United States
Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
|X| Quarterly Report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the Quarter Ended December 31, 1998
|_| Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File Number 06425
Utah 87-0284979
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
SENTO CORPORATION
Exact Name of Small Business Issuer as
Specified in its Charter
(Address of Principal Executive Offices)
808 East Utah Valley Drive
American Fork, Utah 84003
Issuers telephone number, including area code: (801) 492-2000
Indicate by check mark whether the issuer (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the issuer was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes |X| No |_|
State the number of shares outstanding of each of the issuer's classes of common
stock, as of the latest practicable date:
Class Outstanding at
------------------------ December 31, 1998
Common capital stock ------------------
$.25 par value per share 5,968,439
Transitional Small Business Disclosure Format (check one):
Yes |_| No |X|
<PAGE>
SENTO CORPORATION
Quarterly Report on Form 10-QSB
Quarter ended December 31, 1998
INDEX
PART I. FINANCIAL INFORMATION Page
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
December 31, 1998 and March 31, 1998 3
Condensed Consolidated Statements of
Operations Three Months and nine Months
ended December 31, 1998 and 1997 4
Condensed Consolidated Statements of
Cash Flows nine Months ended December 31,
1998 and 1997 5
Notes to Condensed Consolidated Financial
Statements 6
Item 2. Management's Discussion and Analysis of
Financial condition and results of Operations 9
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 14
Item 3. Defaults of Senior Securities 14
Item 4. Submission of Matters to Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 15
Signatures 15
2
<PAGE>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
SENTO CORPORATION
AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
ASSETS
<TABLE>
<CAPTION>
Dec. 31, 1998 March 31, 1998
(Unaudited) --------------
-------------
<S> <C> <C>
Current assets:
Cash $ 830,494 $ 5,807,014
Accounts receivable (net) 3,424,135 4,076,715
Inventories 218,118 302,172
Income taxes receivable 327,170 322,112
Deferred income taxes 63,231 218,540
Other current assets 1,266,849 1,474,407
------------ ------------
Total current assets 6,129,997 12,200,960
Property and equipment (net) 3,025,687 1,274,902
Intangible assets (net) 1,712,762 1,513,758
Other assets 111,028 871,032
------------ ------------
Total Assets $ 10,979,474 $ 15,860,652
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 388,102 $ 131,774
Accounts payable 3,493,658 2,720,562
Accrued liabilities 1,848,689 1,399,197
Deferred revenue 1,306,967 2,280,510
------------ ------------
Total current liabilities 7,037,416 6,532,043
------------ ------------
Long-term liabilities:
Deferred revenue -- 175,000
Convertible bonds 844,533 944,533
Long-term debt, excluding current portion 464,653 362,959
Deferred tax liability 63,231 271,539
------------ ------------
Total long-term liabilities 1,372,417 1,754,031
------------ ------------
Minority interest 10,149 --
------------ ------------
Stockholders' equity:
Common stock 1,506,344 1,435,268
Additional paid-in capital 6,715,483 5,950,290
Treasury stock (174,000) --
Accumulated other comprehensive loss - foreign
currency translation (65,074) (49,889)
Deferred compensation (249,656) (338,357)
Retained earnings (deficit) (5,173,605) 577,266
------------ ------------
Total stockholders' equity 2,559,492 7,574,578
------------ ------------
Total liabilities and stockholders' equity $ 10,979,474 $ 15,860,652
============ ============
</TABLE>
3
<PAGE>
SENTO CORPORATION
AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Three months Three months Nine months Nine months
ended ended Ended Ended
Dec. 31, 1998 Dec. 31 1997 Dec. 31, 1998 Dec. 31, 1997
-----------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Product sales and maintenance $ 3,008,649 $ 5,657,199 $ 10,652,426 $ 14,324,079
Training 850,590 -- 2,430,141 --
Consulting 686,795 212,174 1,632,672 212,174
Technical services 685,881 -- 1,267,803 --
------------- ------------- ------------- -------------
Total revenues 5,231,915 5,869,373 15,983,042 14,536,253
Cost of sales 4,048,522 4,360,183 11,497,176 10,217,500
------------- ------------- ------------- -------------
Gross profit 1,183,393 1,509,190 4,485,866 4,318,753
------------- ------------- ------------- -------------
Costs and expenses:
Selling general and administrative 3,988,421 2,580,179 10,413,540 6,366,974
Amortization of intangible assets 270,956 -- 595,688 --
Restructuring charges 229,829 -- 229,829 --
Asset impairment 426,296 -- 426,296 --
Write off of in-process research and
development costs 92,095 -- 92,095 --
Research and development 49,748 -- 146,336 78,875
------------- ------------- ------------- -------------
Total costs and expenses 5,057,345 2,580,179 11,903,784 6,445,849
------------- ------------- ------------- -------------
Operating loss (3,873,952) (1,070,989) (7,417,918) (2,127,096)
Other income (net) 263,826 322,380 1,212,173 2,913,185
------------- ------------- ------------- -------------
Income (loss) before taxes (3,610,126) (748,609) (6,205,745) 786,089
Income tax (expense) benefit 154,874 676,452 454,874 (276,702)
------------- ------------- ------------- -------------
Net income (loss) $ (3,455,252) $ (72,157) $ (5,750,871) $ 509,387
============= ============= ============= =============
Basic net income (loss) per share $ (0.58) $ (0.01) $ (0.98) $ 0.11
Diluted net income (loss) per share $ (0.58) $ (0.01) $ (0.98) $ 0.09
Weighted average number of common and
Common equivalent shares outstanding:
Basic 5,955,871 5,417,386 5,839,236 4,813,452
Diluted 5,955,871 5,417,386 5,839,236 5,760,659
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
SENTO CORPORATION
AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Unaudited)
Nine months Nine months
Ended Ended
Dec. 31, 1998 Dec. 31, 1997
-------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $(5,750,871) $ 509,387
Adjustments to reconcile net income (loss) to net cash
Used by operating activities:
Gain on sale of assets (127,640) (2,655,110)
Minority interest (31,136) --
Stock issued for compensation and/or services 7,854 233,000
Amortization of prepaid and deferred compensation 140,659 37,500
Restructuring charges and asset impairment 633,894 --
Write-off of in-process research and development costs 92,095 --
Deferred income taxes (52,999) --
Depreciation & amortization 1,063,504 99,729
Decrease (increase) in assets:
Accounts receivable 652,580 (381,365)
Inventory 84,054 (196,384)
Other assets 987,778 (781,868)
Increase (decrease) in liabilities:
Accounts payable 773,096 630,840
Accrued liabilities 432,033 238,293
Deferred revenue (1,148,543) (205,702)
----------- -----------
Net cash used in operating activities (2,243,642) (2,471,680)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Business acquisitions (693,529) (1,374,440)
Proceeds from sale of assets 200,781 5,600,000
Purchase of furniture and equipment (2,388,942) (162,232)
----------- -----------
Net cash provided by (used in) investing activities (2,881,690) 4,063,328
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of stock 305,975 2,973,915
Issuance of long-term debt 146,219 281,648
Principal payments of long-term debt (288,197) (756,833)
Proceeds from issuance of convertible bonds -- 1,000,000
----------- -----------
Net cash provided by financing activities 163,997 3,498,730
----------- -----------
Effect of foreign exchange rates on cash (15,185) --
----------- -----------
Net increase (decrease) in cash (4,976,520) 5,090,378
Cash at beginning of period 5,807,014 2,225,338
----------- -----------
Cash at end of period $ 830,494 $ 7,315,716
=========== ===========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid for interest $ 15,300 $ 28,640
Cash paid for income taxes $ 25,152 $ 776,702
</TABLE>
5
<PAGE>
SENTO CORPORATION
AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1998
(Unaudited)
A. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
are stated in accordance with the instructions to Form 10QSB and do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included.
Operating results for the three and nine months ended December 31, 1998
are not necessarily indicative of the results that may be expected for
the full year. The unaudited condensed consolidated financial
statements should be read in conjunction with the consolidated
financial statements and footnotes thereto included in the Company's
Annual Report on Form 10-KSB for the year ended March 31, 1998.
Certain balances in the financial statements for the three and six
month periods ended December 31, 1997 have been reclassified to conform
with the current presentation.
B. INVENTORIES
Inventories at December 31, 1998 and March 31, 1998 consist primarily
of computer hardware and software available for sale.
C. COMPREHENSIVE LOSS
The Company adopted Statement of Financial Accounting Standards No. 130
(SFAS 130), "Reporting Comprehensive Income," effective April 1, 1998.
SFAS 130 establishes standards for reporting and displaying
comprehensive earnings (loss) and its components in financial
statements. The components of the Company's comprehensive earnings
(loss) are as follows:
Nine Months Ended Nine Months Ended
Dec. 31, 1998 Dec. 31, 1997
--------------------------------------
Net income (loss) $(5,750,871) $509,387
Foreign currency translation
Adjustment (15,185) --
------------ -----------
Comprehensive income (loss) $(5,766,056) $ 509,387
============ ===========
Three Months Ended Three Months Ended
Dec. 31, 1998 Dec. 31, 1997
--------------------------------------
Net loss $(3,455,252) $(72,157)
Foreign currency translation
adjustment (3,263) --
------------ -----------
Comprehensive loss ($3,458,515) $ (72,157)
============ ===========
6
<PAGE>
D. COMMON STOCK
During the nine months ended December 31, 1998, the Company issued
73,894 shares of its common stock upon the exercise of warrants. The
warrants were issued in conjunction with a private offering of common
stock during 1997. Proceeds received from the exercise of the above
warrants totaled $258,630.
During the nine months ended December 31, 1998, the Company received
$37,688 from issuing 11,455 shares of common stock pursuant to the
Company's employee stock purchase plan. In addition, $9,657 was
received during the nine months ended December 31, 1998 for the
issuance of 7,788 shares of common stock pursuant to the Company's
qualified employee stock option plan.
E. LOSS PER COMMON SHARE
Basic earnings (loss) per share is computed in accordance with
Financial Accounting Standards Board Standard No. 128, " Earnings Per
Share". Basic earnings (loss) per share is computed as net income
(loss) divided by the weighted average number of common shares
outstanding for the period. Diluted earnings (loss) per share reflects
the potential dilution that could occur from common shares issuable
through stock options, warrants and other convertible securities.
Common stock equivalent shares are excluded from the computation of net
loss per share, as their effect is antidilutive.
A reconciliation between the basic and diluted weighted-average number
of common shares for the three months and nine months ended December
31, 1998 and 1997 is summarized as follows:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
Dec. 31 Dec. 31 Dec. 31 Dec. 31
1998 1997 1998 1997
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Basic weighted-average number of common
shares outstanding during the period 5,955,871 5,417,386 5,839,236 4,813,452
Weighted-average number of common stock
options outstanding during the period -- -- -- 947,207
--------- --------- --------- ---------
Diluted weighted-average number of
common shares outstanding during the
period 5,955,871 5,417,386 5,839,236 5,760,659
========= ========= ========= =========
</TABLE>
F. BUSINESS ACQUISITIONS
In August 1998 the Company acquired all marketing rights to certain IT
training courses from Educational Systems, Inc. for $100,000 cash and
$500,000 in future royalties to be paid out over a 33 month period. The
acquisition has been accounted for by the purchase method and,
accordingly, the results of operations of Educational Systems, Inc.
have been included in the Company's consolidated financial statements
from August 1998. The intellectual property and marketing rights are
being amortized on a straight-line basis over 33 months. The purchase
agreement also provides for additional payments over the 33-month
period contingent on future sales of certain IT training courses. The
additional payments, if any, will be accounted for as goodwill and
amortized over the life of the contract.
In October 1998, the Company acquired equipment and intellectual
property from Functional Software Pty., Ltd. ("Functional") for
$450,000 in cash and 129,656 restricted shares of the Company's common
stock. The Company also incurred acquisition costs of $98,878 and
assumed approximately $50,000 of Functional's liabilities. The
transaction was accounted for under the purchase method of accounting.
7
<PAGE>
Therefore, the amount of the purchase price in excess of the fair value
of the assets acquired has been allocated to goodwill. The following is
a summary of the acquisition:
Consideration:
Cash $450,000
Value of common stock (129,656 shares at $2.71 per share) 351,692
Acquisition costs incurred 98,878
---------
Total consideration 900,570
---------
Assets acquired and liabilities assumed:
Equipment 76,800
Intellectual property 571,421
Accrued liabilities (50,000)
---------
Total assets acquired and liabilities assumed 598,221
Purchase price in excess of fair value 302,349
In-process research and development costs (92,095)
---------
Goodwill $210,254
=========
G. RESTRUCTURING CHARGES
In an effort to improve productivity, the Company implemented a
restructuring plan that included the closing of the Company's network
consulting operations in Southern California. The Company recorded
restructuring charges of $229,829 in December 1998 as a result of
closing the above mentioned operations. Restructuring charges include
severance costs of terminated employees, future minimum rent
obligations for the vacated facilities and the write-off of the
unamortized balance of intangible assets ($202,179) that were recorded
with the purchase of these operations in 1997.
H. ASSET IMPAIRMENT
During December 1998, the Company recorded impairment of assets
totaling $426,296. The impairment represents the write-down of
unamortized goodwill and non-compete agreements purchased with it's
acquisition of Astron, Inc., a provider of IT classroom based training,
during the year ended March 31, 1998. The decision to write down the
assets was based on incurred losses and projected negative cash flow
from operations relating to classroom based training. The Company is
focusing on seminar based and customized corporate training products
for future revenue growth in its training division. There remains
$509,000 of unamortized intangible marketing rights for classroom based
training related to the acquisition of Educational Systems, Inc. The
Company continues to evaluate this asset and may in the near future
write it off if current and expected future cash flows are insufficient
to assure its realizabilty.
8
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and results
of Operations.
General
- -------
Sento Corporation ("Sento" or the "Company") provides integrated information
technology ("IT") solutions for Windows NT, UNIX, Open VMS, Internet/Intranet,
and networked computing environments. Through its wholly owned subsidiaries,
Sento delivers outsourced training, consulting, technical support services and
hardware and software solutions.
Sento Training Corporation ("Sento Training") provides classroom training
courses, seminar training workshops, customized corporate training programs and
multi-media presentations, all of which are designed to teach and reinforce
skills required to make IT systems work effectively. Sento Consulting
Corporation ("Sento Consulting") delivers customized IT consulting services
intended to help Sento customers realize the benefits of advanced IT solutions
in the areas of network, systems and financial information. Sento Technical
Services Corporation ("Sento Technical Services") offers a range of IT
outsourcing services consisting of "call center", "helpdesk", and technical
support services. The Company conducts substantially all of its foreign
operations through Sento Australia Pty. Ltd. based in Sydney, Australia and
Sento Limited, located near London, England. DewPoint Distributed Solutions
Corporation, a majority owned (67%) subsidiary, provides distribution, reseller,
and channel management for leading software and hardware manufacturers.
Three Months Ended December 31, 1998 Compared to Three Months Ended December 31,
1997.
- --------------------------------------------------------------------------------
Revenues
Revenues decreased 11% or $637,458 from $5,869,373 for the three months ended
December 31, 1997 to $5,231,915 for the three months ended December 31, 1998.
These revenues were generated from the following four areas:
Product sales and maintenance include both computer hardware and software.
Revenues from this product line decreased 47% or $2,648,550 from $5,657,199 for
the three months ended December 31, 1997 to $3,008,649 for the same period in
1998. This decrease is representative of the Company's strategic transition from
reselling third party products to marketing the Company's own product line of IT
outsourced services. In addition, two of the Company's major suppliers
experienced significant market share deterioration. The Company expects that
revenues from product sales and maintenance will represent a smaller percentage
of the Company's revenues in the future as the Company continues to focus on its
other sources of revenue.
Training revenues of $850,590 were generated through Sento Training, which was
acquired in January 1998. The Company had no training revenues for the quarter
ended December 31, 1997.
Consulting revenues increased $474,621 from $212,174 for the three months ended
December 31, 1997 to $686,795 for the same period in 1998. This increase
reflects the Company's strategic focus on providing IT services.
Technical services revenues of $685,881 were generated through Sento Technical
Services, which was created in April of 1998. The Company had no comparative
technical services revenues for the quarter ended December 31, 1997. This
revenue reflects the Company's strategic focus on providing IT services.
Cost of Sales
Costs of Sales consists primarily of salaries and employee benefits for the
Company's full and part-time consultants, engineers, agents, and instructors;
travel expenses relating to consulting and training activities; the costs to
third party manufacturers for software and hardware products; facilities costs;
and depreciation on property and equipment used in providing technical support
services.
Cost of sales decreased 7% or $311,661 from $4,360,183 for the three months
ended December 31, 1997 to $4,048,522 for the same period in 1998. Gross profit
as a percentage of revenues decreased by 3%, from 26% of revenues during the
9
<PAGE>
three months ended December 31, 1997 to 23% of revenue for the same three month
period in 1998. There have been general decreases in the margins allowed from
manufacturers to resellers in both hardware and software products. In August
1998, the Company completed and moved into a new technical support call center.
Excess capacity in the Company's new call center also contributed to lower
margins.
Selling General and Administrative Expenses
Selling general and administrative expenses increased 55% or $1,408,242 from
$2,580,179 for the three months ended December 31, 1997 to $3,988,421 for same
three month period in 1998. Marketing costs increased dramatically during the
three months ended December 31, 1998 in an effort to increase classroom-based
training enrollment. Based on the results achieved, the Company changed its
focus of future revenue growth in its training division from classroom-based
training to seminar-based training and customized corporate training, both of
which require substantially less marketing expenditures. Start-up activities
associated with the Company's training and technical services divisions also
contributed to the large increase in general and administrative expenses during
the three-month period ended December 31, 1998.
The Company recorded $270,956 of amortization expense relating to intangible
assets during the three months ended December 31, 1998. The intangible assets
being amortized are from business acquisitions completed during the current
fiscal year and the latter portion of the Company's fiscal year ended March 31,
1998. Therefore, no amortization of intangible assets was recorded during the
three-month period ended December 31, 1997.
The Company took measures to improve productivity in its consulting division
during the three months ended December 31, 1998 when it implemented a
restructuring plan that included the closing of the Company's network consulting
operations in Southern California. The Company recorded a restructuring charge
of $229,829 including the write-off of $202,179 of unamortized goodwill and
non-compete agreements relating to the Company's network consulting operations.
During the three months ended December 31, 1998, the Company recorded impairment
of assets totaling $426,296. The impairment represents a write-down of goodwill
and non-compete agreements relating to the Company's acquisition of Astron, Inc.
in January 1998. The decision to write down these assets was based on continued
losses in the classroom-based training department of the Company's training
division, which was acquired through the acquisition of Astron, Inc. In
addition, the Company expects to incur continued losses in classroom-based
training and, therefore, is focusing its continued efforts on seminar-based
training and customized corporate training. There remains $509,000 of
unamortized intangible marketing rights for classroom based training related to
the acquisition of Educational Systems, Inc. The Company continues to evaluate
this asset and may in the near future write it off if current and expected
future cash flows are insufficient to assure its realizabilty.
Other income decreased 18% or $58,554, from $322,380 to $263,826 for the
three-month periods ended December 31, 1997 and 1998 respectively. The primary
cause of the decrease in other income during the three month period ended
December 31, 1998 when compared to the same three month period in 1997 relates
to a decrease in interest income caused by a substantial decrease in the
Company's cash balances over the same periods.
Nine Months Ended December 31, 1997 Compared to Nine Months Ended December 31,
1998.
