<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997 COMMISSION FILE NO. 0-12386
INCOMNET, INC.
A California IRS Employer No.
Corporation 95-2871296
21031 Ventura Blvd., Suite 1100
Woodland Hills, California 91364
Telephone no. (818) 887-3400
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:.................None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF
THE ACT:..............................................Common Stock, No Par Value
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days................................. YES X NO
Number of shares of registrant's common stock outstanding as of
March 31, 1997........................................................13,550,000
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ITEM 1. FINANCIAL STATEMENTS
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
($ IN 000s)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
---- ----
<S> <C> <C>
ASSETS
Current assets:
Cash & cash equivalents $ 2,164 $ 2,214
Accounts receivable, including $460 and $267 due from related
party at March 31, 1997 and December 31, 1996, respectively
and less allowance for doubtful accounts of $1,065 at
March 31, 1997 and $1,078 at December 31, 1996 14,192 13,137
Notes receivable - current portion 471 323
Notes receivable from officers & shareholders, net of
reserves of $209 795 438
Inventories 326 2,760
Other current assets 1,086 1,332
------- --------
Total current assets 19,034 20,204
Property, plant and equipment, at cost, net 14,139 14,537
Patent rights, net 1,241
Goodwill, net 4,468 4,542
Investment in marketable securities 191
Deposits and other 357 376
Investments, notes receivable and other assets 223 243
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Total assets $38,222 $ 40,587
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2
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LIABILITIES, MINORITY INTEREST AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $12,438 $ 14,746
Accrued expenses 7,601 8,217
Current portion of notes payable 220 3,918
Deferred income 3,313 4,040
------- --------
Total current liabilities 23,572 30,921
Notes payable 925 1,041
Liability in excess of asset 3,952
Commitments (Note 12)
Shareholders' equity:
Common stock, no par value; 20,000,000 shares
authorized; and 13,553,229 shares at March 31,
1997 and 13,369,681 shares issued and outstanding
at December 31, 1996 61,785 61,320
Preferred stock, no par value; 100,000 shares authorized;
2,075 shares issued and outstanding at March 31, 1997 and
2,440 shares issued and outstanding at December 31, 1997 1,990 2,355
Treasury stock (5,492) (5,492)
Additional paid in capital 36
Accumulated deficit (48,547) (49,557)
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Total shareholders' equity 9,772 8,626
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Total liabilities, minority interest & shareholders' equity $ 38,221 $ 40,587
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</TABLE>
See accompanying "Notes to Consolidated Financial Statements."
3
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INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
THREE MONTHS ENDED MARCH 31,
($ in 000s)
1997 1996
----------- -----------
SALES $ 31,169 $ 24,399
----------- -----------
OPERATING COSTS & EXPENSES:
Cost of sales 21,531 15,906
General & administrative 6,159 6,290
Depreciation & amortization 665 429
Bad debt expense 1,697 1,091
Other (income)/expense (83) 69
----------- -----------
Total operating costs and expenses 29,969 23,785
----------- -----------
ACQUISITION COSTS & EXPENSES:
NTC Acquisition - goodwill amortization 74 74
RCI Acquisition - patent rights amortization 503
RCI Acquisition - interest and legal 6
----------- -----------
Total acquisition costs & expenses 74 583
----------- -----------
Income before income taxes,
extraordinary items & minority interest 1,126 31
INCOME TAXES 107 94
----------- -----------
Income before extraordinary items &
minority interest 1,019 (63)
EXTRAORDINARY ITEMS 9 --
MINORITY INTEREST 480
----------- -----------
Net income $ 1,010 $ 417
----------- -----------
----------- -----------
INCOME PER COMMON SHARE
AND COMMON SHARE EQUIVALENTS $ .07 $ .03
----------- -----------
----------- -----------
WEIGHTED AVERAGE NUMBER OF COMMON SHARES AND
COMMON SHARE EQUIVALENTS OUTSTANDING 13,550,000 13,278,242
----------- -----------
----------- -----------
See accompanying "Notes to Consolidated Financial Statements."
4
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INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
THREE MONTHS ENDED MARCH 31,
($ in 000s)
<TABLE>
<CAPTION>
1997 1996
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<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
After tax profit $ 1,010 $( 63)
Depreciation & amortization - operations 665 633
Depreciation & amortization - acquisitions 74 447
------- ------
Net cash inflow/(outflow) from operating activities 1,749 1,017
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CASH FLOWS FROM (INCREASE)/DECREASE IN OPERATING ASSETS:
Accounts receivable (1,055) 416
Notes receivable - current portion (147) (113)
Notes receivable - due from officers and shareholders (357) (65)
Inventories 2,434 443
Prepaid expenses & other 245 (188)
Notes receivable - long term 155
Deferred tax (41)
Deposits & other (148) (52)
------- ------
Net cash inflow/(outflow) from changes in
operating assets 931 596
------- ------
CASH FLOWS FROM INCREASE/(DECREASE) IN OPERATING LIABILITIES:
Accounts payable (2,308) 299
Accrued expenses (616) (384)
Deferred income (727) 71
------- ------
Net cash inflow/(outflow) from changes in operating liabilities (3,651) (14)
------- ------
Net cash inflow/(outflow) from operations (971) 1,577
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CASH FLOWS FROM (INCREASE)/DECREASE IN INVESTING ACTIVITIES:
Acquisition of plant & equipment (447) (2,162)
Organization cost (184)
Patents/intangible assets 1,241 (36)
Investment in Lab Tech 35
Investment in RCI
Liability in excess of asset 3,952
------- ------
Net cash inflow/(outflow) from investing activities 4,597 2,198
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</TABLE>
See accompanying "Notes to Consolidated Financial Statements."
5
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INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
THREE MONTHS ENDED MARCH 31, (CONT'D)
<TABLE>
<CAPTION>
1997 1996
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<S> <C> <C>
CASH FLOWS FROM INCREASE/(DECREASE) IN FINANCING ACTIVITIES:
Bank overdraft --
Minority interest (1)
Notes payable - current (3,698) 158
Sale of common stock, net 465 147
Preferred Stock (365)
Treasury stock --
Notes payable - long term (114) 495
Paid in capital 36 --
Prior period adjustment to retainer earnings --
Change in valuation allowance --
------- -------
Net cash inflow/(outflow) from financing activities (3,676) 799
------- -------
Net cash inflow/(outflow) from investing & financing 921 (1,399)
------- -------
Net increase/(decrease) in cash & cash equivalents $ (50) $ 200
------- -------
------- -------
</TABLE>
See accompanying "Notes to Consolidated Financial Statements."
6
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INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 1997
1. MANAGEMENT'S REPRESENTATION:
The consolidated financial statements included herein have been prepared by the
management of Incomnet, Inc. (the Company) without audit. Certain information
and note disclosures normally included in the consolidated financial statements
prepared in accordance with generally accepted accounting principles have been
omitted. In the opinion of the management of the Company, all adjustments
considered necessary for fair presentation of the consolidated financial
statements have been included and were of a normal recurring nature, and the
accompanying consolidated financial statements present fairly the financial
position as of March 31, 1997, and the results of operations for the three
months ended March 31, 1997 and 1996, and cash flows for the three months March
31, 1997 and 1996.
It is suggested that these consolidated financial statements be read in
conjunction with the consolidated financial statements and notes for the three
years ended December 31, 1996, included in the Company's Annual Report on Form
10-K filed with the Securities and Exchange Commission on April 15, 1997. The
interim results are not necessarily indicative of the results for a full year.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include the
accounts of the Company and its wholly-owned subsidiary, National Telephone &
Communications-Registered Trademark-, Inc. (NTC). The statements do not include
consolidated results of Rapid Cast, Inc., the Company's 35%-owned subsidiary,
which is accounted for using the equity method of accounting under FASB
Statement No. 94. The Company accounted for RCI using the consolidated method of
accounting from the third quarter of 1995 until December 31, 1996 because the
Company owned 51% of RCI. In January 1997, the Company's ownership changed from
51% of RCI to 35% and, as a result, the method of accounting has changed to the
equity method under FASB Statement No. 94.
REVENUE RECOGNITION - The Company recognizes revenue during the month in
which services or products are delivered, as follows:
(1) NTC's long distance telecommunications service revenues are generated
when customers make long distance telephone calls from their business or
residential telephones or by using any of NTC's telephone calling cards.
Proceeds from prepaid telephone calling cards are recorded as deferred
revenues when the cash is received, and recognized as revenue as the
telephone service is utilized. The reserve for deferred revenues is carried
on the balance sheet as an accrued liability. Long distance telephone
service sales in the three months ending March 31, 1997 totaled $25.1 million
versus long distance telephone service sales of $20.3 million in the three
months ending March 31, 1996, an increase of 24%.
(2) NTC's marketing-related revenues are derived from programs and material
sold to the Company's base of independent sales representatives, including
forms and supplies, fees for representative and certified trainer renewals,
and the Company's Certified Trainer, Independent
7
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INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 1997
Representative and Long Distance University programs. The Company requires
that all such services and materials be paid at the time of purchase.
Revenues from marketing-related materials, net of amounts deferred for future
services provided to the representatives, are booked as cash sales when the
revenues are received. A portion of the revenues from marketing related
programs and materials is deferred and recognized over a twelve month period
to accrue the Company's obligation to provide customer support to its
independent representatives. For the three months ending March 31, 1997,
marketing sales totaled $5.7 million versus marketing sales of $2.7 million
for the three months ended March 31, 1996, an increase of 113%.
(3) The Company's network service revenues are recognized as sales as the
service is delivered. Network service sales in the three months ending March
31, 1997 totaled $0.4 million versus $0.3 million in the three months ending
March 31, 1996.
CONCENTRATION OF CREDIT RISK - The Company sells its telephone and network
services to individuals and small businesses throughout the United States and
does not require collateral. Rapid Cast sells its optical products both
domestically and internationally. Reserves for uncollectible amounts are
provided, which management believes are sufficient.
COMPUTER HARDWARE, FURNITURE AND OFFICE EQUIPMENT - Computer hardware,
furniture and office equipment are stated at cost. Depreciation is provided
by the straight-line method over the assets' estimated useful lives of 5 to
10 years.
COMPUTER SOFTWARE - The Company capitalizes the costs associated with
purchasing, developing and enhancing its computer software. All software
costs are amortized using the straight-line method over the assets' estimated
useful lives of 3 to 10 years.
LEASEHOLD IMPROVEMENTS - All leasehold improvements are stated at cost and
are amortized using the straight-line method over the expected lease term.
NET INCOME PER SHARE - Net income per common share is based on the weighted
average number of common shares for 1997, and common shares and common share
equivalents for 1996.
ACQUISITION AMORTIZATION - The excess of purchase price over net assets of
NTC has been recorded as an intangible asset and is being amortized by the
straight-line method over twenty years.
DEFERRED TAX LIABILITY - Deferred income taxes result from temporary
differences in the basis of assets and liabilities reported for financial
statement and income tax purposes.
USE OF ESTIMATES - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the
date of the financial statements, as well as the reported amounts of revenues
and expenses during the reporting period. Actual results could differ from
those estimates.
3. Funding of Marketing Commissions and Deferred Income:
8
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INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 1997
The Company's subsidiary, NTC, maintains separate bank accounts for the payment
of marketing commissions. Funding of these accounts is adjusted regularly to
provide for management's estimates of required reserve balances. NTC estimates
the total commissions owed to active independent representatives ("IR Earned
Compensation") each week for all monies collected that week due to the efforts
of those active independent representatives. All IR Earned Compensation is then
paid to the independent representatives, when due, directly out of the separate
bank account.
IMPAIRMENT OF LONG LIVED ASSETS: In accordance with the provisions of SFAS No.
121, the Company regularly reviews long-lived assets and intangible assets for
impairment whenever events or changes in circumstances indicate that the
carrying amount to the assets may not be recoverable.
CURRENT ACCOUNTING PRONOUNCEMENTS: The Financial Accounting Standards Board has
issued SFAS No. 123, "Accounting for Stock-Based Compensation," which encourages
companies to account for stock compensation awards based on their fair value at
the date the awards are granted. This statement does not require the application
of fair value method and allows the continuance of current accounting method,
which requires accounting for stock compensation awards based on their intrinsic
value as of the grant date. However, SFAS No. 123 requires pro forma disclosure
of net income and, if presented, earnings per share, as if the fair value based
method of accounting defined in this statement has been applied. The accounting
and disclosure requirements of this statement are effective for financial
statements for fiscal years beginning after December 15, 1995, although earlier
adoption is encouraged. The Company has elected not to adopt the fair value
provisions of this statement.
4. NETWORK MARKETING COSTS:
During the three months ending March 31, 1997, NTC's net costs to operate its
network marketing program was $0.5 million versus $0.7 million for the three
months ended March 31, 1996, as summarized below (in $ millions):
3 Months Ending 3 Months Ending
March 31, 1997 March 31, 1996
--------------- --------------
Sales $ 5.7 $ 2.7
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Cost of sales 4.9 2.5
Operating expenses for support services 1.3 0.9
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Total marketing-related costs 6.2 3.4
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Net marketing cost $ 0.5 $ 0.7
------- -----
------- -----
% of total NTC (long distance &
marketing) sales 1.8% 3.2%
9
<PAGE>
INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 1997
Marketing sales of $5.7 million for the three months ended March 31, 1997 and
$2.7 million for the three months ended March 31, 1996 were generated by the
sale of materials, training and support services to assist NTC independent
sales representatives in selling new retail customers and enrolling other
representatives in the NTC program. Effective January 1, 1996, the Company
changed its accounting procedures to defer a portion of marketing revenues,
which had previously been recognized upon receipt. The Company believes that
the change is preferable because it provides a better matching of revenues
with services provided to the marketing representatives. The cumulative
effect of this change and certain other changes for the periods prior to
January 1, 1996 equal to approximately $.09 million is shown as a cumulative
effect adjustment. When the three month marketing-related costs of $6.2
million is compared against marketing-related revenues of $5.7 million the
result is $0.5 million in net marketing-related activities during the three
months ended March 31, 1997 versus a net cost of $0.7 million in marketing
related activities during the three months ended March 31, 1996.
5. COMPENSATION OF INDEPENDENT SALES REPRESENTATIVES:
The Company's subsidiary, NTC, compensates its independent sales
representatives by an earned commission structure based upon signing up new
telephone customers and based upon the telephone usage generated by those
customers. In the three months ending March 31, 1997, expenses associated
with commissions, bonuses and overrides paid out to NTC's independent
representatives were $5.4 million versus $3.3 million for the three months
ended March 31, 1996.
6. COMMITMENTS AND CONTINGENCIES:
Litigation - The Company is a defendant in a class action matter and related
lawsuits alleging securities law violations with respect to alleged false denial
and non-disclosure of a Securities and Exchange Commission investigation and
alleged non-disclosure of purchases and sales of the Company's stock by the
former Chairman of the Board and one of his affiliates. Counsel for the Company
is unable to estimate the ultimate outcome of these matters and is unable to
predict a range of potential loss. Accordingly, no amounts have been provided
for the class action or related lawsuits in the accompanying financial
statements.
The Company is under investigation by the Securities and Exchange Commission
under a non-public "formal order of private investigation." Management has
furnished all information requested by the Commission and does not believe that
the matter will have a material adverse impact on its financial position or
results of operations.
7. SUBSEQUENT EVENT:
In April 1997, NTC entered into an agreement to extend the lease on its
headquarters building at 2801 Main Street, Irvine, California. According to the
terms of this agreement, NTC would be obligated to pay formula based monthly
lease payments estimated to be approximately $57,000 per month during 1997 and
increasing to approximately $72,000 per month for the remainder of the initial
five year lease term. In addition, in February 1997, NTC entered into a ten
year lease
10
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INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 1997
for office space in Honolulu, Hawaii, with the lease expiring in 2007. The
monthly payments on the lease in Honolulu commence at $36,698 per month in
1997 and 1998, and increase on a bi-annual basis through the term of the
lease to $43,536 per month in 2006 and 2007.
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW:
The following is management's discussion and analysis of certain significant
factors which have affected the results of operations and financial condition
of the Company during the period included in the accompanying financial
statements. This discussion should be read in conjunction with the financial
statements and associated notes. The discussion herein is qualified by
reference to the Cautionary Statements. See "Part II. Cautionary Statements".
LIQUIDITY AND CAPITAL RESOURCES:
GENERAL - Overall, the Company achieved slightly negative cash flows of
$50,000 during the first three months of 1997 resulting from negative cash
flows from operations ($971,000) which were almost entirely offset by
positive cash flows from investing $4.6 million less negative cash flow from
financing activities ($3.7 million) as discussed below:
CASH FLOW FROM OPERATIONS - The Company generated $971,000 in negative cash
flow from operations during the first nine months of 1996, compared to $1.6
million in positive cash flow from operations during the prior year's
comparable period. This year-to-year decrease in cash flow from operations
resulted primarily from: (1) a $1.1 million increase in profits adjusted for
non-cash expenses, offset by (2) a $1.1 million increase in accounts
receivable, and (3) a $2.3 million decrease in accounts payable. Much of the
changes in operating assets arise from the change in accounting for the Rapid
Cast subsidiary, which was presented on the consolidated basis at December
31, 1996, but because Incomnet's ownership diminished to approximately 33%
during the first quarter, was presented on the equity method of accounting at
March 31, 1997.
