<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED NOVEMBER 2, 1996, OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______________TO _________________.
COMMISSION FILE NUMBER 1-12814
COLE NATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 34-1453189
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5915 LANDERBROOK DRIVE
MAYFIELD HEIGHTS, OHIO 44124
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(216) 449-4100
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS. X YES NO
---- ----
AS OF NOVEMBER 25, 1996, 11,947,016 SHARES OF THE REGISTRANT'S CLASS A COMMON
STOCK WERE OUTSTANDING.
<PAGE> 2
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COLE NATIONAL CORPORATION AND SUBSIDIARIES
FORM 10-Q
QUARTER ENDED NOVEMBER 2, 1996
INDEX
<TABLE>
<CAPTION>
PAGE NO.
<S> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS AS OF NOVEMBER 2, 1996 AND
FEBRUARY 3, 1996..................................................... 1
CONSOLIDATED STATEMENTS OF INCOME FOR THE 13 WEEKS ENDED
NOVEMBER 2, 1996 AND OCTOBER 28, 1995 AND THE 39 WEEKS ENDED
NOVEMBER 2, 1996 AND OCTOBER 28, 1995................................ 2
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE 39 WEEKS
ENDED NOVEMBER 2, 1996 AND OCTOBER 28, 1995 ......................... 3
NOTES TO FINANCIAL STATEMENTS........................................ 4 - 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.................................. 7 - 10
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K..................................... 11
</TABLE>
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<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
COLE NATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
November 2, February 3,
Assets 1996 1996
- ------ -------- ------
<S> <C> <C>
Current assets:
Cash and temporary cash investments $ 31,489 $ 29,260
Accounts receivable 20,156 18,589
Inventories 103,778 84,794
Prepaid expenses and other 5,846 5,892
Deferred income tax benefits 10,675 10,675
--------- ---------
Total current assets 171,944 149,210
Property and equipment, at cost 167,680 157,050
Less-accumulated depreciation and
amortization (95,304) (90,909)
--------- ---------
Total property and equipment, net 72,376 66,141
Other assets 8,309 5,070
Cost in excess of net assets of purchased
businesses, net 79,485 81,163
--------- ---------
Total assets $ 332,114 $ 301,584
========= =========
Liabilities and Stockholders' Equity
- ------------------------------------
Current liabilities:
Current portion of long-term debt $ 1,117 $ 705
Accounts payable 40,058 29,273
Accrued interest 1,747 7,050
Accrued liabilities 60,208 53,933
Accrued income taxes 4,604 5,976
--------- ---------
Total current liabilities 107,734 96,937
Long-term debt, net of discount 168,412 181,903
Deferred income taxes and other 5,545 5,611
Stockholders' equity:
Common stock 12 10
Paid-in capital 126,424 99,827
Notes receivable - stock option exercise (1,074) (1,117)
Accumulated deficit (74,939) (81,587)
--------- ---------
Total stockholders' equity 50,423 17,133
--------- ---------
Total liabilities and stockholders'
equity $ 332,114 $ 301,584
========= =========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these balance sheets.
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<PAGE> 4
COLE NATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
13 Weeks Ended 39 Weeks Ended
---------------------- -----------------------
November 2, October 28, November 2, October 28,
1996 1995 1996 1995
--------- --------- -------- ---------
<S> <C> <C> <C> <C>
Net sales $ 146,702 $ 138,646 $ 443,057 $ 401,999
Costs and expenses:
Cost of goods sold 44,773 43,181 136,673 125,246
Operating expenses 91,024 85,900 266,175 242,233
Depreciation and amortization 4,420 3,885 12,949 11,563
--------- --------- --------- ---------
Total costs and expenses 140,217 132,966 415,797 379,042
--------- --------- --------- ---------
Income from operations 6,485 5,680 27,260 22,957
Interest expense, net 4,390 5,272 14,171 15,872
--------- --------- --------- ---------
Income before income taxes
and extraordinary item 2,095 408 13,089 7,085
Income tax provision 922 179 5,759 3,117
--------- --------- --------- ---------
Income before extraordinary item 1,173 229 7,330 3,968
Extraordinary loss on early
extinguishment of debt -- -- (682) --
--------- --------- --------- ---------
Net income $ 1,173 $ 229 $ 6,648 $ 3,968
========= ========= ========= =========
Income per common share:
Income before extraordinary item $ .10 $ .02 $ .66 $ .38
Extraordinary loss -- -- (.06) --
--------- --------- --------- ---------
Net income $ .10 $ .02 $ .60 $ .38
========= ========= ========= =========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these statements.