- --------------------------------------------------------------------------------
Revenues
Revenues increased 10% or $1,446,789; from $14,536,253 for the nine months ended
December 31, 1997 to $15,983,042 for the nine months ended December 31, 1998.
These revenues were generated from the following four areas:
Product sales and maintenance include both computer hardware and software.
Revenues from this product line decreased 26% or $3,671,653 from $14,324,079 in
1997 to $10,652,426 for the same nine-month period in 1998. This decrease is
representative of the Company's strategic transition from reselling third party
products to the Company's own product line of IT outsourced services. In
10
<PAGE>
addition two of the Company's major suppliers experienced significant market
share deterioration. Sento's management intends to continue to focus on
providing IT outsourcing activities.
Training revenues of $2,430,141 were generated during the nine months ended
December 31, 1998, primarily through Sento Training, which was acquired in
January 1998. The Company had no training revenues for the nine months ended
December 31, 1997.
Consulting revenues increased $1,420,498 from $212,174 for the nine months ended
December 31, 1997 to $1,632,672 for the same nine-month period in 1998. The
Company began operations in this area during October 1997. The revenue growth in
this area reflects the Company's strategic focus on providing IT services.
Technical services revenues of $1,267,803 were generated during the nine months
ended December 31, 1998, primarily through Sento Technical Services, which began
operations in April 1998. The Company had no technical services revenues
comparable to revenues generated through Sento Technical Services during the
nine-month period ended December 31, 1997.
Cost of Sales
Cost of sales increased 13% or $1,279,676 from $10,217,500 for the nine months
ended December 31, 1997 to $11,497,176 for the same period in 1998. Gross profit
as a percentage of revenues decreased by 2%, from 30% of revenues during the
nine months ended December 31, 1997 to 28% of revenue for the same nine month
period in 1998. There have been general decreases in the margins allowed from
manufacturers to resellers in both hardware and software products. In August
1998, the Company completed and moved into a new technical support call center
as part of its strategic focus on providing IT services. Excess capacity in the
Company's new call center also contributed to lower margins.
Selling, General and Administrative Expenses
Selling general and administrative expenses increased 64% or $4,046,566 from
$6,366,974 for the nine months ended December 31, 1997 to $10,413,540 for same
nine month period in 1998. Marketing costs increased dramatically in an effort
to increase classroom based training enrollment. Based on the results achieved,
the Company changed its focus of future revenue growth in its training division
from classroom based training to seminar based training and customized corporate
training, both of which require substantially less marketing expenditures.
Start-up activities associated with the Company's training and technical
services divisions also contributed to the large increase in general and
administrative expenses during the nine-month period ended December 31, 1998.
The Company recorded $595,688 of amortization expense relating to intangible
assets during the nine months ended December 31, 1998. The intangible assets
being amortized are from business acquisitions completed during the current
fiscal year and the latter portion of the Company's fiscal year ended March 31,
1998. Therefore, no amortization of intangible assets was recorded during the
nine-month period ended December 31, 1998.
The Company took measures to improve productivity in its consulting division
during the nine-months ended December 31, 1998 when it implemented a
restructuring plan that included the closing of the Company's network consulting
operations in Southern California. The Company recorded a restructuring charge
of $229,829 including the write-off of $202,179 of unamortized goodwill and
non-compete agreements relating to the Company's network consulting operations.
During the nine months ended December 31, 1998, the Company recorded impairment
of assets totaling $426,296. The impairment represents a write-down of goodwill
and non-compete agreements relating to the Company's acquisition of Astron, Inc.
in January 1998. The decision to write down these assets was based on continued
losses in the classroom-based training department of the Company's training
division, which was acquired through the acquisition of Astron, Inc. In
addition, the Company expects to incur continued losses in classroom-based
training and, therefore, is focusing its continued efforts on seminar-based
training and customized corporate training. There remains $509,000 of
unamortized intangible marketing rights for classroom based training related to
the acquisition of Educational Systems, Inc. The Company continues to evaluate
this asset and may in the near future write it off if current and expected
future cash flows are insufficient to assure its realizabilty.
11
<PAGE>
Other income decreased 58% or $1,701,012 from $2,913,185 to $1,212,173 for the
nine-month periods ended December 31, 1997 and 1998 respectively. Other income
for the nine-month period ended December 31, 1997 related to a one-time sale of
the Company's Open Aviator software product to BMC Software, Inc. in July 1997.
Other income during the nine-month period ended December 31, 1998 consisted
primarily of amortization of deferred revenue related to that sale, gain on the
sale of assets, and interest income.
Liquidity and Capital Resources
At December 1998, the Company had a $907,419 deficit in working capital and cash
balances had decreased 86% or $4,976,520 from $5,807,014 at March 31, 1998 to
$830,494 at December 31, 1998. The deterioration in liquidity is primarily due
to $2,243,642 of net cash used by operating activities during the nine months
ended December 31, 1998, and $2,388,942 of cash used to purchase furniture and
equipment.
The Company's primary sources of liquidity have been cash received from sales of
assets and cash provided through private sales of equity as well as being
generated by its operations. In addition, the Company has financed some of its
equipment utilized in its business through long-term leasing arrangements. The
Company's expansion and continuing operating losses will require the Company to
find additional sources of funding in future periods. In the event the Company
is not able to find such alternate sources of funding, its ability to pursue its
planned business strategy will be limited and it may be forced to reduce or
suspend its operations. There can be no assurance that the Company will be able
to obtain necessary capital funding on terms favorable to the Company, or at
all.
Year 2000
Sento Corporation has organized a Year 2000 oversight committee that is
conducting an analysis of the Company's internal compliance and implementing
necessary changes to ensure compliance. An overall five-phase plan has been
implemented to coordinate the efforts of all offices worldwide.
The five-phase plan is outlined below:
Discovery: Creation of Year 2000 Project Plan, Organization of
Oversight Committee consisting of Site Coordinators for each of the
Sento Sites, Members of IT Management and Sr. Management, and Project
Manager. Communication with Board of Directors.
Risk Assessment: Identify and document critical path items for all
departments throughout Sento worldwide. Assess risk on each item.
Determine current Year 2000 Compliance Status for each at risk item.
Equipment and Products: Inventory of internal systems and software and
embedded logic equipment. Contacting all suppliers and manufacturers of
equipment and products for Year 2000 status on products as well as
their internal company Year 2000 readiness.
Testing: Conduct internal testing on all mission critical systems to
assure no disruption of service or date-logic concerns.
Reporting and Contingency Plans: Reporting of results of above phases
and proposed contingency plans for all high-risk items.
To date, the Company has completed the Discovery, Risk Assessment, Equipment and
Products, and Testing phases. The Company is currently accumulating information
for the Reporting and Contingency Plan phase. The Company's mission critical
systems primarily consist of newly purchased computers with Intel processors
running Microsoft NT/Windows software. The Company's primary mission critical
applications have been purchased with documented Year 2000 compliance. The
telephone system and security system for the corporate office are newly
purchased and Year 2000 certification verification is underway.
12
<PAGE>
While the costs to address the Company's Year 2000 issues cannot readily be
determined until the above five phases have been completed the nature of the
systems and software that are implemented in the Company's critical path
processes, the Company does not anticipate the costs associated with any
corrective procedures will be material. The preceding statements regarding the
Company's anticipated costs are forward-looking. Actual results could differ
materially from those identified in the forward-looking statements. Factors
affecting these results include the timing and cost of completing the Company's
year 2000 assessment, the costs of any required remedial measures, the costs of
failing to anticipate year 2000 issues that arise and the existence of any
liability to third parties for failure by the Company to have adequately
addressed its year 2000 issues.
In the near term, Year 2000 compliance is creating significant demand for IT
products and services such as those provided by the Company. The passage of the
Year 2000 may have a material adverse effect on the demand for these services.
In addition, while the Company is not aware of any existing potential claims,
the occurrence of Year 2000 related system failures in the information systems
of clients of the Company could have a material adverse effect on the Company's
business, financial condition and results of operation, whether or not the
Company bears any responsibility, legal or otherwise, for the occurrence of
those problems.
Recently issued Financial Accounting Standards
In June 1997, the FASB issued SFAS No. 131, "Disclosure about Segments of an
Enterprise and Related Information." SFAS No. 131 establishes new standards for
reporting information about operating segments in interim and annual financial
statements. This statement is effective for annual financial statements with
fiscal years beginning after December 15, 1997. This statement expands
disclosure requirements and, accordingly, will have no impact on the Company's
reported financial condition, results of operations, or cash flows.
Safe Harbor Provision
This Form 10-QSB contains certain forward-looking statements (as defined in
Section 21E of the Securities Exchange Act of 1934, as amended) that involve
substantial risks and uncertainties. When used in this Form 10-QSB, the words
"anticipate" and "expect" and similar expressions as they relate to the Company
or its management is intended to identify such forward-looking statements. The
Company's actual results, performance or achievements could differ materially
from the results, performance or achievements expressed in, or implied by, these
forward-looking statements. Risks and uncertainties and other factors that could
cause or contribute to such differences include, but are not limited to, the
Company's ability to obtain capital funding necessary to pursue its business
strategy; difficulties in attracting and retaining highly skilled employees; the
Company's ability to manage rapid growth and expansion into new geographic areas
and service lines; the Company's ability to manage the risks associated with
client projects and risks related to recently completed; the Company's ability
to develop IT solutions that keep pace with continuing changes in technology,
evolving industry standards and changing client preferences; and risks related
to Year 2000 failures in client's information systems. These and other risks,
uncertainties and other factors are more fully described in the Company's Annual
Report on Form 10-KSB.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
a. None
Item 2. Changes in Securities
13
<PAGE>
a. Pursuant to a Convertible Bond and Warrant Purchase
Agreement dated as of July 8, 1997, between Canadian
Imperial Holdings, Inc. ("CIHI") and the Company, the
Company sold to CIHI a Convertible Bond with an
"issue price" of $1,000,000 and bearing interest at
the rate of six percent (the "Convertible Bond"). The
Convertible Bond, including interest on the principal
thereof, is convertible by CIHI into shares of the
Company's Common Stock (the "Common Stock") in
accordance with the conversion rate set forth in the
Convertible Bond upon the earlier of (a) at any time
after October 6, 1997 in the discretion of CIHI or
(b) automatically on July 8, 1999.
On September 16, 1998, CIHI elected to convert
$100,000 principal value of the Convertible Bond,
together with accrued interest thereon, into shares
of Common Stock. In exchange for the cancellation of
the converted portion of the Convertible Bond, on the
Company issued to CIHI 33,393 shares of Common Stock.
The sale of the convertible bonds and the issuance of
the shares of common stock upon the conversion
thereof, were effected in reliance upon an exemption
for sales of securities not involving any public
offering, as set forth in Section 4(2) of the
Securities Act of 1993, as amended (the "Securities
Act"). The Company's reliance upon such exemption was
based upon representations and warranties of CIHI
contained in transaction documents submitted to the
Company by CIHI.
On July 10, 1998, 10,707 shares of Common Stocks were
issued upon the satisfaction of performance criteria
outlined in employment agreements between the Company
and two of its employees, Jim Rogers and Saiid
Ghobadian. The value of the shares of Common Stock
($35,750 in the aggregate) issued pursuant to the
employment agreements was recorded, for financial
accounting purposes, as of March 31, 1998 and, prior
to the issuance of such shares of Common Stock, was
reflected as an accrual liability on the Company's
financial statements.
The issuance of shares of Common Stock contemplated
by the foregoing employment agreements was effected
in reliance upon an exemption for sales of securities
not involving any public offering, as set forth in
Section 4(2) of the Securities Act. The Company's
reliance upon such exemption was based, in part, upon
the employment relationship between the Company and
its employees, the access of such employees to
material information regarding the Company and its
business and financial condition and certain
representations and warranties delivered to the
Company by such employees.
Item 3. Defaults on Senior Securities
a. None
Item 4. Submission of Matters to Vote of Security Holders
a. None
Item 5. Other Information
a. In connection with recent revisions to Rule 14a-8 and
related rules promulgated under the Securities
Exchange Act of 1934, as amended, the company has
elected to provide the following information
regarding discretionary proxy voting at the Company's
1999 annual meeting of shareholders (the "1999
Meeting"). If a shareholder desiring to advance a
proposal for consideration at the Company's 1999
Meeting fails to notify the company of the proposal
14
<PAGE>
at least 45 days prior to the month and day of
mailing the Company's proxy statement relating to the
1999 annual meeting of shareholders, then management
proxies will be allowed to use their discretionary
voting authority when the proposal is raised at the
1999 Meeting, without any discussion of the matter in
the Company's proxy statement
Item 6. Exhibits and Reports on Form 8K
a. See Exhibit Index attached hereto.
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.
SENTO CORPORATION
(Registrant)
By: ______________________________
Kieth E. Sorenson
President and Chief Executive Officer
By: ______________________________
Robert K. Bench
Executive Vice President and
Chief Financial Officer
15
<PAGE>
EXHIBIT INDEX
Reg. S-K Item Exhibit Exhibit No.
- ------------------------ ------------------------------ ------------------------
10 Building Lease 1
10 Equipment Lease 2
LEASE
by and between
PRACVEST,
a Utah limited liability company,
as Landlord
and
SENTO CORPORATION,
a Utah corporation
as Tenant
for building located at
808 E. Utah Valley Drive
UTAH VALLEY BUSINESS PARK
AMERICAN FORK CITY, UTAH
<PAGE>
UTAH VALLEY BUSINESS PARK, AMERICAN FORK, UTAH
TABLE OF CONTENTS
ARTICLE I. BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS....................1
SECTION 1.01 BASIC LEASE PROVISIONS..................................1
SECTION 1.02. SIGNIFICANCE OF A BASIC LEASE PROVISION................3
SECTION 1.03. ENUMERATION OF EXHIBITS.................................3
ARTICLE II. GRANT AND PREMISES................................................3
SECTION 2.01. PREMISES...............................................3
ARTICLE III RENT..............................................................3
SECTION 3.01 BASE MONTHLY RENT......................................3
SECTION 3.02 ESCALATION.............................................3
SECTION 3.03 NET RENT...............................................4
SECTION 3.04 PAYMENTS................................................4
SECTION 3.05 ADDITIONAL RENT.........................................4
ARTICLE IV RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM..................5
SECTION 4.01 RENTAL TERM.............................................5
SECTION 4.02 RENTAL COMMENCEMENT DATE................................5
SECTION 4.03 OPTION TO EXTEND........................................5
ARTICLE V CONSTRUCTION OF PREMISES............................................5
SECTION 5.01 CONSTRUCTION BY LANDLORD................................5
SECTION 5.02 WARRANTIES..............................................5
SECTION 5.03 DELIVERY OF POSSESSION..................................5
SECTION 5.04 ALTERATIONS AND ADDITIONS BY LANDLORD...................6
ARTICLE VI TENANT'S WORK & LANDLORD'S CONTRIBUTION............................6
SECTION 6.01 TENANT'S INITIAL IMPROVEMENTS...........................6
SECTION 6.02 LANDLORD'S CONTRIBUTION.................................6
SECTION 6.03 TENANT APPROVALS........................................6
ARTICLE VII USE...............................................................6
SECTION 7.01 USE OF PREMISES.........................................6
SECTION 7.02 HAZARDOUS SUBSTANCES....................................6
ARTICLE VIII OPERATION AND MAINTENANCE OF EXTERIOR FACILITIES.................7
SECTION 8.01 CONSTRUCTION AND CONTROL OF EXTERIOR FACILITIES.........7
SECTION 8.02 LICENSE.................................................8
SECTION 8.03 UTAH VALLEY BUSINESS PARK OWNERS ASSOCIATION............8
SECTION 8.04 PROPERTY TAXES..........................................8
ARTICLE IX ALTERATIONS, SIGNS, LOCKS & KEYS...................................8
SECTION 9.01 ALTERATIONS.............................................8
SECTION 9.02 SIGNS...................................................8
SECTION 9.03 LOCKS AND KEYS..........................................9
ARTICLE X MAINTENANCE AND REPAIRS.............................................9
SECTION 10.01 LANDLORD'S OBLIGATION FOR MAINTENANCE..................9
SECTION 10.02 TENANT'S OBLIGATION....................................9
SECTION 10.03 SURRENDER AND RIGHTS UPON TERMINATION..................9
ARTICLE XI INSURANCE AND INDEMNITY...........................................10
SECTION 11.01 LIABILITY INSURANCE AND INDEMNITY.....................10
SECTION 11.02 FIRE AND CASUALTY INSURANCE...........................10
SECTION 11.03 WAIVER OF SUBROGATION.................................11
ARTICLE XII UTILITY CHARGES..................................................11
<PAGE>
UTAH VALLEY BUSINESS PARK, AMERICAN FORK, UTAH
TABLE OF CONTENTS
SECTION 12.01 UTILITY CHARGES.......................................11
ARTICLE XIII OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION.................11
SECTION 13.01 ESTOPPEL STATEMENTS....................................11
SECTION 13.02 ATTORNMENT............................................11
SECTION 13.03 SUBORDINATION.........................................11
SECTION 13.04 MORTGAGEE SUBORDINATION...............................11
SECTION 13.05 REMEDIES..............................................11
ARTICLE XIV ASSIGNMENT.......................................................11
SECTION 14.01 ASSIGNMENT............................................11
ARTICLE XV WASTE OR NUISANCE.................................................12
SECTION 15.01 WASTE OR NUISANCE.....................................12
ARTICLE XVI NOTICES..........................................................12
SECTION 16.01 NOTICES...............................................12
ARTICLE XVII DESTRUCTION OF THE PREMISES.....................................12
SECTION 17.01 DESTRUCTION...........................................12
ARTICLE XVIII CONDEMNATION...................................................12
SECTION 18.01 CONDEMNATION...........................................12
ARTICLE XIX DEFAULT OF TENANT................................................13
SECTION 19.01 DEFAULT - RIGHT TO RE-ENTER...........................13
SECTION 19.02 DEFAULT - RIGHT TO RE-LET.............................13
SECTION 19.03 LEGAL EXPENSES........................................13
ARTICLE XX BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP............................13
SECTION 20.01 ACT OF INSOLVENCY, GUARDIANSHIP, ETC...................13
ARTICLE XXI LANDLORD ACCESS..................................................14
SECTION 21.01 LANDLORD ACCESS.......................................14
ARTICLE XXII LANDLORD'S LIEN.................................................14
SECTION 22.01 LANDLORD'S LIEN.......................................14
ARTICLE XXIII HOLDING OVER...................................................14
SECTION 23.01 HOLDING OVER..........................................14
SECTION 23.02 SUCCESSORS............................................14
ARTICLE XXIV RULES AND REGULATIONS...........................................14
ARTICLE XXV QUIET ENJOYMENT..................................................14
SECTION 25.01 QUIET ENJOYMENT.......................................14
ARTICLE XXVI SECURITY DEPOSIT................................................14
SECTION 26.01 SECURITY DEPOSIT......................................14
ARTICLE XXVII MISCELLANEOUS PROVISIONS.......................................15
SECTION 27.01 WAIVER................................................15
SECTION 27.02 ENTIRE AGREEMENT......................................15
SECTION 27.03 FORCE MAJEURE.........................................15
SECTION 27.04 LOSS AND DAMAGE.......................................15
SECTION 27.05 ACCORD AND SATISFACTION...............................15
SECTION 27.06 NO OPTION.............................................15
SECTION 27.07 ANTI-DISCRIMINATION...................................15
SECTION 27.08 SEVERABILITY..........................................15
SECTION 27.09 OTHER MISCELLANEOUS PROVISIONS........................16
SECTION 27.10 REPRESENTATION REGARDING AUTHORITY....................16
SECTION 27.11 LANDLORD'S APPROVAL, CONSENT OR DETERMINATION.........16
SECTION 27.12 FINANCIAL STATEMENTS..................................16
SIGNATURES....................................................................17
LANDLORD ACKNOWLEDGMENT.......................................................17
TENANT ACKNOWLEDGMENT.........................................................17
<PAGE>
LEASE AGREEMENT
ARTICLE I. BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS
SECTION 1.01 BASIC LEASE PROVISIONS
(A) DATE: July , 1998
---------------
(B) LANDLORD: PRACVEST, a Utah general partnership
------------------------------------
(C) ADDRESS OF LANDLORD FOR NOTICES (Section 16.01): 2733 East Parleys Way,
Suite 300, Salt Lake City, UT 84109 -----------------------
------------------------------------
(D) TENANT: SENTO, Corporation, a Utah corporation
------------------------------------------
(E) ADDRESS OF TENANT FOR NOTICES (Section 16.01): 315 North State Street,
Orem, Utah 84057 -------------------------
----------------
(F) PERMITTED USES (Section 7.01): general office and related purposes,
----------------------------------------
such as shipping, and any other use permitted by applicable law.