CASH FLOW FROM INVESTING - The Company generated positive cash flows from
investing activities of $4.6 million in the first three months of 1997 and
negative cash flows of ($2.2 million) in the first three months of 1996.
CASH FLOW FROM FINANCING - Positive cash flows from investing activities of
$4.6 million were offset by negative cash flow from financing activities of
($3.7 million) during the first three months of 1997, due principally from
the change in method of accounting for the Rapid Cast subsidiary.
The Company had material commitments for capital expenditures of $1.5 million in
tenant improvements for its Honolulu, Hawaii office space at December 31, 1996,
and expects to continue making improvements to the NTC headquarters building and
purchasing additional equipment commensurate with the expansion of its business.
During 1996, the Company had capital expenditures of $7.2 million for plant and
equipment.
12
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LITIGATION - The Company is subject to pending litigation and an investigation
by the Securities and Exchange Commission. Management is not yet able to
predict the impact of the pending litigation on its financial condition and
results of operations. Management does not believe that the investigation by
the Securities and Exchange Commission will result in a material impact on the
Company's financial condition or results of operations. See "Part II. Item 1.
Legal Proceedings."
RESULTS OF OPERATIONS:
SALES - First quarter, 1997 sales of $31.2 million increased 28% over the
first quarter, 1996 sales of $24.4 million. The majority of this increase
was attributable to NTC's sales increase to $30.8 million from $23.0 million
in the three months ending March 31, 1997 as compared to the same period in
1996, respectively. The following table summarizes the Company's sales
performance by subsidiary and segment during the comparable first quarters in
1997 and 1996:
$ in millions
-----------------
Subsidiary Segment 1997 1996
- --------------- --------------------------------------- ---- ----
NTC Telephone (telecommunications services) $25.1 $20.3
NTC Telephone (marketing programs) 5.7 2.7
RCI Optical -- 1.1
AutoNETWORK Network 0.4 0.3
----- -----
Total Company Sales $31.2 $24.4
----- -----
----- -----
COST OF SALES - Total Company cost of sales increased to $21.5 million or 69% of
sales during the quarter ending March 31, 1997 versus $15.9 million or 65% of
sales during the comparable prior year quarter. The quarter-to-quarter increase
in cost of sales resulted largely from increasing carrier costs associated with
increased telephone service sales by NTC.
The following table summarizes the Company's changes in three major cost
components for the first quarter:
$ in millions
-------------------
1997 1996
------ -------
Commissions paid to NTC independent sales reps $ 5.4 $ 3.5
Carrier costs for NTC's long distance telephone 15.9 12.2
AutoNETWORK .2 .2
------ -------
Total Cost of Sales (excluding
$0.7 million of costs relating to RCI in 1996) $ 21.5 $ 15.9
------ -------
------ -------
13
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NTC's total commission expense increased to $5.4 million in the first quarter
of 1997 compared to $3.5 million in the same quarter of 1996. NTC's carrier
costs to deliver long distance telephone service to its telephone customers
increased to $15.9 million in the first quarter of 1997 compared to $12.2
million in the first quarter of 1996. This increase in carrier costs reflects
the year-to-year growth in telephone sales, although these costs have grown
at a slower pace than sales, thus reflecting improvements in overall
telephone gross profits. The third cost component shown in the table above is
the AutoNETWORK division's costs of providing communications network products
and services.
GENERAL & ADMINISTRATIVE - Total general and administrative costs decreased
to $6.2 million or 20% of sales in the quarter ending March 31, 1997 compared
to $6.3 million or 26% of sales in the same prior year quarter. General and
administrative costs generally include the costs of employee salaries, fringe
benefits, supplies, and related support costs which are required in order to
provide such operating functions as customer service, billing, marketing,
product development, information systems, collections of accounts receivable,
and accounting. The reduction in the current quarter primarily reflects the
elimination of Rapid Cast.
NTC's general and administrative costs decreased to 18% of sales in the first
quarter of 1997 from 21% of sales in the first quarter of 1996. This reduction
is caused largely by increases in sales volume without a corresponding increase
in the overhead structure. During 1996 NTC made significant expenditures in
building its infrastructure to support future sales growth.
DEPRECIATION & AMORTIZATION - Total Company depreciation and amortization
expense was $665,000 in the first quarter of 1997 verses $429,000 in the
first quarter of 1996. This increase was caused by continuing investment by
NTC in computer hardware and software, furniture and equipment, and leasehold
improvements required to support its anticipated expansion in sales.
BAD DEBT EXPENSE - Total Company bad debt expense increased to $1.7 million in
the first quarter of 1997 compared to $1.1 million in the same prior year
quarter. The quarter-to-quarter increase in bad debt was caused primarily by
increases in sales volumes.
ACQUISITION COSTS & EXPENSES - Acquisition costs decreased to $74,000 during
the first quarter of 1997 compared to $583,000 during the first quarter of
1996. This decrease was primarily caused by writing off in the third and
fourth quarters of 1996 the total patent rights acquired when the Company
acquired 51% of RCI in 1995 in the third and fourth quarters of 1996.
Acquisition costs & expenses in the first quarter of 1997 were related to the
acquisition of NTC in 1992.
MINORITY INTEREST - Beginning on July 1, 1995, the Company converted from the
equity method to the consolidated method of accounting for its 51% ownership in
RCI. As a result, $480,345, or 49% (the "minority interest") of RCI's losses
during the three months ending March 31, 1996, has been eliminated from the
Company's "Consolidated Statements of Operations" for 1996 and, therefor, no
RCI revenues or expenses are recognized after that date. On January 1, 1997,
the Company converted back to the equity method of accounting.
NET INCOME - Total Company net income increased to $1 million or 3.2% of sales
in the first quarter of 1997 as compared to net income of $417,000 or 1.7% of
sales in the first quarter ended March 31,
14
<PAGE>
1996. The quarter-to-quarter increase in net income resulted from no longer
recording losses incurred at the Rapid Cast subsidiary.
15
<PAGE>
PART II - OTHER INFORMATION
CAUTIONARY STATEMENTS:
This Quarterly Report on Form 10-Q contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934. The Company intends
that such forward-looking statements be subject to the safe harbors created
by such statutes. The forward-looking statements included herein are based on
current expectations that involve a number of risks and uncertainties.
Accordingly, to the extent that this Quarterly Report contains
forward-looking statements regarding the financial condition, operating
results, business prospects or any other aspect of the Company and its
subsidiaries, please be advised that the Company and its subsidiaries' actual
financial condition, operating results and business performance may differ
materially from that projected or estimated by the Company in forward-looking
statements. The differences may be caused by a variety of factors, including
but not limited to adverse economic conditions, intense competition,
including intensification of price competition and entry of new competitors
and products, adverse federal, state and local government regulation,
inadequate capital, unexpected costs and operating deficits, increases in
general and administrative costs, lower sales and revenues than forecast,
loss of customers, customer returns of products sold to them by the Company
or its subsidiaries, disadvantageous currency exchange rates, termination of
contracts, loss of supplies, technological obsolescence of the Company's or
its subsidiaries' products, technical problems with the Company's or its
subsidiaries' products, price increases for supplies and components,
inability to raise prices, failure to obtain new customers, litigation and
administrative proceedings involving the Company, including the pending class
action and related lawsuits and SEC investigation, the possible acquisition
of new businesses that result in operating losses or that do not perform as
anticipated, resulting in unanticipated losses, the possible fluctuation and
volatility of the Company's operating results, financial condition and stock
price, losses incurred in litigating and settling cases, dilution in the
Company's ownership of its subsidiaries and businesses, adverse publicity and
news coverage, inability to carry out marketing and sales plans, challenges
to the Company's patents, loss or retirement of key executives, changes in
interest rates, inflationary factors, and other specific risks that may be
alluded to in this Quarterly Report or in other reports issued by the
Company. In addition, the business and operations of the Company are subject
to substantial risks which increase the uncertainty inherent in the
forward-looking statements. In light of the significant uncertainties
inherent in the forward-looking information included herein, the inclusion of
such information should not be regarded as a representation by the Company or
any other person that the objectives or plans of the Company will be achieved.
ITEM 1. LEGAL PROCEEDINGS
SECURITIES AND EXCHANGE COMMISSION INVESTIGATION:
The investigation of the Company by the SEC, which was commenced in August
1994, has not experienced any material changes from its status as described
in "Item 3. Legal Proceedings" in the Company's Form 10-K for its fiscal year
ending December 31, 1996.
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The Company continues to believe that it has provided substantial
documentation to the Commission that demonstrates the propriety of its
business operations and that the ultimate result of the investigation will
not have a material adverse effect on the Company's financial condition or
results of operations.
CLASS ACTION AND RELATED LAWSUITS:
The status of the pending class action lawsuit described in "Item 3. Legal
Proceedings" in the Company's Form 10-K for its fiscal year ending December
31, 1996, SANDRA GAYLES, ET AL. VS. SAM D. SCHWARTZ AND INCOMNET, INC., Case
No. CV95-0399 KMW (BQRx), has materially changed since the filing of the Form
10-K for the fiscal year ending December 31, 1996 in the following manner:
On May 6, 1997, the court in the pending class action lawsuit SANDRA GAYLES
ET AL. VS. SAM D. SCHWARTZ AND INCOMNET, INC. ruled that approximately 20
former shareholders of the Company have the right to "opt out" of the class
action lawsuit and file their own separate lawsuit against the Company and Sam
D. Schwartz, the Company's former President. The Company expects these
potential plaintiffs to file a separate lawsuit against it and its former
President in the near future. The potential plaintiffs purchased the
Company's stock in the open market through Everest Securities, a brokerage
firm which has since terminated its business. The potential claims are
expected to be based on alleged violations of applicable securities laws,
because of alleged statements made by the Company's former President to the
securities broker at Everest Securities in 1995. The amount of damages to be
sought by the potential plaintiffs is not yet known. The Company intends to
vigorously defend the claims if they are asserted against it.
In a hearing on May 5, 1997, the plaintiffs in a lawsuit entitled SILVA RUN
WORLDWIDE LIMITED VS. INCOMNET, INC., SAM D. SCHWARTZ, BEAR STEARNS & CO.,
INC., LESLIE SOLMONSON, RONALD F. SEALE, MARINER RESERVE FUND, COMPANIA DI
INVESTIMENTO ANTILLANO, COUTTS & CO. AG, SALVATORE M. FRANZELLA, PETER G.
EMBIRICOS, AND JOS SCHUETZ, filed in the United States District Court for the
Southern District of New York and transferred in March 1997 to the same court
in California which is hearing the pending class action lawsuit, were allowed
to continue as a separate pleading from the class action lawsuit. As such,
the Company anticipates that it will be involved in a separate lawsuit with
the SILVA RUN WORLDWIDE LIMITED plaintiffs as described in "Item 3. Legal
Proceedings" in the Company's Form 10-K for its fiscal year ending December
31, 1996.
INCOMNET, INC. VS. SAM D. SCHWARTZ:
On April 25, 1997, the Company filed a lawsuit against Sam D. Schwartz, its
prior President and Chairman of the Board, alleging fraud, breach of
fiduciary duty, negligence, declaratory relief, breach of contract and
imposition of constructive trust. The lawsuit was filed in the Superior Court
of California in the County of Los Angeles. In the lawsuit, the Company
alleges that Mr. Schwartz failed to disclose to the Company or its board of
directors that he would obtain a direct financial benefit in connection with
certain transactions considered or entered into by the Company during the
period from 1993 to 1995. The Company further alleges that Mr. Schwartz
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fraudulently induced the Company to enter into a Severance Agreement between
him and the Company in November 30, 1995 (see "Item 1. Business - Employees,
Officers and Directors - Officers" in the Company's Form 10-K for the fiscal
year ending December 31, 1995), and that he breached his fiduciary duty to
the Company by self-dealing, acting in bad faith and concealing material
facts. The Company seeks payment from Mr. Schwartz of the actual damages
incurred by it as a result of Mr. Schwartz's conduct, as well as interest,
punitive damages, attorney's fees and costs and reimbursements of all
payments previously made to Mr. Schwartz pursuant to the Severance Agreement.
Furthermore, the Company seeks a declaratory order that Mr. Schwartz
committed acts or omissions involving known misconduct, the absence of good
faith, an improper personal benefit, a reckless disregard of his duties to
the Company and its shareholders, an unexcused pattern of inattention, and
a violation of Sections 310 and 316 of the California Corporations Code. The
Company cannot predict at this time the outcome of the case or the effect it
may have on the operating results, financial condition or business
performance of the Company or its subsidiaries.
In addition to the above changes to the status of the class action lawsuit,
the case currently remains in the discovery phase and the parties continue to
engage in settlement discussions.
SECTION 16(b) LAWSUIT:
In January 1996, the Company was served with a derivative shareholders
lawsuit entitled RICHARD MORALES VS. INCOMNET, INC. AND SAM D. SCHWARTZ, 96
Civil 0225 in the United States District Court for the Southern District of
New York, alleging violations of Section 16(b) of the Securities Exchange Act
of 1934, as amended, and demanding that the Company assert claims against Mr.
Schwartz for the payment of short-swing profits plus interest. The status of
that case has not materially changed since the filing of the Form 10-K for
the fiscal year ending December 31, 1996, except as follows: Notice of the
settlement was given to the shareholders on or about April 21, 1997. Any
opposition to the settlement is due by May 16, 1997, and a hearing to approve
the settlement is to be held on May 30, 1997. There is no assurance that the
Company will recover the short-swing profits from Mr. Schwartz.
LEGAL ACTION AGAINST PRIOR REPRESENTATIVES:
The status of the pending lawsuit by NTC against certain of its prior
representatives described in "Item 3. Legal Proceedings" in the Company's
Form 10-K for its fiscal year ending December 31, 1996, has not materially
changed since the filing of the Form 10-K.
POTENTIAL LAWSUITS:
There is no assurance that claims similar to those asserted in the pending
class action and related lawsuits, or other claims, will not be asserted
against the Company by new parties in the future. In this regard, potential
plaintiffs have from time to time orally asserted claims against the Company
and its prior directors. Several members of the class in the pending class
action lawsuit against the Company have opted out. Sam Schwartz may file
claims against the Company for indemnification and payments under his
Severance Agreement with the Company. See "Item 1. Business - Employees,
Officers and Directors - Officers" in the Company's Form 10-K for the fiscal
year ending December 31, 1995. If such claims are filed as legal complaints,
the Company will seek to have them consolidated with
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other pending lawsuits, if appropriate, or will defend them separately. From
time to time, the Company is also involved in litigation arising from the
ordinary course of business, the ultimate resolution of which management
believes will not have a material adverse effect on the financial condition
or results of operations of the Company.
ITEM 2. CHANGES IN SECURITIES
Item 2 is not applicable for the three months ended March 31, 1997.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Item 3 is not applicable for the three months ended March 31, 1997.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Item 4 is not applicable for the three months ended March 31, 1997.
ITEM 5. OTHER INFORMATION
LOAN TO ROBERT AND NANCY ZIVITZ:
On November 5, 1996, the Company loaned $265,000 to Robert and Nancy Zivitz
for a period of 90 days, at an interest rate of 10% per annum. Nancy Zivitz
is a member of the Company's Board of Directors. The loan was approved by a
vote of the Company's Board of Directors on October 11, 1996 and is secured
by 201,800 shares of the Company's stock held in the name of Robert Zivitz.
On February 5, 1997, the maturity date of the loan was extended by the
Company until December 31, 1997.
ACQUISITION OF CALIFORNIA INTERACTIVE COMPUTING. INC. (CIC):
GENERAL: On May 2, 1997, Incomnet, Inc. ("Company") acquired 88,370.5 shares
representing 100% of the outstanding common stock of California Interactive
Computing, Inc. ("CIC"), a private corporation headquartered in Valencia,
California. The Company agreed to pay a total of $1,758,302 in cash, payable
over a five year period of time. See Item 5. Other Information - Acquisition
of California Interactive Computing, Inc. - Schedule of Payments." In
addition, the Company has agreed to assume the outstanding balance of
$418,527.91 for loans to CIC made by two of CIC's shareholders. The Company
has also signed an employment agreement for a period of two years with Jerry
C. Buckley, CIC's former president and CEO, pursuant to which it will pay Mr.
Buckley $10,000 per month in consideration for Mr. Buckley's services as the
Director of Strategic Planning for CIC. The Company has also agreed to
provide 10,000 and 20,000 stock options, respectively, in CIC to two former
shareholders when a plan is established for CIC's officers, directors,
employees and key consultants.
