Common Shares, as of the
filing of this Report.
Holders of Common Shares are entitled to receive such dividends as may be
declared by the Company's Board of Directors. No dividends on the Common Shares
have been paid or declared by the Company to date, nor does the Company
anticipate that dividends will be paid in the foreseeable future.
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As of the date of this filing, a total of 150,000 shares were designated
Series A Preferred Stock, of which 50,000 were issued. All of the issued shares
have an issue price and preference on liquidation equal to $1.00 per share. The
Series A Preferred Shares accrue dividends at the rate of 10% per annum during
the first two years following issuance, which dividend is payable in cash and is
cumulative. During the third through fifth year in which the Series A Preferred
Shares are outstanding, the holders are entitled to 3.75% of the net profits of
the Company, also payable in cash. The Company may redeem this preferred stock
at any time following notice to the holder for an amount equal to the issue
price, plus any accrued but unpaid dividends. The holder may convert any number
of shares of Preferred Stock, on a one to one basis, into shares of Common Stock
until April 13, 2003, and after that date all remaining shares of Preferred
Stock shall be converted on that conversion basis into Common Stock. The
Preferred Shares vote with the Common Shares on all matters presented to the
shareholders and are entitled to one vote for each Preferred Share. There is
presently no market for the Preferred Shares, and it is not anticipated that one
will develop in the future.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Introduction
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Certain statements in this report are "forward looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995. Such
forward looking statements include, without limitation, statements regarding our
plan of business operations, potential contractual arrangements, anticipated
revenues and related expenditures. Factors that could cause actual results to
differ materially include, among others, the following: acceptability of the our
products in the retail market place, general economic conditions, tax
legislation and the overall state of the retail clothing industry. Most of these
factors are outside of our control. Investors are cautioned not to put undue
reliance on forward looking statements. Except as otherwise required by
applicable securities statutes or regulations, we disclaim any intent or
obligation to update publicly these forward looking statements, whether as a
result of new information, future events or otherwise.
Liquidity and Capital Resources
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While our working capital increased from year end 1998 to year end 1999, we
believe that we are still dependent on receipt of capital from outside sources
to continue as a going concern. At December 31, 1999, we had working capital of
$309,423, consisting of $448,424 of current assets and $139,001 of current
liabilities. This compares to working capital of $95,732 at December 31,1998.
However, only a minor portion of the current assets which existed at year end
1999, in the amount of $5,687, is in the form of cash. The balance is
represented by inventory, accounts receivable, prepaid services and
miscellaneous items that cannot be used to satisfy our immediate cash
requirements. Furthermore, a substantial portion of the working capital was
utilized subsequent to year end in our operations. Accordingly, we require a
substantial investment of cash to meet our operating requirements and continue
in business.
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Our capital requirements for 2000 include cash for purchase of inventory,
as well as general and administrative expenses. When we ship product to
customers, it may be several months before we are paid. Also, when we order
inventory from overseas manufacturers, which we do to save money, we must pay
for the merchandise many months before we receive the goods. This requires a
substantial investment of cash.
Because our sales are still relatively low, we also require additional cash
for general and administrative expenses. The amount of our sales through 1999
was insufficient to cover our costs plus overhead. Overhead includes such items
as advertising, consulting, legal and accounting, salaries and rent. Our
operations during 1999 have used rather than provide cash. During the twelve
months ended December 31, 1999, the Company used $605,025 in cash. This
represents a substantial increase from 1998, when our operations used $169,598
in cash. This increase is attributable to the substantial increase in overhead
expenses during 1999.
Our efforts to obtain capital have focused on additional private debt or
equity financing. During 1999, we negotiated with a private lender in an effort
to obtain a line of credit to assist in financing our inventory requirements.
However, the financing was too expensive and we decided to look for other
sources. We also explored many opportunities to sell additional equity
securities to institutional investors or other qualified investors in a private
placement, but were unsuccessful in reaching an agreement. Accordingly, we
continue our efforts to raise money.
Historically, we have relied on private sales of our common stock to raise
money. During 1999, we conducted an offering through a private placement
pursuant to Federal and state exemptions from securities registration
requirements. The offering of up to 500,000 shares of Common Stock of the
Company, with an offering price of $1.50 per share, was offered to qualified
individuals and entities on a best efforts basis. The proceeds of the offering
were used for working capital, advertising, acquisition of inventory, and
operating expenses. The offering expired March 20, 1999, and we issued 239,518
shares of Common Stock and raised $354,055. We received an additional $142,379
from the exercise of common stock warrants during the year. While we raised a
total of $534,845 from our financing activities during 1999, we used $605,025 in
operations. Our cash therefore decreased $96,029.
Current assets increased from $122,639 in fiscal year 1998 to $448,424 in
fiscal year 1999. However, the current assets in fiscal year 1999 reflect
$153,773 in prepaid personal services, $25,278 in prepaid trade agreements and
$19,458 in prepaid design services. Also, current liabilities increased from
$26,907 in the prior fiscal year to $139,001 in fiscal year 1999. Current
liabilities in fiscal year 1999 include $42,000 in notes payable to two
shareholders as related parties.
We have attempted to conserve cash by making payments in stock in limited
circumstances. We have used stock to compensate the professional athletes who
endorse our products and will use stock in the future for such compensation when
in our best interest. Also, partial compensation for employment, manufacturing
and sales services agreements and advertisement have been in the form of stock.
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Results of Operations
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During the year ended December 31, 1999, we realized a net loss of
$1,516,856 (or $0.41 per share) on revenues of $289,180, compared to a net loss
applicable to common stock of $186,455 on revenues of $19,006 for the year ended
December 31, 1998. Revenues increased from the prior fiscal year 1400% due to
sale of our products in retail outlets, promotional events and team sales.
However, losses increased as well, due to the substantial increase in
advertising, promotion and other overhead expenses.
During 1998, we were in the beginning stages of the promotion and
development of our products. In 1999, we became much more aggressive in product
promotion, as we placed our products in many additional retail outlets and
participated in many additional promotional events. This is reflected in the
significant increases in advertisement and promotion expenses. Advertising
increased $390,877 from 1998 to 1999, while promotion increased $60,985. These
increased expenses are considered to be necessary costs associated with selling
a new product line in the retail market.
General and administrative expenses increased from $189,372 in 1998 to
$1,712,516 in 1999. We increased the number of full time employees from two to
six and we increased our office and warehousing space. Therefore, salaries
increased from $60,000 to $189,433 during the latter period as full time
employment was implemented. Professional fees increased from $24,442 in the
former fiscal year to $82,593 in 1999 due to costs associated with Commission
filing requirements and issuance of our common stock in certain private
transactions. We also realized a substantial amount of consulting fees, in the
amount of $106,819, due to our efforts to refine and revise our business plan
and gain access to new customers.
A substantial portion of our net loss for 1999 resulted from non-cash
expenses associated with the issuance of stock options to consultants. In
accordance with accounting rules, we are required to recognize the fair value of
stock options issued to nonemployees based upon a formula which estimates those
values based upon certain assumptions. The application of those rules resulted
in the recognition of $606,390 of noncash expense during 1999 based on the
issuance of 435,000 options. Nonetheless, we believe the issuance of those
options was in the best interest of our company, and will help our business in
the future.
We anticipate that we will continue to incur losses until such time, if
ever, that we generate revenues from retail sales in an amount adequate to cover
cost of goods and expenses.
ITEM 7. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Reference is made to the Index to Financial Statements following Part IV of
this Report for a listing of the Company's financial statements and notes
thereto.
12
<PAGE>
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
On January 4, 2000, our Board of Directors engaged Stark Tinter &
Associates LLC as our principal accountant and independent auditors for the year
ending December 31, 1999, and simultaneously accepted the resignation of Kish
Leake & Associates, P.C. as our principal accountant and auditors. Kish Leak &
Associates, P.C. stated as its reason for its resignation that it would no
longer engage in providing audit services to public companies.
The reports of Kish Leake & Associates, P.C. for the past two fiscal years
did not contain an adverse opinion or a disclaimer of opinion and were not
qualified or modified as to uncertainty, audit scope or accounting principles.
In connection with the audits of the Company's financial statements for the
fiscal year ended December 31, 1998, and the period from inception (June 30,
1997) to December 31, 1997, there were no disagreements with Kish Leak &
Associates, P.C. on any matters of accounting principles or practices, financial
statement disclosure, or auditing scope and procedure which, if not resolved to
the satisfaction of Kish Leake & Associates, P.C., would have caused Kish Leake
& Associates, P.C. to make reference to the matter in their report.
During the two most recent fiscal years and any subsequent interim period,
the Company has not consulted Stark Tinter & Associates LLC, regarding any
matter requiring disclosure in this Form 10-KSB.
13
<PAGE>
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS AND COMPLIANCE WITH SECTION 16(a) OF THE
EXCHANGE ACT.
The following individuals presently serve as officers and directors of the
Company.
Name Age Position
- ---- --- --------
Roger K. Burnett 30 President, Chief Executive Officer,
Financial Officer and Director Chief
J. Fisher DeBerry 61 Executive Vice President and Director
Joseph F. DeBerry 29 Vice President, Secretary, Treasurer
and Director
Bill M. Conrad 43 Director
Messrs. Burnett, Joseph DeBerry, J. Fisher DeBerry and Conrad should be
considered "founders" and "parents" (as such terms are defined by rule under the
Securities Exchange Act of 1934, as amended), inasmuch as each has taken
initiative in founding and organizing our business.
Messrs. Burnett, and Joseph DeBerry presently serve pursuant to written
employment contracts, effective September 1, 1998, for a term of 12 months,
which have been renewed for additional terms and continue on a year to year
basis, unless terminated. Mr. Fisher DeBerry serves at the will of the Board of
Directors. All of the directors are currently serving a term of office until the
next annual meeting of shareholders and until their successors are duly elected
and qualified, or until they resign or are removed. Each of the foregoing
individuals has served in his current position since our inception in June,
1997. Raymond E. McElhaney, a director since our inception, resigned as director
effective January 31, 2000. We did not have any disagreements with Mr.
McElhaney.
The following represents a summary of the business history of each of the
foregoing individuals for the last five years:
ROGER K. BURNETT.
- ----------------
Mr. Burnett graduated from Stanford University, in Palo Alto, California,
with a Bachelor of Arts in Business, where he was a two time Collegiate
All-American at shortstop. From 1991 to 1995, Mr. Burnett was a member of
the New York Yankees farm organization, playing short stop at the Single A
and Double A level of that organization. From 1996 until inception of the
Company, Mr. Burnett worked on researching and developing the concept and
feasibility of the Company.
In his position as President, Mr. Burnett is responsible for overseeing all
of our activities and strategic planning for future development.
14
<PAGE>
J. FISHER DeBERRY
- -----------------
Fisher DeBerry has been the head football coach for the Air Force Academy
in Colorado Springs for fourteen years. In that capacity, he oversees a staff of
assistant coaches, and together with the athletic director and university
president, is responsible for all decisions affecting the football team. During
his tenure with the Air Force Falcons, Mr. DeBerry has compiled a record of 104
wins and 56 losses, eleven of his thirteen teams having achieved a winning
record and nine receiving a bowl bid. Prior to his position as head football
coach, Mr. DeBerry was an assistant from 1980 to 1983. Mr. DeBerry will assist
in marketing and program development.
JOSEPH F. DeBERRY
- -----------------
Mr. DeBerry also played professional baseball from 1991 to 1995, as a
member of the Cincinnati Reds and New York Yankees farm organizations. His most
recent position was with the Kansas City Royals Double A farm organization,
which he concluded early in 1997. During his two year assignment with the
Yankees organization, Mr. DeBerry was responsible for establishing and
overseeing weekly baseball camps with local area youths in Albany, New York. Mr.
DeBerry attended college at Clemson University where he was twice named to the
College All-American baseball team and participated in the 1991 College Baseball
World Series. Prior to that, he was a stand-out athlete at Air Academy High
School in Colorado Springs.
As Vice President, Mr. DeBerry will be in charge of marketing, production
and other day-to-day operations.
BILL M. CONRAD
- --------------
Mr. Conrad is active in a number of business endeavors, where he serves
primarily in the area of corporate finance. He is presently vice-president,
secretary, treasurer and a director of Wallstreet Racing Stables, Inc., a
publicly traded Colorado corporation formerly engaged in the acquisition,
training, racing and sale of thoroughbred race horses. He has occupied that
position since 1995. Mr. Conrad is the vice president of privately-held MCM
Capital Management, Inc., a financial public relations company. From 1989 to
early 1997, Mr. Conrad was the vice president of corporate development,
secretary and a director of Consolidated Capital of North America, Inc., a
publicly traded corporation at that time engaged in the real estate business.
Joseph DeBerry is the son of J. Fisher DeBerry. No other family
relationships exist between any of the officers and directors.
COMPLIANCE WITH SECTION 16.
The following table sets forth each director, officer or beneficial owner
of more than ten percent of any class of equity securities of the registrant
registered pursuant to Section 12 that failed to file on a timely basis, Forms
3, 4 of 5 as required by Section 16(a) during the most recent fiscal year or
prior years.
Late Late Late
Name of Reporting Person Form 3 Form 4 Form 5 Transactions
- ------------------------ ------- ------- ------- ------------
Roger K. Burnett 0 1 0 1
Joseph F. DeBerry 0 2 0 2
J. Fischer DeBerry 0 1 0 1
15
<PAGE>
Bill M. Conrad 0 2 0 2
Raymond E. McElhaney 0 1 0 1
ITEM 10. EXECUTIVE COMPENSATION
The following table is a summary of the compensation paid to all
executive officers of the Company during the period from inception of the
Company, June 30, 1997, to the end of the fiscal year, December 31, 1999. No
other executive officer receives compensation of any kind. Except as listed
below, there are no bonuses, other annual compensation, restricted stock awards
or stock options/SARs or any other compensation paid to the executive officers.
Summary Compensation Table
Long-term Compensation
Securities Underlying
Name and Position Year Salary Options
- ----------------- ------ ------- ----------------------
Roger K. Burnett 1997 $10,000
President, Chief Executive Officer, 1998 30,000
and Chief Financial Officer 1999 30,000 200,000 Common Shares
Joseph F. DeBerry 1997 10,000
Vice President, Secretary 1998 30,000
and Treasurer 1999 30,000 200,000 Common Shares
Each of Messrs. Burnett and Joseph DeBerry presently serve pursuant to one
year employment contracts effective September 1, 1999. Pursuant to those
contracts, each individual is entitled to annual compensation in the amount of
$30,000. Each individual is also entitled to participate in health insurance and
other benefit plans maintained for the employees, and to be reimbursed for
reasonable out-of-pocket expenses incurred on our behalf. The employment
agreements may also be terminated by us for cause, or by the employee upon not
less than sixty days advance written notice. These individuals are also entitled
to participate in the Non-Qualifying Stock Option and Stock Grant Plan discussed
below.
Employees receive no additional compensation for their services as
directors. Directors are not currently compensated, although each is entitled to
be reimbursed for reasonable and necessary expenses incurred on our behalf. We
reserve the right to enter into compensation arrangements with the directors in
the future.
The following table is a summary of the stock options granted to the named
executive officers in fiscal year 1999, as well as the exercise share per price
and the expiration date of those options.
16
<PAGE>
Option/SAR Grants in Last Fiscal Year
(Individual Grants)
- --------------------------------------------------------------------------------
Name Number of Percent of Exercise or Expiration
Securities total base price date
Underlying options/SARs ($/Sh)
Options/SARs granted to
Granted (#) employees in
fiscal year
- --------------------------------------------------------------------------------
Roger K. Burnett 200,000 50.0% $1.50 June 30, 2007
Joseph F. DeBerry 200,000 50.0% $1.50 June 30, 2007
The following table is a summary of the value of the options granted to
employees in fiscal year 1999, based upon the latest average trading price of
our stock.
Fiscal Year End Option Value
Number of Shares
Underlying Unexercised Value of Unexercised
Options at FY-End Options at FY-End
Exercisable Exercisable/Unexercisable
Roger K. Burnett 200,000 (1) $0
Joseph F. DeBerry 200,000 (1) $0
- -----------------------------
(1) Based upon the mean between the closing bid and asked prices of our
common stock on March 27, 2000.
- -----------------------------
Stock Option Plan
- -----------------
We have adopted a Non-Qualified Stock Option and Stock Grant Plan (the "Plan")
for the benefit of key personnel and others providing significant services to
the Company. An aggregate of 2,500,000 shares of Common Stock has been reserved
for issuance under the Plan, as amended.
The Plan is administered by the Board of Directors, which selects optionees
and recipients of any stock grants, the number of shares and the terms and
conditions of any options or grants to key persons defined in the Plan. In
determining the value of services rendered to the Company for purposes of awards
under the Plan, the Board considers, among other things, such person's
employment position and relationship with the Company, his duties and
responsibilities, ability, productivity, length of service or association,
morale, interest in the Company, recommendation by supervisors and the value of
comparable services rendered by others in the community. All options granted
pursuant to the Plan are exercisable at a price not less than the fair market
value of the shares of Common Stock on the date of grant.
There is no taxable income to an optionee as a result of the grant of a
Non-Qualified Stock Option unless the grant is at less than fair market value.