-----------------------------------------------------------------------
(G) TENANT'S TRADE NAME (Exhibit "E" - Sign Criteria): SENTO
-----------
(H) BUILDING (Section 2.01): The entire building situated at 808 East Utah
Valley Drive, American Fork, County of Utah, State of Utah, consisting
of approximately 39,756 square feet of gross rentable area, together
with the landscaping surrounding such building, all at the approximate
location outlined on Exhibit "A".
(I) PREMISES (Section 2.01): The Building, together with the adjacent
landscaping, sidewalks and other related improvements, and all
necessary and appropriate rights of vehicular and pedestrian ingress
and egress to and from the Building, and the vehicular parking (without
additional charge) located on Lots 19-20, Utah Valley Business Park
Subdivision subject to the Provisions of Section 1.01 (U). Said
Premises are outlined in yellow on Exhibit "A" attached hereto.
(J) DELIVERY OF POSSESSION (Section 5.03):
1) On or before July 31, 1998 for the second
floor. If Landlord fails to Deliver
Possession of the second floor on or before
July 31, 1998, Landlord shall pay as
liquidated damages, all of Tenant's rental
charges incurred at Tenant's existing leased
premises plus $500 per day.
2) On or before August 21, 1998 for the first
floor although Landlord shall use diligent
efforts to deliver possession of the second
floor prior to August 21, 1998.
Notwithstanding anything to the contrary herein, Tenant may enter upon
the Premises prior to the Delivery of Possession date for purpose of
installing office cubicles and related items to be provided by Tenant.
(K) RENTAL TERM, COMMENCEMENT AND EXPIRATION DATE (Sections 4.01 & 4.02):
The Rental Term shall commence on the date which is two (2) months
after Delivery of Possession of the first floor as set forth in Section
5.03, and shall be for a period of seven (7) full Lease Years ending on
the last day of the eighty fourth full calendar month after the rental
term commencement date.
(L) BASE MONTHLY RENT (Section 3.01): Thirty-Three Thousand Four Hundred
and No/100ths Dollars ($33,400.00). See adjustments for Tenant
Improvement costs per Section 3.01(b).
(M) ESCALATIONS IN BASE MONTHLY RENT (Section 3.02): Five percent (5%)
every two years on the anniversary of the first day of the first full
calendar month after commencement of Rental Term. Accordingly, assuming
a September 20, 1998 rental commencement date, commencing October 1,
2000, the Base Monthly Rent shall increase to $35,070.00; commencing
October 1, 2002, the Base Monthly Rent shall increase to $36,823.50;
and commencing October 1, 2004, the Base Monthly Rent shall increase to
$38,664.68. If the base monthly rent per Section 1.01(L) is adjusted
pursuant to Section 3.01(b), the rental herein shall be proportionately
adjusted.
(N) LANDLORD'S SHARE OF OPERATING EXPENSES (Section 3.03): None. The Base
Monthly Rent shall be absolutely net to the Landlord as provided in
Section 3.03. except as otherwise provided in this Lease (e.g. Section
10.01).
(O) TENANT'S PRO RATA SHARE OF OPERATING EXPENSES (Section 3.03): In
addition to the Base Monthly rent, Tenant shall be responsible for all
<PAGE>
Operating Expenses as defined in Section 3.03(b) of the Lease to
include only exterior maintenance, property taxes, and insurance. At
least ten (10) days prior to the beginning of any lease year, Landlord
shall reasonably estimate the annual Operating Expenses reimbursable to
Landlord for the upcoming lease year and Tenant agrees to pay 1/12th of
said annual estimate monthly together with Base Monthly Rent. On or
before sixty (60) days after the end of any lease year, Landlord shall
determine the actual reimbursable Operating Expenses for the prior
lease year and if said actual amount is less than the monthly estimated
amount paid by Tenant, then Tenant shall be entitled to deduct the
excess amount paid thereof from Tenant's next installment of estimated
monthly Operating Expenses or, if related to the last year of the
Lease, refunded to Tenant within sixty (60) days after the expiration
of the Lease. If the actual amount is greater than that paid by Tenant
for the lease year, then Tenant shall pay to Landlord the difference
within fifteen (15) days after receipt of invoice from Landlord.
(P) UTILITIES AND SERVICES: Subject to the provisions of Section 3.03 and
12.01, this Lease provides that the utilities and services shall be
paid directly or reimbursed by Tenant.
(Q) LANDLORD'S CONTRIBUTION TO TENANT'S WORK (Section 3.01 (b) and Section
6.02): Six Hundred Forty Six Thousand Dollars ($646,000.00).
(R) PREPAID RENT: None.
(S) OPTION TO EXTEND (Section 4.03): If Tenant is not then in default on
the terms and conditions described herein beyond any applicable notice
and cure period, Landlord agrees to extend this Lease for an additional
two (2) year term at the following Base Monthly Rent:
First Year of Extension Term = $36,823.50/month
Second Year of Extension Term = $38,664.68/month
Tenant must notify Landlord one hundred eighty (180) days prior to
expiration date of this Lease if Tenant desires to exercise this Option
to Extend.
(T) SECURITY DEPOSIT (Section 26.01): Thirty-three Thousand Four Hundred
and No/100ths Dollars ($33,400.00). If Tenant earns a net income of
$1,000,000 or greater in any two consecutive fiscal years of Tenant,
then Landlord agrees to refund said Security Deposit within thirty (30)
days after official public announcement of earnings and written
notification to Landlord from Tenant that Tenant has qualified to
receive a refund of said Security Deposit. Notwithstanding the above,
if subsequent to said refund, Tenant's earnings in any fiscal year are
less than $200,000, then Tenant shall redeposit said Security Deposit
which shall then be refunded in the manner set forth above if Tenant's
earnings again exceed $1,000,000 in any fiscal year after Tenant has
redeposited the Security Deposit.
(U) PARKING: LANDLORD agrees that Landlord shall at all times during the
term of this Lease provide parking for five (5) vehicles per 1,000
square feet of Building gross leasable area to be located on Lots
17-20, Plat "G", Utah Valley Business Park Subdivision (Buildings 5 and
6) which parking shall be jointly used by occupants of Buildings 5 and
6, as outlined on the attached Exhibit "A-1). Such parking area shall
not be altered so as to limit or restrict Tenant's vehicular ingress
and egress or parking without the prior written consent of Tenant,
which shall not be unreasonably withheld.
(V) intentionally deleted
(W) intentionally deleted
<PAGE>
SECTION 1.02. SIGNIFICANCE OF A BASIC LEASE PROVISION. The foregoing
provisions of Section 1.01 summarize for convenience only certain fundamental
terms of the Lease delineated more fully in the Articles and Sections referenced
therein. In the event of a conflict between the provisions of Section 1.01 and
the balance of the Lease, the latter shall control.
SECTION 1.03. ENUMERATION OF EXHIBITS. The exhibits enumerated in this
Section and attached to this Lease are incorporated in the Lease by this
reference and are to be construed as a part of the Lease.
EXHIBIT "A" - UTAH VALLEY BUSINESS PARK SITE PLAN
EXHIBIT "A-1" - SITE PLAN FOR LOTS 17-20, PLAT "G"
EXHIBIT "A-2" - SPACE PLANS (to be attached)
EXHIBIT "B" - LEGAL DESCRIPTION(S) OF LEASED PREMISES
EXHIBIT "C-D" - LANDLORD'S WORK AND TENANT WORK SPECIFICATIONS
EXHIBIT "E" - SIGN CRITERIA
EXHIBIT "F" - RESTRICTIVE COVENANTS
ARTICLE II. GRANT AND PREMISES
SECTION 2.01. PREMISES. In consideration for the rent to be paid and
covenants to be performed by Tenant, Landlord hereby leases to Tenant, and
Tenant leases from Landlord for the Term and upon the terms and conditions
herein set forth the premises described in Section 1.01(I) (hereinafter referred
to as the "Premises"), which are being constructed by Landlord on Lots 19-20,
Plat "G" in Utah Valley Business Park, approximately located as shown on Exhibit
"A" attached hereto. Gross rentable area measurements for the building herein
specified are from the exterior of the perimeter walls of the building.
Said Premises includes the Building together with site work to be
constructed by Landlord together with Tenant Improvements in accordance with
mutually approved plans and specifications to be later attached and incorporated
herein by reference all as set forth in Exhibit "C-D" attached hereto.
Subject to the provisions of Article VIII contained herein, Tenant and
its customers, agents and invitees have the right to the non-exclusive use, in
common with others of such unreserved automobile parking spaces, driveways,
footways, and other facilities designated for common use exterior to the
Building.
Said Premises are subject to restrictive covenants and conditions
governing the Utah Valley Business Park which are recorded in the office of the
Utah County Recorder which are attached as Exhibit "F". Landlord represents that
Landlord is not aware of any conflict between the aforesaid restrictive
covenants and conditions and the provisions of this lease.
ARTICLE III RENT
SECTION 3.01 BASE MONTHLY RENT.
(a) Tenant agrees to pay to Landlord the Base Monthly Rent set
forth in Section 1.01(L) at 2733 East Parleys Way, Suite 300, Salt Lake
City, Utah 84109 or such other place as Landlord may designate, without
prior demand therefor, without offset or deduction and in advance on or
before the first day of each calendar month during the Rental Term,
commencing on the Rental Commencement Date. In the event the Rental
Commencement Date occurs on a day other than the first day of a
calendar month, then the Base Monthly Rent to be paid on the Rental
Commencement Date shall include both the Base Monthly Rent for the
first full calendar month occurring after the Rental Commencement Date,
plus the Base Monthly Rent for the initial fractional calendar month
prorated on a per-diem basis (based on the actual number of days
elapsed).
(b) Base Monthly Rent is calculated based on a Landlord
construction allowance of $646,000 to cover the cost of Tenant
Improvements designated as Tenant's Work on Exhibit "C-D". To the
extent that Landlord's actual construction cost is greater (or less)
than $646,000 the initial base rent and all escalations thereto shall
be adjusted by $12.00 per month for each increase (saving) of One
Thousand Dollars ($1,000.00). However, should the estimated
construction exceed $725,000 either Landlord or Tenant may terminate
this Lease prior to commencement of construction by giving written
notice to the other party.
SECTION 3.02 ESCALATION. Tenant's Base Monthly Rent shall be increased
on the Adjustment Dates set forth in Section 1.01 (M).
<PAGE>
SECTION 3.03 NET RENT.
(a) It is understood that the Monthly Base Rent shall be
"completely net" such that monthly base rent received by Landlord shall
be unabated by any Operating Expenses and property taxes, insurance
expense, or other expenses whatsoever except as outlined in this Lease.
If Landlord advances in the first instance any property tax or
insurance premiums, Tenant shall promptly reimburse Landlord such
advances as set forth hereinafter. Furthermore Tenant shall pay a
pro-rata share of Utah Valley Business Park common area expenses as set
forth in Section 8.01 hereinafter.
(b) "Exterior Operating Expenses" shall mean all reasonable
actual costs and expense incurred by Landlord in connection with the
ownership, operation, management and maintenance of exterior areas of
the Property and related improvements located thereon (the "Exterior
Improvements", including, but not limited to, all reasonable expenses
incurred by Landlord as a result of Landlord's compliance with any and
all of its obligations under this Lease except as set forth in Section
10.01 hereof. In explanation of the foregoing, and not in limitation
thereof, Operating Expenses shall include: utilities, repair and
maintenance costs, maintenance and replacement of landscaping, all real
and personal property taxes and assessments (whether general or
special, known or unknown, foreseen or unforeseen) and any tax or
assessment levied or charged in lieu thereof, whether assessed against
Landlord and/or Tenant and whether collected from Landlord and/or
Tenant; snow removal, trash removal, common area utilities, supplies,
insurance, license, permit and inspection fees, Utah Valley Business
Park common area maintenance assessments attributable to Lots 19-20,
which are estimated to be $480.00 for the first year of this Lease,
cost of services of independent contractors, cost of compensation
(including employment taxes and fringe benefits) of all persons who
perform regular and recurring duties connected with day-to-day
operation, maintenance, repair, and replacement of the Exterior
Improvements, scavenger, gardening, landscaping, security, parking,
painting, and rental expense or a reasonable allowance for depreciation
of personal property used in the maintenance, operation and repair of
the Exterior Improvements. The foregoing notwithstanding, Operating
Expenses shall not include 1) depreciation on the Building and
Improvements, 2) amounts paid toward principal or interest of loans of
Landlord; 3) roof or structural repairs or costs to cure construction
defects during the warranty period referred to in Section 5.02 4) costs
paid directly by Tenant such as utilities, janitorial, property taxes,
Tenant's liability insurance and personal property casualty insurance,
and 5) property management fees except that Landlord shall be entitled
to charge a sum equal to fifteen percent (15%) of all Operating
Expenses administered by and reimbursable to Landlord to cover
Landlord's supervision costs and overhead.
(c) Landlord agrees to provide an annual budget to Tenant at
least 30 days prior to the Rent Commencement Date and annually
thereafter on a calendar year basis on or before January 1 of each
year. Any deviation of more than $1,000 for any one item or $5,000
total in any calendar year shall be approved by Tenant, which approval
shall not be unreasonably withheld, prior to Landlord incurring such
expense.
(d) Tenant shall pay as Additional Rent the amount estimated
by Landlord as Tenant's pro-rata share of Operating Expenses as set
forth in Section 1.01(O). To the extent that Tenant's actual pro-rata
share of Operating Expenses in any Lease Year is less or greater than
the estimated amount paid by Tenant during said Lease Year, Tenant
shall be entitled to reimbursement or shall pay the deficiency as the
case may be as set forth in Section 1.01(O).
SECTION 3.04 PAYMENTS. All payments of Base Monthly Rent, Additional
Rent and other payments to be made to Landlord shall be made on a timely basis
and shall be payable to Landlord or as Landlord may otherwise designate. All
such payments shall be mailed or delivered to Landlord's principal office set
forth in Section 1.01(C), or at such other place as Landlord may designate from
time to time in writing. If mailed, all payments shall be mailed in sufficient
time and with adequate postage thereon to be received in Landlord's account by
no later than the due date for such payment. If Tenant shall fail to pay any
Base Monthly Rent or any Additional Rent or any other amounts or charges within
ten (10) days after the date when due, Tenant shall pay a late fee equal to two
(2%) percent of such past due amount and, in addition, Tenant shall pay interest
from the due date of such past due amounts to the date of payment, both before
and after judgment at a rate equal to the greater of twelve (12%) percent per
annum or two (2%) percent over the "prime" or "base" rate charged by Zions First
National Bank of Utah at the due date of such payment; provided however, that in
any case the maximum amount or rate of interest to be charged shall not exceed
the maximum non-usurious rate in accordance with applicable law.
SECTION 3.05 ADDITIONAL RENT. Tenant shall pay as "Additional Rent" any
and all sums of money or charges required to be paid by or reimbursed by Tenant
under this Lease whether or not the same be designated Additional Rent. If such
amounts or charges are not paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectible as Additional Rent with the
next installment of Fixed Minimum Rent thereafter falling due hereunder, but
nothing herein contained shall be deemed to suspend or delay the payment of any
amount of money or charge at the time the same becomes due and payable
hereunder, or limit any interest, late fee or other remedy of the Landlord.
<PAGE>
ARTICLE IV RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM
SECTION 4.01 RENTAL TERM. The initial term of this Lease shall be for
the period defined as the Rental Term in Section 1.01(K), plus the partial
calendar month, if any, occurring after the Rental Commencement Date (as
hereinafter defined) if the Rental Commencement Date occurs other than on the
first day of a calendar month. "Lease Year" shall include twelve (12) calendar
months, except that first Lease Year will also include any partial calendar
month beginning on the Rental Commencement Date.
SECTION 4.02 RENTAL COMMENCEMENT DATE. The Rental Term of this Lease
and Tenant's obligation to pay rent hereunder shall commence as set forth in
Section 1.01(K) (the "Rental Commencement Date"). Within fifteen (15) days after
Landlord's request to do so, Landlord and Tenant shall execute a written
affidavit, in recordable form, expressing the Rental Commencement Date and the
termination date, which affidavit shall be deemed to be part of this Lease.
SECTION 4.03 OPTION TO EXTEND. Provided that Tenant is not then in
default beyond any applicable notice and cure period, Tenant shall have the
option to extend this Lease for one two-year term after the initial term of this
Lease, by giving written notice to Landlord of such election at least one
hundred eighty (180) days prior to the expiration date of the initial term of
this Lease. The Extension Term shall be on the same terms and conditions as set
forth in this Lease except that the Base Monthly Rent shall be as set forth in
Section 1.01(S).
ARTICLE V CONSTRUCTION OF PREMISES
SECTION 5.01 CONSTRUCTION BY LANDLORD. Landlord shall construct or
cause to be constructed the Premises and site improvements related thereto. The
Premises shall be constructed substantially in accordance with Outline
Specifications marked Exhibit "C-D" attached hereto and made a part hereof.
Landlord shall proceed to cause architectural plans and specifications for
Tenant Improvements to be created which shall be subject to mutual approval of
Landlord and Tenant. Tenant's Space Plans shall be attached hereto as Exhibit
"A-2" when finally determined and approved both Landlord and Tenant. It is
understood and agreed by Tenant that no minor changes from any plans or
specifications which may be necessary during construction of the Premises or the
Building shall affect or change this Lease or invalidate same. Landlord shall
notify Tenants of any substantive change and obtain Tenant's approval prior to
making any such change.
SECTION 5.02 WARRANTIES. Landlord shall obtain warranties from
Landlord's contractor as to workmanship and materials used in construction and
as to any HVAC or other equipment installed by Landlord at the Premises for a
period of one year from Delivery of Possession, and assign and subrogate to
Tenant any rights Landlord may have against contractors or materialmen in
relation to the warranties and improvements. All improvements made by Landlord
shall be warranted against defects in workmanship or materials by Landlord or
another party under contract with Landlord for a period of one (1) year after
the date of Delivery of Possession.