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<PAGE> 5
COLE NATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
39 Weeks Ended
-----------------------
November 2, October 28,
1996 1995
---------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 6,648 $ 3,968
Adjustments to reconcile net income
to net cash provided by operations:
Extraordinary loss on early extinguishment of debt 682 --
Depreciation and amortization 12,949 11,563
Non-cash interest expense 322 307
Change in assets and liabilities:
Increase in accounts receivable,
prepaid expenses and other assets (1,771) (5,506)
Increase in inventories (18,984) (12,801)
Increase in accounts payable
and accrued liabilities 16,705 14,356
Decrease in accrued interest (5,303) (5,317)
Decrease in accrued income taxes (879) (1,108)
-------- --------
Net cash provided by operating activities 10,369 5,462
-------- --------
Cash flows from financing activities:
Repayment of long-term debt (16,778) (285)
Proceeds from stock option notes receivable 92 --
Proceeds from public offering, net 26,202 --
Proceeds from exercise of stock options 348 50
-------- --------
Net cash provided (used) by financing activities 9,864 (235)
-------- --------
Cash flows from investing activities:
Purchases of property and equipment, net (15,719) (14,161)
Acquisition of business -- (800)
Other, net (2,285) (1,008)
-------- --------
Net cash used by investing activities (18,004) (15,969)
-------- --------
Cash and temporary cash investments:
Net increase (decrease) during the period 2,229 (10,742)
Balance, beginning of the period 29,260 19,730
-------- --------
Balance, end of the period $ 31,489 $ 8,988
======== ========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these statements.
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<PAGE> 6
COLE NATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(1) BASIS OF PRESENTATION AND ACCOUNTING POLICIES
The consolidated financial statements include the accounts of Cole
National Corporation (CNC), its wholly owned subsidiaries, including Cole
National Group, Inc. (CNG), and CNG's wholly owned subsidiaries (collectively,
the Company). All significant intercompany transactions have been eliminated in
consolidation.
The accompanying consolidated financial statements have been prepared
without audit and certain information and footnote disclosures normally included
in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted, although the Company
believes that the disclosures herein are adequate to make the information not
misleading. These statements should be read in conjunction with the Company's
consolidated financial statements for the fiscal year ended February 3, 1996.
In the opinion of management, the accompanying financial statements
contain all adjustments (consisting only of normal recurring accruals) necessary
to present fairly the Company's financial position as of November 2, 1996 and
the results of operations for the 13 and 39 weeks ended November 2, 1996 and
October 28, 1995, and cash flows for the 39 weeks ended November 2, 1996 and
October 28, 1995.
Inventories
The accompanying interim consolidated financial statements have been
prepared without physical inventories. Inventories at November 2, 1996 and
October 28, 1995 were valued at the lower of first-in, first-out (FIFO) cost or
market.
Cash Flows
Net cash flows from operating activities reflect cash payments for income
taxes and interest of $6,684,000 and $20,975,000, respectively, for the 39 weeks
ended November 2, 1996, and $4,225,000 and $21,413,000, respectively, for the 39
weeks ended October 28, 1995.
Earnings Per Share
Earnings per share for the 13 weeks ended November 2, 1996 and October 28,
1995 have been calculated based on 11,943,949 and 10,420,063, respectively,
weighted average number of common shares outstanding.
Earnings per share for the 39 weeks ended November 2, 1996 and October 28,
1995 have been calculated based on 11,127,211 and 10,411,274, respectively,
weighted average number of common shares outstanding.
(2) PUBLIC OFFERING
During the quarter ended August 3, 1996, the Company completed a public
offering of 1,437,500 shares of Class A Common Stock, par value $.001, at a
price of $19.25 per share. The total net proceeds from the offering were $26.2
million. A portion of the proceeds was used to purchase $15.1 million of the
Company's 11.25% CNG Notes (the Senior Notes), plus accrued interest thereon.