CIC is engaged in the development and marketing of software that is used to
process insurance-related claims, including workers compensation, disability,
general medical and property &
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casualty. Its software is leased to companies who provide their own insurance
and claims administration, to insurance companies, and to third-party
administrators who process claims for either self-insured companies or
insurance companies. CIC was incorporated in 1977 in California and has
provided software for claims processing for 20 years.
SCHEDULE OF PAYMENTS: At the close of the transaction on May 2, 1997, the
Company paid a total of $249,818 to the former shareholders of CIC, $84,818
of which was paid to acquire CIC's stock and $165,000 of which was utilized
to pay down loans to two former CIC shareholders. The Company has signed
promissory notes in the aggregate principal amount of $1,927,016.91 to four
former shareholders of CIC to repay the balance of the loans owed by CIC
($253,527.91 as of May 2, 1997) and to pay the balance of the price to
purchase their CIC stock by the Company ($1,674,489 as of May 2, 1997). These
notes bear interest at the rate of 8% per annum. The stock of CIC purchased
by the Company is held in an escrow account until the promisory notes issued
by the Company to CIC former shareholders are repaid in full. The outstanding
balances owed on these notes can be repaid at any time, which would lower the
total amount of scheduled payments, including interest.
During the first year after the acquisition, the Company has agreed to pay
$27,859 to one shareholder in 12 equal monthly payments of principal and
interest. During the 13th - 24th month after the acquisition, the Company has
contracted to pay a total of $591,175 of principal and interest, of which
$369,136 is scheduled to be paid for the purchase of CIC stock from four
former shareholders and of which $222,039 is scheduled to pay down the
outstanding loans owed by CIC to two former shareholders.
During the 25th - 36th month after the acquisition, the Company has
contracted to pay a total of $559,662 of principal and interest, of which
$514,662 is scheduled to be paid for the purchase of CIC stock from four
former CIC shareholders and of which $45,000 is scheduled to pay off the
remaining balance of the loans owed by CIC to two former CIC shareholders.
During the 37th - 48th month after the acquisition, the Company is contracted
to pay a total of $574,572 of principal and interest for the purchase of CIC
stock from four former shareholders.
During the 49th - 60th month after the acquisition, the Company is contracted
to pay a total of $514,662 of principal and interest for the purchase of CIC
stock from four former shareholders.
DIRECTORS OF CIC: The former directors of CIC tendered their resignation,
effective at the acquisition. The Company has named Melvyn Reznick, its
President and CEO, Stephen A. Caswell, its Vice President and Corporate
Secretary, and Jerry C. Buckley, CIC's former President and CEO, to serve on
CIC's Board of Directors. Mr. Reznick will serve as Chairman, President, CEO
and CFO of CIC. Mr. Caswell will serve as Executive Vice President and
Secretary of CIC. Mr. Buckley will serve as a director. See the Company's
Report on Form 8-K, dated May 13, 1997.
PRODUCTS & SERVICES: CIC develops and markets a trademarked line of software
products designed to handle insurance-related claims processing.
Insurance-related products include GenCOMP-TM-, GenMED-TM-, GenDIS-TM-,
GenPAC-TM-, GenRISK-TM-, GenIRIS-TM- and Top Rate-TM-. In addition, CIC also
offers several computer and service-related products, including GenARS-TM-,
which is an optical disk-based information storage and retrieval system, and
GenSERVE-TM-, which is a maintenance and service program for customers.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
INDEX TO EXHIBITS:
Exhibits designated by the symbol * are filed with this Quarterly Report on
Form 10-Q. All exhibits not so designated are incorporated by reference to a
prior filing as indicated.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10-1 Amended Lease Agreement for National Telephone &
Communication's Corporate headquarters at 2801 Main St.,
Irvine, California
REPORTS ON FORM 8-K, FILED IN 1997
- ----------------------------------
20.1 Report on Form 8-K - Election of Dr. Howard Silverman As Director
& Amendment to Employment Contract of Melvyn Reznick, filed on
February 7, 1997.
20.2 Report on Form 8-K - Reincorporation of National Telephone &
Communications, Inc. filed on April 10, 1997.
20.3 Report on Form 8-K - Acquisition of California Interactive
Computing, Inc., filed on May 13, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
INCOMNET, INC.
Date: May 15, 1997 /s/ Melvyn Reznick
--------------------------
Melvyn Reznick
President, CEO & CFO
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[LOGO] AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE--NET
(DO NOT USE THIS FORM FOR MULTI-TENANT PROPERTY)
1. BASIC PROVISIONS ("BASIC PROVISIONS")
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes only,
April 18, 1997 is made by and between THE CARTER FAMILY INVESTMENT
PARTNERSHIP L.P., a California limited partnership ("LESSOR") and NATIONAL
TELEPHONE & COMMUNICATIONS, INC. a Delaware corporation ("LESSEE"),
(collectively the "PARTIES," or individually a "PARTY").
1.2 PREMISES: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and
commonly known by the street address of ___________________________________
located in the County of Orange, State of California and generally described
as (describe briefly the nature of the property) see Exhibit "A"
("PREMISES"). (See Paragraph 2 for further provisions.)
1.3 TERM: Five (5) years and Zero (0) months ("ORIGINAL TERM")
commencing April 18, 1997 ("COMMENCEMENT DATE") and ending April 30, 2002
("EXPIRATION DATE"). (See Paragraph 3 for further provisions.)
1.4 EARLY POSSESSION: N/A ("EARLY POSSESSION DATE") (See Paragraphs 3.2
and 3.3 for further provisions.)
1.5 BASE RENT: $ SEE EXHIBIT "B" per month ("BASE RENT"), payable on the
first (1st) day of each month commencing as of the date hereof (See Paragraph
4 for further provisions.)
/X/ If this box is checked, there are provisions in this Lease for the Base
Rent to be adjusted.
1.6 BASE RENT PAID UPON EXECUTION: $ See Exhibit "B" attached hereto as
Base Rent for the period April, 1997 (to be prorated).
1.7 SECURITY DEPOSIT: $48,000 ("SECURITY DEPOSIT"). (See Paragraph 5 for
further provisions.)
1.8 PERMITTED USE: Office, research and development and all other legal
uses. (See Paragraph 6 for further provisions.)
1.9 INSURING PARTY: Lessor is the "INSURING PARTY" unless otherwise
stated herein. (See Paragraph 8 for further provisions.)
1.10 REAL ESTATE BROKERS: The following real estate brokers
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
_________________________________________________________________ represents
/ / Lessor exclusively ("LESSOR'S BROKER"); / / both Lessor and Lessee, and
_________________________________________________________________ represents
/ / Lessee exclusively ("LESSEE'S BROKER"); / / both Lessee and Lessor. (See
Paragraph 15 for further provisions.)
1.11 GUARANTOR. The obligations of the Lessee under this Lease are to be
guaranteed by N/A ("GUARANTOR"). (See Paragraph 37 for further provisions.)
1.12 ADDENDA. Attached hereto is an Addendum or Addenda consisting of
Paragraphs 1 through 41 and Exhibits A and B all of which constitute a part
of this Lease.
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of square footage set forth in this Lease, or
that may have been used in calculating rental, is an approximation which
Lessor and Lessee agree is reasonable and the rental based thereon is not
subject to revision whether or not the actual square footage is more or less.
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that it has
been advised by the Brokers to satisfy itself with respect to the condition
of the Premises (including but not limited to the electrical and fire
sprinkler systems, security, environmental aspects, compliance with
Applicable Law as defined in Paragraph 6.3) and the present and future
suitability of the Premises for Lessee's intended use, (b) that Lessee has
made such investigation as it deems necessary with reference to such matters
and assumes all responsibility therefor as the same relate to Lessee's
occupancy of the Premises and/or the term of this Lease, and (c) that neither
Lessor, nor any of Lessor's agents, has made any oral or written
representations or warranties with respect to the said matters other than as
set forth in this Lease.
2.5 LESSEE PRIOR OWNER/OCCUPANT. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises. In
such event, Lessee shall, at Lessee's sole cost and expense, correct any
non-compliance of the Premises with said warranties.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
<PAGE>
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver
possession of the Premises to Lessee as agreed herein by the Early Possession
Date, if one is specified in Paragraph 1.4, or, if no Early Possession Date
is specified, by the Commencement Date, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease,
or the obligations of Lessee hereunder, or extend the term hereof, but in
such case, Lessee shall not, except as otherwise provided herein, be
obligated to pay rent or perform any other obligation of Lessee under the
terms of this Lease until Lessor delivers possession of the Premises to
Lessee.
4. RENT.
4.1 BASE RENT. Except as herein provided, Lessee shall cause payment of
Base Rent and other rent or charges, as the same may be adjusted from time to
time, to be received by Lessor in lawful money of the United States, without
abatement, offset or deduction, on or before the day on which it is due under
the terms of this Lease. Base Rent and all other rent and charges for any
period during the term hereof which is for less than one (1) full calendar
month shall be prorated based upon the actual number of days of the calendar
month involved. Payment of Base Rent and other charges shall be made to
Lessor at its address stated herein or to such other persons or at such other
addresses as Lessor may from time to time designate in writing to Lessee.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee
fails to pay Base Rent or other rent or charges due hereunder, or otherwise
Defaults under this Lease (as defined in Paragraph 13.1), Lessor may use,
apply or retain all or any portion of said Security Deposit for the payment
of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all
or any portion of said Security Deposit, Lessee shall within ten (10) days
after written request therefor deposit moneys with Lessor sufficient to
restore said Security Deposit to the full amount required by this Lease. Any
time the Base Rent increases during the term of this Lease, Lessee shall,
upon written request from Lessor, deposit additional moneys with Lessor
sufficient to maintain the same ratio between the Security Deposit and the
Base Rent as those amounts are specified in the Basic Provisions. Lessor
shall not be required to keep all or any part of the Security Deposit
separate from its general accounts. Lessor shall, at the expiration or
earlier termination of the term hereof and after Lessee has vacated the
Premises, return to Lessee (or, at Lessor's option, to the last assignee, if
any, of Lessee's interest herein), that portion of the Security Deposit not
used or applied by Lessor. Unless otherwise expressly agreed in writing by
Lessor, no part of the Security Deposit shall be considered to be held in
trust, to bear interest or other increment for its use, or to be prepayment
for any moneys to be paid by Lessee under this Lease.
6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the purposes
set forth in Paragraph 1.8, or any other use which is comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of the Premises
in a manner that creates waste or a nuisance, or that disturbs owners and/or
occupants of, or causes damage to, neighboring premises or properties.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCE"
as used in this Lease shall mean any product, substance, chemical, material
or waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises,
is either: (i) potentially injurious to the public health, safety or welfare,
the environment or the Premises, (ii) regulated or monitored by any
governmental authority, or (iii) a basis for liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products, by-products or
fractions thereof. Lessee shall not engage in any activity in, on or about
the Premises which constitutes a Reportable Use (as hereinafter defined) of
Hazardous Substances without the express prior written consent of Lessor, and
compliance in a timely manner (at Lessee's sole cost and expense) with all
Applicable Law (as defined in Paragraph 6.3). "REPORTABLE USE" shall mean (i)
the installation or use of any above or below ground storage tank, (ii) the
generation, possession, storage, use, transportation, or disposal of a
Hazardous Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed with,
any governmental authority. Reportable Use shall also include Lessee's being
responsible for the presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Law requires that a notice be
given to persons entering or occupying the Premises or neighboring
properties. Notwithstanding the foregoing, Lessee may, without Lessor's prior
consent, but in compliance with all Applicable Laws, use any ordinary and
customary materials reasonably required to be used by Lessee in the normal
course of Lessee's business permitted on the Premises, so long as such use is
not a Reportable Use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose Lessor
to any liability therefor. In addition, Lessor may (but without any
obligation to do so) condition its consent to the use or presence of any
Hazardous Substance, activity or storage tank by Lessee upon Lessee's giving
Lessor such additional assurances as Lessor, in its reasonable discretion,
deems necessary to protect itself, the public, the Premises and the
environment against damage, contamination or injury and/or liability
therefrom or therefor, including, but not limited to, the installation (and
removal on or before Lease expiration or earlier termination) of reasonably
necessary protective modifications to the Premises (such as concrete
encasements) and/or the deposit of an additional Security Deposit under
Paragraph 8 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance, or a condition involving or resulting
from same, has come to be located in, on, under or about the Premises, other
than as previously consented to by Lessor, Lessee shall immediately give
written notice of such fact to Lessor. Lessee shall also immediately give
Lessor a copy of any statement, report, notice, registration, application,
permit, business plan, license, claim, action or proceeding given to, or
received from, any governmental authority or private party, or persons
entering or occupying the Premises, concerning the presence, spill, release,
discharge of, or exposure to, any Hazardous Substance or contamination in,
on, or about the Premises, including but not limited to all such documents as
may be involved in any Reportable Uses involving the Premises.
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, and
the Premises, harmless from and against any and all loss of rents and/or
damages, liabilities, judgments, costs, claims, liens, expenses, penalties,
permits and attorney's and consultant's fees arising out of or involving any
Hazardous Substance or storage tank brought onto the Premises by or for
Lessee or under Lessee's control. Lessee's obligations under this Paragraph 6
shall include, but not be limited to, the effects of any contamination or
injury to person, property or the environment created or suffered by Lessee,
and the cost of investigation (including consultant's and attorney's fees and
testing), removal, remediation, restoration and/or abatement thereof, or of
any contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release Lessee from its
obligations under this Lease with respect to Hazardous Substances or storage
tanks, unless specifically so agreed by Lessor in writing at the time of such
agreement.
6.3 LESSEE'S COMPLIANCE WITH LAW. Except as otherwise provided in this
Lease, Lessee, shall, at Lessee's sole cost and expense, fully, diligently
and in a timely manner, comply with all "APPLICABLE LAW," which term is used
in this Lease to include all laws, rules, regulations, ordinances,
directives, covenants, easements and restrictions of record, permits, the
requirements of any applicable fire insurance underwriter or rating bureau,
and the recommendations of Lessor's engineers and/or consultants, relating in
any manner to the Premises (including but not limited to matters pertaining
to (i) industrial hygiene, (ii) environmental conditions on, in, under or
about the Premises, including soil and groundwater conditions, and (iii) the
use, generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance or
storage tank), now in effect or which may hereafter come into effect, and
whether or not reflecting a change in policy from any previously existing
policy. Lessee shall, within five (5) days after receipt of Lessor's written
request, provide Lessor with copies of all documents and information,
including, but not limited to, permits, registrations, manifests,
applications, reports and certificates, evidencing Lessee's compliance with
any Applicable Law specified by Lessor, and shall immediately upon receipt,
notify Lessor in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Lessee or the Premises to comply with
any Applicable Law.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's Lender(s) (as defined in
Paragraph 8.3(a)) shall have the right to enter the Premises at any time, in
the case of an emergency, and otherwise at reasonable times, for the purpose
of inspecting the condition of the Premises and for verifying compliance by
Lessee with this Lease and all Applicable Laws (as defined in Paragraph 6.3),
and to employ experts and/or consultants in connection therewith and/or to
advise Lessor with respect to Lessee's activities, including but not limited
to the installation, operation, use, monitoring, maintenance, or removal of
any Hazardous Substance or storage tank on or from the Premises. The costs
and expenses of any such inspections shall be paid by the party requesting
same, unless a Default or Breach of this Lease, violation of Applicable Law,
or a contamination, caused or materially contributed to by Lessee is found to
exist or be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent
violation or contamination. In any such case, Lessee shall upon request
reimburse Lessor or Lessor's Lender, as the case may be, for the costs and
expenses of such inspections.