SECTION 5.03 DELIVERY OF POSSESSION. Except as hereinafter provided,
Landlord shall deliver possession of the Premises to Tenant with Tenant
Improvement Work substantially completed in accordance with the mutually agreed
plans and specifications on or before the date set forth in Section 1.01(J). The
Premises shall be deemed as ready for Tenant's possession when Landlord shall
have substantially completed construction of the Premises in accordance with
Landlord's obligations set forth in Exhibit "C"/"D". Landlord shall, from time
to time during the course of construction, provide information to Tenant
concerning the progress of construction of said Premises, and will give written
notice to Tenant when said Premises are substantially completed. Within five (5)
days after receipt of notice of substantial completion, representatives of
Landlord and Tenant shall meet at the Premises to inspect the Premises and
prepare a punchlist of items yet to be completed. At that time, Tenant may then
take possession and commence installation of Tenant's fixtures and equipment and
any other Tenant work subject to Landlord's obligation to complete such
identified punchlist items. At the time Landlord substantially completes said
punchlist items and obtains a temporary Certificate of Occupancy, Landlord shall
deliver notice to Tenant and Delivery of Possession shall occur as of said date,
and the Rental Commencement Date shall occur as of the date which is two (2)
months after the Delivery of Possession date. Should, notwithstanding Landlord's
completion of its construction obligations, the required Certificate of
Occupancy be withheld due solely to the failure of Tenant to complete work for
which Tenant is responsible, then the date Delivery of Possession shall be the
date Landlord substantially completes its punchlist items. It is agreed that by
occupying the Premises as a tenant, Tenant formally accepts the same and
acknowledges that the Premises are in the condition called for hereunder, except
for items specifically excepted in writing at date of occupancy as "incomplete",
or which could not have reasonably been discovered during the inspection
(punchlist) referred to above and of which are brought to the attention of
Landlord by Tenant's written notice within ninety (90) days subsequent to
Tenant's occupying the Premises.
SECTION 5.04 ALTERATIONS AND ADDITIONS BY LANDLORD. Landlord hereby
reserves the right at any time, and from time to time, to build another building
adjacent to the land on which the Premises are located as shown on the attached
Exhibit A and to modify the existing parking or other common areas (excluding
the erection of parking structures) to accommodate additional buildings on
<PAGE>
condition that if additional adjacent buildings are constructed, Landlord agrees
to create or maintain a parking ratio of not less than five (5) cars per 1,000
square feet of gross rentable area and subject to provisions of Section 1.01
(U).
ARTICLE VI TENANT'S WORK & LANDLORD'S CONTRIBUTION
SECTION 6.01 TENANT'S INITIAL IMPROVEMENTS.
(a) Landlord shall provide Tenant's Tenant Improvements as
defined in Section H of Exhibit "C-D" in accordance with mutually
approved Space Plans. Upon approval by Tenant, Tenant directs Landlord
to proceed with drawing plans and specifications for Tenant Improvement
Work. Tenant agrees to cooperate and make available a representative to
direct space planning efforts with Landlord's architect at such times
as are requested by Landlord and Tenant shall give approvals of or
indicate items not approved on Tenant Improvement plans and
specifications within three (3) business days after submission by
Landlord's architect. If Tenant shall disapprove of any aspect of
Tenant Improvement plans and specifications submitted by Landlord's
architect, Tenant shall specifically indicate which items are not
approved and the alternative which Tenant desires. If Tenant fails to
timely act as set forth in Article VI, makes changes to space plans or
Tenant Improvement plans and specifications after approval is given, or
adds material items after the initial submission of plans and
specifications by Landlord's Architect, then the time for Delivery of
Possession shall be postponed appropriately.
(b) As to initial construction or future construction
performed at Tenant's request, Landlord shall have full responsibility
for constructing the Premises and the Tenant Improvements in compliance
with all applicable laws, ordinances, rules and regulations, including,
without limitation, the Americans with Disabilities Act of 1990, as
amended. Any failure of Landlord to strictly comply with the
immediately preceding sentence shall be remedied by Landlord, at its
sole cost and expense, without direct or indirect reimbursement by
Tenant.
(c) Landlord has bid Tenant Improvements, and with the
approval of Tenant has awarded the construction contract to Advanced
Interior Systems.
SECTION 6.02 LANDLORD'S CONTRIBUTION. Landlord agrees to make the
contribution to Tenant's Improvements of the amount set forth in Section
1.01(Q). If the cost of Tenant Improvements is more or less than the Landlord
Contribution set forth in Section 1.01(Q) then the monthly base net rent shall
be adjusted pursuant to Section 3.01(b) herein.
SECTION 6.03 TENANT APPROVALS. Tenant shall have the right to approve
all architectural plans and specifications prior to commencement of construction
by Landlord. Tenant shall respond promptly to Landlord to requests for
information and approvals to facilitate completion of said plans and
specifications.
ARTICLE VII USE
SECTION 7.01 USE OF PREMISES. Tenant shall use and occupy the Premises
solely for the uses indicated in Section 1.01(F). Tenant shall promptly comply
with all present or future laws, ordinances, lawful orders and regulations
affecting the Premises and the cleanliness, safety, occupancy and use of same
(subject to the provisions of Section 6.01(b)). Tenant shall not keep or use on
the Premises any article, item, or thing which will make the Premises
uninsurable. Neither Tenant nor Landlord shall not commit any waste upon the
Premises and Tenant shall not conduct or allow any business, activity, or thing
on the Premises which is an annoyance or causes damage to occupants of
properties adjacent to the Premises.
SECTION 7.02 HAZARDOUS SUBSTANCES.
(a) Landlord shall be responsible for removal of any Hazardous
Substances that existed at the Premises prior to construction or any
that Landlord has or does install at the Premises. After reasonable
inquiry, Landlord is not aware of any existing Hazardous Substances
within or near the Premises.
(b) Tenant shall not use, produce, store, release, dispose or
handle in or about the Premises or transfer to or from the Premises (or
permit any other party within Tenant's control to do such acts) any
Hazardous Substance except in compliance with all applicable
Environmental Laws. Tenant shall not construct or use any improvements,
fixtures or equipment or engage in any act on or about the Leased
Premises that would require the procurement of any license or permit
pursuant to any Environmental Law unless proper permits are obtained
and Landlord is notified of such prior to such construction or use.
Tenant shall immediately notify Landlord of (i) the existence of any
Hazardous Substance on or about the Premises of which Tenant is aware
that may be in violation of any Environmental Law (regardless of
whether Tenant is responsible for the existence of such Hazardous
<PAGE>
Substance), (ii) any proceeding or investigation of which Tenant is
aware by any governmental authority regarding the presence of any
Hazardous Substance on the Premises or the migration thereof to or from
any other property, (iii) all claims made or threatened by any third
party against Tenant of which Tenant is aware relating to any loss or
injury resulting from any Hazardous Substance, or (iv) Tenant's
notification of the National Response Center of any release of a
reportable quantity of a Hazardous Substance in or about the Premises.
"Environmental Laws" shall mean any federal, state or local statute,
ordinance, rule, regulation or guideline pertaining to health,
industrial hygiene, or the environment, including without limitation,
the federal Comprehensive Environmental Response, Compensation, and
Liability Act; "Hazardous Substance" shall mean all substances,
materials and wastes that are or become regulated, or classified as
hazardous or toxic, under any Environmental Law. If it is determined
that any Hazardous Substance exists on the Premises resulting from any
act of Tenant or its employees, agents, contractors, licensees,
subtenants or customers, then Tenant shall immediately take necessary
action to cause the removal of said substance and shall remove such
within ten (10) days after discovery. Notwithstanding the above, if the
Hazardous Substance is of a nature that can not be reasonably removed
within ten (10) days Tenant shall not be in default if Tenant has
commenced to cause such removal and proceeds diligently thereafter to
complete removal, except that in all cases, any Hazardous Substance
must be removed as soon as possible. Furthermore, notwithstanding the
above, if in the good faith judgment of Landlord, the existence of such
Hazardous Substance creates an emergency or is of a nature which may
result in immediate physical danger to persons at the Property, and
Tenant fails to immediately remove the same after written notice from
Landlord, Landlord may enter upon the Premises and remove such
Hazardous Substances and charge the reasonable cost thereof to Tenant
as Additional Rent.
(c) The party herein responsible for removal of Hazardous
Substances shall upon learning of such condition proceed within five
(5) days thereafter to commence removal of such Hazardous Substance and
shall diligently continue to effect such removal until completion.
Removal shall be accomplished in accordance with any applicable safety
standards.
ARTICLE VIII OPERATION AND MAINTENANCE OF EXTERIOR FACILITIES
SECTION 8.01 CONSTRUCTION AND CONTROL OF EXTERIOR FACILITIES
a) All automobile parking areas, driveways, entrances and exits
thereto, and other facilities furnished by Landlord on the Premises
exterior to the Building, including if any, employee parking areas,
truck ways, loading docks, mail rooms or mail pickup areas, pedestrian
sidewalks, landscaped areas, retaining walls, stairways and other areas
and improvements provided by Landlord for the general use in common of
tenants, their officers, agents, employees and customers, shall at all
times be subject to the control and management of Landlord which shall
have the right from time to time to establish, modify and enforce
reasonable Rules and Regulations with respect to all facilities and
areas mentioned in this Section. Landlord shall have the right to
construct, maintain and operate lighting and drainage facilities on or
in all said areas and improvements; to police the same, from time to
time to change the area, level, location and arrangement of parking
areas and other facilities hereinabove referred to; to restrict parking
by Tenant, its officers, agents and employees relating to Lots 17 and
18 of Plat "G" only; to close temporarily all or any portion of said
areas or facilities to such extent as may, in the opinion of counsel,
be legally sufficient to prevent a dedication thereof or the accrual of
any rights to any person or the public therein; provided that such
closing does not occur during weekday business hours; to discourage
non-employee and non-customer parking; and to do and perform such other
acts in and to said areas and improvements as, in the exercise of good
business judgment, the Landlord shall determine to be advisable with a
view toward maintaining of appropriate convenience uses, amenities, and
for permitted uses by Tenant, its officers, agents, employees and
customers. Landlord will operate and maintain the exterior facilities
referred to above in such a manner as Landlord as it shall determine
from time to time subject to such suggestions as Tenant may elect to
provide. Landlord shall have the full right and authority to employ all
personnel and to make all Rules and Regulations pertaining to and
necessary for the proper operation, security and maintenance of the
exterior areas and facilities. Traffic control signs and other signs
determined by Landlord to be in best interest of the Project will be
considered part of exterior facilities.
b) Tenant shall reimburse Landlord's reasonable cost in maintaining and
replacing said exterior facilities in accordance with Section 3.03 (b)
and (c).
c) Notwithstanding the above, Tenant or Landlord may elect to have
Tenant take over the said obligations for exterior facilities as set
forth in Section 8.01 (a) and pay the cost of thereof independently
upon thirty (30) days written notice to other party. In no case,
however, shall the standards governing Tenant for maintenance,
replacement and supervision of exterior facilities on the Premises be
less than these adhered to by Landlord for Lots 17-18 (adjacent
building and exterior facilities to the west). If Tenant assumes said
exterior facilities obligations and fails to adhere to the minimum
standards set forth above, then Landlord shall give written notice of
default to Tenant, and if said default is not cured within thirty (30)
<PAGE>
days after such notice or Tenant defaults as to said obligation more
than two times in any twelve month period then Landlord may resume said
obligations and receive reimbursement of costs therefor as provided in
this Lease.
SECTION 8.02 LICENSE. (intentionally deleted)
SECTION 8.03 UTAH VALLEY BUSINESS PARK OWNERS ASSOCIATION. When
organized Tenant shall be entitled to participate in the Owners Association for
the Utah Valley Business Park. To the extent that the Owners Association or
Landlord, in lieu of the Owners Association, maintains certain common area
landscaping signs, or other items for the business park, Tenant shall pay a
pro-rata share of the cost incurred ("common area cost") based on the ratio of
the land area of the Premises to the land area then available for occupancy by
users within the Utah Valley Business Park. Said costs shall be estimated
annually and one-twelfth of said estimate shall be paid by Tenant to Landlord or
the Utah Valley Business Park Owners Association monthly on the same due date as
the base monthly rent. Said costs are estimated to be $480 per year ($40
monthly) during the first year of this Lease. Within sixty (60) days following
the close of each calendar year, Landlord or the Owners Association will furnish
to Tenant a statement of the actual amount of said Common Area Cost incurred
over the prior calendar year and Tenant's share of said cost for such calendar
year period. If the actual amount of Tenant's share of said Common Area Cost is
less than the total amount theretofore paid by Tenant for such period, the
excess will be refunded to Tenant within fifteen (15) days following such
determination. If the actual amount of Tenant's share of said common area cost
exceeds the amount paid by Tenant for such period, Tenant shall pay to Landlord,
within fifteen (15) days following the receipt of Landlord's statement, the
amount shown as due thereon. The obligations of Landlord and Tenant to make the
foregoing adjustment on a calendar year basis shall survive the expiration or
earlier termination of this Lease.
SECTION 8.04 PROPERTY TAXES.
(a) Tenant shall prior to delinquency pay all real property
taxes and assessments, charges and fees which may be imposed, assessed,
or levied by any governmental authority against the Premises upon
Tenant's use of the Premises or any inventory, personal property,
fixtures, or equipment kept or installed or permitted to be located
therein by Tenant throughout the Rental Term of the Lease (all of which
are collectively herein referred to as "Taxes"). For the initial
partial calendar year, Landlord will advance the payment for property
taxes and shall then invoice Tenant for Tenant's pro-rata share due for
the period from the Rental Term Commencement Date to end of the taxable
year. Said invoice shall show the calculation of Tenant's share in
reasonable detail. Tenant shall reimburse Landlord for said pro-rata
share within twenty (20) days after receipt of said invoice.
Thereafter, Landlord shall cause the Premises to be separately assessed
and shall forward the tax bill to Tenant when received and Tenant shall
pay said Taxes in full on or before the date delinquent. If Tenant
fails to pay said Taxes prior to delinquency, Landlord may advance the
same on behalf of Tenant together with any penalties chargeable thereon
and Tenant shall reimburse Landlord the sums so advanced together with
interest at fifteen (15%) percent from the date paid by Landlord within
twenty (20) days after receipt of invoice from Landlord.
(b) Notwithstanding the above, Tenant shall not be obligated,
however, to any income tax, profits tax, or excise tax that may be
payable by or chargeable to Landlord. Tenant shall not be obligated to
pay any inheritance, transfer, estate, succession or other similar tax
or charge that may be payable under any present or future law by reason
of the devolution, succession, transfer, passing by inheritance,
devise, acquisition or becoming effective of the right to possession
and enjoyment of all or a part of the estate of Landlord in the
Premises, whether by descent, deed, testamentary provision, trust deed,
gift, mortgage, or otherwise.
ARTICLE IX ALTERATIONS, SIGNS, LOCKS & KEYS
SECTION 9.01 ALTERATIONS. Tenant shall not make or suffer to be made
any structural or building system alterations or additions or alterations or
additions in excess of $10,000 to the Premises or any part thereof without the
prior written consent of Landlord which consent shall not be unreasonably
withheld. Any additions to, or alterations of, the Premises except movable or
detachable furniture, equipment , trade fixtures and other personal property
(whether or not attached) shall become a part of the realty and belong to
Landlord upon the termination of Tenant's lease or renewal term or other
termination or surrender of the Premises to Landlord except that Tenant may
remove items if Tenant restores the Premises to its original condition.
SECTION 9.02 SIGNS. Subject to prior municipal or required public
approvals and to full conformity with Exhibit "E", Tenant may place, at its own
expense, a building-mounted tenant identification sign on the Premises at a
location approved by Landlord, such approval not to be unreasonably withheld.
Said sign shall conform to the criteria set forth in Exhibit "E". In addition,
Tenant shall have the right to erect a monument sign advertising its business,
provided that such sign shall be in the Landlord-approved location identified on
Exhibit "A" and provided that written approval of the sign design is obtained in
advance from Landlord such approval not to be unreasonably withheld. If any sign
is installed or posted prior to obtaining such approval (and such approval is
not subsequently obtained) or which does not conform to the conditions herein
<PAGE>
specified, Tenant shall be required to remove said sign and repair any damage
caused thereby at its sole cost and expense. At the termination of this Lease,
Tenant shall remove said sign. Tenant shall repair any damage caused by the
installation or removal of any Tenant signs. All work shall be completed in a
good and workmanlike manner.
SECTION 9.03 LOCKS AND KEYS. Landlord shall provide card access to the
Premises and the cost of providing cards/keys shall be charged to Tenant. Access
to Tenant space doors shall be by key. Tenant may change locks or install other
locks on doors. Tenant upon termination of this Lease shall deliver to Landlord
all the keys to the Premises including any interior offices, toilet rooms,
combinations to built-in safes, etc. which shall have been furnished to or by
Tenant or are in the possession of Tenant.
ARTICLE X MAINTENANCE AND REPAIRS
SECTION 10.01 LANDLORD'S OBLIGATION FOR MAINTENANCE.
a) Landlord shall maintain and repair the Building roof and foundation
at its sole cost and expense (without direct or indirect reimbursement
from Tenant), the Building roof, foundation and other structural
elements and any defects in construction as may be warranted per
Section 5.02. Landlord shall not be obligated to repair any damage or
defect until receipt of written notice from Tenant of the need of such
repair and Landlord shall have a reasonable time after receipt of such
notice in which to make such repairs. Tenant shall give immediate
notice to Landlord in case of fire or accidents at the Premises or of
defects therein or in any fixtures or equipment provided by Landlord.
b) Landlord shall also maintain the parking and other exterior areas
set forth in Section 8.01 subject to reimbursement therefore as
provided in Section 3.03 (b) and (c).
SECTION 10.02 TENANT'S OBLIGATION.
(a) Except as set forth in Section 10.01 as Landlord
responsibility, Tenant shall provide its own janitorial service and
keep and maintain the entire interior of the Premises including
insulation, interior wall surfaces, doors and windows, floors, floor
coverings and ceilings in a clean, sanitary and safe condition in
accordance with the laws of Utah and in accordance with all directions,
rules and regulations of the health officer, fire marshall, building
inspector, or other proper officials of the governmental agencies
having jurisdiction, at the sole cost and expense of Tenant, and Tenant
shall comply with all requirements of law, ordinance and otherwise,
affecting said Premises.
(b) Tenant shall pay, when due, all claims for labor or
material furnished, for work under Sections 9.01, 9.02 and 9.03 hereof,
to or for Tenant at or for use in the Premises, and shall bond such
work if reasonably required by Landlord to prevent assertion of claims
against Landlord.
(c) Tenant agrees to be responsible for all furnishings,
fixtures and equipment located upon the Premises from time to time and
shall replace carpeting within the Premises if same shall be damaged by
tearing or burning, reasonable wear and tear accepted. Tenant further
agrees to use chairmats or floor protectors wherever it uses chairs
with wheels or casters on carpeted areas.
SECTION 10.03 SURRENDER AND RIGHTS UPON TERMINATION.
(a) This Lease and the tenancy hereby created shall cease and
terminate at the end of the Rental Term hereof, or any extension or
renewal thereof, without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives
notice to vacate the Premises and agrees that Landlord shall be
entitled to the benefit of all provisions of law respecting summary
recovery of possession of Premises from a Tenant holding over to the
same extent as if statutory notice has been given.
(b) Upon termination of this Lease at any time and for any
reason whatsoever, Tenant shall surrender and deliver up the Premises
to Landlord in the same condition as when the Premises were delivered
to Tenant or as altered as provided in Section 9.01, ordinary wear and
tear and damage by casualty excepted. Upon request of Landlord, Tenant
shall promptly remove all personal property from the Premises and
repair any damage caused by such removal. Obligations under this Lease
relating to events occurring or circumstances existing prior to the
date of termination shall survive the expiration or other termination
of the Rental Term of this Lease. Liabilities accruing after date of
termination are defined in Sections 19.01 and 19.02.