However, an optionee incurs taxable income upon the exercise of a Non-Qualified
Stock Option based on the difference between the
17
<PAGE>
fair value of the stock at the time of exercise and the exercise price. The
Company is not entitled to a tax deduction upon the grant of a Non-Qualified
Stock Option, but is entitled to a tax deduction upon exercise corresponding to
the optionee's taxable income. In 1999, there were options for 1,036,000 shares
granted and outstanding under the Plan for exercise prices between $1.25 to
$2.75 per share. There was also 469,022 shares for services issued under the
Plan in 1999.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of December 31, 1999, there were a total of 3,933,722 shares of Common
Stock of the Company and 50,000 Series A Preferred Shares of the Company
outstanding, the only classes of voting securities of the Company currently
outstanding. The Common Stock and the Series A Preferred Shares vote together as
a single class, and each share is entitled to one vote.
The following tabulates holdings of Common Stock of the Company by each
person who holds of record or is known by management of the Company to own
beneficially more than 5% of the voting securities outstanding and, in addition,
by all directors and officers of the Company individually and as a group. There
are no officers or directors who own Preferred Stock and no holders of Preferred
Stock of the Company who own beneficially more than 5% of the voting securities
outstanding. Information in the table includes options which were outstanding
and exercisable within 60 days of year end 1999. Percentages include shares
which can be issued to the named shareholder, but not any other shareholder.
However, the table does not include up to 994,978 additional shares underlying
our stock option plan.
The shareholders listed below have sole voting and investment power. The
address of each of the beneficial owners is 212 N. Wahsatch Ave., Suite 205,
Colorado Springs, Colorado 80903, unless otherwise indicated. All ownership of
securities is direct ownership unless otherwise indicated.
Name Number of Shares Percent of Voting Securities
- ---------------------- ---------------- ----------------------------
Roger K. Burnett (1,3) 854,618 20.7%
Joseph F. DeBerry (1,3) 764,618 18.5%
J. Fisher DeBerry (1,4) 825,000 21.0%
Bill M. Conrad1, (2,3) 443,966 10.7%
Raymond E. McElhaney (2,4) 232,899 5.9%
5525 Erindale Dr., Suite 200
Colorado Springs, Colorado 80918
All Officers, Directors and 5% Beneficial Owners
as a Group (5 persons) 3,121,101 76.8%
- ---------------------
(1) Officer or director.
18
<PAGE>
(2) Includes 5,625 shares held by MCM Capital Management, Inc. of which
Messrs. McElhaney and Conrad are officers, directors and principal
shareholders.
(3) Includes options for 200,000 shares of Common Stock, exercisable
immediately for an exercise price of $1.50 per share, and expiring on
June 30, 2007.
(4) Includes options for 25,000 shares of Common Stock, exercisable
immediately for an exercise price of $1.50 per share, and expiring on
June 30, 2007.
- ----------------------------
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On August 1, 1998, Stephen K. Anderson resigned his position as officer,
director and employee of the Company, and returned 600,000 shares to the Company
treasury. Of the remaining shares, 95,000 were transferred to Bill M. Conrad, a
director, and 5,000 shares were retained by Mr. Anderson.
On April 1, 1999 options to purchase shares of Common Stock were granted to
the officers, directors and 5% beneficial owners to acquire shares of Common
Stock for the purchase price of $1.50 per share exercisable until June 30, 2007.
Roger K. Burnett, President and Director, was granted 200,000 options; Joseph F.
DeBerry, Vice President and Director was granted 200,000 options; J. Fischer
DeBerry, Vice President and Director was granted 25,000 options; Bill M. Conrad
was granted 200,000 options; and Raymond E. McElhaney, a 5% beneficial owner was
granted 25,000 options
In July, 1998, Messrs. Joseph DeBerry and Burnett each acquired an
additional 4,618 shares of Common Stock of the Company in consideration for
services rendered to the Company in the months of May and June, 1998. Said
consideration was in lieu of salary payable under the Employment Agreements that
Messrs. Joseph DeBerry and Burnett have entered into with the Company.
In July, 1998, MCM Capital Management, Inc. acquired 5,625 shares of Common
Stock of the Company for consideration of service and satisfaction of accounts
payable under the Administrative Services Agreement. Mr. Conrad, directors of
the Company, and Mr. McElhaney, a 5% beneficial owner of the Company, are also
officers, directors and principal shareholders of MCM Capital Management, Inc.
In January, 1999, Roger K. Burnett and Joseph F. DeBerry each acquired an
additional 80,000 shares of Common Stock of the Company in consideration for
services rendered to the Company in 1998. Said consideration was in lieu of
salary payable under the Employment Agreements that Messrs. Joseph DeBerry and
Burnett have entered into with the Company.
In 1999 our Administrative Services Agreement with MCM Capital Management,
Inc. of Colorado Springs expired and this agreement was not renewed. Under the
agreement MCM had assisted us with our bookkeeping, secretarial, and
administrative needs, provided storage and warehouse space as well as on an
as-needed basis for a period of one year at a rate of $2,500 per month beginning
January 1, 1998. During the years ended December 31, 1998 and 1999,
19
<PAGE>
$60,000 was
paid to MCM under this agreement. Mr. Conrad, directors of the Company, and Mr.
McElhaney, a 5% beneficial owner of the Company, are also officers, directors
and principal shareholders of MCM Capital Management, Inc.
In 1999 our offices were located at 5525 Erindale Drive, Suite 200,
Colorado Springs, Colorado 80918, in space that was subleased from MCM for the
monthly rental of $2000. This rent was in addition to the fees paid for services
under the Administrative Services Agreement above. We signed a one year lease on
February 1, 1999 for this space, and did not renew this lease upon its
expiration. Commencing on February 1, 2000, we changed the location of our
principle offices to 212 N. Wahsatch Ave., Suite 205, Colorado Springs, Colorado
80903 and have executed a three year lease agreement for this location. The
offices are located in 6,000 square feet of office space and are leased from The
Landhuis Company for the monthly rental of $7,750 per month. We anticipate that
this office space will be adequate for the term of the lease.
All these transactions were approved by a majority of the disinterested
directors at that time. The Board of Directors is of the opinion that each of
these transactions were no less favorable than could be obtained from an
unaffiliated third party.
20
<PAGE>
PART IV
ITEM 13. EXHIBITS, REPORTS ON FORM 8-K AND FINANCIAL STATEMENTS
(a) Exhibits.
Except as otherwise indicated, each of the following documents
were included as exhibits to the Company's Registration Statement
on Form 10-SB filed under the Securities Act of 1934, File No.
0-24829 and are incorporated herein by this reference.
Exhibit No.
2 Not applicable.
3.1 Articles of Incorporation of the Company as filed June 30, 1997 with
the Secretary of State of the State of Colorado.
3.2 Articles of Amendment of the Articles of Incorporation of the Company
as filed April, 15, 1998 with the Secretary of State of the State of
Colorado.
3.3 Bylaws of the Company.
4.1 Form of Certificate for Common Shares, $.0001 par value per share.
4.2 Not applicable.
9 Not applicable.
10.1 Employment Agreement, by and between the Company and Roger K. Burnett,
dated August 5, 1997
10.2 Employment Agreement, by and between the Company and Joseph F.
DeBerry, dated August 5, 1997
10.3 Non-Qualified Stock Option and Stock Grant Plan, dated July 1, 1998
10.4 Stock Option Agreement
10.6 Lease Agreement, dated January 21, 2000 *
11 Not applicable.
13 Not applicable.
16 Letter of Change in Certifying Accountant**
21
<PAGE>
18 Not applicable.
21 Not applicable.
22 Not applicable.
23 Not applicable.
24 Not applicable.
27 Financial Data Schedule*
99 Not applicable.
(b) Reports on Form 8-K
We filed a report on Form 8-K, dated January 4, 2000, to report a
change in certifying accountants.
(c) Financial Statements and Schedules.
The Financial Statements filed herein are described in the Index to
Financial Statements following Part IV of this Report.
* filed herewith
** included as an exhibit to our Current Report on Form 8-K, dated January 4,
2000, and incorporated herein by this reference
22
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned thereunto duly authorized in Colorado Springs,
Colorado on the 30th day of March, 2000.
FULL TILT SPORTS, INC.
By: /s/ Roger K. Burnett
---------------------
Roger K. Burnett, President, Chief Executive Officer, Chief
Financial Officer and Chairman of the Board
Pursuant to the requirements of the Security Exchange Act of 1934, as
amended, this Report has been signed by the following persons in the capacities
and on the dates indicated.
Signatures Title Date
- ----------- ----- ----
/s/ Roger K. Burnett President, Chief Executive Officer, March 30, 2000
- ----------------------- Chief Financial Officer and Chairman
Roger K. Burnett of the Board of Directors
/s/ J. Fisher DeBerry Executive Vice President and Director March 30, 2000
- -----------------------
J. Fisher DeBerry
/s/ Joseph F. DeBerry Vice President, Secretary, Treasurer March 30, 2000
- ----------------------- and Director
Joseph F. DeBerry
/s/ Bill M. Conrad Director March 30, 2000
- -----------------------
Bill M. Conrad
<PAGE>
Full Tilt Sports, Inc.
(A Development Stage Company)
As of and for the years ended
December 31, 1999 and 1998
and the period from June 30, 1997 (inception)
to December 31, 1999
<PAGE>
Full Tilt Sports, Inc.
(A Development Stage Company)
Table of Contents
Page
Report of Independent Auditors 1
Balance Sheet 2
Statements of Operations 3
Statement of Changes in Stockholders' Equity 4
Statements of Cash Flows 5
Notes to Financial Statements 6-14
<PAGE>
((LETTERHEAD))
((LOGO))
STARK TINTER & ASSOCIATES, LLC
- --------------------------------------------------------------------------------
Certified Public Accountants
Financial Consultants
REPORT OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
Full Tilt Sports, Inc.
212 North Wahsatch, Suite 205
Colorado Springs, CO 80903
We have audited the accompanying balance sheet of Full Tilt Sports, Inc. (a
development stage company) as of December 31, 1999, and the related statements
of operations, changes in stockholders' equity, and cash flows for the years
ended December 31, 1999 and the period from June 30, 1997 (inception) to
December 31, 1999. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Full Tilt Sports, Inc. (a
development stage company) as of December 31, 1999, and the results of its
operations, and its cash flows for the years ended December 31, 1999 and the
period from June 30, 1997 (inception) to December 31, 1999, in conformity with
generally accepted accounting principles.
Stark Tinter & Associates, LLC
Denver, Colorado
February 25, 2000
7535 East Hampden Avenue, Suite 109 - Denver, Colorado 80231
(303) 694-6700 Fax (303) 694-6761
<PAGE>
FULL TILT SPORTS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
December 31, 1999
ASSETS
CURRENT ASSETS
Cash $ 5,687
Accounts receivable 82,449
Inventory 161,779
Prepaid expenses 198,509
-------------
Total current assets 448,424
-------------
PROPERTY AND EQUIPMENT, net of depreciation 24,137
-------------
OTHER ASSETS
Deposits 3,117
-------------
$ 475,678
=============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 64,418
Accrued expenses 6,063
Preferred dividends payable 5,000
Deferred income - trade agreements 21,520
Notes payable - related party 42,000
-------------
Total current liabilities 139,001
LONG-TERM LIABILITIES
Deferred Income - trade agreements 3,758
-------------
STOCKHOLDERS' EQUITY
10% Convertible preferred stock, Series A, $0.01 par
value, 150,000 shares authorized, 50,000 shares issued
and outstanding 50,000
Preferred stock, $0.01 par value, 4,850,000 undesignated
shares authorized -
Common stock, $0.001 par value, 25,000,000 shares
authorized, 3,939,722 shares issued
and outstanding 3,940
Additional paid in capital 2,034,632
Deficit accumulated during the development stage (1,755,653)
-------------
Total stockholders' equity 332,919
-------------
$ 475,678
=============
The Notes to Financial Statements are an integral part of these statements
2
<PAGE>
<TABLE>
<CAPTION>
FULL TILT SPORTS, INC.
(A DEVELOPMENTAL STAGE COMPANY)
STATEMENTS OF OPERATIONS
JUNE 30, 1997
(INCEPTION)
YEAR ENDED YEAR ENDED THROUGH
DECEMBER DECEMBER DECEMBER
31, 1999 31, 1998 31, 1999
---------------- ---------------- ----------------
<S> <C> <C> <C>
REVENUES
Sales of merchandise $ 188,038 $ 19,003 $ 207,041
Advertising/Promotion income 17,500 - 17,500
Trade agreements 81,503 - 81,503
Miscellaneous 2,139 3 2,142
---------------- ---------------- ----------------
289,180 19,006 308,186
---------------- ---------------- ----------------
COST OF GOODS SOLD 89,905 15,622 105,527
---------------- ---------------- ----------------
GROSS PROFIT 199,275 3,384 202,659
---------------- ---------------- ----------------
GENERAL AND ADMINISTRATIVE EXPENSES 1,712,516 189,372 1,954,435
---------------- ---------------- ----------------
(LOSS) FROM OPERATIONS (1,513,241) (185,988) (1,751,776)
---------------- ---------------- ----------------
OTHER INCOME (EXPENSE)
Interest income 6,418 3,285 9,703
Interest expense (4,763) (163) (4,991)
---------------- ---------------- ----------------
1,655 3,122 4,712
---------------- ---------------- ----------------
NET (LOSS) $ (1,511,586) $ (182,866) $ (1,747,064)
PREFERRED DIVIDENDS (5,000) (3,589) (8,589)
---------------- ---------------- ----------------
NET (LOSS) APPLICABLE TO COMMON STOCK $ (1,516,586) $ (186,455) $ (1,755,653)
================ ================ ================
PER SHARE INFORMATION:
WEIGHTED AVERAGE SHARES OUTSTANDING (BASIC AND DILUTED) 3,693,774 3,417,663 3,349,575
================ ================ ================
NET (LOSS) PER COMMON SHARE (BASIC AND DILUTED) $ (0.41) $ (0.05) $ (0.52)
================ ================ ================
</TABLE>
The Notes to Financial Statements are an integral part of these statements
3
<TABLE>
<CAPTION>
FULL TILT SPORTS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
JUNE 30, 1997 (INCEPTION) THROUGH DECEMBER 31, 1999
Deficit
Accumulated
Number of Number of Capital Paid During the Total
Preferred Common Preferred Common In Excess Of Development Shareholders'
Shares Shares Stock Stock Par Value Stage Equity
--------- ---------- --------- -------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, June 30, 1997 - - $ - $ - $ - $ - $ -
Stock issued for cash 3,500,000 - 3,500 66,500 70,000
Net (loss) for the period ended
December 31, 1997 (52,612) (52,612)
--------- ---------- --------- -------- ------------- ------------ -------------
Balance, December 31, 1997 - 3,500,000 - 3,500 66,500 (52,612) 17,388
Stock issued for cash 50,000 50,000 50,000
Stock issued for cash, net of
offering costs of $11,928 211,400 211 199,261 199,472
Stock issued for services 24,861 25 19,836 19,861
Cancelled shares (600,000) (600) 600 -
Preferred dividends declared (3,589) (3,589)
Net (loss) for the year ended
December 31, 1998 (182,866) (182,866)
--------- ---------- --------- -------- ------------- ------------ -------------
Balance, December 31, 1998 50,000 3,136,261 50,000 3,136 286,197 (239,067) 100,266
Stock issued for employment
contract 80,000 80 79,920 80,000
Stock issued for trade agreements 6,000 6 10,489 10,495
Stock issued for services 383,022 384 555,536 555,920
Stock issued for cash, net of
offering costs of $5,222 239,518 240 353,815 354,055
Stock warrants excercised 94,921 94 142,285 142,379
Preferred dividends declared (5,000) (5,000)
Stock options 606,390 606,390
Net (loss) for the year ended
December-31, 1999 - - - - (1,511,586) (1,511,586)
--------- ---------- --------- -------- ------------- ------------ -------------
Balance, December 31, 1999 50,000 3,939,722 $ 50,000 $ 3,940 $ 2,034,632 $(1,755,653) $ 332,919
========= ========== ========= ======== ============= ============ =============
</TABLE>
The Notes to Financial Statements are an integral part of these statements
4
<PAGE>
<TABLE>
<CAPTION>
FULL TILT SPORTS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
JUNE 30, 1997
(INCEPTION)
YEAR ENDED YEAR ENDED THROUGH
DECEMBER DECEMBER DECEMBER
31, 1999 31, 1998 31, 1999
-------------- ------------- ---------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net (loss) $ (1,511,586) $ (182,866) $ (1,747,064)
Adjustments to reconcile net (loss) to net cash
flows from operating activities:
Amortization and depreciation 6,779 1,665 9,319
Stock issued for services, contracts,
and trade agreements 646,415 19,861 666,276
Stock option compensation costs 606,390 - 606,390
Changes in:
Accounts receivable (72,146) (10,303) (82,449)
Inventory (153,206) (10,037) (163,243)
Stock subscriptions receivable - 10,000 -
Prepaid expenses (197,045) - (197,045)
Other assets (3,067) - (3,879)
Accounts payable 45,818 2,557 64,418
Accrued salaries 2,826 - 5,326
Deferred income - trade agreements 21,520 - 21,520
Other accrued expenses 2,277 (475) 4,495
-------------- ------------- ---------------
Net cash (used in) operating activities (605,025) (169,598) (815,936)
-------------- ------------- ---------------
INVESTING ACTIVITIES
Acquisition of fixed assets (25,849) (4,449) (32,694)
-------------- ------------- ---------------
Net cash (used in) investing activities (25,849) (4,449) (32,694)
-------------- ------------- ---------------
FINANCING ACTIVITIES
Common stock issued, net of offering costs 496,434 199,472 765,906
Preferred stock issued - 50,000 50,000
Proceeds from note payable 42,000 - 42,000
Preferred dividends paid (3,589) - (3,589)
-------------- ------------- ---------------
Net cash provided by financing activities 534,845 249,472 854,317
-------------- ------------- ---------------
Net increase (decrease) in cash (96,029) 75,425 5,687
CASH AT BEGINNING OF YEAR 101,716 26,291 -
-------------- ------------- ---------------
CASH AT END OF YEAR $ 5,687 $ 101,716 $ 5,687
============== ============= ===============
SUPPLEMENTAL CASHFLOW INFORMATION:
Cash paid for:
Interest $ 4,763 $ 163 $ 4,991
============== ============= ===============
Income taxes $ - $ - $ -
============== ============= ===============
</TABLE>
The Notes to Financial Statements are an integral part of these statements
5
<PAGE>
FULL TILT SPORTS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
Note 1 - Organization and Summary of Significant Accounting Policies
Organization
On June 30, 1997 Full Tilt Sports, Inc. (the Company) was incorporated under the
laws the State of Colorado. The Company's primary purposes are to develop and
market the Full Tilt line of clothing apparel and secondly to organize and
develop one or more indoor multi-sport facilities in the United States.