7. MAINTENANCE; REPAIRS; UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2. (Lessor's warranty
as to condition), 2.3 (Lessor's warranty as to compliance with covenants,
etc.) 7.2 (Lessor's obligations to repair), 9 (damage and destruction), and
14 (condemnation), Lessee shall, at Lessee's sole cost and expense and at all
times, keep the Premises and every part thereof in good order, condition and
repair, structural and non-structural (whether or not such portion of the
Premises requiring repair, or the means of repairing the same, are reasonably
or readily accessible to Lessee, and whether or not the need for such repairs
occurs
<PAGE>
as a result of Lessee's use, any prior use, the elements or the age of such
portion of the Premises), including, without limiting the generality of the
foregoing all equipment or facilities serving the Premises, such as plumbing,
heating, air conditioning, ventilating, electrical, lighting facilities,
boilers, fired or unfired pressure vessels, fire sprinkler and/or standpipe
and hose or other automatic fire extinguishing system, including fire alarm
and/or smoke detection systems and equipment, fire hydrants, fixtures, walls
(interior and exterior), foundations, ceilings, roofs, floors, windows,
doors, plate glass, skylight, landscaping, driveways, parking lots, fences,
retaining walls, signs, sidewalks and parkways located in, on, about, or
adjacent to the Premises. Lessees shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including through the plumbing or sanitary sewer system) and shall promptly,
at Lessee's expense, take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the cleanup of
any contamination of, and for the maintenance, security and/or monitoring of
the Premises, the elements surrounding same, or neighboring properties, that
was caused or materially contributed to by Lessee, or pertaining to or
involving any Hazardous Substance and/or storage tank brought onto the
Premises by or for Lessee or under its control. Lessee, in keeping the
Premises in good order, condition and repair, shall exercise and perform good
maintenance practices. Lessee's obligations shall include restorations,
replacements or renewals when necessary to keep the Premises and all
improvements thereon or a part thereof in good order, condition and state of
repair. If Lessee occupies the Premises for seven (7) years or more, Lessor
may require Lessee to repaint the exterior of the buildings on the Premises
as reasonably required, but not more frequently than once every seven (7)
years.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain contracts, with copies to Lessor, in customary form and substance
for, and with contractors specializing and experienced in, the inspection,
maintenance and service of the following equipment and improvements, if any,
located on the Premises: (i) heating, air conditioning and ventilation
equipment, (ii) boiler, fired or unfired pressure vessels, (iii) fire
sprinkler and/or standpipe and hose or other automatic fire extinguishing
systems, including fire alarm and/or smoke detection, (iv) landscaping and
irrigation system, (v) roof covering and drain maintenance and (vi) asphalt
and parking lot maintenance.
7.2 LESSOR'S OBLIGATIONS. It is intended by the Parties hereto that Lessor
have no obligation, in any manner whatsoever, to repair and maintain the
Premises the improvements located thereon, or the equipment therein, whether
structural or non structural, all of which obligations are intended to be
that of the Lessee under Paragraph 7.1 hereof. It is the intention of the
Parties that the terms of this Lease govern the respective obligations of the
Parties as to maintenance and repair of the Premises. Lessee and Lessor
expressly waive the benefit of any statute now or hereafter in effect to the
extent it is inconsistent with the terms of this Lease with respect to, or
which affords Lessee the right to make repairs at the expense of Lessor or to
terminate this Lease by reason of any needed repairs.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "Utility Installations" is
used in this Lease to refer to all carpeting, window coverings, air lines,
power panels, electrical distribution, security, fire protection systems,
communication systems, lighting fixtures, heating, ventilating, and air
conditioning equipment, plumbing, and fencing in, on or about the Premises.
The term "Trade Fixtures" shall mean Lessee's machinery and equipment that
can be removed without doing material damage to the Premises. The term
"Alterations" shall mean any modification of the improvements on the Premises
from that which are provided by Lessor under the terms of this Lease, other
than Utility Installations or Trade Fixtures, whether by addition or
deletion. "Lessee Owned Alterations and/or Utility Installations" are defined
as Alterations and/or Utility Installations made by Lessee that are not yet
owned by Lessor as defined in Paragraph 7.4(a). Lessee shall not make any
Alterations or Utility Installations in, on, under or about the Premises
without Lessor's prior written consent. Lessee may, however, make
non-structural Utility Installations to the interior of the Premises
(excluding the roof), as long as they are not visible from the outside, do
not involve puncturing, relocating or removing the roof or any existing
walls, and the cumulative cost thereof during the term of this Lease as
extended does not exceed $25,000, provided Lessee furnishes Lessor with plans
and specifications and all other items specified in Paragraph 7.3(b).
(b) CONSENT. Any Alterations or Utility Installations that Lessee shall
desire to make and which require the consent of the Lessor shall be presented
to Lessor in written form with proposed detailed plans. All consents given by
Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific
consent, shall be deemed conditioned upon: (i) Lessee's acquiring all
applicable permits required by governmental authorities, (ii) the furnishing
of copies of such permits together with a copy of the plans and
specifications for the Alteration or Utility Installation to Lessor prior to
commencement of the work thereon, and (iii) the compliance by Lessee with all
conditions of said permits in a prompt and expeditious manner. Any
Alterations or Utility Installations by Lessee during the term of this Lease
shall be done in a good and workmanlike manner, with good and sufficient
materials, and in compliance with all Applicable Law. Lessee shall promptly
upon completion thereof furnish Lessor with as-built plans and specifications
therefor. Lessor may (but without obligation to do so) condition its consent
to any requested Alteration or Utility Installation that costs $10,000 or
more upon Lessee's providing Lessor with a lien and completion bond in an
amount equal to one and one-half times the estimated cost of such Alteration
or Utility Installation and/or upon Lessee's posting an additional Security
Deposit with Lessor under Paragraph 36 hereof.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or
for use on the Premises, which claims are or may be secured by any mechanics'
or materialman's lien against the Premises or any interest therein. Lessee
shall give Lessor not less than ten (10) days written notice prior to the
commencement of any work in, on or about the Premises, and Lessor shall have
the right to post notices of non-responsibility in or on the Premises as
provided by law. If Lessee shall, in good faith, contest the validity of any
such lien, claim or demand. Then Lessee shall, at its sole expense defend and
protect itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises. If Lessor shall
require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor
in an amount equal to one and one-half times the amount of such contested
lien, claim or demand indemnifying Lessor against liability for the same, as
required by law for the holding of the Premises free from the effect of such
lien or claim. In addition, Lessor may require Lessee to pay Lessor's
attorney's fees and costs in participating in such action if Lessor shall
decide it is to its best interest to do so.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their removal or
become the owner thereof as hereinafter provided in this Paragraph 7.4 all
Alterations and Utility Additions made to the Premises by Lessee shall be the
property of and owned by Lessee, but considered a part of the Premises. Lessor
may, at any time and at its option, elect in writing to Lessee to be the
owner of all or any specified part of the Lessee Owned Alterations and
Utility Installations. Unless otherwise instructed per subparagraph 7.4(b)
hereof, all Lessee Owned Alterations and Utility Installations shall, at the
expiration or earlier termination of this Lease, become the property of
Lessor and remain upon and be surrendered by Lessee with the Premises.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may require that
any or all Lessee Owned Alterations or Utility Installations be removed by
the expiration or earlier termination of this Lease, notwithstanding their
installation may have been consented to by Lessor. Lessor may require the
removal at any time of all or any part of any Lessee Owned Alterations or
Utility Installations made without the required consent of Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by the
end of the last day of the Lessee term or any earlier termination date, with
all of the improvements, parts and surfaces thereof clean and free of debris
and in good operating order, condition and state of repair, ordinary wear and
tear excepted. "Ordinary wear and tear" shall not include any damage or
deterioration that would have been prevented by good maintenance practice or
by Lessee performing all of its obligations under this Lease. Except as
otherwise agreed or specified in writing by Lessor, the Premises, as
surrendered, shall include the Utility Installations. The obligation of
Lessee shall include the repair of any damage occasioned by the installation,
maintenance or removal of Lessee's Trade Fixtures, furnishings, equipment,
and Alterations and/or Utility Installations, as well as the removal of any
storage tank installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by Lessee, all
as may then be required by Applicable Law and/or good practice. Lessee's
Trade Fixtures shall remain the property of Lessee and shall be removed by
Lessee subject to its obligation to repair and restore the Premises per this
Lease.
8. INSURANCE: INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Regardless of whether the Lessor or Lessee is
the insuring Party, Lessee shall pay for all insurance required under this
Paragraph 8 except to the extent of the cost attributable to liability
insurance carried by Lessor in excess of $3,000,000 per occurrence. Premiums
for policy periods commencing prior to or extending beyond the Lease term
shall be prorated to correspond to the Lease term. Payment shall be made by
Lessee to Lessor within ten (10) days following receipt of an invoice for any
amount due.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force during the
term of this Lease a Commercial General Liability policy of insurance
protecting Lessee and Lessor (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $3,000,000
per occurrence with an "Additional insured Managers or Lessors of
Premises Endorsement and contain the "Amendment of the Pollution Exclusion"
for damage caused by heat, smoke or fumes from a hostile fire. The policy
shall not contain any intra-insured exclusions as between insured persons
or organizations, but shall include coverage for liability assumed under this
Lease as an "insured contract" for the performance of Lessee's indemnity
obligations under this Lease. The limits of said insurance required by this
Lease or as carried by Lessee shall not, however, limit the liability of
Lessee nor relieve Lessee of any obligation hereunder. All insurance to be
carried by Lessee shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) CARRIED BY LESSOR. In the event Lessor is the Insuring Party, Lessor
shall also maintain liability insurance described in Paragraph 8.2(a) above.
In addition to, and not in lieu of, the insurance required to be maintained by
Lessee. Lessee shall not be named as an additional insured therein.
8.3 PROPERTY INSURANCE--BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain and keep
in force during the term of this Lease a policy or policies in the name of
Lessor with loss payable to Lessor and to the holders of any mortgages, deeds
of trust or ground leases on the Premises ("Lender(s)"), insuring loss
<PAGE>
or damage to the Premises. The amount of such insurance shall be equal to the
full replacement cost of the Premises, as the same shall exist from time to
time, or the amount required by Lenders, but in no event more than the
commercially reasonable and available insurable value thereof if, by reason
of the unique nature or age of the improvements involved, such latter amount
is less than full replacement cost. If Lessor is the Insuring Party, however,
Lessee Owned Alterations and Utility Installations shall be insured by
Lessee under Paragraph 8.4 rather than by Lessor. If the coverage is available
and commercially appropriate, such policy or policies shall insure against
all risks of direct physical loss or damage (except the perils of flood
and/or earthquake unless required by a Lender), including coverage for any
additional costs resulting from debris removal and reasonable amounts of
coverage for the enforcement of any ordinance or law regulating the
reconstruction or replacement of any undamaged sections of the Premises
required to be demolished or removed by reason of the enforcement of any
building, zoning, safety or land use laws as the result of a covered cause
of loss. Said policy or policies shall also contain an agreed valuation
provision in lieu of any coinsurance clause, waiver of subrogation, and
inflation guard protection causing an increase in the annual property
insurance coverage amount by a factor of not less than the adjusted U.S.
Department of Labor Consumer Price Index for All Urban Consumers for the city
nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $1,000 per
occurrence, and Lessee shall be liable for such deductible amount in the
event of an Insured Loss, as defined in Paragraph 9.1(c).
(b) RENTAL VALUE. The Insuring Party shall, in addition, obtain and
keep in force during the term of this Lease a policy or policies in the name
of Lessor with loss payable to Lessor and Lenders(s), insuring the loss of
the full rental and other charges payable by Lessee to Lessor under this
Lease for one (1) year (including all real estate taxes, insurance costs, and
any scheduled rental increases). Said insurance shall provide that in the
event the Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of the
completion of repairs or replacement of the Premises, to provide for one full
year's loss of rental revenues from the date of any such loss. Said insurance
shall contain an agreed valuation provision in lieu of any coinsurance
clause, and the amount of coverage shall be adjusted annually to reflect the
projected rental income property taxes, insurance premium costs and other
expenses, if any, otherwise payable by Lessee, for the next twelve (12) month
period Lessee shall be liable for any deductible amount in the event of such
loss.
(c) ADJACENT PREMISES. If the Premises are part of a larger
building, or if the Premises are part of a group of buildings owned by Lessor
which are adjacent to the Premises, the Lessee shall pay for any increase in
the premiums for the property insurance of such building or buildings if said
increase is caused by Lessee's acts, omissions, use or occupancy of the
Premises.
(d) TENANT'S IMPROVEMENTS. If the Lessor is the Insuring Party, the
Lessor shall not be required to insure Lessee Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease. If Lessee is the Insuring Party, the policy
carried by Lessee under this Paragraph 8.3 shall insure Lessee Owned
Alterations and Utility Installations.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5 Lessee at its cost shall either by separate policy or, at
Lessor's option, by endorsement to a policy already carried, maintain
insurance coverage on all of the Lessee's personal property. Lessee Owned
Alterations and Utility Installations in, on, or about the Premises similar in
coverage to that carried by the Insuring Party under Paragraph 8.3. Such
insurance shall be full replacement cost coverage with a deductible of not to
exceed $1,000 per occurrence. The proceeds from any such insurance shall be
used by Lessee for the replacement of personal property or the restoration of
Lessee Owned Alterations and Utility Installations. Lessee shall be the
Insuring Party with respect to the insurance required by this Paragraph 8.4
and shall provide Lessor with written evidence that such insurance is in
force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, or such other rating as may be required by a
Lender having a lien on the Premises, as set forth in the most current issue
of "Best's Insurance Guide." Lessee shall not do or permit to be done
anything which shall invalidate the insurance policies referred to in this
Paragraph 8. If Lessee is the Insuring Party, Lessee shall cause to be
delivered to Lessor certified copies of policies of such insurance of
certificates evidencing the existence and amounts of such insurance
with the insureds and loss payable clauses as required by this Lease. No such
policy shall be cancellable or subject to modification except after thirty
(30) days prior written notice to Lessor Lessee shall at least thirty (30) days
prior to the expiration of such policies, furnish Lessor with evidence of
renewals or "insurance binders" evidencing renewal thereof, or Lessor may
order such insurance and charge the cost thereof to Lessee, which amount
shall be payable by Lessee to Lessor upon demand. If the Insuring Party shall
fail to procure and maintain the insurance required to be carried by the
Insuring Party under this Paragraph 8, the other Party may but shall not be
required to, procure and maintain the same, but at Lessee's expense.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor ("Waiving Party") each hereby release and relieve
the other and waive their entire right to recover damages (whether in
contract or in tort) against the other, for loss of or damage to the Waiving
Party's property arising out of or incident to the perils required to be
insured against under Paragraph 8. The effect of such releases and waivers of
the right to recover damages shall not be limited by the amount of insurance
carried or required, or by any deductibles applicable thereto.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of express
warranties. Lessee shall indemnity, protect, defend and hold harmless the
Premises. Lessor and its agents. Lessor's master or ground lessor, partners
and Lenders, from and against any and all claims, loss of rents and/or
damages, costs, liens judgments, penalties, permits, attorney's and
consultant's fees, expenses and/or liabilities arising out of, involving, or
in dealing with the occupancy of the Premises by Lessee, the conduct of
Lessee's business, any act, omission or neglect of Lessee, its agents,
contractors, employees or invitees, and out of any Default or Breach by
Lessee in the performance in a timely manner of any obligation on Lessee's
part to be performed under this Lease. The foregoing shall include, but not
be limited to the defense or pursuit of any claim or any action or proceeding
involved therein, and whether or not (in the case of claims made against
Lessor) litigated and/or reduced to judgment, and whether well founded or
not. In case any action or proceeding be brought against Lessor by reason of
any of the foregoing matters. Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and
Lessor shall cooperate with Lessee in such defense. Lessor need not have
first paid any such claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property
of Lessee. Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is cause by or
results from fire, steam electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether the said injury or damage results from conditions
arising upon the Premises or upon other portions of the building of which the
Premises are a part, or from other sources or places, and regardless of
whether the cause of such damage or injury or the means of repairing the
same is accessible or not. Lessor shall not be liable for any damages arising
from any act or neglect of any other tenant of Lessor. Notwithstanding
Lessor's negligence or breach of this Lease. Lessor shall under no
circumstances be liable for injury to Lessee's business or for any loss of
income or profit therefrom.
9. DAMAGE OR DESTRUCTION
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, the repair cost of which damage or destruction is less
than 50% of the then Replacement Cost of the Premises immediately prior to
such damage or destruction, excluding from such calculation the value of the
land and Lessee Owned Alterations and Utility Installations.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to
the Premises, other than Lessee Owned Alterations and Utility installations
the repair cost of which damage or destruction is 50% or more of the then
Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the land and Lessee
Owned Alterations and Utility Installations.
(c) "INSURED LOSS" shall mean damage or destruction to improvements
on the Premises, other than Lessee Owned Alterations and Utility
Installations, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a), irrespective of any deductible
amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances
or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by a
Hazardous Substance as defined in Paragraph 6.2(a), in , on, or under the
Premises.
9.2 PARTIAL DAMAGE--INSURED LOSS. If a Premises Partial Damage occurs,
then Lessee shall, at Lessee's expense, repair such damage (but not Lessee's
Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon
as reasonably possible and this Lease shall continue in full force and
effect; provided, however, that Lessee shall, at Lessor's election, make the
repair of any damage or destruction the total cost to repair of which
is $10,000 or less, and, in such event, Lessor shall make the insurance
proceeds available to Lessee on a reasonable basis for that purpose
Notwithstanding the foregoing, if the required insurance was not in force or
the insurance proceeds are not sufficient to effect such repair, the insuring
Party shall promptly contribute the shortage in proceeds (except as to the
deductible which is Lessee's responsibility) as and when required to complete
said repairs. In the event, however, the shortage in proceeds was due to the
fact that, by reason of the unique nature of the improvements, full replacement
cost insurance coverage was not commercially reasonable and available. Lessor
shall have no obligation to pay for the shortage in insurance proceeds or to
fully restore the unique aspects of the Premises unless Lessee provides Lessor
with the funds to cover same, or adequate assurance thereof within ten (10)
days following receipt of written notice of such shortage and request therefor.