<PAGE>
ARTICLE XI INSURANCE AND INDEMNITY
SECTION 11.01 LIABILITY INSURANCE AND INDEMNITY. Tenant shall, during
all terms hereof, keep in full force and effect a policy of public bodily injury
and property damage liability insurance with respect to the Premises, with a
combined single limit of not less than One Million Dollars ($1,000,000.00) per
occurrence and Two Million Dollars ($2,000,000.00) in the aggregate. The policy
shall name Landlord, Property Manager (i.e., Woodbury Corporation) and any other
persons, firms or corporations designated by Landlord and Tenant as insureds,
and shall contain a clause that the insurer will not cancel or change the
insurance without first giving the Landlord ten (10) days prior written notice.
Such insurance shall include an endorsement permitting Landlord and Property
Manager to recover damage suffered due to act or omission of Tenant,
notwithstanding being named as an additional "Insured party" in such policies.
Such insurance may be furnished by Tenant under any blanket policy carried by it
or under a separate policy therefor. The insurance shall be with a reputable
insurance company, licensed to do business in the State of Utah and a copy of
the paid-up policy evidencing such insurance or a certificate of insurer
certifying to the issuance of such policy shall be delivered to Landlord. If
Tenant fails to provide such insurance, Landlord may do so and charge same to
Tenant. Alternatively, Tenant may insure itself pursuant to any commercially
reasonable self-insurance program instituted by Tenant for its corporate
operations so long as Tenant has a net worth of at least $100,000,000.
Tenant will indemnify, defend and hold Landlord harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Premises or from the occupancy
or use by Tenant of the Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees,
servants, sublessees, concessionaires or business invitees unless proximately
caused by the act or negligent omission of Landlord and to the extent not
covered by its fire, casualty and liability insurance. In case Landlord shall,
without fault of its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses and reasonable attorney fees incurred or paid by either
in defending itself or enforcing the covenants and agreements of this Lease.
Landlord will indemnify, defend and hold Tenant harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property
proximately caused from or out of any act or negligent omission of Landlord, its
agents, contractors, employees or servants, to the extent not covered by its
fire, casualty and liability insurance. In case Tenant shall, without fault of
its part, be made a party to any litigation commenced by or against Landlord,
then Landlord shall protect and hold Tenant harmless and shall pay all costs,
expenses and reasonable attorney fees incurred or paid by either in defending
itself or enforcing the covenants and agreements of this Lease.
SECTION 11.02 FIRE AND CASUALTY INSURANCE.
(a) Subject to the provisions of this Section 11.02, Landlord
shall secure, pay for and at all times maintain All Risk casualty
insurance providing coverage upon the building improvements in the
amount equal to the full insurable replacement cost value thereof (as
reasonably determined by Landlord). Said insurance shall also include,
at Landlord's option, rental income insurance for up to twelve (12)
months, "agreed amount" endorsements or other endorsements reasonably
suitable to Landlord. All insurance required hereunder shall be written
by reputable, responsible companies licensed in the State of Utah with
a rating suitable to Landlord's mortgage lender.
(b) Tenant shall reimburse to Landlord the full cost of said
casualty insurance within thirty (30) days after receipt of invoice
therefor. If Tenant feels that Tenant can assist in obtaining less
costly equivalent insurance then Tenant shall notify Landlord at least
thirty (30) days prior to the anniversary date of said insurance and
Landlord agrees to cooperate to obtain the lowest cost equivalent
insurance. Tenant will not permit the Premises to be used for any
purposes which would render the insurance void or cause cancellation
thereof. If the special nature of Tenant's business requires any
special endorsement or like provision to allow the building on the
Premises to be insured, then Landlord and Tenant shall cooperate to
obtain such with the additional cost thereof to be paid by Tenant.
(c) Tenant agrees to maintain at its own expense such fire and
casualty insurance coverage as Tenant may desire or require in respect
to Tenant's personal property, equipment, furniture, fixtures or
inventory and Landlord shall have no obligation in respect to such
insurance or losses. All property kept or stored on the Premises by
Tenant or with Tenant's permission shall be so done at Tenant's sole
risk.
(d) Tenant shall be responsible for all glass breakage from
any cause whatsoever (other than Landlord's negligence) and agrees to
immediately replace all glass broken or damaged during the term hereof
with glass of the same quality as that broken or damaged. Landlord may
replace, at Tenant's expense, any broken or damaged glass if not
replaced by Tenant within five (5) business days after such damage.
SECTION 11.03 WAIVER OF SUBROGATION. Each party hereto does hereby
release and discharge the other party hereto and any officer, agent, employee or
<PAGE>
representative of such party, of and from any liability whatsoever hereafter
arising from loss, damage or injury caused by fire or other casualty for which
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried by the injured party at the time of such loss, damage or
injury to the extent of any recovery by the injured party under such insurance.
ARTICLE XII UTILITY CHARGES
SECTION 12.01 UTILITY CHARGES. Tenant shall pay all utility rates and
charges for the Premises throughout the Lease Term and all charges for garbage
disposal. All utilities shall be separately metered. If any such utilities are
discontinued for a period of three (3) consecutive days or more solely due to
the fault of Landlord, then the Base Monthly Rent shall abate for the entire
period of such discontinuence; provided, however that all rent payable hereunder
by Tenant shall abate for the entire period if Landlord's rental interruption
insurance covers full payment to Landlord in case of abatement due to
interruption of utility service. Notwithstanding the above, Landlord will not be
required to add any endorsement to cover such item unless Tenant specifically
requests such and Tenant agrees in writing to pay the cost thereof.
ARTICLE XIII OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01 ESTOPPEL STATEMENTS. Tenant agrees within fifteen (15)
days after request therefor by Landlord to execute in recordable form and
deliver to Landlord a statement in writing, certifying (a) that this Lease is in
full force and effect, (b) the date of commencement of the Rental Term of this
Lease, (c) that rent is paid currently without any off-set or defense thereto,
(d) the amount of rent, if any paid in advance, and (e) that there are no
uncured defaults by Landlord or stating those claimed by Tenant.
SECTION 13.02 ATTORNMENT. Tenant shall, in the event any proceedings
are brought for the foreclosure of, or in the event of exercise of the power of
sale under any mortgage or deed of trust made by Landlord covering the Premises,
attorn to the purchaser upon any such foreclosure or sale and recognize such
purchaser as the Landlord under this Lease.
SECTION 13.03 SUBORDINATION. Tenant agrees that this Lease shall, at
the request of Landlord, be subordinate to any first mortgages or deeds of trust
that may hereafter be placed upon said Premises and to any and all advances to
be made thereunder, and to the interest thereon, and all renewals, replacements
and extensions thereof provided that Landlord causes the mortgagees or trustees
named in all mortgages or deeds of trust placed upon the Premises to agree to
recognize the Lease of Tenant and allow Tenant to occupy the Premises under the
Lease undisturbed in the event of foreclosure, if Tenant is not in default. If
any mortgage or deed of trust is prior to this Lease, prior to the Rental
Commencement Date, Landlord shall obtain from the holder of such mortgage or
deed of trust a non-disturbance agreement in form satisfactory to such holder.
SECTION 13.04 MORTGAGEE SUBORDINATION. Tenant hereby agrees that this
Lease shall, if at any time requested by Landlord or any lender in respect to
Landlord's financing of the building or project in which the Premises are
located or any portion hereof, be made superior to any mortgage or deed of trust
that may have preceded such Lease.
SECTION 13.05 REMEDIES. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for the Tenant with full power and authority to execute and
deliver in the name of the Tenant any such instruments described in this Article
XIII upon failure of the Tenant to execute and deliver any of the above
instruments within twenty (20) days after written request so to do by Landlord;
and such failure shall constitute a default under this Lease.
ARTICLE XIV ASSIGNMENT
SECTION 14.01 ASSIGNMENT. Tenant shall not assign this Lease or sublet
the Premises, or any part thereof, without first obtaining the written consent
of Landlord, which consent shall not be unreasonably withheld. The consent of
Landlord shall not relieve Tenant of this Lease from continuing liability for
all obligations under this Lease. Any assignment by operation of law shall be
deemed an "assignment" within the meaning of this Section. Notwithstanding the
foregoing to the contrary, Tenant may, without the consent of Landlord, assign
this Lease or sublease the Premises to any successor corporation or to any
subsidiary or affiliate of Tenant or to any person who acquires all or
substantially all of the assets of Tenants.
ARTICLE XV WASTE OR NUISANCE (Intentionally Deleted)
SECTION 15.01 WASTE OR NUISANCE. See Section 7.01 (Intentionally
Deleted) (Already covered in Article VII)
<PAGE>
ARTICLE XVI NOTICES
SECTION 16.01 NOTICES. Except as provided in Section 19.01, any notice
required or permitted hereunder to be given or transmitted between the parties
shall be either personally delivered, or mailed postage prepaid by registered
mall, return receipt requested, addressed if to Tenant at the address set forth
in Section 1.01(E), and if to Landlord at the address set forth in Section
1.01(C). Either party may, by notice to the other given as prescribed in this
Section 16.01, change its above address for any future notices which are mailed
under this Lease.
ARTICLE XVII DESTRUCTION OF THE PREMISES
SECTION 17.01 DESTRUCTION.
(a) If the Premises are partially or totally destroyed by fire
or other casualty insurable under standard fire insurance policies with
extended coverage endorsement so as to become partially or totally
untenantable, the same shall be repaired or rebuilt as speedily as
practical under the circumstances at the expense of Landlord, unless
Landlord or Tenant elects not to repair or rebuild as provided in
Subsection (b) of this Section 17.01. During the period required for
restoration, a just and proportionate part of Base Rent, additional
rent and other charges payable by Tenant hereunder shall be abated
until the Premises are repaired or rebuilt.
(b) If the Premises are (I) rendered totally untenantable by
reason of an occurrence described in Subsection (a), or (II) damaged or
destroyed as a result of a risk which is not insured under Landlord's
fire insurance policies, or (III) at least twenty percent (20%) damaged
or destroyed during the last year of the Rental Term, or (IV) if the
Premises are damaged in whole or in part to such an extent that Tenant
cannot practically use the Premises for their intended purpose, then
and in any such events either Tenant or Landlord may at its option
terminate this Lease Agreement by notice in writing to other party
within sixty (60) days after the date of such occurrence. Unless
Landlord or Tenant gives such notice, this Lease Agreement will remain
in full force and effect and Landlord shall repair such damage at its
expense as expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to
Subsection (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Premises and any other work or improvements including the Tenant
Improvements which may have been originally performed or installed at
Landlord's expense. If the cost of performing Landlord's obligation
exceeds the actual proceeds of insurance paid or payable to Landlord on
account of such casualty by $50,000, Landlord may terminate this Lease
Agreement unless Tenant, within fifteen (15) days after demand
therefor, deposits with Landlord a sum of money sufficient to pay the
difference between the cost of repair and the proceeds of the insurance
available for such purpose.
(d) Except as stated in this Article XVII, Landlord shall not
be liable for any loss or damage sustained by Tenant by reason of
casualties mentioned hereinabove or any other accidental casualty.
ARTICLE XVIII CONDEMNATION
SECTION 18.01 CONDEMNATION. As used in this Section the term
"Condemnation Proceeding" means any action or proceeding in which any interest
in the Premises is taken for any public or quasi-public purpose by any lawful
authority through exercise of the power of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof. If the whole of the
Premises is taken through Condemnation Proceedings, this Lease shall
automatically terminate as of the date possession is taken by he condemning
authority. If a portion of the Premises or the parking area or driveways is
taken, and such taking causes the Premises to be impracticable for Tenant's
continued use, then either party hereto shall have the option to terminate this
Lease by giving the other written notice of such election at any time within
thirty (30) days after the date of taking. In all other cases, or if neither
party exercises its option to terminate, this Lease shall remain in effect and
the rent payable hereunder from and after the date of taking shall be
proportionately reduced in proportion to the ratio of: (I) the area contained in
the Premises which is capable of occupancy after the taking; to (II) the total
area contained in the Premises which was capable of occupancy prior to the
taking. In the event of any termination or rental reduction provided for in this
Section, there shall be a proration of the rent payable under this Lease and
Landlord shall refund any excess theretofore paid by Tenant. Whether or not this
Lease is terminated as a consequence of Condemnation Proceedings, all damages or
compensation awarded for a partial or total taking, including any sums
compensating Tenant for diminution in the value of or deprivation of its
leasehold estate, shall be the sole and exclusive property of Landlord, except
that Tenant will be entitled to any awards intended to compensate Tenant for
injury to its business, loss of Tenant's leasehold interest and the expenses of
locating and moving Tenant's operations to a new space.
<PAGE>
ARTICLE XIX DEFAULT OF TENANT
SECTION 19.01 DEFAULT - RIGHT TO RE-ENTER. In the event of any failure
of Tenant to pay any rental due hereunder within ten (10) days after written
notice that the same is past due shall have been received by Tenant, or any
failure by Tenant to perform any other of the terms, conditions or covenants
required of Tenant by this Lease within thirty (30) days after written notice of
such default shall have been received by Tenant, (unless such default is of the
type which can not reasonably be cured within thirty (30) days in which case
Tenant shall not be in default if Tenant commences to cure and then proceeds
diligently to cure said default until cured), or if Tenant permits this Lease to
be taken under any writ of execution, then Landlord, besides other rights or
remedies it may have, shall have the right to declare this Lease terminated and
shall have the immediate right of re-entry and may remove all persons and
property from the Premises. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
evidence of notice or resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be occasioned
thereby. Tenant hereby waives all compensation for the forfeiture of the term or
its loss of possession of the Premises in the event of the forfeiture of this
Lease as provided for above.
SECTION 19.02 DEFAULT - RIGHT TO RE-LET. Should Landlord elect to
re-enter, as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Premises, and may relet said Premises or any part thereof for such term or
terms (which may be for a term extending beyond the term of this Lease) and at
such rental or rentals and upon such other terms and conditions as Landlord in
its sole discretion may deem advisable. Upon each such reletting, all rentals
received by Landlord from such reletting shall be applied first to the payment
of any costs and expenses of such reletting, including brokerage fees and
attorney's fees and costs of such alterations and repairs; second, to the
payment of rent or other unpaid obligations due hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as the same
may become due and payable hereunder. If such rental received from such
reletting during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a court or competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time elect to terminate this Lease for such previous default. Should
Landlord at any time terminate this Lease for any default, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such default, including the cost of recovering the Premises,
reasonable attorney's fees, and including the excess, if any, of the amount of
rent and charges equivalent to rent reserved in this Lease for the remainder of
the stated term over the actual amount received by Landlord for such period.
Landlord shall, in a commercially reasonable manner, mitigate its damages as a
result of Tenant's default.
SECTION 19.03 LEGAL EXPENSES. In case of default by either party in the
performance of any obligations under this Lease, the defaulting party shall pay
all costs incurred in enforcing this Lease, or any right arising out of such
default, whether by suit or otherwise, including a reasonable attorney's fee.
ARTICLE XX BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP
SECTION 20.01 ACT OF INSOLVENCY, GUARDIANSHIP, ETC. The following shall
constitute a default of this Lease by the Tenant for which Landlord, at
Landlord's option, may immediately terminate this Lease.
(a) The appointment of a receiver to take possession of
all or substantially all of the assets of Tenant
unless (if involuntary) dismissed within sixty (60)
days.
(b) A general assignment by Tenant of its assets
for the benefit of creditors.
(c) Any action taken or suffered by or against the Tenant
under any federal or state insolvency or bankruptcy
act, unless (if involuntary) dismissed within sixty
(60) days.
(d) The appointment of a guardian, conservator, trustee,
or other similar officer to take charge of all or any
substantial part of Tenant's property, unless (if
involuntary) dismissed within sixty (60) days.
Neither this Lease, nor any interest therein nor any estate thereby
created shall pass to any trustee, guardian, receiver or assignee for the
benefit of creditors or otherwise by operation of law.
<PAGE>
ARTICLE XXI LANDLORD ACCESS
SECTION 21.01 LANDLORD ACCESS. Landlord or Landlord's agent shall have
the right to enter the Premises at all reasonable times upon notice to Tenant
(except in case of emergency) to examine the same, or to show them to
prospective purchasers of the Premises, or to make all repairs as required under
this Lease, and Landlord shall be allowed to take all material into and upon
said Premises that may be required therefor without the same constituting an
eviction of Tenant in whole or in part, and provided that Landlord promptly
completes such repairs in a commercially reasonable manner as soon as reasonably
possible rent shall not abate while said repairs are being made, by reason of
loss or interruption of business of Tenant, or otherwise. During the ninety days
prior to the expiration of the Rental Term of this Lease or any renewal term,
Landlord may exhibit the Premises to prospective tenants and place upon the
Premises the usual notices "To Let" or "For Rent" which notices Tenant shall
permit to remain thereon with molestation. Notwithstanding the above, Tenant
shall have the right to designate a representative to accompany Landlord during
any time that Landlord may enter upon the Premises.
ARTICLE XXII LANDLORD'S LIEN
SECTION 22.01 LANDLORD'S LIEN. Landlord agrees to subordinate its
statutory Landlord's lien, if any, to the interest of any lender who is
financing or securing equipment, trade fixtures, or furnishings of Tenant to be
used at the Leased Premises provided that Lender, Tenant, and Landlord execute a
mutually acceptable form providing for notice to Landlord prior to removal of
any equipment or trade fixtures and for repair and restoration of the Premises
to its original condition, reasonable wear and tear excepted.
ARTICLE XXIII HOLDING OVER
SECTION 23.01 HOLDING OVER. Any holding over after the expiration of
the Rental Term hereof shall be construed to be a tenancy at sufferance and all
provisions of this Lease Agreement shall be and remain in effect except that the
monthly rental shall be one hundred thirty percent (130%) of the amount of rent
(including any adjustments as provided herein) payable for the last full
calendar month of the Rental Term including renewals or extensions.
SECTION 23.02 SUCCESSORS. All rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors and assigns of
the said parties; and if there shall be more than one tenant, they shall all be
bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing.
ARTICLE XXIV RULES AND REGULATIONS (Intentionally Deleted)
ARTICLE XXV QUIET ENJOYMENT
SECTION 25.01 QUIET ENJOYMENT. Upon payment by the Tenant of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Premises for the term hereby demised
without hindrance or interruption by Landlord or any other person or persons,
lawfully or equitably claiming by, through or under the Landlord, subject,
nevertheless, to the terms and conditions of this Lease and actions resulting
from future eminent domain proceedings and casualty losses.
ARTICLE XXVI SECURITY DEPOSIT
SECTION 26.01 SECURITY DEPOSIT. The Landlord herewith acknowledges
receipt of the amount set forth in Section 1.01(T), which it is to retain as
security for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall the Landlord be obliged to apply
the same upon rents or other charges in arrears or upon damages for Tenant's
failure to perform the said covenants, conditions and agreements. The Landlord
may so apply the security, at its option, and the Landlord's right to possession
of the Premises for non-payment of rent or for any other reason shall not in any
event be affected by reason of the fact that the Landlord holds this security.
The said sum, if not applied toward the payment or rent in arrears or toward the
payment of damages suffered by the Landlord by reason of the Tenant's breach of
the covenants, conditions and agreements of this Lease, is to be returned to the
Tenant without interest when this Lease is terminated, according to these terms,
an in no event is the said security to be returned until the Tenant has vacated
the Premises and delivered possession to the Landlord. See also Section 1.01 (T)
for provision relating to earlier refund of the Security Deposit.