The Company recorded an extraordinary loss of $0.7 million, net of an income tax
benefit of $0.5 million, representing the payment of premiums, the write-off of
unamortized discount and other costs associated with purchasing the debt.
(3) ASSET IMPAIRMENT
During the first quarter of fiscal 1996, the Company adopted Statement of
Financial Accounting Standards (SFAS) No. 121, "Accounting for the Impairment of
Long-lived Assets and for Long-lived Assets to be Disposed Of". Adoption of SFAS
No. 121 had no material impact on the Company's results of operations, financial
position or cash flows.
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<PAGE> 7
4) SEASONALITY
The Company's business is seasonal with approximately 30% of its sales and
approximately 50% of its income from operations generated in the fourth fiscal
quarter, which contains the important Christmas retailing season. Therefore,
earnings or losses for a particular interim period are not necessarily
indicative of full year results.
5) SUBSEQUENT EVENTS
Acquisition of AOCO Limited
On November 5, 1996, the Company acquired all of the issued and
outstanding common stock of AOCO Limited, which operates 73 Sears Optical
Departments and two freestanding Vision Club stores in Canada, for a purchase
price of $2.6 million. The acquisition will be accounted for as a purchase.
Acquisition of Pearle, Inc.
On November 15, 1996, CNC purchased, for an aggregate purchase price of
approximately $220 million, certain assets and all of the issued and outstanding
common stock of Pearle, Inc. (Pearle).
Immediately following the acquisition, CNC sold Pearle Holdings B.V.,
Pearle's European operations, to Pearle Trust B.V. for approximately $62
million. CNC has a 20% common equity interest in Pearle Trust B.V. In addition
to the 20% common equity interest, CNC owns approximately 23.5% of the
outstanding shares of Pearle Trust B.V. preferred stock and has a shareholder
loan receivable of $3.9 million.
Also, immediately following CNC's acquisition of Pearle, and pursuant to a
transfer agreement, CNG purchased from CNC all of the issued and outstanding
common stock of Pearle and Pearle Service Corporation (PSC). The Company will
account for the Pearle acquisition as a purchase.
The Company financed the Pearle acquisition primarily through the proceeds
of CNG's private placement (the Offering) of $150 million of 9 7/8% Senior
Subordinated Notes (the Notes) due in 2006. Interest on the Notes is payable
semi-annually in arrears on December 31 and June 30 commencing June 30, 1997.
The Notes are general unsecured obligations of CNG, subordinated in right of
payment to senior indebtedness of CNG, including the Senior Notes, and senior in
right of payment to any current or future subordinated indebtedness of CNG.
The indenture pursuant to which the Notes were issued restricts dividend
payments to the Company to 50% of CNG's net income after October 31, 1993, plus
amounts due to the Company under a tax sharing agreement and for administrative
expenses of the Company not to exceed 0.25% of CNG's net sales and contains
other financial covenants. The Notes are redeemable at the option of CNG, in
whole or in part, at any time on or after December 31, 2001. In addition, CNG
would be required to make an offer to purchase Notes following a Change of
Control (as defined in the Indenture) and, under certain circumstances,
following a sale of assets.
Following the Pearle acquisition, Cole Vision Corporation, Things
Remembered, Inc., Cole Gift Centers, Inc., Pearle and PSC, the principal
operating subsidiaries of CNG, (collectively, the Borrowers), entered into a New
Credit Facility. The New Credit Facility replaced, contemporaneously with the
consummation of the Offering, the existing Revolving Credit Facility.