Development Stage
The Company is currently in the developmental stage and has no significant
revenues from operations to date.
Estimates
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 these financial statements and accompanying
notes. Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considered demand
deposits and highly liquid-debt instruments purchased with a maturity of three
months or less to be cash equivalents.
Inventory
Inventories are stated at the lower of cost or market using the weighted average
method.
Property and Equipment
Property and equipment are being depreciated using the straight-line method over
the estimated economic lives ranging from 3 to 5 years.
Financial Instruments
The carrying amounts for the company's cash and cash equivalents, accounts
receivable, accounts payable, accrued expenses and notes payable-related party
approximate fair value.
6
<PAGE>
Impairment Of Long-Lived Assets
The Company periodically reviews the carrying amount of property, plant and
equipment and its identifiable intangible assets to determine whether current
events or circumstances warrant adjustments to such carrying amounts. If an
impairment adjustment is deemed necessary, such loss is measured by the amount
that the carrying value of such assets exceeds their fair value. Considerable
management judgement is necessary to estimate the fair value of assets,
accordingly, actual results could vary significantly from such estimates. Assets
to be disposed of are carried at the lower of their financial statement carrying
amount or fair value less costs to sell. As of December 31, 1999, management
does not believe there is any impairment of the carrying amounts of assets.
Revenue Recognition
The Company's revenue is generated by manufacturing and then distributing an
apparel line of sportswear. Sales are recognized upon shipment of product.
Advertising Costs
Advertising is expensed as incurred. Advertising costs expensed during years
ended December 31, 1999 and 1998, and the period June 30, 1997 (inception) to
December 31, 1999 were $416,799, $25,922, and $443,071, respectively. Prepaid
advertising costs reported as prepaid personal services asset at December 31,
1999 were $153,773.
Net Loss Per Common Share
The Company follows Statement of Financial Accounting Standards No. 128,
"Earnings Per Share" ("SFAS No. 128"). Basic earnings per common share ("EPS")
calculations are determined by dividing net income by the weighted average
number of shares of common stock outstanding during the year. Diluted earnings
per common share calculations are determined by dividing net income by the
weighted average number of common shares and dilutive common share equivalents
outstanding. During the periods presented common stock equivalents were not
considered as their effect would be anti-dilutive.
Comprehensive income
The Company follows Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income." SFAS 130 establishes standards for reporting
and displaying comprehensive income, its components and accumulated balances.
SFAS 130 is effective for periods beginning after December 15, 1997. The Company
adopted SFAS 130 in 1998.
7
<PAGE>
Segment Information
Effective in 1999, the Company adopted SFAS No. 131, "Disclosures about Segments
of an Enterprise and Related Information." Certain information is disclosed, per
SFAS No. 131, based on the way management organizes financial information for
making operating decisions and assessing performance. The Company currently
operates in a single segment and will evaluate additional segment disclosure
requirements as it expands its operations.
Stock-Based Compensation
The Company accounts for stock based compensation in accordance with SFAS No.
123, "Accounting for Stock-Based Compensation." The provisions of SFAS No. 123
allow companies to either expense the estimated fair value of stock options or
to continue to follow the intrinsic value method set forth in APB Opinion 25,
"Accounting for Stock Issued to Employees" ("APB 25") but disclose the pro forma
effects on net income (loss) had the fair value of the options been expensed.
The Company has elected to continue to apply APB 25 in accounting for its stock
option incentive plans.
Recent Pronouncements
The FASB recently issued Statement No 137, "Accounting for Derivative
Instruments and Hedging Activities-Deferral of Effective Date of FASB Statement
No. 133". The Statement defers for one year the effective date of FASB Statement
No. 133, "Accounting for Derivative Instruments and Hedging Activities". The
rule now will apply to all fiscal quarters of all fiscal years beginning after
June 15, 2000. In June 1998, the FASB issued SFAS No. 133, "Accounting for
Derivative Instruments and Hedging Activities," which is required to be adopted
in years beginning after June 15, 1999. The Statement permits early adoption as
of the beginning of any fiscal quarter after its issuance. The Statement will
require the Company to recognize all derivatives on the balance sheet at fair
value. Derivatives that are not hedges must be adjusted to fair value through
income. If the derivative is a hedge, depending on the nature of the hedge,
changes in the fair value of derivatives will either be offset against the
change in fair value of the hedged assets, liabilities, or firm commitments
through earnings or recognized in other comprehensive income until the hedged
item is recognized in earnings. The ineffective portion of a derivative's change
in fair value will be immediately recognized in earnings. The Company has not
yet determined if it will early adopt and what the effect of SFAS No. 133 will
be on the earnings and financial position of the Company.
8
<PAGE>
Note 2 - Property and Equipment
The following is a summary of property and equipment as of December 31, 1999 at
cost less accumulated depreciation:
Furniture and fixtures $20,593
Computer equipment 4,870
Other 7,079
---------
32,542
Less accumulated depreciation (8,405)
---------
Net property and equipment $24,137
=========
Depreciation expense for the years ended December 31, 1999 and 1998, and the
period June 30, 1997 (inception) to December 31, 1999 was $5,544, $1,512 and
$7,855, respectively.
Note 3 - Equity
The Company has authorized 30,000,000 shares of stock, of which 25,000,000
shares are $.001 par value common stock and 5,000,000 shares are $.01 par value
preferred stock and. The Board of Directors is authorized to divide the class of
preferred shares into series and to fix and determine the relative rights and
preferences of those shares.
On July 5, 1997 the Company issued 2,800,000 shares of common stock for cash
aggregating $20,000 ($.007 per share) and on July 7, 1997 the Company issued
500,000 shares of common stock for cash aggregating $10,000 ($.02 per share).
On December 31, 1997 the Company issued 200,000 shares of common stock for cash
aggregating $40,000 ($.20 per share).
In April 1998 the Company offered to sell up to 50,000 units at $10.00 per Unit,
based on a best efforts basis. Each Unit was comprised of 10 shares of $.001 par
value common stock and 5 common stock purchase warrants. The warrants can be
exercised at anytime to purchase 1 share of common stock for $1.50 until April
13, 2000. The minimum was 15,000 Units and the maximum 50,000 Units for a total
offering of $500,000. The shares of common stock contained in the Units were to
be issued pursuant to an exemption from registration under Section 3(b) and
Regulation D, Rule 504, of the Securities Act of 1933, as amended, and to an
exemption to registration provided by Section 11-51-308(l)(p) of the Colorado
Securities Act.
9
<PAGE>
In June 1998 the Company completed the offering and sold 21,140 units including
211,400 shares of common stock and 105,700 warrants for cash aggregating
$211,400. After deducting offering costs of $11,928, the Company netted $199,472
from the offering.
During the year ended December 31, 1998, the Company issued 14,861 shares of
common stock for services valued at $14,861 ($1.00 per share) and 10,000 shares
of common stock for services valued at $5,000 ($.50 per share). The values
ascribed to the common stock corresponded with the fair market value of the
common shares on the respective dates the Company agreed to issue the shares.
In August 1998 a shareholder of the Company contributed 600,000 shares of common
stock to the Company at which time the shares were canceled.
In April 1998 the Company authorized the issuance of 150,000 shares of Series A
Voting Convertible Preferred Stock to be issued at the discretion of the Board
of Directors for $1 per share. The Series A Convertible Preferred Stock has
senior preferential fixed dividends at the rate of 10% per annum ($.10 per year)
pro rated to the date of issuance, for a period of 24 months after issuance,
payable annually on or before December 31 of each such calendar year before any
dividend shall be declared or paid upon or set apart for the Common Stock.
Beginning on the first day of the 25th month and continuing until the expiration
of 60 months from the date of issuance, unless sooner converted, the dividend
shall be calculated as 3.75% of the "net profits" of the Corporation and payable
annually on or before 90 days from the closing of the Corporation's fiscal year.
The Series A Convertible Preferred Stock is convertible into common stock at the
rate of one for one. The Series A Convertible Preferred Stock automatically
converts to common stock in 5 years from the date of issuance. The conversion
rate will be subject to adjustments in certain events, including stock splits
and dividends.
During April, 1998, the Company sold 50,000 shares of Series A Convertible
Preferred Stock for cash aggregating $50,000.
At December 31, 1998 Preferred Dividends of $3,589 were declared.
During January, 1999 the Company issued 80,000 shares of common stock valued at
$80,000 ($1.00 per share) pursuant to an employment contract entered into by the
company. The value ascribed to the common stock corresponds with the fair market
value of the common shares on the date the Company agreed to issue the shares.
During the year ended December 31, 1999, the Company sold 239,518 shares of
common stock for cash aggregating $359,277 ($1.50 per share). After offering
costs of $5,222, the Company netted $354,055.
10
<PAGE>
During the year ended December 31, 1999, the Company issued 383,022 shares of
common stock for services valued at $555,920 ($1.00 per share to $3.81 per
share). The values ascribed to the common stock corresponded with the fair
market value of the common shares on the respective dates the Company agreed to
issue the shares.
During the year ended December 31, 1999, the Company issued 6,000 shares of
common stock pursuant to a trade agreement valued at $10,495 ($1.12 per share to
$2.75 per share). The values ascribed to the common stock corresponded with the
fair market value of the common shares on the respective dates the Company
agreed to issue the shares.
During the year ended December 31, 1999 the Company issued 94,921 shares of
common stock for cash aggregating $142,379 pursuant to the exercise of the above
described warrants.
At December 31, 1999 Preferred Dividends of $5,000 were declared.
Note 4 - Stock Options
At December 31, 1999 the Company had a Non-Qualified Stock Option and Stock
Grant Plan (the "Plan") which began in July, 1997. Under the Company's Plan, the
Company's Board of Directors has reserved 2,500,000 shares which may be granted
at the Board of Directors' discretion. No option may be granted after July 27,
2007 and the maximum term of the options granted under the Plan is ten years.
The effect of applying SFAS No. 123 pro forma net loss as stated below is not
necessarily representative of the effects on reported net income (loss) for
future years due to, among other things, the vesting period of the stock options
and the fair value of additional stock options in future years. Had compensation
cost for the Company's stock option plans been determined based upon the fair
value at the grant date for awards under the plans consistent with the
methodology prescribed under SFAS No. 123, the Company's net (loss) in would
have been approximately $2,353,442 or $.64 per share. The fair values of the
options granted during 1999 are estimated at $1.39 on the date of grant using
the Black-Scholes option pricing model with the following assumptions: no
dividend yield, volatility of 106%, a risk-free interest rate of 5.40%, and an
expected lives of 10 years from date of vesting.
During 1999, options to purchase 600,000 shares at an exercise price of $1.50
per share were granted to employees, (including two officers), which options
expire ten years after the grant date.
11
<PAGE>
During 1999, options to purchase 435,000 shares at exercise prices of $1.13 to
$2.75 per share were granted to officers, directors, and consultants which
options expire ten years after the grant date.
The Company accounts for transactions with individuals other than employees in
which goods or services are the consideration received for the issuance of
equity instruments in accordance with the provisions of SFAS 123, based on the
fair value of the consideration received or the fair value of the equity
instrument issued, whichever is more reliably measurable.
At December 31, 1999, stock option expense to non-employees totaled $606,390 and
was charged to general and administrative expenses.
Changes in options outstanding under the plan are summarized as follows:
Weighted Weighted
Average Average
Exercise Fair Value
Shares Price of Options
--------- --------- ------------
Granted in 1999 1,035,000 $1.50 $1.39
--------- --------- ------------
Balance December 31, 1999 1,035,000 $1.50 $1.39
========= ========= =============
The following table summarizes information about fixed-price stock options at
December 31, 1999:
Outstanding Exercisable
----------- -----------
Weighted- Weighted- Weighted-
Average Average Average
Exercise Number Contractual Exercise Number Exercise
Prices Outstanding Life Price Exercisable Price
- -------- ----------- ----------- -------- ----------- -----------
$1.50 1,035,000 9.2 years $1.50 1,035,000 $1.50
Note 5 - Stock Warrants
The following details the warrants outstanding as of December 31, 1999:
Underlying Exercise
Shares Price Expiration
1998 Warrants 10,779 $1.50 April 13, 2000
At December 31, 1999 the Company has reserved 10,779 shares of common stock for
stock warrants.
12
<PAGE>
Note 6 - Income Taxes
The Company accounts for income taxes under Statement of Financial Accounting
Standards No. 109 (FAS 109), "Accounting for Income Taxes", which requires use
of the liability method. FAS 109 provides that deferred tax assets and
liabilities are recorded based on the differences between the tax bases of
assets and liabilities and their carrying amounts for financial reporting
purposes, referred to as temporary differences. Deferred tax assets and
liabilities at the end of each period are determined using the currently enacted
tax rates applied to taxable income in the periods in which the deferred tax
assets and liabilities are expected to be settled or realized.
Income tax provision (benefit) for income taxes differs from the amounts
computed by applying the statutory federal income tax rate of 34% as a result of
the following:
Years ended December 31,
1999 1998
---------- -----------
Computed "expected" tax provision (benefit) ($308,738) ($62,174)
Valuation allowance 308,738 62,174
---------- -----------
$ - $ -
========== ===========
The net deferred tax assets as of December 31, 1999, in the accompanying balance
sheet includes the following components:
Deferred tax asset $228,706
Less valuation allowance (228,706)
----------
$ -
==========
The net change in valuation allowance for the year ended December 31, 1999 was
$181,674.
The types of temporary differences between the tax basis of assets and their
financial reporting amounts that give rise to a significant portion of the
deferred tax asset are as follows:
Temporary Tax
Difference Effect
Net operating loss carryforward: $1,143,530 $228,706
========== ===========
The net operating loss carry forward will expire in the years 2013 and 2014.
13
<PAGE>
Note 7 - Related Party Transactions
The Company has executed an Administrative Service Agreement with a company
owned by directors of the Company for $2,500 per month for a twelve year period
beginning January 1, 1999.
The Company has an option to acquire property purchased by an officer/director.
The Company entered into promissory note agreements for $22,000 with two members
of the board of directors. The initial terms stated that the full amount of the
note plus interest were due January 2000 but were subsequently extended to March
2000.
Note 8 - Subsequent Events
In January 2000 the Company signed an endorsement contract with a professional
athlete and issued 20,000 common stock shares in exchange for personal services
to be performed in 2000.
14
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE 12/31/99 FORM
10-KSB AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-KSB.
</LEGEND>
<CIK> 0001062663
<NAME> FULL TILT SPORTS, INC.
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 5,687
<SECURITIES> 0
<RECEIVABLES> 82,449
<ALLOWANCES> 0
<INVENTORY> 161,779
<CURRENT-ASSETS> 448,424
<PP&E> 32,542
<DEPRECIATION> (8,405)
<TOTAL-ASSETS> 475,678
<CURRENT-LIABILITIES> 139,001
<BONDS> 0
0
50,000
<COMMON> 3,940
<OTHER-SE> 278,979
<TOTAL-LIABILITY-AND-EQUITY> 475,678
<SALES> 289,180
<TOTAL-REVENUES> 289,180
<CGS> 89,905
<TOTAL-COSTS> 89,905
<OTHER-EXPENSES> 1,712,516
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,763
<INCOME-PRETAX> (1,511,586)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,511,586)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (5,000)
<NET-INCOME> (1,516,586)
<EPS-BASIC> (.41)
<EPS-DILUTED> (.41)
</TABLE>
OFFICE LEASE FACING PAGE
LEASE DATE: January 21, 2000
LANDLORD: THE LANDHUIS COMPANY
ADDRESS: 212 N. Wahsatch Avenue, Suite 301
Colorado Springs, CO 80903
TENANT NAME: Full Tilt Sports, Inc.