In the event that the Landlord repossesses the Premises because of the
Tenant's default or because of the Tenant's failure to carry out the covenants,
<PAGE>
conditions and agreements of this Lease, the Landlord may apply the said
security toward damages as may be suffered or shall accrue thereafter by reason
of the Tenant's default or breach. The Landlord shall not be obligated to keep
the said security as a separate fund, but may mix the said security with its own
funds.
ARTICLE XXVII MISCELLANEOUS PROVISIONS
SECTION 27.01 WAIVER. No failure on the part of Landlord to enforce any
covenant or provision of this Lease shall discharge or invalidate such covenant
or provision or affect the right of Landlord to enforce the same in the event of
any subsequent breach. One or more waivers of any covenant or condition by
Landlord shall not be construed as a waiver of a subsequent breach of the same
covenant or condition and the consent to or approval of any subsequent similar
act by Tenant. No breach of a covenant or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing signed
by Landlord.
SECTION 27.02 ENTIRE AGREEMENT. This Lease constitutes the entire
Agreement and understanding between the parties hereto and supersedes all prior
discussions, understandings and agreements. This Lease may not be altered or
amended except by a subsequent written agreement executed by all parties.
SECTION 27.03 FORCE MAJEURE. Any failure to perform or delay in
performance by either party of any obligation under this Lease, other than
Tenant's obligation to pay rent, shall be excused if such failure or delay is
caused by any strike, lockout, governmental restriction or any similar cause
beyond the control of the party so falling to perform, to the extent and for the
period that such continues.
SECTION 27.04 LOSS AND DAMAGE. The Landlord shall not be responsible or
liable to the Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying all or any part of the premises
adjacent to or connected with the Premises or any part of the building of which
the Premises are a part, or for any loss or damage resulting to the Tenant or
his property from bursting, stoppage or leaking of water, gas sewer or steam
pipes or for any damage or loss of property within the Premises from any cause
whatsoever unless caused by Landlord's acts or negligent omission.
SECTION 27.05 ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the amount owing hereunder shall be deemed
to be other than on account of the earliest stipulated amount receivable from
Tenant, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or receivable or pursue any other
remedy available under this Lease or the law of the state where the Premises are
located.
SECTION 27.06 NO OPTION. The submission of this Lease for examination
does not constitute a reservation of or option for the Premises and this Lease
becomes effective as a lease only upon full execution and delivery thereof by
Landlord and Tenant.
SECTION 27.07 ANTI-DISCRIMINATION. Tenant herein covenants by and for
itself, its heirs, executors, administrators and assigns and all persons
claiming under or through it, and this Lease is made and accepted upon and
subject to the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons on account of race,
sex, marital status, color, creed, national origin or ancestry, in the leasing,
subleasing, assigning, use, occupancy, tenure or enjoyment of the Premises, nor
shall the Tenant itself, or any person claiming under or through it, establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, or subtenants in the Premises.
SECTION 27.08 SEVERABILITY. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall be invalid
or unenforceable to any extent, the remainder of this Lease, or the application
of such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
SECTION 27.09 OTHER MISCELLANEOUS PROVISIONS. This instrument shall not
be recorded without the prior written consent of Landlord; however, upon the
request of either party hereto, the other party shall join in the execution of a
memorandum or "short form" lease which shall be recorded at the expense of the
party requesting such recording which memorandum shall describe the parties, the
Premises, the Rental Term and shall incorporate this Lease by reference, and may
include other special provisions. The captions which precede the Sections of
this Lease are for convenience only and shall in no way affect the manner in
which any provisions hereof is construed. In the event there is more than one
Tenant hereunder, the liability of each shall be joint and several. This
instrument shall be governed by and construed in accordance with the laws of the
State wherein the Premises are located. Words of any gender used in this Lease
shall be held to include any other gender, and words in the singular number
<PAGE>
shall be held to include the plural when the sense requires. Time is of the
essence of this Lease and every term, covenant and condition herein contained.
SECTION 27.10 REPRESENTATION REGARDING AUTHORITY. The persons who have
executed this Agreement represent and warrant that they are duly authorized to
execute this Agreement in their individual or representative capacity as
indicated.
SECTION 27.11 LANDLORD'S APPROVAL, CONSENT OR DETERMINATION. Whenever
Landlord's approval, consent or determination is required or provided for in
this Lease, such approval or consent shall not be unreasonably withheld or
unreasonably delayed, and such determination shall be reasonably made.
SECTION 27.12 FINANCIAL STATEMENTS. Upon Landlord's written request,
not more than once annually promptly furnish Landlord financial statements
reflecting Tenant's current financial condition, Landlord shall treat such
statements with confidentiality and shall not disclose the information contained
therein except to Landlord's lender or a prospective lender or buyer.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease as of the day and year first above written.
SIGNATURES:
LANDLORD
PRACVEST, a Utah general partnership
By:
-----------------------------------------
W. Richards Woodbury, Attorney-in-Fact
By:
-----------------------------------------
Orin R. Woodbury, Attorney-in-Fact
TENANT
SENTO CORPORATION, a Utah corporation
By:
-----------------------------------------
Kieth E. Sorenson, CEO
By:
-----------------------------------------
Its:
-------------------------------
LANDLORD ACKNOWLEDGMENT
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On this day of July , 1998 before me personally appeared W.
Richards Woodbury and Orin R. Woodbury to me personally known who, being by me
duly sworn, did each for himself say that he is the Attorney-in-Fact for that
certain partnership known as PRACVEST, a Utah general partnership , and that the
within instrument was executed by them, for and on behalf of said partnership.
-----------------------------------------
Notary Public
TENANT ACKNOWLEDGMENT
(Corporate)
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
On this day of July , 1998, before me personally appeared Kieth E.
Sorenson , and , known to me to be the CEO, and of Sento Corporation, a Utah
corporation , the corporation that executed the within instrument, known to me
to be the persons who executed the within instrument on behalf of the corporate
therein named, and acknowledged to me that such corporation executed the within
instrument pursuant to its bylaws or a resolution of its board of directors.
-----------------------------------------
Notary Public
- --------------------------------------------------------------------------------
Lessor GENERAL ELECTRIC CAPITAL CORPORATION Master Lease Agreement
- --------------------------------------------------------------------------------
Lessee SENTO TECHNICAL INNOVATIONS CORPORATION Contact MS. STEPHANIE JOHNSON
Title CONTROLLER
- --------------------------------------------------------------------------------
Address Telephone Number Facsimile Number Master Lease 311 N. STATE STREET (801)
434-0289 Agreement No. 6752640
- --------------------------------------------------------------------------------
City County/Province State/Country Zip Code Corporation OREM UTAH UT 84057 |X|
- --------------------------------------------------------------------------------
Proprietorship Partnership Other | | | |
- --------------------------------------------------------------------------------
TERMS AND CONDITIONS (The Reverse side contains Terms and Conditions which are
also a part of this Agreement)
- --------------------------------------------------------------------------------
1. LEASE: Lessor shall purchase and lease to Lessee the equipment and associated
items ("Equipment") described in any Equipment Schedule ("Schedule") executed
from time to time by Lessor and Lessee that makes reference to this Master Lease
Agreement ("Agreement"). This Agreement shall be incorporated into each
Schedule. When computer programs and related documentation are furnished with
the Equipment, and a non-exclusive license and/or sublicense (collectively,
"Software') is granted to Lessee in an agreement ("Supplier Agreement") with the
suppliers (collectively, "Supplier") Identified on the Schedule. Lessor, to the
extent permitted, grants Lessee a similar non-exclusive sublicense to use the
Software only in conjunction with the Equipment for so long as the Equipment Is
leased hereunder. The Equipment and Software include, but are not limited to,
all additions, attachments and accessions thereto and replacements therefore
(collectively, "System"). Any reference to "Lease" shall mean with respect to
each System, this Agreement, a Schedule, a Consent of Supplier, an Acceptance
Certificate, any riders, amendments and addenda thereto, and any other documents
as may from time to time be made a part thereof.
As conditions precedent to Lessor's obligation to purchase any Equipment and
obtain any Software, not later than the Commitment Date set forth on the
applicable Schedule (a) Lessee and Lessor shall execute this Agreement. a
Schedule, an Acceptance Certificate and other documentation contemplated
herein, and (b) there shall have been no material adverse change in Lessee's
financial condition. Upon Lessor's execution of a Schedule, Lessee assigns to
Lessor its rights to receive title to the Equipment and any non-exclusive
sublicense to use the Software described in the Supplier Agreement as of the
day the System is delivered to the Installation Site set forth in the
applicable Schedule but no other right or any warranty thereunder. In
consideration of such an assignment and subject to the terms and conditions
herein, Lessor agrees to pay to the Supplier the Price (as defined in Section 3
below) for the System pursuant to the Supplier Agreement, but not to perform
any other obligation thereunder. Unless Lessee exercises its Purchase Option as
set forth in the applicable Schedule, Lessee hereby assigns to Lessor all of
Lessee's thenremaining rights pursuant to the applicable Supplier Agreement
effective upon the termination or expiration of the Term (as set forth in the
applicable Schedule) for any reason.
2. TERM, RENEWAL AND EXTENSIONS, If all other conditions precedent to a Lease
have been met, the Lease Term for the System described on each Schedule shall
commence on the date of Lessee's execution of an Acceptance Certificate
("Commencement Date"), and continue for the number of whole months or other
periods set forth In such Schedule ("Initial Term"), the first such full month
commencing on the first day of the month following the Commencement Date (or
commencing on the Commencement Date if such date is the first day of the
month). If Lessee selects Purchase Option B or C in the applicable Schedule, on
the expiration date of the Initial Term. the Lease shall be automatically
renewed for a six-month period ("Renewal Term") unless, by giving written
notice to Lessor six (6) months prior to the expiration date, the Lessee elects
to terminate the Lease. After the Renewal Term, at Lessoes option, the Lease
shall be automatically extended on a month-to-month basis until either party
gives the other not less than thirty (30) days prior written notice of its
intention to terminate the Lease. Any renewals and extensions shall be on the
same terms and conditions as during the Initial Term. "Term" shall mean the
applicable Initial Term, the Renewal Term, if any, and any extension thereof as
provided herein.
3. RENT AND PAYMENT: Lessee shall pay to Lessor all the rental payments as
shown in the applicable Schedule ("Rent") during the Term of the Lease, except
as such Rent may be adjusted pursuant to this Section and Sections 2 and 8 of a
Schedule, plus such additional amounts as are due Lessor under the Lease. Rent
shall be paid as designated in the applicable Schedule in advance on the first
day of each Payment Period ("Rent Payment Date"). If the Commencement Date is
not the first day of a calendar month (or other Payment Period), Lessee shall
pay to Lessor, on demand, interim Rent prorated daily based on a 360-day year
for each day from and including the Commencement Date to and including the last
day of such month or other Payment Period.
The Rent is based upon the Price of the System and the acceptance of the System
by Lessee on or before the Commitment Date set forth In the applicable
Schedule. The "Price" of the System shall be as set forth in the Schedule, and
shall exclude all other costs, Including sales or other taxes Included In the
Supplier Agreement as part of the purchase price. If the Price is increased or
decreased as a result of a job change order ("JCO") the Lessee authorizes
Lessor to adjust the Rent If the Commencement Date occurs after the Commitment
Date, and Lessor waives the condition precedent that the Commencement Date
occur on or before the Commitment Date, Lessor's then-current Lease Rate Factor
for similar transactions shall apply and the Lessee authorizes Lessor adjust
the Rent, accordingly.
Whenever any payment of Rent or other amount is not made within ten (10) days
after the date when due, Lessee agrees to pay on demand (as a fee to offset
Lessor's collection and administrative expenses), the greater of twenty-five
dollars ($25.00) or ten percent (10%) of each such overdue amount, but not
exceeding the lawful maximum, if any. payments shall be payable to Lessor in
U.S. dollars at Lessor's address set forth Section 18 or such other place as
Lessor directs in writing. If Lessee requests changes amendments to any Lease,
Lessor may charge Lessee Lessor's reasonable costs a expenses of negotiation
and documentation, including fees of legal staff or outside counsel.
4. DELIVERY: All transportation, delivery and installation costs (unless
included in the Price) are the sole responsibility of Lessee. Lessee assumes
all risk of loss and damage the Supplier fails to deliver or delays in the
delivery of any System, or if any System unsatisfactory for any reason.
5. NET LEASE: Lessee's obligations under each Lease are absolute, unconditional
a non-cancelable and shall not be subject to any delay, reduction, setoff,
defense, counterclaim or recoupment for any reason including any failure of any
System, or a misrepresentations of any supplier, manufacturer, installer,
vendor or distributor. Lessor is not responsible for the delivery,
installation, maintenance or operation of any System.
6. WARRANTIES: Lessor agrees that third-party warranties, if any, inure to the
benefit Lessee during the Term and on exercise of the Purchase Option. Lessee
agrees pursue any warranty claim directly against such third party and shall
not pursue any such claim against Lessor. Lessee shall continue to pay Lessor
all amounts payable under a Lease under any and all circumstances.
7. QUIET ENJOYMENT: Lessor shall not interfere with Lessee's quiet enjoyment a
use of the System during the Term if no Event of Default has occurred and is
continuing.
8. TAXES AND FEES: Lessee shall promptly reimburse Lessor, upon demand,
additional Rent, or shall pay directly, if so requested by Lessor, all license
and registration fees, sales, use, personal property taxes and all other taxes
and charges imposed by a federal, state, or local governmental or taxing
authority, relating to the purchase, ownership, leasing, or use of the System
or the Rent excluding, however, all tax computed upon the net income of Lessor.
9. DISCLAIMER OF WARRANTIES AND DAMAGES: LESSEE ACKNOWLEDGE THAT (a) THE SIZE,
DESIGN, CAPACITY OF EACH SYSTEM AND THE MANUFACTURER AND SUPPLIER HAVE BEEN
SELECTED BY LESSEE; (b) LESSOR IS NOT A MANUFACTURER, SUPPLIER, DEALER.
DISTRIBUTOR INSTALLER OF ANY SYSTEM; (c) NO MANUFACTURER OR SUPPLIER OR ANY
THEIR REPRESENTATIVES IS AN AGENT OF LESSOR OR AUTHORIZED TO WAIVE OR ALTER ANY
TERM OR CONDITION OF ANY LEASE; AND (d) EXCEPT FOR LESSOR'S WARRANTY OF QUIET
ENJOYMENT SET FORTH IN SECTION 7, LESSOR HAS NOT MADE, AND DOES. NOT HEREBY
MAKE. A REPRESENTATION, WARRANTY OR COVENANT, WRITTEN OR ORAL STATUTORY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION,
THE DESIGN, QUALITY, CAPACITY, MATERIAL, WORKMANSHIP, OPERATION, CONDITION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, HIDDEN OR LATENT DEFECTS,
OR AS TO ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT. LESSEE LEASES EACH
SYSTEM "AS IS, WHERE IS".
LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY THIRD PARTY FOR A SPECIAL,
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ANY SORT INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR PERSON INJURY, LOSS OF PROFITS OR SAVINGS, LOSS
OF USE, OR ANY OTHER DAMAGES, WHETHER BASED ON STRICT LIABILITY OR NEGLIGENCE,
WHETHER RESULTING FROM USE OF A SYSTEM OR BREACH OF A LEASE OR OTHERWISE,
EXCEPT FOR DIRECT, SPECIFIC DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE TO
THE EXTENT CAUSED BY LESSOR'S ACTIVE GROSS
- --------------------------------------------------------------------------------
Except as otherwise provided In Section 3 of this Agreement and Sections 2, 3,
and 8 of a Schedule, any modifications, amendments or waivers to a Lease shall
be effective only If mutually agreed upon in a writing, duly executed by
authorized representatives of the parties.
- --------------------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION SENTO TECHNICAL INNOVATIONS CORPORATION
BY /s/ Mary M.Jones BY /s/ Robert Bench
------------------ ------------------
Authorized Representative Authorized Representative
PRINT NAME /s/ Mary M.Jones PRINT NAME /s/ Robert Bench
----------------- -----------------
TITLE MGR.CONTRACT ADM DATE 7/24/98 TITLE VP CFO DATE 6/19/98
----------------- -------- ------- --------
- --------------------------------------------------------------------------------
MLA 3/98 @ Telecom Financial Services Legal Staff
<PAGE>
NEGLIGENCE OR WILLFUL MISCONDUCT.
IF LESSEE HAS ELECTED PURCHASE OPTION B OR C, ARTICLE 2A OF THE UCC MAY APPLY
TO THE LEASE AND LESSEE MAY HAVE CERTAIN RIGHTS THEREUNDER. IF SO, LESSEE
ACKNOWLEDGES THAT SUCH A LEASE IS A FINANCE LEASE AS DEFINED IN UCC S2A-103. TO
THE EXTENT PERMITTED BY LAW, LESSE HEREBY WAIVES ANY RIGHTS OR REMEDIES LESSEE
MAY HAVE UNDER UCC SS 2A-508-522 INCLUDING, WITHOUT LIMITATION, RIGHTS OF
REJECTION, REVOCATION, CANCELLATION, GRANTING OF SECURITY INTERESTS, AND
RECOVERY FOR BREACH OF WARRANTY.
10. INSURANCE: At its expense, Lessee shall keep each System insured against
all risks of loss and damage for an amount equal to the installed replacement
cost of such System with Lessor named as a loss payee. Lessee shall also
maintain comprehensive general liability insurance, with Lessor named as an
additional insured. All insurance policies shall be with an insurer having a
rating of "B+" or better by A.M. Best Company, Inc. and be in such form, amount
and deductibles as are satisfactory to Lessor. Each such policy must state by
endorsement that the insurer shall give Lessor not less than thirty (30) days
prior written notice of any amendment, renewal or cancellation. Lessee shall,
upon request, furnish to Lessor satisfactory evidence that such insurance
coverage is in effect. Lessee may self insure for such coverages only with
Lessor's prior written consent.
11. CASUALTY: If any System, in whole or in part, is lost, stolen, damaged or
destroyed, or is taken in any condemnation or similar proceeding (an "Event of
Loss"), Lessee shall immediately notify Lessor. Lessee shall, at its option (a)
immediately place the affected Equipment and Software In good condition and
working order, (b) replace the affected item with like equipment or software in
good condition and transfer clear title and any sublicense to Lessor, or (c)
pay to Lessor, within thirty (30) days of the Event of Loss, an amount equal to
the Stipulated Loss Value ("SLV") as defined below, for such affected Equipment
or Software plus any other unpaid amounts then due under the Lease. If an Event
of Loss occurs as to part of a System for which the SLV is paid, a prorata
amount of Rent shall abate from the date the SLV payment is received by Lessor.
Upon payment of the SLV, title to the applicable Equipment and the sublicense
to the applicable Software shag pass to Lessee with no warranties, subject to
the rights, if any, of the insurer.
The SLV shall be an amount equal to all future Rent from the last Rent Payment
Date for which Rent has been paid to the end of the Term with each such payment
discounted to present value at a simple Interest rate of five percent (5%) per
annum or the Lease Rate, as applicable, or, if such rate is not permitted by
law, then at the lowest permitted rate, plus (a) if Lessee selects Purchase
Option B, twenty percent of the product obtained by multiplying the total
number of Rent payments shown on the Schedule for the applicable Term by the
then periodic Rent, or (b) if Lessee selects Purchase Option C, the percent set
forth In the Purchase Option C election in the Schedule times the Price as it
may have been adjusted ("Percent Option Amount"). If Lessor receives any
insurance proceeds, Lessor shall apply such proceeds to Lessee's outstanding
obligations with any remaining sums to be delivered to Lessee.