The New Credit Facility provides the Borrowers with a four-year revolving
line of credit of up to the lesser of a "borrowing base" and $75 million. A
portion of the New Credit Facility not in excess of $30 million, is available
for the issuance of letters of credit. Borrowings under the New Credit Facility
initially bear interest at a rate equal to, at the option of the Borrowers,
either (a) the Eurodollar Rate plus 1.25% or (b) 0.25% plus the highest of (i)
the rate of interest publicly announced by Canadian Imperial Bank of Commerce as
its prime rate in effect at its principal office in New York City, (ii) the
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<PAGE> 8
three-week moving average of the secondary market rates for three-month
certificates of deposit (adjusted for statutory reserve requirements) plus 1%
and (iii) the federal funds effective rate from time to time plus 0.5%. The
interest rates are subject to quarterly adjustment after the first anniversary
of the closing of the New Credit Facility based on CNG's achievement of certain
interest coverage ratio benchmarks. Additionally, the New Credit Facility
requires the Borrowers to comply with various operating covenants that restrict
corporate activities, including covenants restricting the Borrowers' ability to
incur additional indebtedness, pay dividends, prepay subordinated indebtedness,
dispose of certain assets, create liens, make capital expenditures and make
certain investments or acquisitions. The New Credit Facility also requires the
Borrowers to comply with certain financial covenants, including covenants
regarding minimum interest coverage, maximum leverage and consolidated net
worth.
The New Credit Facility permits CNG's subsidiaries to pay dividends to
CNG, to the extent necessary to permit CNG to pay all interest and principal on
the Senior Notes and the Notes, and to use up to $20 million to repurchase the
Senior Notes and/or the Notes, so long as no default or event of default under
the New Credit Facility has occurred and is continuing. CNG is a limited
guarantor under the New Credit Facility, with recourse against CNG limited to
certain bank accounts.
-6-
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion of certain factors affecting the Company's
results of operations for the 13 week and 39 week periods ended November 2, 1996
and October 28, 1995 (the Company's third quarter and first nine months,
respectively) and its liquidity and capital resources. This discussion should be
read in conjunction with the consolidated financial statements and notes thereto
included elsewhere in this filing and the Company's audited financial statements
for the fiscal year ended February 3, 1996 included in its annual report on Form
10-K.
On November 15, 1996, the Company completed the Pearle acquisition
acquiring the North American and Caribbean system of Pearle, Inc. and a 20%
interest in Pearle Trust B.V., a company formed to purchase Pearle's European
business. Pearle's North America and Caribbean system consists of 695 optical
retailing locations, including 353 company operated stores and 342 franchised
locations in 43 states, Canada, Puerto Rico and the Virgin Islands. A
significant portion of the purchase price was financed by CNG's issuance of
$150.0 million of 9 7/8% Senior Subordinated Notes due 2006 (the Notes). In
November, 1996, the Company also purchased all the issued and outstanding common
stock of AOCO Limited which operates 73 Sears Optical Departments and two
freestanding stores under the name "Vision Club" in Canada. Except as otherwise
indicated, the following discussion relates to the Company on a historical basis
without giving effect to the Pearle acquisition, the Note issuance or the
purchase of AOCO Limited.
The Company's fiscal year ends on the Saturday closest to January 31.
Fiscal years are identified according to the calendar year in which they begin.
For example, the fiscal year ended February 3, 1996 is referred to as "fiscal
1995."
RESULTS OF OPERATIONS
Net sales for the third quarter of fiscal 1996 increased 5.8% to $146.7
million from $138.6 million for the same period last year. Net sales for the
first nine months of fiscal 1996 increased 10.2% to $443.1 million from $402.0
million for the same period a year ago. The increases in consolidated sales for
the third quarter and first nine months of fiscal 1996 were due to comparable
store sales increases of 3.3% and 6.3%, respectively, and to the opening of
additional Cole Gift and Cole Vision units, partially offset by the closing of
95 low-volume Cole Gift departments. Comparable store sales increased primarily
as a result of successful eyewear promotions and growth in the managed vision
care program at Cole Vision, along with the roll-out of monogrammed softgoods
and introduction of new merchandise at Cole Gift. At November 2, 1996, the
Company operated 2,357 specialty service retail units compared to 2,361 at
October 28, 1995.
Gross profit increased to $101.9 million in the third quarter of fiscal
1996 from $95.5 million for the same period last year. Third quarter gross
margins in fiscal 1996 and fiscal 1995 were 69.5% and 68.9%, respectively. For
the first nine months, gross profit increased to $306.4 million in fiscal 1996
from $276.8 million for the same period a year ago. Gross margins for the first
nine months in fiscal 1996 and fiscal 1995 were 69.2% and 68.8%, respectively.