ADDRESS: 212 N. Wahsatch Avenue, Suite 205
Colorado Springs, CO 80903
Type of Business to be Conducted in the Leased Premises: Administrative Office
for Clothing.
TOTAL PROJECT SQUARE FEET: 28,558 square feet
LEASED PREMISES: 212 N. Wahsatch Avenue, Suite 205
Colorado Springs, CO 80903
UNIT DESIGNATION: 205 and open area in basement
o Tenant agrees to pay for their own janitorial services.
o Tenant agrees that if they purchase shelves for storage in basement from
Landlord it is a separate cost. o Tenant agrees to use 13 spaces allotted
spaces on 2nd level parking lot.
LEASED SQUARE FOOTAGE: 4,480 square feet approximately
Office Building located in the City of Colorado Springs, County of El Paso,
State of Colorado (the "Building").
COMMENCEMENT DATE: February 1, 2000
TERMINATION DATE: January 31, 2003
LEASE PERIOD: Three (3) years
Monthly
BASE RENT: Year Base Rent Annual Rent
---- --------- -----------
1 $7,750.00 $93,000.00
2 $7,750.00 $93,000.00
3 $7,750.00 $93,000.00
LEASE DEPOSIT: $7,750.00
THIS LEASE FACING PAGE, together with the General Lease Provision and any
Riders, Exhibits, Schedules, and Lease Guaranties attached hereto and initialed
by the parties, shall constitute the Lease between the Tenant described above,
as Tenant, and the Landlord described above, as Landlord, for the Premises
described above, made and entered into as of the Lease Date specified above.
Schedules and Riders attached:
Rider (1) Lease Guaranty
Rider (2) Confirmation of Commencement Date
Rider (3) Tenant Premises
Rider (4) Additional Provisions
Rider (5) Rules & Regulations
-------- --------
initials initials
<PAGE>
OFFICE LEASE
GENERAL LEASE PROVISIONS
1. THE LEASED PREMISES
In consideration of the rent and the covenants and agreements hereinafter
made on the part of the Tenant to be paid, observed, and performed, the Landlord
has demised and leased and by these presents does demise and lease to the
Tenant, the Leased Premises described on the Office Lease Facing Page attached
hereto and outlined in the Typical Plan Schedule attached hereto and forming a
part hereof, but excluding therefrom any part of the exterior face of the
Building, together with the right of the Tenant, in common with the Landlord,
its other tenants, subtenants, and invitees thereof, to the nonexclusive use of
the Building grounds and parking area.
The Parties hereby acknowledge and consent to the square footage
calculation for the Leased Premises stated in the Lease Facing Page of this
Lease, and Tenant acknowledges that it has had the opportunity to measure the
Leased Premises and hereby consents to pay rent and related costs according to
the square footage stated in the Lease Facing Page. Tenant hereby waives any
claim for refund of past rent or abatement of future rent based upon any future
measurement of the Leased Premises which may indicate a previous miscalculation
of square footage.
2. DEFINITIONS
In this Lease the following terms or words shall have the following
meanings:
(a) The terms appearing on the Office Lease Facing Page attached
hereto shall have the meanings stated thereupon.
(b) "Herein", "hereof", "hereunder", "hereto", "hereinafter", and
similar expressions refer to this Lease and not to any particular
paragraph, section, or other portion thereof unless the context otherwise
specifies.
(c) "Business Day" means any of the days from Monday to Friday of each
week inclusive unless such day is a holiday.
(d) "Commencement Date" means the date so designated on the Office
Lease Facing Page attached hereto, or the date identified by the Landlord
when the Landlord notifies the Tenant that the Leased Premises are ready
for occupancy, whichever last occurs; however, if the Commencement Date has
not occurred within six (6) months from the date of this Lease, then this
Lease shall be null and void and Landlord and Tenant shall be released from
all further obligations under this Lease. If the Commencement Date is
different than the date designated on the Office Lease Facing Page then
Landlord and Tenant shall execute a written acknowledgment on the date of
Commencement and shall attach it to this Lease as RIDER (2).
(e) "Normal Business Hours" means the hours from 8:00 a.m. to 6:00
p.m. on Business Days.
(f) "Term" means the time in the Lease Period set forth on the Office
Lease Facing Page attached hereto, to be computed from 12:00 o'clock noon
on the Commencement Date and expiring at 12:00 o'clock noon on the last day
of such Lease Period.
(g) "Rent" as the term is used throughout this Lease shall denote the
"Base Rent", as is hereinafter defined, and all other financial obligations
of the Tenant hereunder which are herein described as "Additional Rental"
or "Additional Rent."
(h) "Real Property" as the term is used throughout this Lease shall
designate the total parcel of real property owned by the Landlord upon
which the Building and the Leased Premises are located.
-------- --------
initials initials
<PAGE>
3. TERM OF LEASE
Tenant shall have the right to have and hold the Leased Premises for and
during the Term subject to the payment of the Base Rent and the Additional Rent
and the full and timely performance by Tenant of the covenants and conditions
hereinafter set forth.
TENANT COVENANTS
Tenant covenants and agrees with the Landlord as follows:
4. BASE RENT
Tenant covenants and agrees to timely pay without notice, deduction,
off-set or abatement to the Landlord at the Building, or such other address as
Landlord may notify Tenant of in writing, yearly and every year during the Term
hereof, the Rent in lawful money of the United States. Base Rent is payable in
the monthly installments set forth on the Office Lease Facing Page attached
hereto; Additional Rent is payable pursuant to the terms of Paragraph 7 hereof.
Rent is due and shall be paid in advance on or before the first (1st) day of
each month during the term hereof. Rent is considered late if received after
5:00 o'clock p.m. on the fifth (5th) day of the month. A penalty of fifty
dollars ($50.00) per day will be assessed on any sums due under the lease which
are received after the fifth (5th) day of the month. If the Term hereof
commences on any day other than the first day or expires on any day other than
the last day of the month, Rent for the fraction of a month at the commencement
and at the end of the Term shall be adjusted pro rata on a per diem basis, and
all succeeding installments of Base Rent shall be paid on the first (1st) day of
each month during the term hereof. Should Tenant be in default, Landlord may
collect $50.00 per day penalty under this provision or 18% interest under
Paragraph 35.1(a)(v), whichever is greater.
5. COMMENCEMENT AND CONDUCT OF BUSINESS
Tenant shall commence it business in the Leased Premises on the
Commencement Date and hereafter shall operate its business in the entire Leased
Premises in accordance with paragraph 14 and in a reputable manner and in
compliance with the provisions of this Lease and the requirements of all
applicable governmental laws and during Business Days during the Term hereof,
provided that nothing in this Section shall require the Tenant to carry on
business during any period prohibited by any law or ordinance regulating or
limiting the hours during which such business may be carried on.
6. BUSINESS TAXES, ETC.
6.1 Tenant shall fully and timely pay all business and other taxes,
separately metered utility charges, other charges, rates, duties, assessments
and license fees levied, imposed, charged, or assessed against or in respect of
the Tenant's occupancy of the Leased Premises or in respect of the personal
property, trade fixtures, furniture and facilities of the Tenant or the business
or income of the Tenant on and from the Leased Premises, if any, as and when the
same become due, and shall indemnify and hold Landlord harmless from and against
all payment of such taxes, charges, rates, duties, assessments, and license fees
and against all loss, costs, charges, and expenses occasioned by or arising from
any and all such taxes, rates, duties, assessments, and license fees.
6.2 Tenant shall promptly deliver to Landlord for inspection at Landlord's
option upon written request of Landlord, receipts for payment of all taxes,
charges, rates, duties, assessments, and licenses in respect to all
improvements, equipment, and facilities of the Tenant on or in the Leased
Premises which were due and payable up to one (1) year prior to such request and
in any event to furnish to the Landlord if requested by the Landlord, evidence
satisfactory to the
-------- --------
initials initials
<PAGE>
Landlord of any such payments. Landlord shall have no
obligation hereunder or otherwise to make or monitor the making of such
payments.
7. ADDITIONAL RENT
7.1 Real Estate Taxes and Operating Costs:
(a) Tenant shall pay to the Landlord as Additional Rent both a pro
rata portion of the "Real Estate Taxes", as said term is hereinafter
defined, and a portion of the Operating Costs as said term is hereinafter
defined. For purposes of this Lease, and unless and until there is physical
change in the size of the Leased Premises and/or the rentable space in the
Building, the Tenant's proportional share shall be deemed to be N/A
("Tenants Proportional Share").
(b) Real Estate Taxes
(I) "Real Estate Taxes" shall mean and include all general and
special taxes, assessments, dues, duties, and levies charged and
levied upon or assessed against the Building, the land upon which it
is located, any improvements situated on the Real Property, any
leasehold improvements, fixtures, installations, additions, and
equipment used in the maintenance or operation of the Building whether
owned by Landlord or Tenant, not paid directly by the Tenant. Further,
if at any time during the Term of this Lease the method of taxation of
real estate prevailing at the time of execution hereof shall be or has
been altered so as to cause the whole or any part of the taxes now or
hereafter levied, assessed, or imposed upon real estate to be levied,
assessed, or imposed upon Landlord wholly or partially as a capital
levy or otherwise, or on or measured by the rents therefrom, then such
new or altered taxes attributable to the Leased Premises shall be
deemed to be included within the term "Real Estate Taxes" for purposes
of this Section, save and except that such shall not be deemed to
include any increase in said tax not attributable to the Building.
(ii) The amount of Real Estate Taxes attributed to the Leased
Premises for any year or portion of year shall be the amount of such
taxes multiplied by Tenant's Proportional Share.
(c) Operating Costs
(I) The term "Operating Costs" means the total amounts paid or
payable whether by the Landlord or others on behalf of the Landlord in
connection with the ownership, maintenance, repair and operation of
the Building, including without limiting the generality of the
foregoing, the purchase of steam or other energy for heating or other
purposes, the amount paid or payable for all electricity furnished by
the Landlord to the Building, the amount paid or payable for
replacement of electric light bulbs, tubes and ballasts; the amount
paid or payable for all hot and cold water (other than that paid by
Tenants), the amount paid or payable for all labor and/or wages and
other payments including costs to Landlord or workman's compensation
and disability insurance, payroll taxes, welfare and fringe benefits
made to janitors, caretakers, and other employees, contractors and
subcontractors of the Landlord (including but not limited to salary or
wages of the building manager) involved in the operation, maintenance,
and repair of the Building, managerial and administrative expenses
related to the Building, the total charges of any independent
contractors employed in the repair, care, operation, maintenance, and
cleaning of the Building, the amount paid or payable for all supplies
including all supplies and necessities which are occasioned by
everyday wear and tear, the costs of climate control, window and
exterior wall cleaning, telephone and utility costs, the cost of
accounting services necessary to compute the rents and charges payable
by tenants of the Building, fees for management, legal, accounting,
inspection and consulting services, the cost of guards and other
protection services, payments for general maintenance and repairs to
the plant and equipment supplying, the amount paid for premiums for
all insurance and all amounts payable in accordance with ground
leases, easements, or right of way appurtenant to the Building.
Operating Costs shall not, however, include interest on debt, capital
retirement of debt, depreciation, costs properly chargeable to capital
account, and costs directly charged by the Landlord to any tenant or
tenants. The reference to "Building" in this subparagraph (c)(I) shall
include all related facilities including sidewalks, grounds,
elevators, and other public areas
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contained around the Building as well as landscaping, parking areas,
and exterior walkways and areas. By setting forth the above items
which may or could be included within Operating Costs, it is not meant
to indicate or imply that all of such activities or services will be
provided by the Landlord.
(ii) The amount of Operating Costs attributed to the Leased
Premises for any year or portion of year shall be the amount of such
Operating Costs multiplied by Tenant's Proportional Share.
(d) If only part of the first or final calendar year is included
within the Term, the amount of Real Estate and operating Costs payable by
the Tenant for such period shall be estimated by the Landlord acting
reasonably and adjusted proportionately on a per diem basis and shall be
payable upon demand as soon as such amount has been ascertained by the
Landlord.
7.2 Payment of Additional Rent
Any Additional Rent payable by the Tenant under Section 7.1 hereof
shall be paid as follows, unless otherwise provided:
(a) During the Term, the Tenant shall pay to the Landlord at the same
time as the payment of the Base Rent, one twelfth (1/12th) of the amount of
such Additional Rentals as estimated by the Landlord in advance acting
reasonably to be due from the Tenant for a twelve month period of time.
Such estimate may be adjusted from time to time by the Landlord as actual
Real Estate Taxes and Operating Costs become known, and the Tenant shall
pay installments of Additional Rentals according to such estimate as
periodically adjusted.
(b) If the aggregate amount of such estimated Additional Rental
payments made by the Tenant in any year of the Term should be less than the
Additional Rentals due for such year of the Term, then the Tenant shall pay
to the Landlord as Additional Rental upon demand, the amount of such
deficiency. Similarly, if the aggregate amount of such estimated Additional
Rental payments made by the Tenant in any year of the Term should be more
than the Additional Rentals due for such year of the Term, then such
surplus shall be credited to future Additional Rent due and owing in the
next subsequent year.
(c) Notwithstanding the foregoing, if the Landlord is required to pay
an amount which it is entitled to collect from the tenants of the Building
more frequently than monthly, or if the Landlord is required to prepay any
such amount, the Tenant shall pay to the Landlord its proportionate share
of such amount calculated in accordance with this Lease within ten (10)
days from receipt of written demand.
(d) The Landlord shall, within ninety (90) days after the end of each
calendar year (or as soon thereafter as possible), provide the Tenant a
statement of the actual Real Estate Taxes and Operating Costs incurred for
the previous calendar year, certified by the Landlord as to its accuracy.
If the Tenant wishes to dispute the Landlord's determination or calculation
of such expenses for any calendar year, the Tenant shall give the Landlord
written notice of such dispute within thirty (30) days after receipt of
notice from the Landlord of the matter giving rise to the dispute. If the
Tenant does not give the Landlord such notice within such time, the Tenant
shall have waived its right to dispute such determination or calculation.
In the event the Tenant disputes any such determination or calculation, the
Tenant shall have the right to inspect the Landlord's accounting records at
the Landlord's accounting office and if, after such inspection, the Tenant
still disputes such determination or calculation, a certification as to the
proper amount made by an independent certified public accountant selected
by the Landlord shall be final and conclusive. The Tenant agrees to pay the
costs of such certification. If such certification reveals that the amount
previously determined and calculated by the Landlord was incorrect and
improper, a correction shall be made and either the Landlord shall promptly
return to the Tenant any overpayment or the Tenant shall promptly pay to
the Landlord any underpayment that was based on such incorrect amount.
Notwithstanding the pendency of any dispute hereunder, the Tenant shall
make payments based upon the Landlord's determination and
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calculation until such determination and calculation has been established
hereunder to be incorrect.
8. BULBS, TUBES, BALLASTS
Tenant shall make any replacement of electric light bulbs, tubes, and
ballasts in the Leased Premises throughout the term and any renewal thereof. The
Landlord may adopt a system of relamping and reballasting periodically on a
group basis in accordance with good practice.
9. METERS
Tenant shall pay as Additional Rental, on demand, the cost of any metering
which may be required by the Landlord to measure any excess usage of
electricity, water, or other utility or energy.
10. USE OF ELECTRICITY
10.1 Tenant's use of electricity in the Leased Premises shall be separately
metered and paid by Tenant to his supplying utility.
10.2 If, for any reason, electricity is not separately metered to Tenant,
Landlord shall reasonably apportion Tenant's share of electrical usage and
Tenant shall pay the cost thereof as Additional Rent on the dates for payment of
Base Rent not occurring after billing of Tenant therefore by Landlord.
11. TENANT REPAIR
11.1 If the Building, boilers, engines, pipes, or other apparatus, or
members or elements of the Building (or any of them) used for the purpose of
climate control of the Building, or if the water pipes, drainage pipes,
electrical lighting, or other equipment of the Building or the roof or outside
walls of the Building or Real Property of Landlord need repair, replacement, or
alteration, shall be borne by the Tenant who shall pay such cost to Landlord
within ten (10) days from receipt of written demand thereof, except to the
extent such costs are reimbursed by insurance. In the event said cost cannot be
attributable to any specific Tenant, then said cost shall be allocated, among
the Tenants as an operating cost under Section 7.
11.2 Tenant shall keep the Leased Premises in as good order, condition, and
repair as when they were entered upon. If Tenant fails to keep the Leased
Premises in such good order, condition, and repair as required hereunder to the
satisfaction of Landlord, Landlord may restore the Leased Premises to such good
order and condition and make such repairs without liability to Tenant for any
loss or damage that may accrue to Tenant's property or business by reason
thereof, and upon completion thereof, Tenant shall pay to Landlord the costs of
restoring the Leased Premises to such good order and condition and of the making
of such repairs, within ten (10) days from receipt of written demand thereof.
11.3 Tenant shall deliver at the expiration of the Term hereof or sooner
upon termination of the Term, the Leased Premises in the same condition as
received except for reasonable wear and tear, and cause to be removed at
Tenant's expense furniture and equipment belonging to Tenant, signs, notices,
displays, and the like from the Leased Premises and repair any damage caused by
such removal.