If Lessor receives said funds or adequate assurance thereof within said ten
(10) day period, the party responsible for making the repairs shall complete
them as soon as reasonably possible and this Lease shall remain in full force
and effect. If Lessor does not receive such funds or assurance within said
period, Lessor may nevertheless elect by written notice to Lessee within ten
(10) days thereafter to make such restoration and repair as is commercially
reasonable with Lessor paying any shortage in proceeds, in which case this
Lease shall remain in full force and effect. If in such case Lessor does not
so elect, then this Lease shall terminate sixty (60) days following the
occurrence of the damage or destruction. Unless otherwise agreed, Lessee shall
in no event have any right to reimbursement from Lessor for any funds
contributed by Lessee to repair any such damage or destruction. Premises
Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3
rather than Paragraph 9.2 notwithstanding that there may be some insurance
coverage, but the net proceeds of any such insurance shall be made available
for the repairs made by either Party.
<PAGE>
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the
damage or destruction is an insured Loss or was caused by a negligent or
willful act of Lessee. In the event, however, that the damage or destruction
was caused by Lessee, Lessor shall have the right to recover Lessor's damages
from Lessee except as released and waived in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6) months
of the term of this Lease there is damage for which the cost to repair
exceeds one (1) month's Base Rent, whether or not an insured Loss, Lessor
may, at Lessor's option, terminate this Lease effective (60) days following
the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within thirty (30) days after the date of
occurrence of such damage. Provided, however, if Lessee at that time has an
exercisable option to extend this Lease or to purchase the Premises, then
Lessee may preserve this Lease by, within twenty (20) days following the
occurrence of the damage, or before the expiration of the time provided in
such option for its exercise, whichever is earlier ("Exercise Period"), (i)
exercising such option and (ii) providing Lessor with any shortage in
insurance proceeds (or adequate assurance thereof) needed to make the
repairs. If Lessee duly exercises such option during said Exercise Period and
provides Lessor with funds (or adequate assurance thereof) to cover any
shortage in insurance proceeds, Lessor shall, at Lessor's expense repair such
damage as soon as reasonably possible and this Lease shall continue in full
force and effect. If Lessee fails to exercise such option and provide such
funds or assurance during said Exercise Period, then Lessor may at Lessor's
option terminate this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within ten (10) days after the expiration of the
Exercise Period, notwithstanding any term or provision in the grant of option
to the contrary.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) in the event of damage described in Paragraph 9.2 (Partial
Damage-Insured), whether or not Lessor or Lessee repairs or restores the
Premises, the Base Rent, Real Property Taxes, insurance premiums, and other
charges, if any, payable by Lessee hereunder for the period during which such
damage, its repair or the restoration continues (not to exceed the period for
which rental value insurance is required under Paragraph 8.3(b)), shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of Base Rent, Real Property Taxes, insurance
premiums, and other charges, if any, as aforesaid, all other obligations of
Lessee hereunder shall be performed by Lessee, and Lessee shall have no claim
against Lessor for any damage suffered by reason for any such repair or
restoration.
(b) if Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Lessee may, at
any time prior to the commencement of such repair or restoration, give written
notice to Lessor and to any Lenders of which Lessee has actual notice of
Lessee's election to terminate this Lease on a date not less than sixty (60)
days following the giving of such notice. If lessee gives such notice to
Lessor and such Lenders and such repair or restoration is not commenced
within thirty (30) days after receipt of such notice, this Lease shall
terminate as of the date specified in said notice. If Lessor or a Lender
commences the repair or restoration of the Premises within thirty (30) days
after receipt of such notice, this Lease shall continue in full force and
effect. "Commence" as used in this Paragraph shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable Law
and this Lease shall continue in full force and effect, but subject to
Lessor's rights under Paragraph 13), Lessor may at Lessor's option either (i)
investigate and remediate such Hazardous Substance Condition, if required, as
soon as reasonably possible at Lessor's expense, in which event this Lease
shall continue in full force and effect, or (ii) if the estimated cost to
investigate and remediate such condition exceeds twelve (12) times the then
monthly Base Rent or $100,000, whichever is greater, give written notice to
Lessee within thirty (30) days after receipt by Lessor of knowledge of the
occurrence of such Hazardous Substance Condition of Lessor's desire to
terminate this Lease. Lessee shall have the right within ten (10) days after
the receipt of such notice to give written notice to Lessor of Lessee's
commitment to pay for the investigation and remediation of such Hazardous
Substance Condition totally at Lessee's expense and without reimbursement from
Lessor except to the extent of any amount equal to twelve (12) times the then
monthly Base Rent or $100,000, whichever is greater. Lessee shall provide
Lessor with the funds required of Lessee or satisfactory assurance thereof
within thirty (30) days following Lessee's said commitment. In such event
this Lease shall continue in full force and effect and Lessor shall proceed to
make such investigation and remediation as soon as reasonably possible and
the required funds are available. If Lessee does not give such notice and
provide the required funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice
of termination. If a Hazardous Substance Condition occurs for which Lessee is
not legally responsible, there shall be abatement of Lessee's obligations
under this Lease to the same extent as provided in Paragraph 9.6(a) for a
period of not to exceed twelve months.
9.8 TERMINATION--ADVANCE PAYMENTS. Upon termination of this Lease pursuant
to this Paragraph 9, an equitable adjustment shall be made concerning advance
Base Rent and any other advance payments made by Lessee to Lessor. Lessor
shall, in addition, return to Lessee so much of Lessee's Security Deposit as
has not been, or is not then required to be, used by Lessor under the terms
of this Lease.
9.9 WAIVE STATUTE. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 (A) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Premises during the term of this
Lease. Subject to Paragraph 10.1(b), as such payments shall be made at least
ten (10) days prior to the delinquency date of the applicable installment.
Lessee shall promptly furnish Lessor with satisfactory evidence that such
taxes have been paid. If any such taxes to be paid by Lessee shall cover any
period of time prior to or after the expiration or earlier termination of the
term hereof, Lessee's share of such taxes shall be equitably prorated to cover
only the period of time within the tax fiscal year this Lease is in effect,
and Lessor shall reimburse Lessee for any overpayment after such proration. If
Lessee shall fail to pay any Real Property Taxes required by this Lease to be
paid by Lessee, Lessor shall have the right to pay the same, and Lessee shall
reimburse Lessor therefor upon demand.
(b) Advance Payment. In order to insure payment when due and before
delinquency of any or all Real Property Taxes, Lessor reserves the right, at
Lessor's option, to estimate the current Real Property Taxes applicable to the
Premises, and to require such current year's Real Property Taxes to be paid in
advance to Lessor by Lessee, either: (i) in a lump sum amount equal to the
installment due, at least twenty (20) days prior to the applicable
delinquency date, or (ii) monthly in advance with the payment of the Base
Rent. If Lessor elects to require payment monthly in advance, the monthly
payment shall be that equal monthly amount which, over the number of months
remaining before the month in which the applicable tax installment would
become delinquent (and without interest thereon), would provide a fund large
enough to fully discharge before delinquency the estimated installment of
taxes to be paid. When the actual amount of the applicable tax bill is known,
the amount of such equal monthly advance payment shall be adjusted as
required to provide the fund needed to pay the applicable taxes before
delinquency. If the amounts paid to Lessor by Lessee under the provisions of
this Paragraph are insufficient to discharge the obligations of Lessee to pay
such Real Property Taxes as the same become due, Lessee shall pay to
Lessor, upon Lessor's demand, such additional sums as are necessary to pay
such obligations. All moneys paid to Lessor under this Paragraph may be
intermingled with other moneys of Lessor and shall not bear interest. In the
event of a Breach by Lessee in the performance of the obligations of Lessee
under this Lease, then any balance of funds paid to Lessor under the
provisions of this Paragraph may, subject to proration as provided in
Paragraph 10.1(a), at the option of Lessor, be treated as an additional
Security Deposit under Paragraph 5.
10.2 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Premises by any authority
having the direct or indirect power to tax, including any city, state or
federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, levied against any legal or
equitable interest of Lessor in the Premises or in the real property of which
the Premises are a part, Lessor's right to rent or other income therefrom,
and/or Lessor's business of leasing the Premises. The term "REAL PROPERTY
TAXES" shall also include any tax, fee, levy, assessment or charge, or any
increase therein, imposed by reason of events occurring, or changes in
applicable law taking effect, during the term of this Lease, including but
not limited to a change in the ownership of the Premises or in the
improvements thereon, the execution of this Lease, or any modification,
amendment or transfer thereof, and whether or not contemplated by the Parties.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property
Taxes for all of the land and improvements included within the tax parcel
assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information
as may be reasonably available. Lessor's reasonable determination thereof, in
good faith, shall be conclusive.
<PAGE>
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal
property of Lessee contained in the Premises or elsewhere. When possible,
Lessee shall cause its Trade Fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property
of Lessor. If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting
forth the taxes applicable to Lessee's property or, at Lessor's option, as
provided in Paragraph 10.1(b).
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to be
determined by Lessor, of all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
"ASSIGNMENT") or sublet all or any part of Lessee's interest in this Lease or
in the Premises without Lessor's prior written consent given under and
subject to the terms of Paragraph 36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of
twenty-five percent (25%) or more of the voting control of Lessee shall
constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a
formal assignment or hypothecation of this Lease or Lessee's assets occurs,
which results or will result in a reduction of the Net Worth of Lessee, as
hereinafter defined, by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Lessee as it was represented to Lessor at the time
of the execution by Lessor of this Lease or at the time of the most recent
assignment to which Lessor has consented, or as it exists immediately prior
to said transaction or transactions constituting such reduction, at whichever
time said Net Worth of Lessee was or is greater, shall be considered an
assignment of this Lease by Lessee to which Lessor may reasonably withhold
its consent. "NET WORTH OF LESSEE" for the purposes of this Lease shall be
the net worth of Lessee (excluding any guarantors) established under
generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be
a Default curable after notice per paragraph 13.1(c), or a noncurable Breach
without the necessity of any notice and grace period. If Lessor elects to
treat such unconsented to assignment or subletting as a noncurable Breach,
Lessor shall have the right to either: (i) terminate this Lease, or (ii) upon
thirty (30) days written notice ("LESSOR'S NOTICE"), increase the monthly
Base Rent to fair market rental value or one hundred ten percent (110%) of
the Base Rent then in effect, whichever is greater. Pending determination of
the new fair market rental value, if disputed by Lessee, Lessee shall pay the
amount set forth in Lessor's Notice, with any overpayment credited against
the next installment(s) of Base Rent coming due, and any underpayment for the
period retroactively to the effective date of the adjustment being due and
payable immediately upon the determination thereof. Further, in the event of
such Breach and market value adjustment, (i) the purchase price of any option
to purchase the Premises held by Lessee shall be subject to similar
adjustment to the then fair market value (without the Lease being considered
an encumbrance or any deduction for depreciation or obsolescence, and
considering the Premises at its highest and best use and in good condition),
or one hundred ten percent (110%) of the price previously in effect,
whichever is greater, (ii) any index-oriented rental or price adjustment
formulas contained in this Lease shall be adjusted to require that the base
index be determined with reference to the index applicable to the time of
such adjustment, and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased in the same ratio as the new
market rental bears to the Base Rent in effect immediately prior to the
market value adjustment.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not: (i) be effective without the express written assumption by such
assignee or sublease of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, or (iii) after the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval of an
assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent or performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or
Breach by Lessee of any of the terms, covenants or conditions of the Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or
to any subsequent or successive assignment or subletting by the sublessee.
However, Lessor may consent to subsequent sublettings and assignments of the
sublease or any amendments or modifications thereto without notifying Lessee
or anyone else liable on the Lease or sublease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease or sublease.
(d) In the event of any Default or Breach of Lessee's obligations
under this Lease, Lessor may proceed directly against Lessee, any Guarantors
or any one else responsible for the performance of the Lessee's obligations
under this Lease, including the sublessee, without first exhausting Lessor's
remedies against any other person or entity responsible therefor to Lessor,
or any security held by Lessor or Lessee.
(e) Each request for consent to an assignment or subletting shall be
in writing, accompanied by information relevant to Lessor's determination as
to the financial and operational responsibility and appropriateness of the
proposed assignee or sublessee, including but not limited to the intended use
and/or required modification of the Premises, if any, together with a
non-refundable deposit of $1,000 or ten percent (10%) of the current monthly
Base Rent, whichever is greater, as reasonable consideration for Lessor's
considering and processing the request for consent Lessee agrees to provide
Lessor with such other or additional information and/or documentation as may
be reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for
the benefit of the Lessor, to have assumed and agreed to conform and comply
with each and every term, covenant, condition and obligation herein to be
observed or performed by Lessee during the term of said assignment or
sublease, other than such obligations as are contrary to or inconsistent with
provisions of an assignment or sublease to which Lessor has specifically
consented in writing.
(g) The occurrence of a transaction described in Paragraph 12.1(c)
shall give Lessor the right (but not the obligation) to require that the
Security Deposit be increased to an amount equal to six (6) times the then
monthly Base Rent, and Lessor may make the actual receipt by Lessor of the
amount required to establish such Security Deposit a condition to Lessor's
consent to such transaction.
(h) Lessor, as a condition to giving its consent to any assignment or
subletting, may require that the amount and adjustment structure of the rent
payable under this Lease be adjusted to what is then the market value and/or
adjustment structure for property similar to the Premises as then constituted
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a
portion of the Premises heretofore or hereafter made by Lessee, and Lessor may
collect such rent and income and apply same toward Lessee's obligations under
this Lease: provided, however, that until a Breach (as defined in Paragraph
13.1) shall occur in the performance of Lessee's obligations under this
Lease. Lessee may, except as otherwise provided in this Lease, receive,
collect and enjoy the rents accruing under such sublease. Lessor shall not,
by reason of this or any other assignment of such sublease to Lessor, nor by
reason of the collection of the rents from a sublessee, be deemed liable to
the sublessee for any failure of Lessee to perform and comply with any of the
Lessee's obligations to such sublessee under such sublease. Lessee hereby
irrevocably authorizes and directs any such sublessee, upon receipt of a
written notice from Lessor stating that a Breach exists in the performance of
the Lessee's obligations under this Lease, to pay to Lessor the rents and
other charges due and to become due under the sublease. Sublessee shall rely
upon any such statement and request from Lessor and shall pay such rents and
other charges to Lessor without any obligation or right to inquire as to
whether such Breach exists and notwithstanding any notice from or claim from
Lessee to the contrary. Lessee shall have no right or claim against said
sublessee, or, until the Breach has been cured, against Lessor, for any such
rents and other charges so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in
which event Lessor shall undertake the obligations of the sublessor under
such sublease from the time of the exercise of said option to the expiration
of such sublease; provided, however, Lessor shall not be liable for any
prepaid rents or security deposit paid by such sublessee to such sublessor or
for any other prior Defaults or Breaches of such sublessor under such
sublease.