12. INDEMNITY: Lessee shall indemnify Lessor against, and hold Lessor harmless
from, and covenants to defend Lessor against, any and all losses, claims,
liens, encumbrancesa, suits, damages, and liabilities (and all costs and
expenses Including, without limitation, reasonable attorneys' fees) related to
the Lease including, without limitation, the selection, purchase, delivery,
ownership, condition, use, operation of a System, or violation of a Software
sublicense, or arising by operation of law (excluding any of the foregoing to
the extent caused by the active gross negligence or willful misconduct of
Lessor). Lessee shall assume full responsibility for or, at Lessor's sole
option, reimburse Lessor for the defense thereof. This Section shall survive
the termination of the Lease but not longer than the applicable statute of
limitations.
13. TAX INDEMNITY: If Lessee selects Purchase Option B, the Lease is entered
into based upon the assumptions ("Assumptions") that for federal, state, and
local income tax purposes, Lessor shall be entitled to deduct. at the highest
marginal rate of tax imposed on corporations, the maximum depreciation or cost
recovery allowances provided in the Internal Revenue Code of 1986, as amended,
and under state and local law in effect on the date Lessee executes the
applicable Schedule. If, in its reasonable opinion, Lessor determines that its
net after-tax economic yield or after-tax cash flow ("Net Economic Return") has
been adversely affected as a result of a change in the Assumptions (a "Loss"),
Lessee agrees to pay to Lessor, on demand, an amount which will cause Lessor's
then Net Economic Return to equal the Net Economic Return that Lessor would
have received had such Loss not occurred. Lessee shall have no right to inspect
the tax returns of Lessor.
14. DEFAULT: Any of the following shall constitute an Event of Default: (a)
Lessee falls to pay when due any Rent or other amount payable under a Lease
that is not paid Within ten (10) days of Lessee's receipt of written notice of
nonpayment; (b) Lessee fails to perform any other material term in any Lease or
other agreement given in connection with any Lease that continues uncured for
twenty (20) days after Lessee's receipt of written notice thereof; (c) the
inaccuracy of any material representation or warranty made by Lessee or any
guarantor in connection with any Lease and the continuation thereof for thirty
(30) days or more; (d) Lessee attempts to make a Transfer (as defined in
Section 16) without Lessor's prior written consent; (e) Lessee dissolves or
ceases to do business as a going concern; (f) Lessee sells all or substantially
all of its assets, merges or consolidates with or into, or reorganizes with any
entity; (g) Lessee becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition or has an involuntary petition filed or
action commenced against it under the United States Bankruptcy Code or any
similar federal or state law; (h) Lessee fails to perform its obligations under
any other Lease or agreement with Lessor; or (I) Any partner of Lessee or any
guarantor takes any actions described in subsections (e), (f), or (g) above.
15. REMEDIES: If an Event of Default has occurred, Lessor shall have the right
to exercise one or more of the following remedies set forth below. Lessor may
(a) terminate and/or declare an Event of Default under any Lease or other
agreement with Lessee (b) recover from Lessee all Rent and any and all amounts
then due and unpaid and (c) recover from Lessee all Rent and other amounts to
become due, by acceleration or otherwise (plus, if the System is not returned
in accordance with Section 9 of the applicable Schedule, an amount equal to (i)
Lessor's reasonable estimate of the fair market value of the System at the end
of the applicable Term if Lessee selects Purchase Option B in the Schedule, or
(ii) if Lessee selects Purchase Option C in the Schedule, the Percent Option
Amount). The amounts described in subsection (c) shall be present valued using
a five percent (5%) simple interest rate per annum or the Lease Rate, as
applicable, or, if such rate is not permitted by law, then at the lowest
permitted rate. The amounts set forth in subsections (b) and (c) above shall be
the agreed upon damages ("Lessor's Loss"). Lessor may also charge Lessee
interest in the Lessor's Loss from the date of the Event of Default until paid
at the rate of one and one-half percent (1-1 1/2%) per month, but in no event
more than the maximum rate permitted by law; demand the Lesse return any System
to Lessor in the manner provided in Section 9 of the Schedule; and take
possession of, render unusable, or disable any System wherever located, with or
without demand or notice or any court order or any process law.
Upon repossession or return of a System, Lessor shall have the right to sell,
lease or otherwise dispose of the System, with or without notice and by public
or private bid, and shall apply the net proceeds thereof, if any, toward
Lessor's Loss but only after deducting from such proceeds (a) in the case of
any reletting of the System, the rent due for an period beyond the scheduled
expiration of the Lease; (b) in the case of sale, (i) if Lessee has elected
Purchase Option B, the estimated fair market value of the System as of the
scheduled expiration of the Term of the Lease, or (ii) if Lessee has elected
Purchase Option C, an amount equal to the Percent Option Amount; and (c) all
expenses including without limitation, reasonable attorneys' fees incurred in
enforcement of any remedy. Lessee shall be liable for any deficiency if the net
proceeds available after the permitted deductions are less than Lessor's Loss.
No right or remedy is exclusive of any other provided herein or permitted by
law or equity. All rights and remedies shall be cumulative and may be enforced
concurrently or individually from time to time.
16. ASSIGNMENT: Lessor may, without notice to or the consent of Lessee, self,
assign, grant a security interest in, or pledge its interest in all or a
portion of a System and/or a Lease and any amounts payable hereunder to any
third party ("Assignee"). Lessee shall, if directed, pay all Rent and other
amounts due to Assignee free from any claim or counterclaim, defense or other
right which Lessee may have against Lessor. Lessor shall be relieved of Its
future obligations under the Lease as a result of such assignment if Lessor
assigns to Assignee its interest in the System and Assignee assumes Lessor's
future obligations. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT
ASSIGN, SUBLEASE, TRANSFER, PLEDGE, MORTGAGE OR OTHERWISE ENCUMBER ("TRANSFER")
ANY SYSTEM OR ANY LEASE OR ANY OF ITS RIGHTS THEREIN OR PERMIT ANY LEVY, LIEN
OR ENCUMBRANCE THEREON. Any attempted non-consensual Transfer by Lessee shall
be void ab initio. No Transfer shall relieve Lessee of any of Its obligations
under a Lease.
17. ORGANIZATION AND AUTHORITY: Lessee is duly organized, validly existing and
in good standing under the laws of its State of formation and in any
jurisdiction where a System is located. Lessee has the power and authority to
execute, deliver and perform each Lease. The person executing this Agreement
and any Schedules on behalf of Lessee has been given authority to bind the
Lessee and each Lease constitutes or will constitute a legally binding and
enforceable obligation of the Lessee. The execution, delivery and performance
of each Lease is not and will not be in contravention of, or will not result in
a breach of, any of the terms of Lessee's organizational documents, and any
agreements, contracts or instruments to which Lessee is a party or under which
it is bound.
18. NOTICES: Notices, demands and other communications shall be in writing and
shall be sent by hand delivery, certified mail (return receipt requested), or
overnight courier service, or facsimile transmission (effective upon
transmission) with a copy sent by one of the foregoing methods, to Lessee at
the address or facsimile number stated above and to Lessor at 501 Corporate
Centre Drive, Suite 600, Franklin, Tennessee 37067, Attention: V.P. Finance, or
facsimile no. (615) 771-6292. Notices shall be effective upon the earlier of
actual receipt or four days after the mailing date. Either party may substitute
another address by written notice.
19. JURISDICTION AND GOVERNING LAW: EACH LEASE SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF TENNESSEE AND THE LESSEE CONSENTS AND AGREES THAT, AT LESSOR'S
OPTION, PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION AND VENUE SHALL BE
WITH THE COURTS OF THE STATE OF TENNESSEE, OR THE FEDERAL COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE.
20. MISCELLANEOUS: (a) Any failure of Lessor to require strict performance by
Lessee or any waiver by Lessor of any provision of a Lease, shall not be
construed as a consent to or waiver of any other breach of the same or of any
other provision. (b) If there is more than one Lessee, the obligations of each
Lessee are joint and several. (c) Lessee agrees to execute and deliver, upon
demand, any documents necessary, in Lessor's reasonable opinion, to evidence
the intent of a Lease, and/or to protect Lessor's interest in a System. Lessee
appoints Lessor as its attorney-in-fact for the sole purpose of executing and
delivering any UCC financing statements. Lessee agrees to pay Lessor's
out-of-pocket costs of filing and recording such documentation. (d) Lessee
shall deliver to Lessor such additional financial information as Lessor may
reasonably request. (e) If any provision shall be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions
shall not in any way be affected or impaired. (f) In the event Lessee fails to
pay or perform any obligations under a Lease, Lessor may, at its option, pay or
perform such obligation, and any payment made or expense incurred by Lessor in
connection therewith shall be due and payable by Lessee upon Lessor's demand
with interest thereon accruing at the maximum rate permitted by law until paid.
(g) Time is of the essence in each Lease. (h) Lessee shall pay Lessor, on
demand, all costs and expenses, including reasonable attorneys' and collection
fees, incurred by Lessor in enforcing the terms and conditions of a Lease or in
protecting Lessoes rights and interests in a Lease or a System (i) LESSOR
INTENDS TO COMPLY WITH ALL APPLICABLE LAWS, INCLUDING THOSE CONCERNING THE
REGULATION OF INTEREST. Therefore, no lease charge late charge, fee or
interest, if applicable, is intended to exceed the maximum amount permitted to
be charged or collected by applicable law. If one or more of such charges
exceed such maximum, then such charges will be reduced to the legally permitted
maximum charge and any excess charge will be used to reduce the future Rent
and/or the Price of the System or refunded. (j) Each Lease may be executed by
one or more of the parties on any number of separate counterparts (which may be
originals or copies sent by facsimile transmission), each of which counterparts
shall be an original. (k) Each Lease constitutes the entire agreement between
Lessor and Lessee with respect to the subject matter thereof and supersedes all
previous writings and understandings of any nature whatsoever. (l) No agent,
employee, or representative of Lessor has any authority to bind Lessor to any
representation or warranty concerning any System and, unless such
representation or warranty is specifically included in a Lease, it shall not be
enforceable by Lessee against Lessor.
- --------------------------------------------------------------------------------
MLA 3/98 Telecom Financial Services Legal Staff
<PAGE>
- --------------------------------------------------------------------------------
Lessor GENERAL ELECTRIC CAPITAL CORPORATION Equipment Schedule
- --------------------------------------------------------------------------------
Lessee SENTO TECHNICAL INNOVATIONS CORPORATION
- --------------------------------------------------------------------------------
Billing Address Attention
808 EAST UTAH VALLEY DRIVE
- --------------------------------------------------------------------------------
City County/Province State/Country Zip Code
AMERICAN FORK UTAH UT 84003
- --------------------------------------------------------------------------------
Installation Site City County/Province State/Country Zip Code
808 EAST UTAH AMERICAN FORK UTAH UT 84003
VALLEY DRIVE
- --------------------------------------------------------------------------------
Supplier Name Purchase Option Advance Payment
US WEST COMMUNICATION SERVICES INC. |_|(A) $1.00 $8,990.07
|X|(B) FMV The Advance Payment shall
|_|(C) be applied to the first 1
and last 0 Rent payments
- --------------------------------------------------------------------------------
Agreement No./Schedule No. Price Payment Nos. Lease Rate Factor Rent
6752640-001 $511,090.00 1-60 0.017590 $8,990.07
- --------------------------------------------------------------------------------
Date of Schedule Initial Term (months)
June 12, 1998 60 $0.00
- --------------------------------------------------------------------------------
Commitment Date Payment Period
June 26, 1998 |X| Monthly |_| Other $0.00
- --------------------------------------------------------------------------------
TERMS AND CONDITIONS (The Reverse side contains Terms and Conditions which are
also a part of this Schedule)
- --------------------------------------------------------------------------------
The terms and conditions of the Master Lease Agreement between Lessor and
Lessee referenced above are made a part of this Schedule. Lessor and Lessee
hereby agree to the terms defined above and further agree as set forth herein.
1. ADVANCE PAYMENT: Lessee shall pay to Lessor, upon the execution and delivery
of this Schedule, the advance payment, set forth above ("Advance Payment") in
consideration of the Lessor holding funds available to purchase the Equipment
and obtain the Software and as compensation for Lessor's review of Lessee's
credit and document preparation. Upon Lessor's acceptance of the Lease, the
Advance Payment shall be applied to the payment of Rent as set forth above. Any
Advance Payment shall be nonrefundable if Lessee fails to timely provide all
documentation or satisfy all conditions required by this Lease.
2. PURCHASE PRICE PAYMENTS: Lessee acknowledges that it has signed and received
a copy of the Supplier Agreement. If Lessee is required to make payments to
Supplier under the Supplier Agreement prior to the Commencement Date ("Purchase
Price Payments"), Lessee requests Lessor to pay such payments subject to the
following terms and conditions. The Price will be increased by adding a price
adjustment for each Purchase Price Payment. Each such price adjustment shall be
computed by multiplying the Purchase Price Payment paid by Lessor to Supplier
by a rate equal to the "Base Lending Rate" from time to time designated by
Citibank N.A., NY, NY in effect on the date Lessor makes the first Purchase
Price Payment plus two and one-half percent, divided by 360, and multiplied by
the actual number of days elapsed from the date of the Purchase Price Payment
to the Commencement Date or, if the Lease does not commence, to the date Lessee
refunds the Purchase Price Payments to Lessor in accordance with Section 3. In
no event will all or any price adjustment(s) exceed any limits imposed by
applicable law. The periodic Rent shall be Increased as a result of adding to
the Price of the System an amount equal to the total price adjustment(s).
3. ACCEPTANCE: Lessee agrees to accept the System for purposes of this Lease by
signing the Acceptance Certificate within ten (10) days after the System has
met the acceptance criteria specified in the Supplier Agreement If Lessee fails
or refuses to sign the Acceptance Certificate within such (10 ten day period,
Lessor may declare Lessee's assignments and Lessor's agreement to pay the Price
set forth in Section 1 of the Agreement an Section 2 of this Schedule to be
null and void ab initio and thereupon the Lease shall terminate. Lessor shall
then have no obligations under the Lease(and Lessee shall, within ten (10) days
of a demand therefore, immediately pay to Lessor all Purchase Price Payments
and all price adjustment(s) under Section 2 herein as well as Lessor's
out-of-pocket expenses.
4. MAINTENANCE, USE, AND OPERATION: At all times during the Term at its sole
cost and expense, Lessee shall maintain the System in good repair, condition
and working order, ordinary wear and tear excepted. Lessee shall use the System
and all parts thereof for its designated purpose and in compliance with all
applicable laws, shall keep the System in its possession and control and shall
not permit the System to be moved from the installation Site set forth above
without Lessor's prior written consent.
5. PERSONAL PROPERTY: The System is, and shall at all times remain, personal
property even if the Equipment is affixed or attached to real proper or any
improvements thereon. At Lessor's request, Lessee shall, at no charge, promptly
affix to the System any tags, decals, or plates furnished by Lessor indicating
Lessor's interest in the System and Lessee shall not permit their removal or
concealment. At Lessee's expense, Lessee shall (a) at a times keep the System
free and clear of all liens and encumbrances, except those described in Section
6 and those arising through the actions of Lessor, and (b) otherwise cooperate
to defend Lessor's interest in the System and maintain the status of the System
and all parts thereof as personal property. If requested by Lessor, Lessee
will, at Lessee's expense, furnish a waiver any interest in the System from any
party having an interest in the real estate or building in which the System is
located. Lessor may inspect the System and any related maintenance records at
any time during Lessee's normal business hours.
- --------------------------------------------------------------------------------
A complete description of the System Is set forth on the Equipment and
Software Listing attached hereto and made a part hereof.
- --------------------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION SENTO TECHNICAL INNOVATIONS CORPORATION
BY /s/ Mary M.Jones BY /s/ Robert Bench
------------------ ------------------
Authorized Representative Authorized Representative
PRINT NAME /s/ Mary M.Jones PRINT NAME /s/ Robert Bench
----------------- -----------------
TITLE MGR.CONTRACT ADM DATE 7/24/98 TITLE VP CFO DATE 6/19/98
----------------- -------- ------- --------
- --------------------------------------------------------------------------------
MLA 3/98 @ Telecom Financial Services Legal Staff
<PAGE>
6. TRUE LEASE AND SECURITY INTEREST: If Lessee has selected Purchase Option B,
(a) Lessor holds title to Equipment and the right to use the Software and
Lessor shall be entitled to all tax benefits resulting therefrom, (b) Lessee
shall have no right, title or interest therein, other than possession and use
as a lessee and non-exclusive sublicensee, and (c) Lessee and Lessor intend
this Lease to create a true lease and not a security interest, and the
provisions of this Section or the filing of any financing statements with
respect to this Lease shall not be deemed evidence of any contrary Intent but
of an attempt to protect Lessor's rights and title. Regardless of the purchase
option selected, and without limiting or negating the foregoing sentence, to
secure the performance of Lessee's obligations under this Lease including,
without limitation, the repayment of any Purchase Price Payments, price
adjustments and out-of-pocket expenses under Section 3 above, Lessee hereby
grants to Lessor a first priority security interest In Lessee's existing and
future right, title and Interest in, to and under, (i) the System Including all
additions, attachments, accessions, and leased Modifications and Additions (as
defined in Section 7 below) thereto, and replacements therefore, (ii) the
applicable Supplier Agreement, and (iii) all products and proceeds of the
foregoing including, without limitation, insurance proceeds, rents and all sums
due or to become due to Lessee with respect to any of the foregoing, and all
monies received in respect thereof.
7. MODIFICATIONS, ADDITIONS AND ALTERATIONS: After the Commencement Date of
this Lease and without notice to Lessor Lessee may, at Lessee's expense, alter
or modify any item of Equipment with an upgrade, accessory or any other
equipment that meets the specifications of the System's manufacturer for use on
or in connection with the System ("Modification") or with Software or other
associated Items or materials that meet the specifications of such manufacturer
and are to be used on or in connection with such System ("Addition"). Any other
modification or addition ("Alteration") shall be permitted only upon written
notice to Lessor and at Lessee's expense and risk, and any such Alteration
shall be removed and the System restored to its normal, unaltered condition at
Lessee's expense prior to its return to Lessor. If not removed upon return of
the System, any Modification or Addition shall become, without charge, the
property of Lessor free and clear of all encumbrances. Restoration will include
replacement of any parts removed in connection with the installation of an
Alteration, Modification or Addition. Any Equipment or Software installed in
connection with warranty or maintenance service or manufacturer's upgrades
provided at no charge to Lessee shall be the property of Lessor.
8. LEASES FOR MODIFICATIONS AND ADDITIONS: During the Term of this Lease, at
Lessee's request, Lessor may elect to lease to Lessee Modifications and
Additions ("CSO Equipment") subject to the terms of this Lease. While the CSO
Equipment shall be added to and become a part of this Lease as of the CSO
Commencement Date (as defined below), the CSO Lease Addendum shall be assigned
a separate Schedule number. The lease for CSO Equipment shall expire at the
same time as this Lease. The applicable Lease Rate Factor shall be Lessor's
then-current Lease Rate Factor for similar transactions based upon the
remaining length of the Term. The rent for CSO Equipment shall be determined by
Lessor who shall adjust the then-current Rent and notify Lessee in writing of
such adjustment(s), which shall be effective as of the first day of the month
following the date of the notice (or the date of the notice if it is the first
day of the month) ("CSO Commencement Date"). Any adjustment notice shall be
added to and become a part of this Lease.