11.4 Tenant shall leave the Leased Premises at the end of each Business Day
in a reasonably tidy condition for the purpose of allowing the cleaning service
to perform adequately.
11.5 Landlord reserves the right to enter into contracts for preventive
maintenance for all climate control and Tenant shall be responsible for said
costs.
12. ASSIGNMENT AND SUBLETTING
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12.1 Tenant shall not permit any part of the Leased Premises to be used or
occupied by any persons other than the Tenant, any subtenants permitted under
Section 12.2, and the employees of the Tenant and any such permitted subtenant,
or permit any part of the Leased Premises to be used or occupied by any licensee
or concessionaire, or permit any persons to be upon the Leased Premises other
than the Tenant, such permitted subtenants, and their respective employees,
customers, and others having the lawful business with them.
12.2 Tenant shall not assign or sublet or part with the possession of all
or part of the Leased Premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld; provided, however, that Tenant
shall: submit in writing to Landlord (a) the name and legal composition of the
proposed subtenant or assignee; (b) the nature of the business proposed to be
carried on in the Leased Premises; (c) the terms and provisions of the proposed
sublease; (d) such reasonable financial and other information as the Landlord
may request concerning the proposed subtenant or assignee; (e) assurances,
adequate to the Landlord, of the future performance by the proposed subtenant or
assignee under the Lease; (f) a payment of $500.00 to the Landlord to defray
expense of Landlord in reviewing the aforementioned material, (g) payment of all
Landlord's legal fees and related expenses incurred as a result of the
assignment or subletting. Any such consent to any assignment or subletting shall
not relieve the Tenant from its obligations for the payment of all rental due
hereunder and for the full and faithful observance and performance of the
covenants, terms and conditions herein contained. No term of assignment or
subletting shall extend beyond the primary term of the lease, and any option
periods under this Lease shall terminate with respect to any Tenant assignee or
sublessee. Consent of the Landlord to an assignment or subletting shall not in
any way be construed to relieve the Tenant from obtaining the consent of the
Landlord to any further assignment or subletting, and shall not bind Landlord to
provide any services or benefits to subtenant that Tenant had provided or
committed to provide in writing or otherwise.
12.3 If the Tenant is an entity other than an individual, the transfer of
an interest in more than fifty percent (50%) of such entity (or in more than
fifty percent (50%) of any type of equity security of such entity, i.e.,
preferred stock, any class of common stock) shall constitute an assignment for
purposes of this Section, which assignment shall require the same approval and
be subject to the same limitations pursuant to Section 12.2 as any other
assignment. The rights and obligations described in this Section 12.3 shall be
applicable regardless of whether the change in control occurs at one time or as
a cumulative result of several changes in ownership. The Tenant shall, upon
request of the Landlord, make available to the Landlord for inspection or
copying or both, all books and records of the Tenant which alone or with other
data show the applicability or inapplicability of this Section 12.3
12.4 If any interest holder of the Tenant shall fail or refuse to furnish
to the Landlord information or data requested by Landlord, verified by the
affidavit of such interest holder or other credible person, which data alone or
with other data show the applicability of Section 12.3, then such failure shall
constitute an event of default under this Lease.
13. MASTER DECLARATION OF PROTECTIVE COVENANTS
Tenant and employees and all persons visiting or doing business with
the Tenant in the Leased Premises shall be bound by and shall observe the Master
Declaration of Protective Covenants.
14. USE OF LEASED PREMISES
14.1 Except as expressly permitted by prior written consent of the
Landlord, the Leased Premises shall not be used other than for what previously
stated on Lease coversheet. Landlord makes no representation or warranty to the
Tenant regarding the occupancy or use of any lease space owned by the Landlord
other than the Lease Premises under this Lease. All use of the Leased Premises
shall comply with the terms of this Lease and all applicable laws, ordinances,
regulations, or other governmental ordinances from time to time in existence.
14.2 Tenant agrees that it will not keep, use, sell or offer for sale in or
upon the Leased Premises any articles which may be prohibited by any insurance
policy in force time to time
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covering the Building. In the event the Tenant's occupancy or conduct of
business in or on the Leased Premises, whether or not the Landlord has consented
to the same, results in any increase in premiums for the insurance carried from
time to time by the Landlord with respect to the Building, the Tenant shall pay
any such increase in premiums as Additional Rental within ten (10) days after
bills for such additional premiums shall be rendered by the Landlord in
determining whether increased premiums are a result of the Tenant's use or
occupancy of the Leased Premises. A schedule issued by the organization
computing the insurance rate shall be conclusive evidence of the several items
and charges which make up such rate. The Tenant shall comply with all reasonable
requirements of the insurance authority or of any insurer now or hereafter in
effect relating to the Leased Premises.
15. TENANT'S INSURANCE
15.1 Landlord shall maintain fire and extended coverage insurance on the
Building and the Leased Premises in such amounts as Landlord shall deem
reasonable. Such insurance shall be maintained at the expense of Landlord (but
assessed to Tenant as a part of the Operational Costs), and payments for losses
thereunder shall be made solely to Landlord or the mortgages of Landlord, as
their interest shall appear. Tenant shall maintain at its expense, in an amount
equal to full replacement costs, fire and extended coverage insurance on all of
its personal property, including removable trade fixtures, located in the Leased
Premises. Should Tenant's use cause the Landlord's insurance premiums to
increase, Tenant shall be solely responsible for the increase in the premium.
15.2 Tenant shall, at its sole cost and expense, procure and maintain
through the term of this Lease, comprehensive general liability insurance
against claims for bodily injury or death and property damage occurring in or
upon or resulting from the Leased Premises, in standard form and with such
insurance company or companies as may be acceptable to Landlord, such insurance
to afford immediate protection, to the limit of not less than $1,000,000.00 in
respect of any one accident or occurrence, and to the limit of not less than
$100,000.00 for property damage, with not more than $5,000.00 deductible. Such
comprehensive general liability insurance shall name the landlord as an
additional insured and shall contain blanket contractual liability coverage
which insures contractual liability under the indemnification of Landlord by
Tenant set forth in this Lease (but such coverage or the amount thereof shall in
no way limit such indemnification). Tenant shall maintain with respect to each
policy or agreement evidencing such comprehensive general liability insurance
and each policy or agreement evidencing the insurance required pursuant to
Section 15.1 above, such endorsements as may be required by Landlord and shall
at all times deliver to and maintain with Landlord a certificate with respect to
such insurance in form satisfactory to Landlord and the mortgages of Landlord.
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least ten days prior to cancellation or modification of
such insurance. Such policies or duly executed certificates of insurance
relating thereto shall be promptly delivered to Landlord and renewals thereof as
required shall be delivered to Landlord at least thirty (30) days prior to the
expiration of the respective policy terms. If Tenant fails to comply with the
foregoing requirements relating to insurance, Landlord may obtain such insurance
and Tenant shall pay to Landlord on demand the premium cost thereof, together
with interest thereon from the date of payment by Landlord until repaid by
Tenant at the rate of eighteen percent (18%) per annum.
16. CANCELLATION OF INSURANCE
If any insurance policy upon the Building or any part thereof shall be
canceled or cancellation shall be threatened or the coverage thereunder reduced
or threatened to be reduced in any way by reason of the use or occupation of the
Leased Premises or any part thereof by the Tenant or by any assignee or
subtenant of the Tenant or by anyone permitted by the Tenant to be upon the
Leased Premises, and if the Tenant fails to remedy the condition giving rise to
cancellation, threatened cancellation, or reduction of coverage within
twenty-four (24) hours after notice, the Landlord may, at its option, enter upon
the Leased Premises and attempt to remedy such condition and the Tenant shall
pay the cost thereof to Landlord within ten (10) days from receipt of written
demand therefore, Landlord shall not be deemed to be liable for any damage or
injury caused to any property of the Tenant or of others located on the Leased
Premises as a result of such entry. After such ten (10) day period, interest on
such cost shall
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accrue at the rate of eighteen percent (18%) per annum. In the event that the
Landlord shall be unable to remedy such condition, then Landlord shall have all
of the remedies provided for in the Lease in the event of a default by Tenant.
Notwithstanding the foregoing provisions of this Section 16, if Tenant fails to
remedy as aforesaid, Tenant shall be in default of its obligation hereunder and
Landlord shall have no obligation to attempt to remedy.
17. OBSERVANCE OF LAW
Tenant shall comply with all provisions of law in effect during the Term
and any renewal terms, including without limitation, federal, state, county and
city laws, ordinances, and regulations and any other governmental,
quasi-governmental or municipal regulations which relate to the partitioning,
equipment operation, alteration, occupancy and use of the Leased Premises, and
to the making of any repairs, replacements, alterations, additions, changes,
substitutions, or improvements of or to the Leased Premises. Moreover, the
Tenant shall comply with all police, fire, and sanitary regulations imposed by
any federal, state, county or municipal authorities, or made by insurance
underwriters, and to observe and obey all governmental and municipal regulations
and other requirements governing the conduct of any business conducted in the
Leased Premises during the Term and any renewal terms.
18. WASTE AND NUISANCE
Tenant shall not commit, suffer, or permit any waste or damage or
disfiguration or injury to the Leased Premises or common areas in the Building
or the fixtures and equipment located therein or thereon, or permit or suffer
any overloading of the floors thereof and shall not place therein any safe,
heavy business machinery, computers, data processing machines, or other heaving
things without first obtaining the consent in writing of the Landlord and, if
requested, by Landlord's superintending architect, and not use or permit to be
used any part of the Leased Premises for any dangerous, noxious or offensive
trade or business, and shall not cause or permit any nuisance, noise, or action
in, at or on the Leased Premises.
19. ENTRY BY LANDLORD
Tenant agrees to and shall permit the Landlord, its servants or agents to
enter upon the Leased Premises at any time and from time to time for the purpose
of inspecting and of making repairs, alterations, or improvements to the Leased
Premises or to the Building, or for the purpose of having access to the
under-floor ducts, or to the access panels to mechanical shafts (which the
Tenant agrees not to obstruct), and the Tenant shall not be entitled to
compensation for any inconvenience, nuisance or discomfort occasioned thereby.
The Landlord shall also have the right of entry to remedy any condition which
Landlord, in its reasonable discretion, believes may cause cancellation or
reduction of any insurance maintained by Landlord on the Building. The Landlord
shall have the right to enter the Leased Premises in order to check, calibrate,
adjust and balance controls and other parts of the heating, ventilating, and
climate control system at any time. The Landlord shall attempt to proceed
hereunder after reasonable notice has been given to Tenant, if possible, and in
such manner as to minimize interference with the Tenant's use and enjoyment of
the Leased Premises. For the purpose of this Section and for all other purposes
set forth in this Lease, Landlord shall have and retain a key with which to
unlock all doors in, upon and about the Leased Premises and Landlord shall have
the right to use any and all means which Landlord may deem proper to open said
doors in an emergency, in order to obtain entry to the Leased Premises.
20. EXHIBITING PREMISES
Tenant shall permit the Landlord or its agents to exhibit and show the
Leased Premises to prospective tenants during normal Business Hours of the last
six (6) months of the Term or any renewal thereof.
21. ALTERATIONS
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21.1 In the event Tenant desires to make any alterations to any portion of
the Building or the Leased Premises, Tenant shall give written notice of the
proposed alterations to Landlord and shall not proceed with work on the
alterations without Landlord's prior written consent (which consent in the sole
and absolute discretion of Landlord may be withheld). For purposes of this
Paragraph 21, "material alterations" shall mean any alterations that affect the
exterior, structure, or mechanical components of the Building, or modify the
basic utility and function of the Building. Any material alterations shall at
once become the property of the Landlord and shall be surrendered to the
Landlord upon termination of the Lease.
21.2 No alterations shall be commenced until the Tenant shall have procured
and paid for, so far as the same may be required from time to time, all permits
and authorizations of all municipal departments and governmental subdivisions
having jurisdiction. Landlord shall in its sole and absolute discretion have the
right to require, prior to commencement of such alterations, a letter of credit,
bond or other satisfactory financial instrument assuring faithful performance
and lien free completion of such alterations.
21.3 Any alterations shall be made within a reasonable time and in a good
and workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws and with all other laws, ordinances,
orders, rules, regulations and requirements of all federal, state and municipal
governments, departments, commissions, boards and officers.
21.4 In no event shall Tenant, by reason of such alterations, be entitled
to any abatement, allowance, reduction or suspension of the Rent and other
charges herein reserved or required to be paid hereunder, nor shall Tenant, by
reason thereof, be released of or from any other obligations imposed upon Tenant
under this Lease.
21.5 Landlord shall have no responsibility to Tenant or to any contractor,
subcontractor, supplier, materialman, workman, or other person, firm, or
corporation who shall engage or participate in any alterations, and Landlord
shall be entitled to post notices of nonliability on the Leased Premises. If any
liens for labor and materials supplied or claimed to have been supplied to the
Leased Premises shall be filed, Tenant shall within fifteen (15) days of the
filing of such lien discharge such lien or furnish a bond, a letter of credit or
title insurance protection to Landlord which in the sole and absolute discretion
of Landlord affords its sufficient protection during Tenant's timely and good
faith contesting of such liens. Tenant shall indemnify and hold Landlord
harmless against any liability, loss, damage, cost or expense, including
attorney's fees, on account of such liens.
22. GLASS
Tenant shall pay on demand the cost of replacement with as good quality and
size of any glass broken on the Leased Premises including outside windows and
doors of the perimeter of the Leased Premises (including perimeter windows in
the exterior walls) during the continuance of this Lease, unless the glass shall
be broken by the Landlord, its servants, employees or agents acting on its
behalf.
23. SIGNS, DRAPES, SHUTTERS
23.1 Tenant shall not place or permit to be placed in or upon the Leased
Premises where visible from the outside of the Building, or outside the Leased
Premises, any signs, notices, drapes, shutters, blinds or displays of any type
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
23.2 Landlord reserves the right in Landlord's sole discretion to place and
locate on any roof or exterior of the Building such signs, notices, displays,
and similar items as Landlord deems appropriate in the proper operation of the
Building.
24. NAME OF BUILDING
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Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord, nor use such name for any purpose
other than that of the business address of the Building assigned to it by the
Landlord.
25. SUBORDINATION AND ATTORNMENT
25.1 At Landlord's option, this Lease shall be subject to and subordinate
to all mortgages (including any deed of trust and mortgage securing bonds and
all indentures supplemental thereto) and to all underlying, superior, ground or
land leases which may now or hereafter encumber the Real Property of which the
Leased Premises are a part, and all renewals, modifications, consolidations,
replacements and extensions thereof of such mortgages and leases which may now
or hereafter affect the Leased Premises or any part thereof. The Tenant hereby
constitutes and appoints the Landlord its agent and attorney, which power of
attorney is coupled with an interest, for the purpose of executing any
subordination, acknowledgment, or agreement required by a mortgagee, lender or
lessor of Landlord.
25.2 The Tenant agrees that in the event that any holder of any mortgage,
indenture, deed of trust, or other encumbrance encumbering any part of the Real
Property becomes mortgagee in possession of the Leased Premises, the Tenant will
pay to such mortgagee all Rent subsequently payable hereunder. Further, the
Tenant agrees that in the event of the enforcement by the trustee or the
beneficiary under or holder or owner of any such mortgage, deed of trust, land
or ground lease of the remedies provided for by law or by such mortgage, deed of
trust, land or ground lease, the Tenant will, upon request of any person or
party succeeding to the interest of the Landlord as a result of such
enforcement, automatically become the tenant of and attorn to such
successor-in-interest without changing the terms or provisions of this Lease.
Upon request by such successor-in-interest and without cost to the Landlord or
such successor-in-interest, the Tenant shall execute, acknowledge and deliver an
instrument or instruments confirming the attornment herein provided for.
26. ACCEPTANCE OF PREMISES
26.1 Taking possession of the Leased Premises by Tenant shall be conclusive
evidence as against Tenant that the Leased Premises were in good and
satisfactory condition when possession was taken and acknowledgment of
completion in full accordance with the terms of this Lease.
26.2 Tenant agrees that there is no promise, representation, or undertaking
by or binding upon the Landlord with respect to any alteration, remodeling, or
redecorating of or installation of equipment or fixtures in the Leased Premises,
except such, if any, as were expressly set forth in this Lease or the Typical
Plan Schedule attached hereto.
26.3 Landlord reserves the right to relocate the Tenant from the existing
premises to a substitute premises within the property (Landlord's building,
shopping center or complex as the case may be) selected by the Landlord. The
aforesaid right to relocate shall be exercisable at any time during the term or
option period by delivering written notice of LANDLORD'S intention not less than
ninety (90) days in advance. Tenant shall notify Landlord via certified mail
within thirty (30) days of notice of its intent of acceptance or rejection.
Should Tenant notify Landlord of rejection of premises selected by Landlord,
Tenant may terminate this Lease Agreement and vacate prior to the end of the
ninety (90) day notice period provided by Landlord.