(c) Any matter or thing requiring the consent of the sublessor under
a sublease shall also require the consent of Lessor herein.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the Default of
Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against
Lessee for any such Default cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and Service of a notice of
Default and that Lessor may include the cost of such Services and cost in
said notice as rent due and payable to cure said Default. A "Default" is
defined as a failure by the Lessee to observe, comply with or perform any of
the items, covenants, conditions or rules applicable to Lessee under this
Lease. A "Breach" is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is
specified herein, the failure by Lessee to cure such Default prior to the
expiration of the applicable grace period, and shall entitle Lessor to pursue
the remedies set forth in Paragraph 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
<PAGE>
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent or any other monetary
payment required to be made by Lessee hereunder, whether to Lessor or to a
third party, as and when due, the failure by Lessee to provide Lessor with
reasonable evidence of insurance or surety bond required under this Lease, or
the failure of Lessee to fulfill any obligation under this Lease which
endangers and threatens life or property, where such failure continues for a
period of three (3) days following written notice thereof by or on behalf of
Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of (i) compliance with applicable law
per Paragraph 6.3, (ii) the inspection, maintenance and service contract
required under Paragraph 7.1(b), (iii) the recission of an unauthorized
assignment or subletting per Paragraph 12.1(b), (iv) a Tenancy Statement of
Paragraphs 16 or 37, (v) the subordination or non-subordination of this Lease
per Paragraph 30, (vi) the guaranty of the performance of Lessee's obligations
under this Lease if required under Paragraphs 1.11 and 37, (vii) the execution
of any document requested under Paragraph 42 leasements or (viii) any other
documentation or information which Lessor may reasonably require of Lessee
under the terms of this Lease, where any such failure continues for a period
of ten (10) days following written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof
that are to be observed, complied with or performed by Lessee, other than
those described in subparagraphs (a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or
on behalf of Lessor to Lessee; provided, however, that if the nature of
Lessee Default is such that more than thirty (30) days are reasonably
required for its cure, then it shall not be deemed to be a Breach of this
Lease by Lessor if Lessee commences such cure within said thirty (30) days
are reasonably required for its cure, then it shall not be deemed to be a
Breach of this Lease by Lessor if Lessee commences such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i) The making by
Lessee of any general arrangement or assignment for the benefit of creditors
(ii) Lessee's becoming a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease, where
possession is not restored to Leases within thirty (30) days; or (iv) the
attachment, execution of other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in this
Lease, where such seizure is not discharged within thirty (30) days;
provided, however. In the event that any provision of this subparagraph (e)
is contrary to any applicable law. Such provision shall be of no force or
effect, and not affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee or any Guarantor of Lessee's obligations hereunder is
materially false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a guarantor, (ii) the termination of a
guarantor's liability with respect to this Lease other than in accordance
with the terms of such guaranty, (iii) a guarantor's becoming insolvent or
the subject of a bankruptcy filing, (iv) a guarantor's refusal to honor the
guaranty, or (v) a guarantor's breach of the guaranty obligation on an
anticipatory breach basis and Lessee's failure, within sixty (60) days
following written notice by or on behalf of Lessor to Lessee of any such
event, to provide Lessor with written alternative assurance or security,
which, when coupled with the then existing resources of Lessee, equals or
exceeds the combined financial resources of Lessee and the guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency, without notice), Lessor may at
its option (but without obligation to do so), perform such duty or obligation
on Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee to Lessor upon invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made under this
Lease by Lessee to be made only by cashier's check. In the event of a Breach
of this Lease by Lessee, as defined in Paragraph 13.1, with or without
further notice or demand, and without limiting Lessor in the exercise of any
right or remedy which Lessor may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Premises to Lessor.
In such event Lessor shall be entitled to recover from Lessee: (i) the worth
at the time of the award of the unpaid rent which had been earned at the time
of termination; (ii) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the Lessee proves could
have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor
for all the detriment proximately caused by the Lessee's failure to perform
its obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including but not limited to the cost of
recovering possession of the Premises, expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys'
fees, and that portion of the leasing commission paid by Lessor applicable to
the unexpired term of this Lease. The worth at the time of award of the
amount referred to in provision (iii) of the prior sentence shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent. Efforts
by Lessor to mitigate damages caused by Lessee's Default or Breach of this
Lease shall not waive Lessor's right to recover damages under this Paragraph.
If termination of this Lease is obtained through the provisional remedy of
unlawful detainer, Lessor shall have the right to recover in such proceeding
the unpaid rent and damages as are recoverable therein, or Lessor may reserve
therein the right to recover all or any part thereof in a separate suit for
such rent and/or damages. If a notice and grace period required under
subparagraphs 13.1(b), (c) or (d) was not previously given, a notice to pay
rent or quit, or to perform or quit, as the case may be, given to Lessee
under any statute authorizing the forfeiture of leases for unlawful detainer
shall also constitute the applicable notice for grace period purposes
required by subparagraphs 13.1(b), (c) or (d). In such case, the applicable
grace period under subparagraphs 13.1(b), (c) or (d) and under the unlawful
detainer statute shall run concurrently after the one such statutory notice,
and the failure of Lessee to cure the Default within the greater of the two
such grace periods shall constitute both an unlawful detainer and a Breach of
this Lease entitling Lessor to the remedies provided for in this Lease and/or
by said statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's
Breach and abandonment and recover the rent as it becomes due, provided
Lessee has the right to sublet or assign, subject only to reasonable
limitations. See Paragraphs 12 and 36 for the limitations on assignment and
subletting which limitations Lessee and Lessor agree are reasonable. Acts of
maintenance or preservation, efforts to relet the Premises, or the
appointment of a receiver to protect the Lessor's interest under the Lease,
shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters
occurring or accruing during the term hereof or by reason of Lessee's
occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Lessor for
free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of
which concessions are hereinafter referred to as "Inducement Provisions,"
shall be deemed conditioned upon Lessee's full and faithful performance at
all of the terms, covenants and conditions of this Lease to be performed or
observed by Lessee during the term hereof as the same may be extended. Upon
the occurrence of a Breach of this Lease by Lessee, as defined in Paragraph
13.1, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other
charge, bonus, inducement or consideration theretofore abated, given or paid
by Lessor under such an Inducement Provision shall be immediately due and
payable by Lessee to Lessor, and recoverable by Lessor as additional rent due
under this Lease, notwithstanding any subsequent cure of said Breach by
Lessee. The acceptance by Lessor of rent or the cure of the Breach which
initiated the operation of this Paragraph shall not be deemed a waiver by
Lessor of the provisions of this Paragraph unless specifically so stated in
writing by Lessor at the time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs, include, but are not limited
to, processing and accounting charges, and late charges which may be imposed
upon Lessor by the terms of any ground lease, mortgage or trust deed covering
the Premises. Accordingly, if any installment of rent or any other sum due
from Lessee shall not be received by Lessor or Lessor's designee within five
(5) days after such amount shall be due, then, without any requirement for
notice to Lessee, Lessee shall pay to Lessor a late charge equal to six
percent (6%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by Lessee. Acceptance of such late charge by
Lessor shall in no event constitute a waiver of Lessee's Default or Breach
with respect to such overdue amount, nor prevent Lessor from exercising any
of the other rights and remedies granted hereunder. In the event that a late
charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of Base Rent, then notwithstanding Paragraph 4.1 or
any other provision of this Lease to the contrary. Base Rent shall, at
Lessor's option, become due and payable quarterly in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt
by Lessor, and by the holders of any ground lease, mortgage or deed of trust
covering the Premises whose name and address shall have been furnished
Lessee in writing for such purpose, of written notice specifying wherein
such obligation of Lessor has not been performed: provided, however, that if
the nature of Lessor's obligation is such that more than thirty (30) days
after such notice are reasonably required for its performance, then Lessor
shall not be in breach of this Lease if performance is commenced within such
thirty (30) day period and thereafter diligently pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises, or more than twenty-five percent
(25%) of the land area not occupied by any building, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing
within ten (10) days after Lessor shall have given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall
<PAGE>
have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and
effect as to the portion of the Premises remaining, except that the Base Rent
shall be reduced in the same proportion as the rentable floor area of the
Premises taken bears to the total rentable floor area of the building located
on the Premises. No reduction of Base Rent shall occur if the only portion of
the Premises taken is land on which there is no building. Any award for the
taking of all or any part of the Premises under the power of eminent domain
or any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
compensation, separately awarded to Lessee for Lessee's relocation expenses
and/or damages received, over and above the legal and other expenses incurred
by Lessor in the condemnation, Lessor shall to the extent of its net
severance damages received, over and above the legal and other expenses
incurred by Lessor in the condemnation matter, repair any damage to the
Premises caused by such condemnation, except to the extent that Lessee has
been reimbursed therefor by the condemning authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
16. TENANCY STATEMENT.
16.1 Each Party (as "Responding Party") shall within ten (10) days after
written notice from the other Party (the "Requesting Party") execute,
acknowledge and deliver to the Requesting Party a statement in writing in
form similar to the then most current "Tenancy Statement" form published by
the American Industrial Real Estate Association, plus such additional
information, confirmation and/or statements as may be reasonably requested by
the Requesting Party.
16.2 If Lessor desires to finance, refinance, or sell the Premises, any
part thereof, or the building of which the Premises are a part, Lessee and as
Guarantors of Lessee's performance hereunder shall deliver to any potential
lender or purchaser designated by Lessor such financial statements of Leases
and such Guarantors as may be reasonably required by such lender or
purchaser, including but not limited to Lessee's financial statements for the
past three (3) years. All such financial statements shall be received by
Lessor and such lender or purchaser in confidence and shall be used only for
the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean the owner
or owners at the time in question of the fee title to the Premises, or, if
this is a sublease, of the lessee's interest in the prior lease. In the event
of a transfer of Lessor's state or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 16, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior
Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to
be performed by the Lessor shall be binding only upon the Lessor as
hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within thirty (30)
days following the date on which it was due, shall bear interest from the
thirty-first (31st) day after it was due at the rate of 12% per annum, but
not exceeding the maximum rate allowed by laws, in addition to the late
charge provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this
Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS, BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein,
and no other prior or contemporaneous agreement or understanding shall be
effective. Lessor and Lessee each represents and warrants to the Broker's
that it has made, and is relying solely upon, its own investigation as to the
nature, quality, character and financial responsibility of the other Party to
this Lease and as to the nature, quality and character of the Premises.
Brokers have no responsibility with respect thereto or with respect to any
default or breach hereof by either Party.
23. NOTICES.
23.1 All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or by messenger or courier service)
or may be sent by regular, certified or registered mail or U.S. Postal
Service Express Mall, with postage prepaid, or by facsimile transmission, and
shall be deemed sufficiently given if served in a manner specified in this
Paragraph 23. The addresses noted adjacent to a Party's signature on this
Lease shall be that Party's address for delivery or mailing of notice
purposes. Either Party may by written notice to the other specify a different
address for notice purposes, except that upon Lessee's taking possession of
the Premises, the Premises shall constitute Lessee's address for the purpose
of mailing or delivering notices to Lessee. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by written notice to Lessee.
23.2 Any notice sent by registered or certified mail, return receipt
requested shall be deemed given on the date of delivery shown on the receipt
card, or if no delivery date is shown, the postmark thereon. If sent by
regular mail the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given twenty-four (24) hours
after delivery of the same to the United States Postal Service or courier. If
any notice is transmitted by facsimile transmission or similar means, the
same shall be deemed served or delivered upon telephone confirmation of
receipt of the transmission thereof, provided a copy is also delivered via
delivery or mail. If notice is received on a Sunday or legal holiday, it
shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or of any other term, covenant or condition hereof.
Lessor's consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any
subsequent or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such
consent. Regardless of Lessor's knowledge of a Default or Breach at the time
of accepting rent, the acceptance of rent by Lessor shall not be a waiver of
any preceding Default or Breach by Lessee of any provision hereof, other than
the failure of Lessee to pay the particular rent so accepted. Any payment
given Lessor by Lessee may be accepted by Lessor on account of moneys or
damages due Lessor, notwithstanding any qualifying statements or conditions
made by Lessee in connection therewith, which such statements and/or
conditions shall be of no force or effect whatsoever unless specifically
agreed to in writing by Lessor at or before the time of deposit of such
payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
PAGE 5
<PAGE>
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "Security Device"), now
or hereafter placed by Lessor upon the real property of which the Premises
are part to any and all advances made on the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions there
Lessee agrees that the Lenders holding any such Security Device shall have no
duty, liability or obligation to perform any of the obligations of Lessee
under this Lease, but that in the event of Lessor's default with respect to
any such obligation, Lessee will give any Lender whose name and address has
been furnished Lessee in writing for such purpose notice of Lessor's default
and allow such Lender thirty (30) days following receipt of such notice of
the cure of said default before invoking any remedies Lessee may have by
reason thereof. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall
give written notice thereof to Lessee, this Lease and such Options shall be
deemed prior to such Security Device, notwithstanding the relative dates of
the documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device,
and that in the event of such foreclosure, such new owner shall not: (i) be
liable for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership, (ii) be subject to any offsets
or defense which Lessee might have against any prior lessor, or (iii) be
bound by prepayment of more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving assurance (a "non-disturbance agreement")
from the Lender that Lessee's possession and this Lease, including any option
to extend the term hereof, will not be disturbed so long as Lessee is not in
Breach hereof and attorn to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided
however, that, upon written request from Lessor or a Lender in connection
with a sale, financing or refinancing of the Premises, Lessee and Lessor
shall execute such further writings as may be reasonably required to
separately document any such subordination or non-subordination, attornment
and/or non-disturbance agreement as is provided for herein.
31. ATTORNEY'S FEES. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party
(as hereafter defined) or Broker in any such proceeding, action, or appeal
thereon, shall be entitled to reasonable attorney's fees. Such fees may be
awarded in the same suit or recovered in a separate suit, whether or not such
action or proceeding is pursued to decision or judgment. The term "Prevailing
Party" shall include, without limitation, a Party or Broker who substantially
obtains or defeats the relief sought, as the case may be, whether by
compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorney's fee award shall not be
computed in accordance with any court fee schedule, but shall be such as to
fully reimburse all attorney's fees reasonably incurred. Lessor shall be
entitled to attorney's fees, costs and expenses incurred in the preparation
and service of notices of Default and consultations in connection therewith
whether or not a legal action is subsequently commenced in connection with
such Default or resulting Breach.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents
shall have the right to enter the Premises at any time. In the case of an
emergency, and otherwise at reasonable times for the purpose of showing the
same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part, as Lessor may reasonably deem necessary.
Lessor may at any time place on or about the Premises or building any
ordinary "For Sale" signs and Lessor may at any time during the last one
hundred twenty (120) days of the term hereof place on or about the Premises
any ordinary "For Lease" signs. All such activities of Lessor shall be
without abatement of rent or liablilty to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Lessor's prior written consent. Notwithstanding anything to
the contrary in this Lease, Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises, except that
Lessee may, with Lessor's prior written consent, install (but not on the
roof) such signs as are reasonably required to advertise Lessee's own
business. The installation of any sign on the Premises by or for Lessee shall
be subject to the provisions of Paragraph 7 (Maintenance, Repairs, Utility
Installations, Trade Fixtures and Alterations). Unless otherwise expressly
agreed herein, Lessor reserves all rights to the use of the roof and the
right to install, and all revenues from the installation of, such advertising
signs on the Premises, including the roof, as do not unreasonably interfere
with the conduct of Lessee's business.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for
Breach by Lessee shall automatically terminate any sublease or lesser estate
on the Premises; provided however, Lessor shall, in the event of any such
surrender, termination or cancellation, have the option to continue any one
or all of any existing subtenancies. Lessor's failure within ten (10) days
following any such event to make a written election to the contrary by
written notice to the holder of any such lesser interest, shall constitute
Lessor's election to have such event constitute the termination of such
interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to
an act by or for the other Party, such consent shall not be unreasonably
withheld or delayed. Lessor's actual reasonable costs and expenses (including
but not limited to architects', attorneys', engineers' or other consultant's
fees) incurred in the consideration of, or response to, a request by Lessee
for any Lessor consent pertaining to this Lease or the Premises, including
but not limited to consents to an assignment, a subletting or the presence or
use of a Hazardous Substance, practice or storage tank, shall be paid by
Lessee to Lessor upon receipt of an invoice and supporting documentation
therefor. Subject to Paragraph 12.2(e) (applicable to assignment or
subletting), Lessor may, as a condition to considering any such request by
Lessee, require that Lessee deposit with Lessor an amount of money (in
addition to the Security Deposit held under Paragraph 8) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering
and responding to Lessee's request. Except as otherwise provided, any unused
portion of said deposit shall be refunded to Lessee without interest.
Lessor's consent to any act, assignment of this Lease or subletting of the
Premises by Lessee shall not constitute an acknowledgment that no Default or
Breach by Lessee of this Lease exists, nor shall such consent be deemed a
waiver of any then existing Default or Breach, except as may be otherwise
specifically stated in writing by Lessor at the time of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular conditions to Lessor's consent shall not preclude the imposition
by Lessor at the time of consent of such further or other conditions as are
then reasonable with reference to the particular matter for which consent is
being given.
37. GUARANTOR.
37.1 If there are to be any Guarantors of this Lease per Paragraph 1.11,
the form of the guaranty to be executed by each such Guarantor shall be in
the form most recently published by the American Industrial Real Estate
Association, and each said Guarantor shall have the same obligations as
Lessee under this Lease, including but not limited to the obligation to
provide the Tenancy Statement and Information called for by Paragraph 16.
37.2 It shall constitute a Default of the Lessee under this Lease if any
such Guarantor fails or refuses, upon reasonable request by Lessor to give;
(a) evidence of the due execution of the guaranty called for by this Lease,
including the authority of the Guarantor (and of the party signing on
Guarantor's behalf) to obligate such Guarantor on said guaranty, and
including in the case of a corporate Guarantor, a certified copy of a
resolution of its board of directors authorizing the making of such guaranty,
together with a certificate of incumbency showing the signatures of the
persons authorized to sign on its behalf, (b) current financial statements of
Guarantor as may from time to time be requested by Lessor, (c) a Tenancy
Statement, or (d) written confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by Leasee of the rent for the Premises and
the observance and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease.