CSO Equipment must be ordered by Lessee from the Supplier. On the date any CSO
Equipment is delivered to Lessee. Supplier shall pass title to such CSO
Equipment (other than any Software which shall be licensed and/or sublicensed)
directly to Lessor. Such title shall be good and marketable and free and clear
of any and all liens and encumbrances of any nature whatsoever. Lessor shall
promptly pay to Supplier the appropriate price of the CSO Equipment after the
later of (a) the date the CSO Equipment is installed and functioning, or (b)
Lessor's receipt of a full and complete listing of the CSO Equipment and the
Supplier's invoice. No interest shall be payable by Lessor to Supplier with
respect to such payment. Lessor's agreement to lease any CSO Equipment is
subject to the condition that the Price payable to Supplier with respect
thereto shall not exceed $100,000.00 or be less than $1,000.00, and is subject
to satisfactory credit review by Lessor of Lessee's credit at the time of the
CSO.
9. RETURN OF SYSTEM: (a) Upon any termination of this Lease pursuant to the
term hereof prior to the end of the Term, (b) at Lessor's request upon the
occurrence of an Event of Default, or (c) if Lessee has not exercised its
Purchase Option set forth herein at the end of the applicable Term, Lessee
shall, at its own risk and sole expense, immediately return the System to
Lessor by property removing, disassembling and packing it for shipment, loading
it on board a carrier acceptable to Lessor, and shipping the same to a
destination in the continental United States specified by Lessor, freight and
insurance prepaid. The returned System shall be In the same condition and
operating order as existed when received, ordinary wear and tear excepted. If
Lessee does not immediately return the System to Lessor as required, Lessee
shall pay to Lessor, on demand, an amount equal to the then-current Rent
prorated on a daily basis for each day from and including the termination or
expiration date of the Lease through and including the day Lessee ships the
System to Lessor in accordance with this Section. Lessee shall pay to Lessor,
upon written demand, any amount necessary to place the System in good repair,
condition and working order, ordinary wear and tear excepted.
10. PURCHASE OPTION: At the expiration of the Initial Term or any Term, if
Lessee has performed all terms and conditions of the Lease, except the return
of the System pursuant to Section 9 herein, Lessee shall have the right to
purchase all, but not less than all, of the Equipment and all leased
Modifications and to receive an assignment of all, but not less than all,
nonexclusive sublicenses to use the Software and Additions, if any, for the
purchase price described below subject to the following terms and conditions:
If Lessee has elected Purchase Option B or C above, Lessee shall provide
written notice to Lessor at least six (6) months prior to such purchase that
Lessee has elected to exercise its Purchase Option. In any event, upon exercise
of its purchase option, Lessee shall purchase the Equipment and all leased
Modifications and obtain a non-exclusive sublicense to use the associated
Software and Additions AS-IS, WHERE-IS, WITH ALL FAULTS AND SUBJECT TO THE SAME
DISCLAIMERS OF WARRANTIES AND DAMAGES AS SET FORTH IN SECTION 9 OF THE
AGREEMENT. Lessee also shall be responsible for the payment of any sales tax or
other fees in connection with Lessee's exercise of this Purchase Option. The
purchase price shall be due and payable to Lessor by Lessee at the expiration
of the applicable Term.
Upon satisfaction by Lessee of the purchase conditions, Lessor's sole and
exclusive obligations under this Purchase Option shall be to deliver to Lessee
good title to such Equipment and leased Modifications such as Lessor received
from the Supplier, to assign to Lessee a non-exclusive sublicense, as described
in the Supplier Agreement, to use the associated Software and Additions, free
and clear of all liens, encumbrances and rights of others arising solely out of
or created by Lessor's actions. Lessor's assignment of the sublicense is
limited to such sublicense as Lessor can assign without incurring further cost
and is subject to all applicable terms and conditions of the license and/or
sublicense set forth in the Supplier Agreement.
The purchase price shall be as follows:
(a) Purchase Option A. If Lessee has selected Purchase Option A above, the
purchase price shall be $1.00.
(b) Purchase Option B. If Lessee has selected Purchase Option B above, the
purchase price shall be the installed fair market value thereof assuming the
System is in good repair, condition and working order, ordinary wear and tear
excepted ("FMV"). The FMV shall be determined by Lessor and Lessee. If Lessor
and Lessee are unable to agree, the FMV shall be determined by an independent
appraiser selected by Lessor and approved by Lessee which approval shall not be
unreasonably withheld or delayed. Lessee shall bear the fees of the appraiser.
(c) Purchase Option C. If Lessor has selected Purchase Option C, the purchase
price shall be the product obtained by multiplying the Price, as it may have
been adjusted, by the percent set forth in Option C above.
11. LEASE RATE: By signing a Lease with a Purchase Option A or Purchase Option
C, Lessee agrees to pay Rent (consisting of a principal payment for Equipment
and, If applicable, Software, maintenance, and/or other costs) based on the
Price of such items and a Lease charge derived from an implied interest rate
("Lease Rate"). The Lease Rate, as used to calculate the portion of each
monthly Rent payment that constitutes a lease charge, may be determined by
applying to the Price, the rate that will amortize such Price (adjusting for
any Advance Rent) down to the amount of the Purchase Option at a constant rate
over the Initial Term by payment of the monthly Rent. The Lease Rate is the
constant rate referred to in the preceding sentence. The Lease Rate can also be
calculated using the Price as the present value, the Purchase Option as the
future value, the Rent as the payment and the stated Term.
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MLA 3/98 @ Telecom Financial Services Legal Staff
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<PAGE>
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Lessor GENERAL ELECTRIC CAPITAL CORPORATION Equipment Schedule
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Lessee SENTO TECHNICAL INNOVATIONS CORPORATION
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Billing Address Attention
808 EAST UTAH VALLEY DRIVE
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City State/Country Zip Code
AMERICAN FORK UT 84003
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Installation Site City County/Province State/Country Zip Code
808 EAST UTAH AMERICAN FORK UTAH UT 84003
VALLEY DRIVE
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Supplier Name
US WEST COMMUNICATION SERVICES INC.
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Agreement No. Price Payment Nos. Lease Rate Factor Rent
/Schedule No.
6752640-00 $349,084.00 1-60 0.017590 $6,140.39
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Date of Schedule Initial Term Purchase Option
(months) |_|(A) $1.00 |X| (B) FMV
August 7, 1998 60 |_|(C) __________%
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Commitment Date Payment Period Advance Payment
July 1, 1999 |X| Monthly Other______ $6,140.39
The Advance payment shall be
Applied to the first 1 and
last 0 Rent payment(s).
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TERMS AND CONDITIONS (The reverse side contains Terms and Conditions which are
also a part of this Schedule)
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The terms and conditions of the Master Lease Agreement between Lessor and
Lessee referenced above are made a part of this Schedule. Lessor and Lessee
hereby agree to the terms defined above and further agree as set forth herein.
1. ADVANCE PAYMENT: Lessee shall pay to Lessor, upon the execution and delivery
of this Schedule, the advance payment set forth above ("Advance Payment") in
consideration of the Lessor holding funds available to purchase the Equipment
and obtain the Software and as compensation for Lessor's review of Lessee's
credit and document preparation. Upon Lessor's acceptance of the Lease, the
Advance Payment shall be applied to the payment of Rent as set forth above. Any
Advance Payment shall be non-refundable if Lessee fails to timely provide all
documentation or satisfy all conditions required by this Lease.
2. PURCHASE PRICE PAYMENTS: Lessee acknowledges that it has signed and received
a copy of the Supplier Agreement. If Lessee is required to make payments to
Supplier under the Supplier Agreement prior to the Commencement Date ("Purchase
Price Payments"), Lessee requests Lessor to pay such payments subject to the
following terms and conditions. The Price will be increased by adding a price
adjustment for each Purchase Price Payment. Each such price adjustment shall be
computed by multiplying the Purchase Price Payment paid by Lessor to Supplier
by a rate equal to the "Base Lending Rate" from time to time designated by
Citibank N.A., NY, NY in effect on the date Lessor makes the first Purchase
Price Payment plus two and one-half percent, divided by 360, and multiplied by
the actual number of days elapsed from the date of the Purchase Price Payment
to the Commencement Date or, if the Lease does not commence, to the date Lessee
refunds the Purchase Price Payments to Lessor in accordance with Section 3. In
no event will all or any price adjustment(s) exceed any limits imposed by
applicable law. The periodic Rent shall be increased as a result of adding to
the Price of the System an amount equal to the total price adjustment(s).
3. ACCEPTANCE: Lessee agrees to accept the System for purposes of this Lease by
signing the Acceptance Certificate within ten (10) days after the System has
met the acceptance criteria specified in the Supplier Agreement. If Lessee
fails or refuses to sign the Acceptance Certificate within such (10) ten day
period, Lessor may declare Lessee's assignments and Lessors agreement to pay
the Price set forth in Section 1 of the Agreement and Section 2 of this
Schedule to be null and void ab initio and thereupon the Lease shall terminate.
Lessor shall then have no obligations under the Lease and Lessee shall, within
ten (10) days of a demand therefore, immediately pay to Lessor all Purchase
Price Payments and all price adjustment(s) under Section 2 herein as well as
Lessors out-of-pocket expenses.
4. MAINTENANCE, USE, AND OPERATION: At all times during the Term, at its sole
cost and expense, Lessee shall maintain the System in good repair, condition
and working order, ordinary wear and tear excepted. Lessee shall use the System
and all parts thereof for its designated purpose and in compliance with all
applicable laws, shall keep the System in its possession and control and shall
not permit the System to be moved from the Installation Site set forth above
without Lessor's prior written consent.
5. PERSONAL PROPERTY: The System is, and shall at all times remain, personal
property even if the Equipment is affixed or attached to real property or any
improvements thereon. At Lessor's request, Lessee shall, at no charge, promptly
affix to the System any tags, decals, or plates fumished by Lessor indicating
Lessor's interest in the System and Lessee shall not permit their removal or
concealment. At Lessee's expense, Lessee shall (a) at all times keep the System
free and clear of all liens and encumbrances, except those described in Section
6 and those arising through the actions of Lessor, and (b) otherwise cooperate
to defend Lessor's interest in the System and to maintain the status of the
System and all parts thereof as personal property. If requested by Lessor,
Lessee will, at Lessee's expense, furnish a waiver of any interest in the
System from any party having an
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A complete description of the System is set forth on the Equipment and Software
Listing attached hereto and made a part hereof.
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GENERAL ELECTRIC CAPITAL CORPORATION SENTO TECHNICAL INNOVATIONS CORPORATION
BY /s/ Mary M.Jones BY /s/ Robert Bench
------------------ ------------------
Authorized Representative Authorized Representative
PRINT NAME /s/ Mary M.Jones PRINT NAME /s/ Robert Bench
----------------- -----------------
TITLE MGR.CONTRACT ADM DATE 7/24/98 TITLE VP CFO DATE 6/19/98
----------------- -------- ------- --------
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MLA 3/98 @ Telecom Financial Services Legal Staff
<PAGE>
6. TRUE LEASE AND SECURITY INTEREST: if Lessee has selected Puchase Option B.
(a) Lessor holds title to the Equipment and the right to use go Software and
Lessor shall be entitled to all tax benefits resulting therefrom, (b) Lessee
shall have no right, title or Interest therein, other than possession and use
as a lessee and non-exclusive sublicensee, and (c) Lessee and Lessor Intend
this Lease to create a true lease and not a security interest, and the
provisions of this Section or the filing of any financing statements with
respect to this Lease shall not be deemed evidence of any contrary Intent but
of an attempt to protect Lessor's rights and title. Regardless of the purchase
option selected, and without limiting or negating the foregoing sentence, to
secure the performance of Lessee's obligations under this Lease including,
without limitation, the repayment of any Purchase Price Payments, price
adjustments and out-of-pocket expenses under Section 3 above, Lessee hereby
grants to Lessor a first priority security Interest in Lessee's existing and
future right, title and Interest in, to and under (i) the System Including all
additions, attachments, accessions, and leased Modifications and Additions (as
defined in Section 7 below) thereto, and replacements therefore, (ii) the
applicable Supplier Agreement and (iii) all products and proceeds of the
foregoing including, without limitation, insurance proceeds, rents and all sums
due or to become due to Lessee with respect to any of the foregoing, and all
monies received In respect thereof.
7. MODIFICATIONS, ADDITIONS AND ALTERATIONS: After the Commencement Date of
this Lease and without notice to Lessor, Lessee may, at Lessee's expense, alter
or modify any Item of Equipment with an upgrade, accessory or any other
equipment that meets the specifications of the System's manufacturer for use on
or in connection with the System ("Modification") or with Software or other
associated items or materials that meet the specifications of such manufacturer
and are to be used on or in connection with such System ("Addition"). Any other
modification or addition ("Alteration") shall be permitted only upon written
notice to Lessor and at Lessee's expense and risk, and any such Alteration
shall be removed and the System restored to its normal, unaltered condition at
Lessee's expense prior to its return to Lessor. If not removed upon return of
the System, any Modification or Addition shall become, without charge, the
property of Lessor free and clear of all encumbrances. Restoration will include
replacement of any parts removed in connection with the installation of an
Alteration, Modification or Addition. Any Equipment or Software Installed In
connection with warranty or maintenance service or manufacturer's upgrades
provided at no charge to Lessee shall be the property of Lessor.
8. LEASES FOR MODIFICATIONS AND ADDITIONS: During the Term of this Lease, at
Lessee's request Lessor may elect to lease to Lessee Modifications and
Additions ("CSO Equipment") subject to the terms of this Lease. While the CSO
Equipment shall be added to and become a part of this Lease as of the CSO
Commencement Date (as defined below), the CSO Lease Addendum shall be assigned
a separate Schedule number. The lease for CSO Equipment shall expire at the
same time as this Lease. The applicable Lease Rate Factor shall be Lessor's
then-current Lease Rate Factor for similar transactions based upon the
remaining length of the Term. The rent for CSO Equipment shall be determined by
Lessor who shall adjust the then-current Rent and notify Lessee in writing of
such adjustment(s), which shall be effective as of the first day of the month
following the date of the notice (or the date of the notice if it is the first
day of the month) ("CSO Commencement Date"). Any adjustment notice shall be
added to and become a part of this Lease.
CSO Equipment must be ordered by Lessee from the Supplier. On the date any CSO
Equipment is delivered to Lessee, Supplier shall pass title to such CSO
Equipment (other than any Software which shall be licensed and/or sublicensed)
directly to Lessor. Such title shall be good and marketable and free and clear
of any and all liens and encumbrances of any nature whatsoever. Lessor shall
promptly pay to Supplier the appropriate price of the CSO Equipment after the
later of (a) the date the CSO Equipment is installed and functioning, or (b)
Lessor's receipt of a full and complete listing of the CSO Equipment and the
Supplier's Invoice. No Interest shall be payable by Lessor to Supplier with
respect to such payment Lessor's agreement to lease any CSO Equipment is
subject to the condition that the Price payable to Supplier with respect
thereto shall not exceed $100,000.00 or be less than $1,000.00, and is subject
to satisfactory credit review by Lessor of Lessee's credit at the time of the
CSO.
9. RETURN OF SYSTEM: (a) Upon any termination of this Lease pursuant to the
term hereof prior to the end of the Term, (b) at Lessor's request upon the
occurrence of an Event of Default, or (c) if Lessee has not exercised its
Purchase Option set forth herein at the end of the applicable Term, Lessee
shall, at its own risk and sole expense, Immediately return the System to
Lessor by property removing disassembling and packing it for shipment, loading
it on board a carrier acceptable to Lessor, and shipping the same to a
destination In the continental United States specified by Lessor, freight and
Insurance prepaid. The returned System shall be In the same condition and
operating order as existed when received, ordinary wear and tear excepted. If
Lessee does not Immediately return the System to Lessor as required, Lessee
shall pay to Lessor, on demand, an amount equal to the then-current Rent
prorated on a daily basis for each day from and Including the termination or
expiration date of the Lease through and Including the day Lessee ships the
System to Lessor in accordance with this Section. Lessee shall pay to Lessor,
upon written demand, any amount necessary to place the System in good repair,
condition and working order, ordinary wear and tear excepted.
10. PURCHASE OPTION: At the expiration of the Initial Term or any Term, if
Lessee has performed all terms and conditions of the Lease, except the return
of the System pursuant to Section 9 herein, Lessee shall have the right to
purchase all, but not less than all. of the Equipment and all leased
Modifications and to receive an assignment of all, but not less than all,
nonexclusive sublicenses to use the Software and Additions, if any, for the
purchase price described below subject to the following terms and conditions:
If Lessee has elected Purchase Option B or C above, Lessee shall provide
written notice to Lessor at least six (6) months prior to such purchase that
Lessee has elected to exercise its Purchase Option. In any event, upon exercise
of its purchase option, Lessee shall purchase the Equipment and all leased
Modifications and obtain a non-exclusive sublicense to use the associated
Software and Additions AS-IS, WHERE-IS, WITH ALL FAULTS AND SUBJECT TO THE SAME
DISCLAIMERS OF WARRANTIES AND DAMAGES AS SET FORTH IN SECTION 9 OF THE
AGREEMENT. Lessee also shall be responsible for the payment of any sales tax or
other fees in connection with Lessee's exercise of this Purchase Option. The
purchase price shall be due and payable to Lessor by Lessee at the expiration
of the applicable Term.
Upon satisfaction by Lessee of the purchase conditions, Lessor's sole and
exclusive obligations under this Purchase Option shall be to deliver to Lessee
good title to such Equipment and leased Modifications such as Lessor received
from the Supplier, to assign to Lessee a non-exclusive sublicense, as described
in the Supplier Agreement, to use the associated Software and Additions, free
and clear of all liens, encumbrances and rights of others arising solely out of
or created by Lessor's actions. Lessor's assignment of the sublicense is
limited to such sublicense as Lessor can assign without incurring further cost
and is subject to all applicable terms and conditions of the license and/or
sublicense set forth In the Supplier Agreement.
The purchase price shall be as follows:
(a) Purchase Option A. If Lessee has selected Purchase Option A above, the
purchase price shall be $1.00.
(b) Purchase Option B. If Lessee has selected Purchase Option B above, the
purchase price shall be the installed fair market value thereof assuming the
System is in good repair, condition and working order, ordinary wear an tear
excepted ("FMV"). The FMV shall be determined by Lessor and Lessee. If Lessor
and Lessee are unable to agree, the FMV shall be determined by a independent
appraiser selected by Lessor and approved by Lessee which approval shall not be
unreasonably withheld or delayed. Lessee shall bear the fees of the appraiser.
(c) Purchase Option C. If Lessor has selected Purchase Option C, the purchase
price shall be the product obtained by multiplying the Price, as it may have
been adjusted, by the percent set forth in Option C above.
11. LEASE RATE: By signing a Lease with a Purchase Option A or Purchase Option
C, Lessee agrees to pay Rent (consisting of a principal payment for Equipment
and, if applicable, Software, maintenance. and/or other costs) based on the
Price of such items and a Lease charge derived from an Implied Interest rate
("Lease Rate"). The Lease Rate, as used to calculate the portion of each
monthly Rent payment that constitutes a lease charge, may be determined by
applying to the Price, the rate that will amortize such Price (adjusting for
any Advance Rent) down to the amount of the Purchase Option at a constant rate
over the Initial Term by payment of the monthly Rent. The Lease Rate is the
constant rate referred to in the preceding sentence. The Lease Rate can also be
calculated using the Price as the present value, the Purchase Option as the
future value, the Rent as the payment and the stated Term.
- --------------------------------------------------------------------------------
MLA 3/98 @ Telecom Financial Services Legal Staff