27. ESTOPPEL CERTIFICATES
Tenant agrees that it shall at any time and from time to time upon not less
than five (5) days' prior notice execute and deliver to the Landlord a statement
in writing certifying that this Lease is unmodified and in full force and effect
(or, if modified, stating the modifications and that the same is in full force
and effect as modified), the amount of the annual rental then being paid
hereunder, the dates to which the rent, by installment or otherwise, and other
charges
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hereunder have been paid, and whether or not there is any existing
default on the part of the Landlord of which the Tenant has knowledge and such
other information reasonably required by Landlord or its mortgagees or any other
party with whom Landlord is dealing. Any such statement may be relied upon
conclusively by any such party. Tenant's failure to deliver such statements
within such time shall be conclusive upon the Tenant that this Lease is in full
force and effect, except as and to the extent any modification has been
represented by Landlord, and that there are no uncured defaults in Landlord's
performance, and that not more than one (1) month's rent has been paid in
advance.
LANDLORD'S COVENANTS
Landlord covenants and agrees with the Tenant as follows:
28. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant paying rent and
other monetary sums due under the lease, performing its covenants and conditions
under the Lease, Tenant shall and may peaceably and quietly have, hold and enjoy
the Leased Premises for the term, subject, however, to the terms of the Lease
and of any of the ground leases, mortgages, or deeds of trust referred to in
Section 25.
29. SERVICES
29.1 Landlord agrees to provide, at its cost, water and electricity and
telephone connections into the Leased Premises in such capacity as shall be
sufficient to meet Tenant's requirements. In this regard, Tenant represents that
it has no special or extraordinary requirements for water, telephone and
electrical capacity relating to the operations that Tenant intends to conduct in
the Leased Premises as permitted in accordance with the terms of this Lease.
Unless otherwise treated as part of the Tenant Finish items to be installed as
part of this Lease, all connection charges and all outlets, risers, wiring,
piping, duct work or other means of distribution of such services within the
Leased Premises unless shown on the Exhibits hereto shall be supplied by Tenant
at Tenant's sole expense. Tenant covenants and agrees that at all times its use
of any such services shall never exceed the capacity of the mains, feeders,
ducts, and conduits bringing the utility services to the Building; provided,
however, that Tenant may increase the capacity of the mains, feeders, ducts and
conduits aforementioned if Tenant pays for and performs all necessary work
therefore subject to Landlord's prior written approval, which approval shall not
be unreasonably withheld. Tenant shall be solely responsible for procuring all
telephone equipment and services. Tenant shall pay all charges incurred by it
for any utility services used on the Leased Premises and any maintenance charges
for utilities and shall furnish all electric light bulbs and tubes. Landlord
shall not be liable for any interruption or failure of utility services on the
Leased Premises, unless due to the affirmative or negligent acts of Landlord.
29.2 The Landlord shall contract to provide air conditioning and heating
for the occupied portion of the Leased Premises during the Term, at such
temperatures and in such amounts as may be reasonably required, in the
Landlord's sole judgment, for comfortable use and occupancy under normal office
conditions, from 8:00 a.m. to 6:00 p.m. on Monday through Friday, and 8:00 a.m.
to 12:00 noon on Saturday, but not on Sundays or Holidays observed by the
Building. Tenant shall be responsible for the costs of said climate control
services under Paragraph 7.1(c) and Paragraph 11 as applicable.
29.3 No slowdown, interruption, stoppage, or malfunction of any services
identified in Section 29 shall constitute an eviction or disturbance of the
Tenant's use and possession of the Leased Premises or the Building or a breach
by the Landlord of any of its obligations under this Lease, nor render the
Landlord liable for damages or entitle the Tenant to be relieved from any of its
obligations under this Lease (including the obligation to pay Rent), nor grant
the Tenant any right of setoff or recoupment. In no event shall the Landlord be
liable for damages to persons or property, or be in default under this Lease, as
a result of such slowdown, interruption, stoppage, or malfunction. In the event
of any such interruption, however, the Landlord shall use reasonable diligence
to restore such service. The Tenant agrees that if any payment of Rent shall
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remain unpaid for more than ten (10) days after it shall become due, the
Landlord may, without notice to the Tenant, discontinue furnishing any or all of
such services until all arrearages of Rent have been paid in full, and the
Landlord shall not be liable for damages to persons or property for any such
discontinuance or consequential damages resulting therefrom, nor shall such
discontinuance in any way be construed as an eviction or constructive eviction
of the Tenant or cause an abatement of Rent or operate to release the Tenant
from any of the Tenant's obligations under this Lease.
30. REPAIR AND MAINTENANCE BY LANDLORD
Subject to the other provisions of this Lease imposing obligations therefor
upon the Tenant, the Landlord shall as necessary or when required by
governmental authority, repair, replace and maintain the external and structural
parts of the Building and grounds which do not comprise a part of the Leased
Premises and are not leased to others and shall perform such repairs,
replacements and maintenance with reasonable dispatch, in a good and workmanlike
manner. The Landlord shall not be liable for any damages direct or indirect or
consequential or for damages for personal discomfort, illness, or inconvenience
of the Tenant or the Tenant's servants, clerks, employees, invitees, or other
persons by reason of failure to repair such equipment facilities or systems or
reasonable delays in the performance of such repairs, replacements, and
maintenance, unless caused by the deliberate act or omissions or the negligence
of the Landlord, its servants, agents or employees.
31. FIRES, ETC.
31.1 Partial Destruction. If the Leased Premises shall be partially damaged
by fire or other cause not resulting from the act or omission of Tenant,
Tenant's employees, agents, contractors, customers, licensees or invitees, the
damages shall be repaired by and at the expense of Landlord, and the Rent due
hereunder shall be apportioned according to the part of the Leased Premises
which is usable by Tenant until such repairs are made. If such partial damage is
due to the action or omission of Tenant or Tenant's employees, agents,
contractors, licensees, or Tenant's customers or invitees who Tenant negligently
leaves in a position to cause such partial damage, there shall be no
apportionment or abatement of Rent due hereunder by Tenant, and the debris, if
any, shall be removed by and at the expense of Tenant. No penalty shall accrue
for reasonable delay which may arise by reason of adjustment of fire insurance
on the part of Landlord or Tenant, for reasonable delay on account of shortages
of labor or materials, acts of God, or any other cause beyond Landlord's
control. Landlord shall not be obligated to restore fixtures, improvements, or
other property of Tenant.
31.2 Total Destruction. If the Leased Premises should be totally destroyed
by fire, tornado, or other casualty, or if they should be so damaged that
rebuilding or repairs cannot be completed or commenced within ninety (90) days
after the date upon which Tenant is notified by Landlord of such damage (or
within ninety (90) days after the date on which Landlord otherwise becomes aware
of such damage), this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective upon the date of the occurrence
of such damage.
32. CONDEMNATION
If all or any part of or interest in the Leased Premises shall be taken as
a result of the exercise of the power of eminent domain or purchase in lieu
thereof, this Lease shall terminate as to the part so taken as of the date of
taking. If a part of or interest in the Leased Premises, or if a substantial
portion of the Building is so taken, either Landlord or Tenant shall have the
right to terminate this Lease as to the balance of the Leased Premises by
written notice to the other within thirty (30) days after the date of taking;
provided, however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Leased Premises or Building taken
shall be of such extent and nature as to substantially handicap, impede, or
impair Tenant's use of the Leased Premises, or the balance of the Leased
Premises remaining, for the purposes for which they were leased. In the event of
any taking, Landlord shall be entitled to any and all compensation, damages,
income, rent and awards with respect thereto except for an award, if any,
specified by the condemning authority for the fixtures and other property that
Tenant has the right to remove upon termination of this Lease and the value of
the unexpired
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Lease term if any. Tenant shall have no claim against Landlord for
the value of any unexpired term. In the event of a partial taking of the Leased
Premises which does not result in a termination of this Lease, the Rent
thereafter to be paid shall be equitably reduced. Termination as provided herein
with respect to a total or partial taking shall be without prejudice to the
rights of either Landlord or Tenant to recover compensation and damages caused
by condemnation from the condemner as hereinafter provided. The rights and
obligations by Landlord and Tenant with respect to a taking or partial taking
shall be provided herein (any statute, principle of law or rule of equity to the
contrary notwithstanding), and each of the parties agree to cooperate with the
other and to do everything necessary to effect the results herein described.
Landlord and Tenant shall each have the right to claim separate awards
consistent with the terms of this Lease or to litigate the matter of the taking
and damages or awards. In the event of a taking or partial taking during the
term of the Lease, all sums awarded as compensation for the loss or damage to
the property or the Building, fixtures and permanently attached equipment,
except as set forth above, shall be awarded to Landlord; and all sums awarded as
compensation for loss or damage to Tenant's equipment and other personal
property and as compensation for loss of or detriment to the business of Tenant
upon the Leased Premises and for loss of anticipated profits of such business
shall be awarded to Tenant. If, under the laws, rules or procedures regulating
any such taking or partial taking, it shall not be possible for the parties to
obtain in such proceedings segregation of awards as herein above prescribed,
then the entire award or the aggregate of the awards as may be adjudged shall be
paid to Landlord. The foregoing provisions of this paragraph are subject to the
terms of any deed of trust conveying the Leased Premises, the Building, or Real
Property now or hereafter in existence, and to which Landlord is a party.
33. LOSS AND DAMAGE
Landlord shall not be liable to Tenant or Tenant's employees, agents,
patrons or visitors, or to any other person whomsoever, for any injury to person
or damage to property in or about the Leased Premises caused by the negligence
or affirmative acts of Tenant, its agents, servants, or employees, or of any
other person entering upon the Leased Premises under express or implied
invitation of Tenant, or caused by the Building or any obligation of Tenant to
maintain the Building, or caused by leakage of gas, oil, water or steam, or by
electricity emanating from the Building, and Tenant agrees to indemnify Landlord
and hold it harmless from any and all loss, expense, or claims, including
attorneys' fees, arising out of such damage or injury.
33.1 DELAYS
Whenever and to the extent that the Landlord shall be unable to fulfill or
shall be delayed or restricted in the fulfillment of any obligation hereunder in
respect to the supply or provision of any service or utility or the doing of any
work, or the making of any repairs by reason of being unable to obtain the
material goods, equipment, service, utility, insurance proceeds or labor
required to enable it to fulfill such obligation or by reason of any statute,
law, or any regulation or order passed or made pursuant thereto or by reason of
the order passed or made pursuant thereto or by reason of the order of direction
of any administrator, controller, or board or any governmental department or
officer or other authority, or by reason of not being able to obtain any
permission or authority required thereby or by reason of any other cause beyond
its control whether of the foregoing character or not, including any delay
caused by insurance claims, the Landlord shall be entitled to extend the time
for fulfillment of such obligation by a time equal to the duration of such delay
or restriction, and the Tenant shall not be entitled to compensation for any
inconvenience, nuisance or discomfort thereby occasioned.
34. DEFAULT
34.1 The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) The failure of Tenant to timely and fully pay any installment of
Rent or other charge or money obligation herein required to be paid by
Tenant. Rent is due and shall be paid in advance on the first (1st) day of
each month during the Term hereof.
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(b) The failure of Tenant to perform, or if not immediately curable,
to commence performance of (and diligently pursue performance thereafter),
any one or more of its other covenants under this Lease within three (3)
days after written notice to Tenant specifying the covenant or covenants
Tenant has not performed.
c) Tenant becomes insolvent, or makes a transfer in fraud of
creditors, or makes an assignment for the benefit of creditors, or admits
in writing its inability to pay its debts as they become due.
(d) The attachment, seizure, levy upon or taking of possession by any
creditor, receiver, or custodian of any portion of the property of Tenant.
(e) The instituting of proceedings in a court of competent
jurisdiction for the involuntary bankruptcy arrangement, reorganization,
liquidation, or dissolution of Tenant under the U.S. Bankruptcy Code (as
now or hereafter in effect) or any state bankruptcy or insolvency act or
for its adjudication as a bankrupt or insolvent or for the appointment of a
receiver of the property of Tenant, and said proceedings are not dismissed
or any receiver, trustee, or liquidator appointed herein is not discharged
within sixty (60) days after the institution of said proceedings of Tenant
and said proceedings are not dismissed.
(f) Any change occurs in the financial condition of Tenant or any
guarantor which Landlord considers materially or significantly adverse.
(g) The instituting of proceedings for the voluntary bankruptcy
arrangement, reorganization, liquidation, or dissolution of Tenant under
the U.S. Bankruptcy Code (as now or hereafter in effect) or any state
bankruptcy or insolvency act, or if Tenant shall otherwise take advantage
of any state or federal bankruptcy or insolvency act as a bankrupt or
insolvent.
(h) Tenant shall cease to conduct its normal business operations in
the Leased Premises or shall vacate or abandon same for a period of at
least ten (10) days.
(I) Tenant shall repeatedly default in the timely payment of Rent or
any other charges required to be paid, or shall repeatedly default in
keeping, observing or performing any other covenant, agreement, condition
or provisions of this Lease, whether or not Tenant shall timely cure any
such payment or other default. For the purposes of this subsection, the
occurrence of any such defaults three (3) times during any twelve (12)
month period shall constitute a repeated default, regardless of cure by the
Tenant. The Parties agree that repeated default shall constitute a basis
for eviction, regardless of partial or total cure of the individual events
of default by Tenant.
34.2 No condoning, excusing, or overlooking by the Landlord of any default,
breach or non-observance by the Tenant at any time or times in respect of any
covenants, provisions, or conditions herein contained shall operate as a waiver
of the Landlord's right hereunder in respect of any continuing or subsequent
default, breach, or non-observance, or so as to defeat or affect such continuing
or subsequent default or breach, and no waiver shall be inferred or implied by
anything done or omitted by the Landlord save only express waiver in writing.
All rights and remedies of the Landlord in this Lease contained shall be
cumulative and not alternative.
35. REMEDIES OF LANDLORD
35.1 If an event of default set forth in Section 34.1 occurs, including
repeated default under Section 34.1(i), the Landlord shall have the following
rights and remedies, in addition to all other remedies at law or equity, and
none of the following whether or not exercised by the Landlord shall preclude
the exercise of any other right or remedy whether herein set forth or existing
at law or equity, and all such remedies shall be cumulative:
(a) Landlord shall have the right to terminate this Lease by giving
the Tenant notice in writing at any time. No act by or on behalf of the
Landlord, such as entry of the Leased Premises by the Landlord to perform
maintenance and repairs and efforts to relet the Leased Premises, other
than giving the Tenant written notice of termination, shall terminate this
Lease.
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If the Landlord gives such notice, this Lease and the Term hereof as well
as the right, title and interest of the Tenant under this Lease shall
wholly cease and expire in the same manner and with the same force and
effect (except as to the Tenant's liability) on the date specified in such
notice as if such date were the expiration date of the Term of this Lease
without the necessity of re-entry or any other act on the Landlord's part.
Upon any termination of this Lease, the Tenant shall quit and surrender to
the Landlord the Leased Premises as set forth in Section 36.1. If this
Lease is terminated, the Tenant shall be and remain liable to the Landlord
for damages as hereinafter provided and the Landlord shall be entitled to
recover forthwith from the Tenant as damages an amount equal to the total
of:
(i) the cost, including reasonable attorneys' fees, of
recovering the Leased Premises;
(ii) all Rent accrued and unpaid at the time of termination of
the Lease, plus interest thereon at the rate provided in
Section 35.1(g); and
(iii)any other money and damages owed by the Tenant to the
Landlord.
In addition, the Landlord shall also be entitled to recover from the
Tenant as damages the amounts determined, at the Landlord's election, under
(iv) or (v) below:
(iv) the amount of Rent that would have been payable hereunder if
the Lease had not been terminated, less the net proceeds, if
any, received by the Landlord from any reletting of the
Leased Premises, after deducting all costs incurred by the
Landlord in finding a new tenant and reletting the space,
including costs of remodeling and refinishing space for a
new tenant, reasonable tenant inducements, reasonable
brokerage commissions or agents' commissions in connection
therewith, redecorating costs, attorneys' fees and other
costs and expenses incident to the reletting of the Leased
Premises (collectively referred to herein as "Reletting
Costs"); provided, however, that the Landlord shall have no
obligation to relet or attempt to relet the Leased Premises.
The Tenant shall pay such damages to the Landlord on the
days on which the Rent would have been payable if the Lease
had not erminated; or
(v) the present value (discounted at the rate of eight percent
(8%) per annum) on the balance of the Rent for the remainder
of the stated Term of this Lease after the termination date
plus anticipated Reletting Costs, Less the present value
(discounted at the same rate) of the fair market rental
value of the Leased Premises for such period. No provision
of this Lease shall limit or prejudice the right of the
Landlord to prove and obtain as damages by reason of any
termination of this Lease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater,
equal to or less than the amounts referred to above.