Leasee shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITIONS. As used in this Paragraph 39 the word "Option" has the
following meaning; (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property
of Lessor; (b) the right of first refusal to lease the Premises or the right
of first offer to lease the Premises or the right of first refusal to lease
other property of Lessor or the right of first offer to lease other property
of Lessor; (c) the right to purchase the Premises, or the right of first
refusal to purchase the Premises, or the right of first offer to purchase the
Premises, or the right to purchase other property of Lessor, or the right of
first refusal to purchase other property of Lessor, or the right of first
offer to purchase other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to Lessee
in this Lease is personal to the original Lessee named in Paragraph 1.1
hereof, and cannot be voluntarily or involuntarily assigned or exercised by
any person or entity other than said original Lessee while the original
Lessee is in full and actual possession of the Premises and without the
intention of thereafter assigning or subletting. The Options, if any, herein
granted to Lessee are not assignable, either as a part of an assignment of
this Lease or separately or apart therefrom, and no Option may be separated
from this Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
<PAGE>
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary (i)
during the period commencing with the giving of any notice of Default under
Paragraph 13.1 and continuing until the noticed Default is cured or (ii)
during the period of time any monetary obligation due Lessor from Lessee is
unpaid (without regard to whether notice thereof is given Lessee), or (iii)
during the time Lessee is in Breach of this Lease, or (iv) in the event that
Lessor has given to Lessee three (3) or more notices of Default under
Paragraph 13.1 whether or not the Defaults are cured, during the twelve (12)
month period immediately preceding the exercise of the Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due
and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation
of Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessor gives to Lessee three or more notices of Default under Paragraph 13.1
during any twelve month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. MULTIPLE BUILDINGS. If the Premises are part of a group of buildings
controlled by Lessor, Lessee agrees that it will abide by, keep and observe
all reasonable rules and regulations which Lessor may make from time to time
for the management, safety, care, and cleanliness of the grounds, the parking
and unloading of vehicles and the preservation of good order, as well as for
the convenience of other occupants or tenants of such other buildings and
their invitees, and that Lessee will pay its fair share of common expenses
incurred in connection therewith.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide
same. Lessee assumes all responsibility for the protection of the Premises,
Lessee, its agents and invitees and their property from the acts of third
parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights and
modifications that Lessor deems necessary, and to cause the recordation of
parcel maps and restrictions, so long as such easements, rights, dedications,
maps and restrictions do not unreasonably interfere with the use of the
Premises by Lessee. Lessee agrees to sign any documents reasonably requested
by Lessor to effectuate any such easement rights, dedication, map or
restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute
and deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor fo such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to lease to Lessee.
This Lease is not intended to be binding until executed by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder. Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional, insurance company, or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the
property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or
Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED
FOR SUBMISSION TO YOUR ATTORNEY FOR HIS APPROVAL FURTHER,
EXPERTS SHOULD BE CONSULTED TO EVALUATE THE CONDITION OF
THE PROPERTY AS TO THE POSSIBLE PRESENCE OF ASBESTOS,
STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION
OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER(S) OR
THEIR AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES SHALL RELY
SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE
LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF THE SUBJECT
PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, AN
ATTORNEY FROM THE STATE WHERE THE PROPERTY IS LOCATED
SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place on the dates
specified above to their respective signatures.
Executed at Irvine, Calif. Executed at Irvine, Calif.
------------------------ -----------------------------
on on
--------------------------------- --------------------------------------
by LESSOR by LESSEE
NATIONAL TELEPHONE & COMMUNICATIONS, INC.
- ------------------------------------ -----------------------------------------
/s/ JAMES C. CARTER a Delaware corporation
- ------------------------------------ -----------------------------------------
JAMES C. CARTER, General Partner of
The Carter Family Investment By /s/ E.R. JACOBS
Partnership, L.P., a California ---------------------------------------
limited partnership Name Printed: E.R. JACOBS
----------------------------
Title: CEO & Chairman
-----------------------------------
By
---------------------------------------
Name Printed:
----------------------------
Title:
-----------------------------------
Address Address
----------------------------- ----------------------------------
- ------------------------------------ -----------------------------------------
Tel No Fax No Tel No Fax No
------------ ---------- ------------ ----------
NET
PAGE 10
NOTICE: These forms are often modified to meet changing requirements of law
and industry needs. Always write or call to make sure you are utilizing the
most current form. American Industrial Real Estate Association 345 South
Figueroa Street Suite M, Los Angeles, CA 90071, 213-687-6777, Fax No.
213-687-8616.
<PAGE>
LEASE ADDENDUM
This LEASE ADDENDUM ("Addendum") is attached to, made a part of,
incorporated into and amends and supplements that certain Standard
Industrial/Commercial Single-Tenant Lease - Net (the "Lease") entered into as
of April 18, 1997 by and between THE CARTER FAMILY INVESTMENT PARTNERSHIP,
L.P., a California limited partnership ("Lessor"), and NATIONAL TELEPHONE &
COMMUNICATIONS, INC., a Delaware corporation ("Lessee"). Lessor and Lessee
agree that notwithstanding anything contained in the Lease to the contrary,
the provisions set forth in this Addendum will be deemed to be a part of the
Lease and will supersede any contrary provision in the Lease and prevail and
control for all purposes. It is the intention of the parties that the use of
this Addendum will eliminate for the most part the need to strike through and
interlineate portions of the Lease in order to reflect the changes to the
Lease desired by the parties as set forth in this Addendum. All references
in the Lease and in this Addendum to "Lease" are to be construed to mean the
Lease as amended and supplemented by this Addendum. All terms used in this
Addendum, unless specifically defined in this Addendum, have the same
meanings as the terms used in the Lease.
Item 1. Paragraph 3.1. OPTION TO EXTEND TERM.
(a) Subject to the terms of this Paragraph 3.1, Lessor hereby
grants to Lessee seven (7) options ("Extension Options") to extend the Term
of the Lease for consecutive additional periods of five (5) years each
("Option Terms"), on the same terms, covenants and conditions as provided for
in the Lease for the initial Term, except that Base Rent during the Option
Terms shall be as set forth in this Paragraph 3.1. Lessee shall exercise
each Extension Option, if at all, by providing Lessor with not less than
twenty-four (24) months written notice prior to the expiration of the
Original Term with respect to the first Extension Option and not less than
eighteen (18) months written notice prior to the expiration of any successive
Option Term.
(b) Base Rent shall be increased by cost of living increases
applied to the sum of Twenty-Five Thousand Dollars ($25,000), plus any
previous cost of living adjustments to such sum made as a result of the
exercise of any previous options. Such increase shall occur on the first day
of each Option Term ("Adjustment Date")in accordance with percentage
increases, if any, in the Consumer Price Index--Urban Consumers (Los
Angeles-Anaheim-Riverside CA area; Base 1982-84=100) ("Index"), as published
by the United States Department of Labor, Bureau of Labor Statistics
("Bureau"). The Index for the month which is four (4) months prior to the
Adjustment Date ("Comparison Month") shall be compared to the Index which is
four (4) months prior to the Commencement Date ("Base Index") and the
Twenty-Five Thousand Dollars ($25,000) shall be increased upon the Adjustment
Date in accordance with the percentage increase, if any, between such
indexes. Should the Bureau discontinue the publication of the Index, or
publish the same less frequently, or alter the same in some other manner,
Lessor, in its discretion will adopt a substitute index or procedure which
reasonably reflects and monitors consumer prices. Under no circumstances
will this sum be less than the amount of this sum during the prior five (5)
year period.
Item 3. Paragraph 6.3. LESSEE'S COMPLIANCE WITH LAW.
Notwithstanding anything to the contrary contained in Paragraph 6.3 or
elsewhere in the Lease, Lessee's obligation to comply with "Applicable Law"
with respect to industrial hygiene shall also not apply to any conditions at
the Premises existing prior to Lessee's occupancy thereof and shall be
limited to industrial hygiene matters relating to Lessee's operations from
the Premises. Lessee's obligations with respect to environmental conditions
and the use, generation, manufacture, production, installation, maintenance,
removal, transportation, storage, spill or release of Hazardous Substances
shall also not apply to any conditions at the Premises existing prior to
Lessee's occupancy thereof and shall be limited to such matters as are caused
after Lessee's occupancy of the Premises.
Item 4. RESERVED.
<PAGE>
Item 5. CURE RIGHTS WITH RESPECT TO LESSOR'S LOAN. Lessor has
obtained a loan in connection with the purchase of the Premises from First
Bank & Trust ("Lender") in the sum of Five Million Dollars ($5,000,000) (the
"Loan"). Also concurrently herewith, Lessor has executed in favor of Lessee
a Non-Recourse Secured Promissory Note ("Lessee's Note"), secured by that
certain Deed of Trust with Assignment of Rents and Fixture Filing and
Security Agreement (the "Lessee's Deed of Trust"). Lessor hereby agrees that
Lessee shall have the right to make a direct payment to Lender of the
component of Base Rent described in subparagraph (b) of EXHIBIT "B" attached
hereto and to deduct same from the payment of Base Rent to Lessor. Further,
in the event of any default by Lessor under the Loan, Lessee shall have the
right to cure such default by making a payment directly to the Lender, or
correcting the default alleged by the Lender under the Loan and to thereafter
offset the amount of the curative payment or the sums expended by Lessee in
connection with the curing of Lessor's default against Lessee's obligations
with respect Base Rent under this Lease. Lessee shall have the further right
to offset any default in payment by Lessor with respect to the Lessee's Note
against Lessee's obligations with respect to Base Rent under the Lease.
Item 6. Paragraph 7.3. UTILITY INSTALLATIONS; TRADE FIXTURES;
ALTERATIONS. Notwithstanding anything to the contrary contained in the
Lease, Lessee shall have the right to remove all Trade Fixtures and personal
property upon the expiration or sooner termination of the Lease, provided
Lessee shall repair any damage caused by such removal and shall restore the
Premises as to the items so removed only to the condition received. Further,
notwithstanding anything to the contrary contained in the Lease, Lessee shall
have the further right to develop a parking structure of four (4) stories and
approximately 116,980 square feet, and additional office space of
approximately 56,721 square feet, in accordance with the other requirements
of this Lease and Lessor shall not unreasonably withhold consent to any
aspect of the development so long as such development is of first quality in
substantial conformity with renderings and models presented to Lessor. The
rights of Lessee to develop such projects on the Premises, in accordance with
this paragraph, shall terminate for any improvements if physical construction
has not started within three (3) years of the commencement of this Lease and
not completed within four (4) years, provided that Lessee has exercised the
option to extend this Lease. If Lessee has not exercised the option to
extend, all construction must be completed before three (3) years after
commencement of this Lease.
Item 7. Paragraph 7.4(a). OWNERSHIP. The second and third
sentences of Paragraph 7.4(a) which permits Lessor at its option to elect in
writing to be the owner of all or any specified part of the Lessee Owned
Alterations and Utility Installations are hereby deleted.
Item 8. Paragraph 7.4(c). SURRENDER/RESTORATION. Notwithstanding
anything to the contrary contained in Paragraph 7.4(c) or elsewhere in the
Lease, Lessee shall have the right but not the obligation to remove all trade
fixtures and personal property installed by Lessee upon the expiration of
sooner termination of the Lease, provided Lessee shall repair any damage
caused by such removal and shall restore the Premises as to the items so
removed only to the condition received as of the commencement of the Lease as
provided in the Lease and shall not otherwise have any obligation to restore
the Premises.
Item 9. Paragraph 8.3(a). PROPERTY INSURANCE - BUILDING,
IMPROVEMENTS AND RENTAL VALUE. Lessee shall be the Insuring Party and the
policy of property insurance to be maintained by Lessor pursuant to Paragraph
8.3(a) shall name Lessor as an additional insured and provide for loss
payable to Lessee in addition to those parties named in Paragraph 8.3(a).
Item 10. Paragraph 8.4. LESSEE'S PROPERTY INSURANCE.
Notwithstanding anything to the contrary contained in Paragraph 8.4 or
elsewhere in the Lease, Lessee's insurance for Lessee's personal property
shall be in an amount equal to full insurable value of such property, not
full replacement cost.
Item 11. Paragraph 8.7. LESSOR'S INDEMNITY. Notwithstanding
anything to the contrary contained in Paragraph 8.7 or elsewhere in the
Lease, Lessor shall indemnify, protect, defend and hold harmless Lessee and
its agents, partners and lenders from and against any and all claims,
damages, costs, liens, judgments, penalties, permits, attorneys' and
consultants' fees, expenses and/or liabilities arising out of, involving, or
in dealing with, any act, omission or neglect of Lessor, its agents,
contractors, employees or invitees, or out of any default or breach by Lessor
-2-
<PAGE>
in the performance in a timely manner of any obligation on Lessor's part to
be performed under this Lease. The foregoing shall include, but not be
limited to, the defense or pursuit of any claim or any action or proceeding
involved therein, and whether or not (in the case of claims made against
Lessee) litigated and/or reduced to judgment, and whether well founded or not.
Item 12. Paragraph 8.8. EXEMPTION OF LESSOR FROM LIABILITY.
Notwithstanding anything to the contrary contained in Paragraph 8.8 or
elsewhere in the Lease, the limitations on Lessor's liability contained in
the first two sentences of Paragraph 8.8 shall not apply in the event of the
willful misconduct of Lessor.
Item 13. Paragraph 9.1(c). INSURED LOSS. Notwithstanding
anything to the contrary contained in Paragraph 9.1(c) or elsewhere in the
Lease, a loss shall not be an "Insured Loss" unless Lessee receives full
insurance proceeds adequate to cover such loss exclusive of deductible
amounts.
Item 14. Paragraph 9.5. EFFECTIVE DATE OF TERMINATION.
Notwithstanding anything to the contrary contained in Paragraph 9.5,
termination of the Lease pursuant to Paragraph 9.5 shall be effective as of
the date of occurrence of such damage or destruction.
Item 15. Paragraph 9.6. ABATEMENT OF RENT; LESSEE'S REMEDIES.
Notwithstanding anything to the contrary contained in Paragraph 9.6 or
elsewhere in the Lease, if Lessee's use of the Premises or any portion
thereof is impaired as a result of any Premises Partial Damage or Premises
Total Damage, or any failure of Lessor to provide services or access to the
Premises, then Lessee's rent shall be abated or reduced, as the case may be,
during the period (the "Abatement Period") and to the extent that Lessee's
reasonable use of the Premises continues to be impaired. In the event Lessor
or a Lender commences the repair or restoration of the Premises within thirty
(30) days after receipt of notice from Lessee as provided in Paragraph 9.6(b)
and this Lease is to continue in full force and effect as provided in
Paragraph 9.6(b), rent shall be abated in proportion to the degree to which
Lessee's use of the Premises is reasonably impaired. Any abatement of rent
and other charges under Paragraph 9.6(a) of the Lease shall commence as of
the date of the damage or destruction and continue for the period described
in Paragraph 9.6(a) of the Lease.
Item 16. Paragraph 9.7. HAZARDOUS SUBSTANCE CONDITIONS. Paragraph
9.7 of the Lease is hereby deleted in its entirety and is replaced with the
following:
"If a Hazardous Substance Condition occurs which
predates Lessee's occupancy of the Premises and which
renders the Premises untenantable in whole or in part or
results in Lessee being required to vacate the Premises in
whole or in part pursuant to an order or requirement of any
governmental agency or authority or otherwise materially
affects the health of Lessee or its employees and invitees,
then the Base Rent, Real Property Taxes, insurance premiums,
and other charges, if any, payable by Lessee hereunder for
the period during which the Premises (or a portion thereof)
remain untenantable or Lessee is required to vacate the
Premises (or a portion thereof) shall be abated in
proportion to the degree to which Lessee's use of the
Premises is impaired and for the period of such impairment.
If the period of such impairment shall exceed one hundred
eighty (180) days, Lessee shall have the right to terminate
this Lease upon written notice to Lessor given within ten
(10) days following the passage of such one hundred eighty
(180) day period. Lessee's termination of the Lease
pursuant to this Paragraph shall be effective as of the date
of such notice or as of such later date specified therein."
Item 17. Paragraph 10.1. REAL PROPERTY TAXES. Notwithstanding
anything to the contrary contained in Paragraph 10.1(b) of the Lease, if the
amounts paid to Lessor by Lessee exceed the amount necessary to discharge the
obligations of Lessee to pay Real Property Taxes as the same become due,
Lessor shall apply such excess amounts towards rent and other monetary
obligations of Lessee next coming due under the Lease.
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<PAGE>
Item 18. Paragraph 12.1. ASSIGNMENT AND SUBLETTING. Paragraphs
12.1(b) and (c) are hereby deleted. Paragraph 12.1(d) is hereby deleted in
its entirety and is replaced with the following:
"(d) An assignment or subletting of Lessee's interest
in this Lease without Lessor's specific written consent
shall be a Default curable after notice per
Paragraph 13.1(c)."