(b) The Landlord may, without demand or notice of any kind to the
Tenant, terminate the Tenant's right of possession (but not the Lease) and
re-enter and take possession of the Leased Premises or any part thereof,
and repossess the same as of the Landlord's former estate and expel the
Tenant and those claiming through or under the Tenant, and remove the
effects of any and all such persons (forcibly, if necessary) and change the
locks on the Leased Premises without being deemed guilty of any manner of
trespass, without prejudice to any remedies for arrears of Rent of
preceding breach of covenants and without terminating this Lease or
otherwise relieving the Tenant of any obligation hereunder. Should the
Landlord elect to re-enter as provided in this Section 35.1(b), or should
the Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided for by law, the Landlord may, from time to time,
without terminating this Lease, relet the Leased Premises or any part
thereof for such term or terms and at such rental or rentals, and upon such
other conditions as the Landlord may in its absolute discretion deem
advisable, with the right to make alterations and repairs to the Leased
Premises. No such re-entry, repossession or reletting of the Leased
Premises by the Landlord shall be construed as an election on the
Landlord's part to terminate this Lease unless a written notice of
termination is given to the Tenant by the Landlord. No such re-entry,
repossession or reletting of the Leased Premises shall relieve the Tenant
of its liability and obligation under this Lease, all of which shall
survive such re-entry, repossession or reletting. Upon the occurrence of
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such re-entry or repossession, the Landlord shall be entitled to the amount
of the monthly Rent which would be payable hereunder if such re-entry or
repossession had not occurred, less the net proceeds, if any, of any
reletting of the Leased Premises after deducting all Reletting Costs and
all attorneys' fees, other costs and expenses incurred in the re-entry,
repossession and reletting procedures. The Tenant shall pay such amount to
the Landlord on the days on which the Rent or any other sums due hereunder
would have been payable hereunder if possession had not been retaken. In no
event shall the Tenant be entitled to receive the excess, if any, of net
Rent collected by the Landlord as a result of such reletting over the sums
payable by the Tenant to the Landlord hereunder. If this Lease is
terminated by operation of law as a result of the Landlord's actions under
this Section, then the Landlord shall be entitled to recover damages from
the Tenant as provided in Section 35.1(a). The Landlord shall have the
right to collect from the Tenant amounts equal to such deficiencies and
damages provided for above by suits or proceedings brought from time to
time on one or more occasions without the Landlord being obligated to wait
until the expiration of the term of this Lease.
(c) In the event Landlord gives Tenant notice of default or delivers
to Tenant a Notice of Demand for Payment or Possession pursuant to the
applicable statute, any such notice will not constitute an election to
terminate the Lease unless Landlord expressly states in any such notice
that it is exercising its rights to terminate the Lease.
(d) If the Tenant shall default in making any payment required to be
made by the Tenant (other than payments of Rent) or shall default in
performing any other obligations of the Tenant under this Lease, the
Landlord may, but shall not be obligated to, make such payment or, on
behalf of the Tenant, expend such sum as may be necessary to perform such
obligation. All sums so expended by the Landlord with interest thereon at
the rate provided in Section 35.1(g) shall be repaid by the Tenant to the
Landlord on demand. No such payment or expenditure by the Landlord shall be
deemed a waiver of the Tenant's default nor shall it affect any other
remedy of the Landlord by reason of such default.
(e) If the Tenant shall default in making payment of any Rent due
under this Lease, the Landlord may charge and the Tenant shall pay, upon
demand, interest thereon at the rate provided in Section 35.1(g), but the
payment of such interest shall not excuse or cure any default by the Tenant
under this Lease. In addition to such interest, the Tenant shall be
responsible for the late charges set forth in Section 35.4. Such interest
and late payment penalties are separate and cumulative and are in addition
to and shall not diminish or represent a substitute for any or all of the
Landlord's rights or remedies under any other provisions of this Lease.
(f) In any action of unlawful detainer commenced by the Landlord
against the Tenant by reason of any default hereunder, the reasonable
rental value of the Leased Premises for the Period of the unlawful detainer
shall be deemed to be the amount of Rent reserved in this Lease for such
period.
(g) Whenever the Tenant shall be required to make payment to the
Landlord of any sum with interest, interest on such sum shall be computed
from the date such sum is due until paid, at an interest rate equal to
eighteen percent (18%) per annum or, if such amount violates any then
applicable law with respect to interest rates, at the highest interest rate
otherwise allowable under then applicable law. Should Tenant be in default,
Landlord may collect 18% interest under this provision or $50.00 per day
penalty under Paragraph 4, whichever is greater.
(h) In addition to any damages described as being collectable herein,
damages will also include, in all cases, the unamortized portion of any
costs, expenses, or inducements provided by the Landlord to the Tenant in
connection with this Lease. Such expenses include, without limitation, any
tenant inducements paid directly to the Tenant, expenses incurred in
providing tenant improvements or other similar improvements to the Leased
Premises, and free rent periods or reduced rent periods granted to the
Tenant. All such expenses will be amortized over the Term (or initial term,
if applicable) of the Lease and will be prorated in proportion to the total
amount of time of the Term of the Lease as compared to the time during
which the Tenant performed under the Lease without default.
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(I) As used in this Lease, the terms "re-entry", "take possession",
"repossess" and "repossession" are not restricted to their technical legal
meaning.
(j) Tenant hereby expressly waives, to the full extent waivable, any
and all right of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed for any cause, or in
the event of Landlord obtaining possession of the Leased Premises, by
reason of the violation by Tenant of any of the covenants or conditions of
this Lease, or otherwise.
35.2 As additional security for the Tenant's performance of its obligations
under this Lease, the Tenant hereby grants to the Landlord a security interest
in and to all of the personal property of Tenant situated on the Leased
Premises, subject to a perfected purchase money security interest and prior
existing security interests, as security for the payment of all Rent and other
sums due, or to become due, under this Lease. Tenant shall execute such
documents as the Landlord may reasonably require to evidence the Landlord's
security interest in such personal property. If the Tenant is in default under
this Lease, such personal property shall not be removed from the Leased Premises
(except to the extent such property is replaced with an item of equal or greater
value) without the prior written consent of the Landlord. It is intended by the
parties hereto that the instrument shall have the effect of a security agreement
covering such personal property, and the Landlord may upon the occurrence of an
event of default set forth in Section 34.1 exercise any rights of a secured
party under the Uniform Commercial Code of the State of Colorado including the
right to take possession of such personal property and (after ten (10) days
notice to those parties required by statute to be notified) to sell the same for
the best price that can be obtained at public or private sale and out of the
money derived therefrom, pay the amount due the Landlord, and all costs arising
out of the execution of the provisions of this Section, paying the surplus, if
any, to the Tenant. If such personal property or any portion thereof shall be
offered at a public sale, the Landlord may become the purchaser thereof.
35.3 As part of the consideration for the Landlord's executing this Lease,
Tenant hereby waives a trial by jury and the right to interpose any counterclaim
or offset of any nature or description in any litigation between the Tenant and
Landlord with respect to this Lease, the Leased Premises and the repossession
hereof.
36. END OF TERM
36.1 Upon the expiration or other termination of this Lease, the Tenant
shall vacate and surrender to the Landlord the Leased Premises, broom clean
condition, carpets professionally cleaned, dry wall repaired and in good order.
The Tenant shall remove all property of the Tenant, as directed by the Landlord.
Any property left on the Leased Premises at the expiration or other termination
of this Lease, or after the occurrence of any default as set forth in Section
34, may at the option of the Landlord either be deemed abandoned or be placed in
storage at a public warehouse in the name of and for the account of and at the
expense and risk of the Tenant. If such property is not claimed by the Tenant
within ten (10) days after such expiration, termination or the happening of an
event of default, it may be sold or otherwise disposed of by the Landlord. The
Tenant expressly releases the Landlord from any and all claims and liability for
damage to or loss of property left by the Tenant upon the Leased Premises at the
expiration or other termination of this Lease, and the Tenant hereby indemnifies
the Landlord against any and all claims and liability with respect thereto.
36.2 If the Tenant shall continue to occupy and continue to pay rent for
the Leased Premises after the expiration of this Lease with or without the
consent of the Landlord, and without any further written agreement, the Tenant
shall be a tenant from month to month at a monthly Base Rent equal to the last
full monthly Base Rent payment due hereunder times 1.5, and subject to all of
the additional rentals, terms, and conditions herein set out except as to
expiration of the Lease Term.
37. TRANSFER BY LANDLORD
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In the event of a sale or other transfer by the Landlord of the Building or
a portion thereof containing the Leased Premises (including a foreclosure or
deed in lieu of foreclosure), the Landlord shall without further written
agreement be freed, released and relieved of all liability or obligations under
this Lease. The rights of Landlord under this Lease shall not be affected by any
such sale, lease or other transfer.
38. NOTICE
38.1 Any notice, request, statement, or other writing pursuant to this
Lease shall be deemed to have been given if sent by registered or certified
mail, postage prepaid, return receipt requested, to the party at the address
stated on the Facing Page of this Lease.
38.2 Notice shall also be sufficiently given if and when the same shall be
delivered, in the case of notice to Landlord, to an executive officer of the
Landlord, or the managing agent, and in the case of notice to the Tenant or the
Guarantor of the Tenant, to the Leased Premises. Such notice, if delivered,
shall be conclusively deemed to have been given and received at the time of such
delivery. If in this Lease two or more persons are named as Tenant, such notice
shall also be sufficiently given if and when the same shall be delivered
personally to any one of such persons.
38.3 Any party may, by notice to the other, from time to time designate
another address in the United States or Canada to which notice mailed more than
ten (10) days thereafter shall be addressed.
39. GOVERNING LAW
This Lease shall be deemed to have been made in and shall be construed in
accordance with the laws of the State of Colorado.
40. PAYMENT IN UNITED STATES CURRENCY/CERTIFIED FUNDS
The rentals reserved herein and all other amounts required to be paid or
payable under the provisions of this Lease shall be paid in lawful money of the
United States. Landlord shall have the right in its sole and absolute discretion
to require that Rental and all other sums due by Tenant be paid in certified
funds.
41. LEASE ENTIRE AGREEMENT
The Tenant acknowledges that there are no covenants, representations,
warranties, agreements, or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating to this Lease save
expressly set out in this Lease, the Facing Page, Exhibits, Riders, and
Schedules attached hereto and that this Lease, the Facing Page, Exhibits,
Riders, and Schedules attached hereto and the Rules and Regulations promulgated
by Landlord in accordance with Section 13 hereof constitute the entire agreement
between the Landlord and the Tenant and may not be amended or modified except as
explicitly provided or except by subsequent agreement in writing of equal
formality hereto executed by the party to be charged therewith. The Tenant
acknowledges that Tenant has provided review of and input to this Lease, and
therefore agrees that this Lease has been jointly drafted by Landlord and
Tenant.
42. BINDING EFFECT
Except as expressly provided herein, this indenture shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, and all covenants and agreements herein
contained to be observed and performed by the Tenant shall be joint and several.
43. SECURITY DEPOSIT
The Tenant shall keep on deposit with the Landlord at all times during the
term of this Lease the Lease Deposit specified on the Lease Facing Page hereof
as security for the payment
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by the Tenant of the Rent and any other sums due under this Lease and for the
faithful performance of all the terms, conditions, and covenants of this Lease,
it being expressly understood that the Lease Deposit shall not be considered
advance payment of Rent or a measure of Landlord's damages in the case of
default by Tenant. If an event of a default set forth in Section 34.1 occurs,
the Landlord may (but shall not be required to) use any such deposit, or so much
thereof as necessary in payment of any Rent or any other sums due under this
Lease in default, in reimbursement of any expense incurred by the Landlord, and
to repair any damage or to clean, paint, carpet and fumigate the Leased Premises
after termination of possession by Tenant. In such event the Tenant shall on
written demand of the Landlord forthwith remit to the Landlord a sufficient
amount in cash to restore such deposit to its original amount. If such deposit
has not been utilized as aforesaid, such deposit, or as much thereof as has not
been utilized for such purposes, shall be refunded to the Tenant upon full
performance of this Lease by the Tenant. Landlord shall have the right to
commingle such deposit with other funds of the Landlord, and such deposit need
not be kept in an escrow or other segregated account. Landlord shall deliver the
funds deposited herein by the Tenant to any purchaser of the Landlord's interest
in the Leased Premises in the event such interest be sold, and thereupon, the
Landlord shall be discharged from further liability with respect to such
deposit.
44. INTERPRETATION
Unless the context otherwise requires, the word "Landlord" wherever it is
used herein shall be construed to include and shall mean the Landlord, its
successors, and/or assigns, and the word "Tenant" shall be construed to include
and shall mean the Tenant, and the executors, administrators, successors and/or
assigns of the Tenant and when there are two or more tenants, or two or more
persons bound by the Tenant's covenants herein contained their obligation
hereunder shall be joint and several. The word "Tenant" and the personal
pronouns "his" or "it" relating thereto and used therewith shall be read and
construed as Tenants and "his," "its," or "their" respectively as the number and
gender of the party or parties referred to each require and the tense of the
verb agreeing therewith, shall be construed and agree with the said word or
pronoun so substituted. Time shall be of the essence in all respects hereunder.
45. SEVERABILITY
Should any provision or provisions of this Lease be illegal or not
enforceable, it or they shall be considered separate and severable from this
Lease and its remaining provisions shall remain in force and be binding upon the
parties hereto as though the said provision or provisions had never been
included.
46. CAPTIONS
The captions appearing within the body of this Lease have been inserted as
a matter of convenience and for reference only and in no way define, limit, or
enlarge the scope or meaning of this Lease or of any provision hereof.
47. RECORDING - SHORT FORM MEMO
This Lease shall not be recorded in its entirety. If recorded by Tenant,
this Lease may be terminated at Landlord's option as of the date of recording
and Landlord shall then have all rights and remedies provided in the case of
default by Tenant hereunder. If requested by Landlord, Tenant shall execute in
recordable form, a short form memorandum of Lease which may, at Landlord's
option, be placed of record.
48. NON-WAIVER OF DEFAULTS/LANDLORD'S DEFAULT
48.1 No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy on account of the violation of such
provision, even if such violation be continued or repeated subsequently, and no
express waiver shall affect any provision
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other than the one specified in such waiver and in that event only for the time
and in the manner specifically stated. No receipt of monies by Landlord from
Tenant after the termination of this Lease will in any way alter the length of
the Term or Tenant's right of possession hereunder or, after the giving of any
notice, shall reinstate, continue or extend the Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit or after final judgment for
possession of the Leased Premises, Landlord may receive and collect any Rent
due, and the payment of Rent shall not waive or affect said notice, suit or
judgment, nor shall any such payment be deemed to be other than on account of
the amount due, nor shall the acceptance of Rent be deemed a waiver of any
breach by Tenant of any term, covenant or condition of this Lease. No
endorsement or statement on any check or any letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction. Landlord may accept
any such check or payment without prejudice to Landlord's right to recover the
balance due of any installment or payment of Rent or pursue any other remedies
available to Landlord with respect to any existing Defaults. None of the terms,
covenants or conditions of this Lease can be waived by either Landlord or Tenant
except by appropriate written instrument.
48.2 If any act or omission by the Landlord shall occur which would give
the Tenant the right to damages from the Landlord or the right to terminate this
Lease by reason of a constructive or actual eviction from all or part of the
Lease Premises or otherwise, the Tenant shall not sue for such damages or
exercise any such right to terminate until (I) it shall have given written
notice of such act or omission to the Landlord and to the holder(s) of the
indebtedness or other obligations secured by any mortgage or deed of trust
affecting the Leased Premises or the Real Property, if the name and address of
such holder(s) shall previously have been furnished to the Tenant, and (ii) a
reasonable period of time for remedying such act or omission shall have elapsed
following the giving of such notice, during which time the Landlord and such
holder(s), or either of them, their agents or employees, shall be entitled to
enter upon the Leased Premises and do therein whatever may be necessary to
remedy such act or omission. Claims against insurance policies which cause delay
shall not be deemed an act or omission of the Landlord which shall give the
Tenant right to damages from the Landlord.
49. CERTAIN IMPOSITIONS
The Tenant shall pay, as Additional Rent, and shall indemnify the Landlord
against, and reimburse the Landlord on demand for, all future duties, taxes,
levies, imposts, charges and impositions, whatsoever, imposed, assessed, levied
or collected by or for the benefit of any federal, state or local government or
any political subdivision or taxing authority thereof, together with any
interest thereon and penalties with respect thereto on or in respect of the
Leased Premises, the Lease or by reason of the tenancy.
50. ENVIRONMENTAL MATTERS
50.1 The Tenant shall not cause or permit any Hazardous Substances (as
hereafter defined) to be generated, produced, brought upon, used, stored,
treated or disposed of in, on, under or about the Leased Premises, except that
the Tenant shall be entitled to store Hazardous Substances in the Leased
Premises, in the ordinary course of its business, but only with the prior
written consent of the Landlord. The Tenant agrees to indemnify, defend and hold
the Landlord and its officers, shareholders, directors, partners, employees, and
agents harmless from any claims, judgments, damages, penalties, fines, costs,
liabilities (including sums paid in settlement of claims), losses or expenses,
including without limitation, reasonable attorney's fees, reasonable consultant
fees, and reasonable expert fees, which are incurred or arise during or after
the term of this Lease from or in any way connected with the presence or
suspected presence of Hazardous Substances in, on, under or about the soil,
groundwater, surface water, air or soil vapor in, on under or about the Leased
Premises arising out of the use of the Leased Premises by the Tenant, its
officers, employees, agents, invitees, or contractors. Without limiting the
generality of the foregoing, the indemnification provided by this Section
specifically shall cover costs incurred in connection with any investigation of
site conditions existing prior to, at or after the date of execution of this
Lease or any remediation, including, without limitation, studies or reports as
needed or required, remedial, removal, or restoration work required by any
federal, state, or local governmental agency or political subdivision because of
the presence or suspected
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presence of Hazardous Substances in, on under or about the soil, groundwater,
surface water, air or soil vapor on, under or about the Leased Premises, arising
out of the use of the Leased Premises by the Tenant, its officers, employees,
agents, invitees, or contractors.