Lessee shall have the right, without the consent of Lessor, to
sublease all or any portion of the Premises. Notwithstanding the provisions
of the Lease, none of the following circumstances shall constitute an
assignment of this Lease requiring the consent of Lessor:
(a) A transfer, sale or offering for sale of any capital
stock of Lessee; or
(b) An assignment of this Lease to a legal entity which (i)
is the successor by acquisition, merger, restructure, reorganization or
otherwise, to all or substantially all of Lessee's rights and liabilities, or
(ii) is controlling, controlled by or under common control with Lessee, or
(iii) acquires all or a portion of Lessee's assets or (iv) is affiliated with
or a parent or subsidiary of Lessee.
Item 19. Paragraph 12.2. TERMS AND CONDITIONS APPLICABLE TO
ASSIGNMENT AND SUBLETTING. Notwithstanding anything to the contrary
contained in Paragraph 12.2:
(a) The amount of the non-refundable deposit to be paid by
Lessee to Lessor in connection with each request for a consent to an
assignment or subletting shall be no more than Five Hundred Dollars ($500.00).
(b) Subparagraphs (g) and (h) of Paragraph 12.2 are hereby
deleted in their entirety.
Item 20. Paragraph 13. DEFAULT; BREACH; REMEDIES.
Notwithstanding anything to the contrary contained in Paragraph 13.1 or
elsewhere in the Lease:
(a) The first sentence of Paragraph 13.1 is hereby deleted.
(b) Intentionally Omitted.
(c) Lessee shall not be in Default with respect to the
failure by Lessee to make any payment of Base Rent or any other monetary
payment required to be made by Lessee under the Lease, whether to Lessor or
to a third party, unless Lessee shall fail to make payment within five (5)
days of when due, unless Lessee has been more than five (5) days late in any
twelve (12) month period, in which case Lessee will thereafter be in default
on the date due.
(d) Lessee shall not be in Default by reason of the failure
of Lessee to provide Lessor with reasonable evidence of insurance or any
surety bond required under this Lease unless Lessee shall fail to cure such
failure within ten (10) days after receipt of written notice from Lessor.
(e) Lessee shall not be in Default under the Lease by reason
of the failure of Lessee to perform any other non-monetary obligation under
this Lease other than an obligation which endangers or threatens life or
property, unless such failure continues for a period of twenty (20) days
following written notice thereof by or on behalf of Lessor to Lessee.
(f) Subparagraph (vi) of Paragraph 13.1(c) of the Lease is
hereby deleted in its entirety.
(g) Lessee shall have twenty (20) days following written
notice by or on behalf of Lessor to Lessee to cure a failure described in
Subparagraph (viii) of Paragraph 13.1(c).
(h) Paragraph 13.1(g) of the Lease is hereby deleted in its
entirety.
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<PAGE>
Item 21. Paragraph 13.2. REMEDIES. Notwithstanding anything to
the contrary contained in Paragraph 13.2 or elsewhere in the Lease, Lessor
shall not have the right to exercise its remedies unless Lessee shall fail to
perform any duty or obligation under the Lease within the applicable cure or
grace period described in the Lease or, if no cure or grace period is stated,
unless Lessee shall fail to perform such duty or obligation within ten (10)
days following written notice to Lessee.
Item 22. Paragraph 13.3. INDUCEMENT RECAPTURE IN EVENT OF BREACH.
Paragraph 13.3 of the Lease is hereby deleted in its entirety.
Item 23. Paragraph 13.4. LATE CHARGES. Notwithstanding anything
to the contrary contained in Paragraph 13.4 or elsewhere in the Lease, Lessor
shall not impose a late charge upon Lessee unless rent or any other sum due
from Lessee is not received by Lessor or Lessor's designee within ten (10)
days after Lessee receives notice that such amount shall be past due and the
late charge amount shall equal three percent (3%) of such overdue amounts,
plus a sum equal to any amount which would be charged by an institutional
lender for any payment of which part of the rent is not received five (5)
days before such a late charge would be incurred.
Item 24. Paragraph 13.5. BREACH BY LESSOR. In the event Lessor
shall fail to pay current Real Property Taxes or premiums for insurance
required to be maintained by Lessor under the Lease before the same became
delinquent, or in the event Lessor fails to perform any other obligation
within the time period required under this Lease, Lessee shall have the
right, notwithstanding anything to the contrary contained in the Lease,
including without limitation, Paragraphs 13.5 and 30.1, following written
notice to Lessor and the passage of five (5) business days without cure by
Lessor, to pay such Real Property Taxes directly to the taxing authority, to
obtain comparable insurance in Lessor's stead, to perform such maintenance or
to undertake the satisfaction of any other obligation of Lessor, in which
event Lessor shall promptly reimburse Lessee for the actual and reasonable
costs which are incurred by Lessee based upon written invoices to be
submitted by Lessee to Lessor and if Lessor shall fail to so reimburse
Lessee, Lessee shall have the right to deduct one hundred five percent (105%)
such costs from Lessee's next due installment(s) of rent. Notwithstanding the
foregoing, Lessee acknowledges Lessor's right to contest Real Property Taxes
and Lessee agrees not to pay Real Property Taxes directly during any period
that Lessor is contesting the Real Property Taxes provided Lessor takes all
reasonable steps to prevent the imposition of tax liens upon the Premises
such as, without limitation, the posting of appropriate bonds or other
security with the taxing authority during the period of any contest.
Item 25. Paragraph 14. CONDEMNATION. Notwithstanding anything to
the contrary contained in Paragraph 14 or elsewhere in the Lease, Lessee
shall be entitled to pursue and recover from the condemning authority any and
all such compensation as may be awarded to Lessee including, without
limitation, for relocation expenses, damage to or taking of Lessee's
property, fixtures and equipment, loss of goodwill and business interruption
and any bonus value of Lessee's leasehold estate. In addition, in order for
no reduction of Base Rent to occur, the only portion of the Premises taken
must be land on which there is no building, parking or loading dock.
Item 26. Paragraph 15. BROKERS' FEE. The fee for the Brokers is
as set forth in the separate written agreement between Lessor and the Brokers.
Item 27. Paragraph 19. INTEREST ON PAST DUE OBLIGATIONS.
Notwithstanding anything to the contrary contained in Paragraph 19 of the
Lease, the interest rate for all purposes of the Lease shall be ten percent
(10%) per annum, but not exceeding the maximum rate allowed by law.
Item 28. Paragraph 22. NO PRIOR OR OTHER AGREEMENTS. In
furtherance of the provisions of Paragraph 22 of the Lease, Lessor and Lessee
acknowledge and agree that the Lease constitutes the entire agreement of the
parties with respect to the Premises and supersedes all prior agreements,
understandings and negotiations between the parties, oral or written,
including, without limitation, any prior lease agreements, letter agreements,
letters of intent, proposals or otherwise.
Item 29. Paragraph 30. SUBORDINATION; ATTORNMENT;
NON-DISTURBANCE. Notwithstanding anything to the contrary contained in
Paragraph 30.4 of the Lease, the
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<PAGE>
agreements described in Paragraph 30 of the Lease shall be effective without
the execution of any further documents other than the "non-disturbance
agreement" described in Paragraph 30.3. In addition, Lessee's subordination
of this Lease to any presently existing Security Device is expressly
conditioned upon Lessee receiving a "non-disturbance agreement" from all
beneficiaries under all existing Security Devices, the content of which shall
be as described in Paragraph 30.3. Lessor covenants and agrees to use its
best efforts to obtain such non-disturbance agreements from all beneficiaries
under all existing Security Devices promptly following the execution of this
Lease by the parties.
Item 30. Reserved.
Item 31. Paragraph 34. SIGNS. Subject to Lessor's prior approval
(which approval Lessor will not unreasonably withhold or delay), Lessee shall
be permitted to install its usual and customary signage on and about the
Premises, provided such signage complies with all Applicable Laws.
Item 32. Paragraph 39. OPTIONS. Paragraph 39.2 of the Lease is
hereby deleted in its entirety and is replaced with the following:
"39.2 OPTIONS MAY NOT BE SEPARATED. No Option may be
separated from this Lease in any manner, by reservation or
otherwise."
Item 33. Paragraph 39.4. EFFECT OF DEFAULT ON OPTIONS.
(a) Paragraph 39.4(a) is hereby deleted in its entirety and
replaced with the following:
"(a) Lessee shall have no right to exercise an option,
notwithstanding any provision in the grant of option to the
contrary during the period commencing with the giving of any
noticed Default under Paragraph 13.1 and continuing until
the noticed Default is cured."
(b) Paragraph 39.4(c) of the Lease is hereby deleted in its
entirety and replaced with the following:
"(c) All rights of Lessee under the provisions of an
Option shall terminate and be of no further force or effect,
notwithstanding Lessee's due and timely exercise of the
Option, if, after such exercise and during the term of this
Lease, Lessee is in Default under this Lease, unless Lessee
subsequently cures such Default in a manner satisfactory to
Lessor and the Lease is reinstated in good standing by
Lessor."
Item 34. Paragraph 40. MULTIPLE BUILDINGS. Lessee's agreement to
abide by, keep and observe all reasonable rules and regulations which Lessor
may make shall be limited to those rules and restrictions which are
consistently applied by Lessor to the tenants of the project.
Item 35. Paragraph 42. RESERVATIONS. Notwithstanding anything to
the contrary contained in Paragraph 42 of the Lease, the exercise by Lessor
of its rights reserved in Paragraph 42 shall not interfere with the use of
the Premises by Lessee including, without limitation, Lessee's access to the
Premises.
Item 36. Paragraph 43. PERFORMANCE UNDER PROTEST. Any party
entitled to recover a sum as provided in Paragraph 43 of the Lease shall be
entitled to recover interest on such sum as provided in the Lease and
reasonable attorneys' fees.
Item 37. Paragraph 44. AUTHORITY. Paragraph 44 of the Lease is
hereby deleted in its entirety and replaced with the following:
"If either Party hereto is a corporation, trust, or
general or limited partnership, each individual executing
this Lease on behalf
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<PAGE>
of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Lease on its behalf. If
either Party hereto is a corporation, trust or partnership, such
Party shall, within thirty (30) days after request by the other
Party, deliver to the requesting Party evidence satisfactory to
the requesting Party of such authority."
Item 38. RIGHT OF FIRST REFUSAL. In the event Lessor shall decide
to transfer title of any portion of the Premises, then Lessee shall have the
right of first refusal to purchase said Premises. Lessee shall have thirty
(30) calendar days after receipt of notice of proposed sale to exercise its
right of refusal.
Item 39. SAVINGS CLAUSE. If any clause or provision of the Lease
is illegal, invalid or unenforceable under present or future laws effective
during the term of the Lease, then and in that event, it is the intention of
the parties hereto that the remainder of the Lease shall not be affected
thereby, and it is also the intention of the parties to the Lease that, in
lieu of each clause or provision of the Lease that is illegal, invalid or
unenforceable, there be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
Item 40. ARBITRATION.
(a) Except in the event of a claim for the failure to pay
rent, or other monetary default, all claims or disputes between Lessor and
Lessee arising out of, or relating to, the Lease, other than disputes which
the Lease requires to be resolved by appointment of an appraiser, shall be
decided by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then applicable unless the parties
mutually agree otherwise. Venue for such arbitration shall be in Irvine,
California. All costs associated with such arbitration shall be awarded to
the prevailing party.
(b) Notice of the demand for arbitration by either party to
the Lease shall be filed in writing with the other party to the Lease and
with the American Arbitration Association and shall be made within a
reasonable time after the dispute has arisen. The award rendered by the
arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof. Except by
written consent of the person or entity sought to be joined, no arbitration
arising out of or relating to the Lease shall include, by consolidation,
joinder or in any other manner, any person or entity not a party to the Lease
under which such arbitration is filed if (1) such person or entity is
substantially involved in a common question of fact or law, (2) the presence
of such person or entity is required if complete relief is to be accorded in
the arbitration, or (3) the interest or responsibility of such person or
entity in the matter is not insubstantial.
(c) The agreement herein among the parties to the Lease and
any other written agreement to arbitrate referred to herein shall be
specifically enforceable under the prevailing arbitration law.
Item 41. SUPERSEDES PRIOR LEASE. This Lease and this Addendum,
supersede that certain Standard Industrial/Commercial Single-Tenant Lease-Net
dated April 18, 1997 (the "Prior Lease") which is substantially identical to
the form hereof. Lessor and Lessee have marked the original of the Prior
Lease as "Cancelled". This Lease and Addendum supersede and cancel all prior
leases between Lessor and Lessee.
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<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have executed this Addendum as
of the 18th day of April, 1997.
"Lessor" THE CARTER FAMILY INVESTMENT
PARTNERSHIP, L.P., a California limited
partnership
By: /s/ James C. Carter
---------------------------------------------
James C. Carter, General Partner of The Carter
Family Investment Partnership, L.P., a
California limited partnership
"Lessee" NATIONAL TELEPHONE & COMMUNICATIONS, INC., a
Delaware corporation
By: /s/ E. R. Jacobs
---------------------------------------------
Its: CEO & Chairman
-8-
<PAGE>
EXHIBIT "A"
Parcels 1 and 2 of the City of Irvine, as shown on a map recorded in Book
161, Pages 32 and 33 of Parcel Maps, in the office of the County Recorder of
Orange County, including, without limitation, the three industrial buildings
and all other improvements presently located thereon and all parking, land,
rights and appurtenances thereto.
EXCEPTING therefrom an undivided one-half interest in all oil, gas, minerals,
and other hydrocarbon substances lying below a depth shown below but with no
right of surface entry, as provided in deed.
Depth: 500 feet
Recorded: April 29, 1970 in Book 9277, page 256, Official Records
EXCEPTING therefrom an undivided one-half interest in all oil, gas, minerals,
and other hydrocarbon substances lying below a depth shown below but with no
right of surface entry, as provided in deed.
Depth: 500 feet
Recorded: May 8, 1974 in Book 11138, Page 940, Official Records
ALSO EXCEPTING therefrom all of the land described in the deed recorded July
31, 1995 as Instrument No. 95-0324734, Official Records.
EXHIBIT "A"
<PAGE>
EXHIBIT B
Base Rent payable each month during the Original Term shall be the
sum of the following:
(a) Twenty-Five Thousand Dollars ($25,000) per month (of which the
sum of Ten Thousand Dollars ($10,000) shall be abated from the Commencement
Date through December 31, 1997); and
(b) An amount equal to the monthly amortizing payment (based on a
twenty-five year amortization) on a principal sum of Five Million Dollars
($5,000,000) with interest on said sum at a rate equal to the One Year
Treasury Bill Rate in effect as of five (5) business days prior to the date
of this Lease rounded up to the nearest one-eighth percentage rate, plus
three and one-quarter percent (3-1/4%) per annum. The amount of Base Rent
for the period commencing May 1, 1997 to April 30, 1998 shall be the sum of
Forty-Two Thousand Eight Hundred Nineteen and 9/100 Dollars ($42,819.09).
The amount of Base Rent payable pursuant to this subparagraph (b) shall be
adjusted annually, commencing on April 30, 1998, adjusting annually
thereafter during the Original Term (the "Base Rent Adjustment Date"). The
monthly amortizing payment shall be adjusted and reset to reflect a rate of
interest equal to the One Year United States Treasury Bill Rate quoted for
the United States Treasury Bill maturing one (1) year from the Base Rent
Adjustment Date (or if there is no United States Treasury Bill that matures
exactly one (1) year from the Base Rent Adjustment Date, then the United
States Treasury Bill Rate chosen by Lender (as defined in the Addendum)
quoted for the United States Treasury Bill maturing as close to one (1) year
as possible, but in no event maturing greater than one (1) year from the Base
Rent Adjustment Date. The rate so calculated shall be in effect for the
following twelve month period of the Original Term.
(c) An amount equal to the monthly payment due on that certain
Non-Recourse Secured Promissory Note executed by Lessor in favor of Lessee as
of the date hereof. At such time as the entire indebtedness to Lessee
pursuant to such Note is fully discharged, Lessee shall have no further
obligation to make any payment required by this subparagraph (c) of this
EXHIBIT "B".
EXHIBIT "B"
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 2,164
<SECURITIES> 0
<RECEIVABLES> 14,192
<ALLOWANCES> 6,072
<INVENTORY> 326
<CURRENT-ASSETS> 19,034
<PP&E> 14,139
<DEPRECIATION> 0
<TOTAL-ASSETS> 38,222
<CURRENT-LIABILITIES> 23,572
<BONDS> 0
0
1,990
<COMMON> 61,785
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 38,221
<SALES> 31,169
<TOTAL-REVENUES> 31,169
<CGS> 21,531
<TOTAL-COSTS> 29,969
<OTHER-EXPENSES> (83)
<LOSS-PROVISION> 1,697
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 1,126
<INCOME-TAX> 107
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 9
<CHANGES> 0
<NET-INCOME> 1,010
<EPS-PRIMARY> 0
<EPS-DILUTED> 0.07
</TABLE>