50.2 For purposes of this section, "Hazardous Substances" shall mean any
hazardous, toxic, radioactive, infectious, or carcinogenic substance material,
gas, or waste which is or becomes listed or regulated by any federal, state, or
local law or governmental authority or agency, including, without limitation,
petroleum and petroleum products in underground tanks, PCSs, asbestos, lead,
cyanide, DDT, and all substances defined as hazardous materials, hazardous
wastes, hazardous substances, or extremely hazardous waste under any present or
future federal, state, or local law or regulation, as amended from time to time.
50.3 Those claims, judgments, damages, penalties, fines, costs,
liabilities, losses, and expenses for which each party and its officers,
shareholders, directors, partners, employees, and agents are indemnified
hereunder shall be reimbursable as incurred without any requirement of waiting
for the ultimate outcome of any litigation, claim or other proceeding, and the
indemnifying party shall pay such claims, judgments, damages, penalties, fines,
costs, liabilities, losses, and expenses as incurred by the indemnified party
within fifteen (15) days after notice itemizing the amounts incurred to the date
of such notice. Any defense of any claim against an indemnified party shall be
made by counsel satisfactory to the indemnified party.
50.4 The foregoing provisions of this Section shall survive the termination
of this Lease.
51. DISABILITIES LAWS
51.1 Disabilities Laws as used herein shall include the Americans with
Disabilities Act and any state, county or local laws, statutes, or ordinances
applicable to the Leased Premises, the Tenant's business or the activities of
the Tenant in or about the Leased Premises. Disabilities Laws shall also include
any amendments thereto, regulations or court decisions interpreting such laws.
51.2 Tenant shall comply with all Disability Laws relating to the use and
occupancy of and access to the Leased Premises. Tenant shall be responsible to
perform its own assessment of the compliance of the Leased Premises with such
laws by surveying the facility, determining what barrier removal is readily
achievable and shall comply with alternative and new construction requirements
of Disability Laws. Tenant shall bear the sole cost and expense of determining
compliance. To the extent Tenant determines that compliance may require
alteration or future construction on the Leased Premises, Tenant shall notify
Landlord and shall obtain Landlord's consent to such alteration in advance.
Landlord shall not unreasonably withhold consent to reasonable alterations to be
made by Tenant in order to comply with the provisions of such Disabilities Laws.
In addition to any other reasonable requirements of Landlord for granting such
consent, Landlord's consent may be conditioned upon Tenant providing adequate
assurances of the proper completion of such alterations and payment therefor,
and that the alterations be in conformity to the aesthetic style and future
expansion plans for the Building.
Should Landlord incur any additional costs as a result of Tenant's
occupancy of the Leased Premises and obligations under Disability Laws, Tenant
shall reimburse Landlord for such costs.
51.3 Any costs incurred by Landlord in complying with Disabilities Laws
shall be considered a Common Area Maintenance charge, and Tenant shall pay his
pro-rata share of such charge pursuant to the provisions of this Lease.
51.4 Tenant hereby indemnifies Landlord and agrees to defend and hold
Landlord harmless from and against any and all losses, liabilities, damages,
injuries, costs (including, without limitation, court costs and reasonable
attorneys' fees), expenses and claims of any and every kind whatsoever caused by
Tenant or any of its subtenants, permittees, agents or representatives, which at
any time or from time to time may be paid, incurred or suffered by, or
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asserted against, Landlord for, with respect to or as a direct or indirect
result of, Tenant's failure to comply with the requirements of paragraph 35(b)
above including, without limitation, any losses resulting from a diminution in
the value of the Building and any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Disabilities Laws.
51.5 Tenant covenants and agrees that: (i) Tenant will comply with any
reasonable requirements of Landlord and any mortgagee from time to time to
implement or facilitate the administration or enforcement of any or all of the
provisions of this Section; (ii) Tenant will certify annually, if so requested
by Landlord that it is in compliance with all Disabilities Laws; and (iii)
Tenant will cause every sublease and concession agreement to contain provisions
substantially the same as those in the preceding clauses (i) and (ii) and
expressly state that they are for the benefit of and may be enforced by Landlord
and any mortgagee (in addition to any other person Tenant may desire to name
therein).
51.6 Tenant's liability for the undertakings and indemnification's set out
in this Section shall survive the Termination or expiration of this Lease. The
provisions of this Section shall govern and control over any inconsistent
provisions of this Lease or any other agreement between Landlord (or any of its
affiliates) and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed these Lease provisions
as of the Lease Date on the Office Lease Facing Page attached hereto.
LANDLORD:
BY: --------------------------------------
TENANT:
BY: --------------------------------------
ITS:
ATTEST:
BY: --------------------------------------
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
Subscribed and sworn to before me this _____ day of _________, 200___.
Witness my hand and official seal.
My commission expires:____________________Notary Public:______________________
<PAGE>
LEASE GUARANTY
RIDER (1)
LANDLORD: THE LANDHUIS COMPANY
ADDRESS: 212 N. Wahsatch Avenue, Suite 301
Colorado Springs, CO 80903
TENANT: Full Tilt Sports, Inc.
ADDRESS: 212 N. Wahsatch Avenue, Suite 205
Colorado Springs, CO 80903
SUITE OR UNIT NUMBER: 205 and designated open space in basement
LEASE:
LEASE DATE: January 13, 2000 GUARANTY DATE: January 13, 2000
LEASE TERM: Three (3) years
LEASE PERIOD:
COMMENCEMENT DATE: February 1, 2000
STARTING BASE RENT: $93,000.00 PER ANNUM, PAYABLE IN INSTALLMENTS
$7,750.00 PER MONTH*.
GUARANTOR:
NAME: Joseph F. DeBerry
HOME ADDRESS: 2360 Biltmore Court
Colorado Springs, CO 80907
THIS LEASE GUARANTY is attached to and made a part of the Lease referenced
above. To induce the Landlord to enter into, to waive a default under, or to
extend or renew the term of the Lease, the Guarantor agrees as follows:
1. The Guarantor hereby covenants and agrees with the Landlord,
a. to make due and punctual payment of all rent, monies, and charges
payable under the Lease during the Term thereof and all renewals
thereof:
b. to effect prompt and complete performance of all and each of the
terms, covenants, conditions and provisions in the Lease required on
the part of the Tenant to be kept, observed and performed during the
period of the Term and any renewals thereof; and
c. to indemnify and save harmless the Landlord from any loss, attorney's
fees, costs or damages arising out of any failure to pay the aforesaid
rent, monies, and charges or the failure to perform any of the terms,
covenants, conditions and provisions of the Lease.
2. In the event of a default under the Lease, the Guarantor waives any right
to require the Landlord to:
a. proceed against the Tenant or pursue any rights or remedies with
respect to the Lease;
b. proceed against or exhaust any security of the Tenant held by the
Landlord; or
c. pursue any other remedy whatsoever in the Landlord's power.
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The Landlord shall have the right to enforce this Guaranty regardless
of the acceptance of additional security from the Tenant and regardless of
the release or discharge of the Tenant or any other Guarantor of the Lease
by the Landlord or by others, or by operation of any law or the amendment
or modification of any terms of the Lease, to which the Guarantor gives the
Tenant the express authority to consent on behalf of the Guarantor.
3. The Guarantor hereby expressly waives notice of the acceptance of this
Guaranty and all notice of non-performance, non-payment or non-observance
on the part of the Tenant of the terms, covenants or conditions and
provisions of the Lease.
4. Without limiting the generality of the foregoing, the liability of the
Guarantor under this Guaranty shall not be deemed to have been waived,
released, discharged, impaired or affected by reason of the release or
discharge of the Tenant in any receivership, bankruptcy, winding-up or
other creditor proceedings or the rejection, disaffirmance or disclaimer of
the Lease by any party, and shall continue with respect to the periods
prior thereto and thereafter, for and with respect to the Term originally
contemplated and expressed in the Lease. The liability of the Guarantor
shall not be affected by any repossession of the Leased Premises by the
Landlord, the extension by Landlord of time for the payment by Tenant of
any sums owing or payable under the Lease, the assignment or subletting of
the Leased Premises or the waiver, failure, omission or delay of Landlord
to enforce, assert or exercise any right, power or remedy.
5. Guarantor shall pay all costs, charges and expenses, including reasonable
attorney fees and court costs, incurred by Landlord in enforcing
Guarantor's obligations under this Guaranty.
6. This Guaranty shall be one of payment and performance and not of
collection. Notwithstanding the use of the word "indemnity" or "guaranty",
each guarantor or indemnitor shall be jointly and severally liable under
this and any other guaranty of the Lease.
7. The Guarantor shall, without limiting the generality of the foregoing, be
bound by this Guaranty in the same manner as though the Guarantor were the
Tenant named in the Lease.
8. All of the terms, agreements and conditions of this Guaranty shall extend
to and be binding upon the Guarantor, his heirs, executors, administrators,
successors and assigns, and shall inure to the benefit of and may be
enforced by the Landlord, its successors and assigns, and the holder of any
mortgage to which the Lease may be subject.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed as of the Guaranty Date first above written.
- ----------------------------------- ---------------------------------------
Guarantor: Joseph F. DeBerry Guarantor:
- ----------------------------------- ---------------------------------------
SS#: SS#:
Home Address: 2360 Biltmore Court
Colorado Springs, CO 80907
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<PAGE>
CONFIRMATION OF COMMENCEMENT DATE
RIDER (2)
LANDLORD: THE LANDHUIS COMPANY
ADDRESS: 212 N. Wahsatch Avenue, Suite 301
Colorado Springs, CO 80903
TENANT: FULL TILT SPORTS, INC.
ADDRESS: 212 N. Wahsatch Avenue, Suite 205
Colorado Springs, CO 80903
LEASED PREMISES: Suite 205 and designated open space in basement
It is hereby acknowledged by and between Landlord and Tenant that the Lease
Commencement Date pursuant to section 2(d) of the General Lease Provisions, is
the 1st day of February, 2000.
Dated this _____day of ______________, 200__.
LANDLORD: THE LANDHUIS COMPANY
BY: _________________________________
LeRoy Landhuis
TENANT: FULL TILT SPORTS, INC.
BY: _______________________________
Joseph F. DeBerry
<PAGE>
TENANT PREMISES
RIDER (3)
Typical Plan Schedule
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<PAGE>
ADDITIONAL PROVISIONS
RIDER (4)
A. The Lease shall commence on February 1, 2000, and terminate on January
31, 2003.
B. Base Rent shall be paid in the following manner:
BASE BASE
YEAR MONTLY RENT ANNUAL RENT
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1 $7,750.00 $93,000.00
2 $7,750.00 $93,000.00
3 $7,750.00 $93,000.00
C. Tenant Agrees to accept the premises in an "as is" condition except for
the following:
D. ADDITIONAL PROVISIONS:
E. All other terms and conditions of this Lease shall remain in effect.
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Rules & Regulations
RIDER (5)
1. Tenant shall not block or obstruct any of the entries, passages, doors,
hallways, or stairways of Building or garage, or place, empty, or throw any
rubbish, litter, trash, or material of any nature into such areas, or
permit such areas to be used at any time except for ingress or egress of
Tenant, its officers, agents, servants, employees, patrons, licenses,
customers, visitors, or invitees.
2. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or any article taken from Leased Premises, regardless of
how or when loss occurs.
3. Tenant shall not install or operate any refrigerating, heating, or air
conditioning apparatus or carry on any mechanical operation on the Leased
Premises without written permission of Landlord.
4. Tenant shall not use Leased Premises for housing, lodging, or sleeping
purposes or for the cooking or preparation of food without written
permission of Landlord.
5. Tenant shall not bring into the Leased Premises or keep on Leased Premises
any fish, fowl, reptile, insect or animal or any bicycle or other vehicle
without the prior written consent of Landlord; wheelchairs, however, will
be permitted.
6. No additional locks shall be placed on any door in the Building without the
prior written consent of Landlord. Landlord may at all times keep a pass
key to the Leased Premises. All of Tenant's keys shall be returned to
Landlord promptly upon termination of this Lease.
7. Tenant shall do no painting or decorating in Leased Premises; or mark,
paint or cut into, drive nails or screw into, nor in any way deface any
part of Leased Premises or Building without the prior written consent of
Landlord. If Tenant desires signal, communication, alarm, or other utility
or service connection installed or changed, such work shall be done at
expense of Tenant with the approval and under the direction of Landlord.
8. Tenant shall not permit the operation of any musical or sound-producing
instruments or device which may be heard outside Leased Premises, or which
may emanate electrical waves or x-rays or other emissions which will impair
radio or television broadcasting or reception from or in the Building, or
be hazardous to health, well-being, or condition of persons or property.
9. Tenant shall, before leaving Leased Premises unattended, close and lock all
doors and shut off all utilities. Damage resulting from failure to do so
shall be paid by Tenant. Each Tenant, before closing for the day and
leaving the Leased Premises, shall see that all doors are locked.
10. Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electrical facilities, or any part or
appurtenance of the Leased Premises.
11. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne directly by the
Tenant, who shall, or whose officers, employees, agents, servants, patrons,
customers, licensees, visitors, or invitees shall have caused it. Landlord
shall not be responsible for any damage due to stoppage, backup, or
overflow of the drains or other plumbing fixtures.
12. All contractors and/or technicians performing work for Tenant within the
Leased Premises, the Building, or garage facilities shall be referred to
Landlord for approval before performing such work. This shall apply to all
work including, but not limited to, installation of telephones, telegraph
equipment, electrical devices and attachments, and all installations
affecting floors, walls, windows, doors, ceilings, equipment, or any other
physical feature of the Building, Leased Premises, or garage facilities.
None of this work shall be done by Tenant without Landlord's prior written
approval.
13. Neither Tenant nor any officer, agent, employee, servant, patron, customer,
visitor, licensee, or invitee of any Tenant shall go upon the roof of the
Building without the written consent of the Landlord.
14. In the event Tenant must dispose of crates, boxes, etc. which will not fit
into wastepaper baskets, it will be the responsibility of Tenant to dispose
of same properly.
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15. If the Leased Premises shall become infested with vermin, roaches, or other
undesirable creatures, Tenant, at its sole cost and expense, shall cause
the Leased Premises to be professionally treated from time to time to the
satisfaction of Landlord and shall employ such exterminators for this
purpose as shall be approved by Landlord.
16. Tenant shall not install any antenna or aerial wires, radio or television
equipment, or any other type of equipment inside or outside of the Building
without Landlord's prior approval in writing and upon such terms and
conditions as may be specified by Landlord in each and every instance.
17. Tenant shall not make or permit any use of Leased Premises, the Building,
or garage facilities which, directly or indirectly, is forbidden by law,
ordinance, or governmental or municipal regulation, code, or order or which
may be disreputable or dangerous to life, limb, or property.
18. Tenant shall not advertise the business, profession, or activities of
Tenant in any manner which violates the letter or spirit of any code of
ethics adopted by any recognized association or organization pertaining
thereto, use the name of the Building for any purpose other than that of
the business address of Tenant or use any picture or likeness of the
Building or the Building name in any picture or likeness of the Building or
the Building name in any letterheads, envelopes, circulars, notices,
advertisements, containers, or wrapping material without Landlord's express
consent in writing.
19. Tenant shall neither conduct its business nor control its officers, agents,
employees, servants, patrons, customers, licensees, and visitors in such a
manner as to create any nuisance or interfere with, annoy, or disturb any
other tenant or Landlord in its operation of the Building, or commit waste,
or suffer or permit waste to be committed in Leased Premises.
20. The Tenant shall not install in the Leased Premise any equipment which uses
a substantial amount of electricity without the advance written consent of
Landlord. The Tenant shall ascertain from the Landlord the maximum amount
of electrical current which can safely be used in the Leased Premises,
taking into account the capacity of the electric wiring in the Building and
the Leased Premises and the need of other tenants in the Building and shall
not use more than such safe capacity. The Landlord's consent to the
installation of electric equipment shall not relieve the Tenant from the
obligation not to use more electricity that such safe capacity.
21. The Tenant, without the written consent of Landlord, shall not lay linoleum
or other similar floor covering.
22. No outside storage of any material, including disabled vehicles will be
permitted.
23. Tenant shall place chair pads beneath each desk chair to protect the carpet
in the Leased Premises.
24. Landlord may waive any one or more of these Rules & Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of these Rules & Regulations in favor of Tenant or
any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules & Regulations against any or all of the tenants of the Building.
25. Landlord reserves the right to make any such other reasonable Rules &
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein or in response to governmental
regulation of any kind. Tenant agrees to abide by all such Rules &
Regulations hereinabove stated and any additional Rules and Regulations
which are adopted within five (5) days after receiving a copy of such
additional Rules and Regulations.
26. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's officers, employees, agents, servants,
clients, customers, patrons, invitees, licensees, visitors and guests.