The increases in gross margin percentages were the result of lower product
costs, improved optical lab productivity and a higher level of personalization
in the sales mix at Things Remembered.
Operating expenses increased 6.0% to $91.0 million in the third quarter of
fiscal 1996 from $85.9 million for the third quarter last year. For the first
nine months of fiscal 1996, operating expenses increased 9.9% to $266.2 million
from $242.2 million for the same period in fiscal 1995. Operating expense
increases for both periods compared to last year were primarily due to higher
advertising expenditures, payroll costs and store occupancy expenses.
Advertising expenditures at Cole Vision were increased for optical promotions to
encourage continued sales growth above last year's successful promotions.
Payroll costs increased because of more higher-volume retail units open in 1996,
including an increased number of Things Remembered personalization superstores,
and additional payroll to support increased sales. Store occupancy expenses
increased primarily as a result of the increased number of Things Remembered
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<PAGE> 10
personalization superstores and higher percentage rents caused by increased
comparable store sales. Fiscal 1996 depreciation and amortization expense of
$4.4 million in the third quarter and $12.9 million in the first nine months was
$0.5 and $1.4 million more, respectively, than the same periods in fiscal 1995
reflecting an increase in capital expenditures beginning in the latter part of
fiscal 1993.
Income from operations increased 14.2% in the third quarter of fiscal 1996
to $6.5 million and increased 18.7% to $27.3 million in the first nine months
primarily because of increased sales at Cole Vision and Things Remembered.
Net interest expense decreased $0.9 million to $4.4 million in the third
quarter of fiscal 1996 and decreased $1.7 million to $14.2 million in the first
nine months. The decrease for both the quarter and the nine months was primarily
due to the retirement of $5.0 million of Senior Notes in November 1995, the
purchase of $15.1 million of Senior Notes in the second quarter of fiscal 1996,
the elimination of working capital borrowings and increased interest income from
an increase in temporary cash investments.
Income tax provisions were recorded in the third quarter and first nine
months of fiscal 1996 and fiscal 1995 using the Company's estimated annual
effective tax rate of 44%.
Net income for the third quarter increased to $1.2 million in 1996 from
$0.2 million for the third quarter of 1995. For the first nine months of fiscal
1996, net income increased to $7.3 million from $4.0 million for that same
period last year. For both the third quarter and first nine months of fiscal
1996, increases were due to the improvement in income from operations and the
decrease in net interest expense. A $0.7 million extraordinary loss, net of an
income tax benefit of $0.5 million, was recorded in the second quarter of fiscal
1996 in connection with the early extinguishment of debt, representing the
payment of premiums, the write-off of unamortized discount and other costs
associated with purchasing the debt. See Liquidity and Capital Resources.
The Company's business historically has been seasonal with approximately
30% of its sales and approximately 50% of its income from operations occurring
in the fourth fiscal quarter because of the importance of gift sales during the
Christmas retailing season. Although the Pearle Acquisition will moderate the
seasonality of the Company due to relatively lower levels of optical product
sales during the Christmas holiday season, the Company's business will remain
seasonal. Therefore, results of operations for interim periods are not
necessarily indicative of full year results.
CERTAIN EFFECTS OF THE PEARLE ACQUISITION
Following the Pearle Acquisition, the Company's consolidated gross margin
will likely decline from its historical levels. This will likely result because
even after conforming Pearle's accounting methods to those of the Company,
Pearle is expected to have a lower gross margin than the Company due to the
higher costs of in-store laboratories and lower margin wholesale sales to
franchised stores partially offset by franchise royalties, fees and interest
income on franchise notes receivable which have no corresponding cost of goods
sold.
In addition, the Company is currently evaluating the various operations of
Pearle and Cole Vision for opportunities to effect operational efficiencies.
While this evaluation is in process and not near completion, the Company's
expectation is that a charge for business integration and consolidation costs is
likely to be taken in the fourth quarter of 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary source of liquidity is funds provided from
operations. In addition, the Company's principal operating subsidiaries have
available to them working capital commitments of $75.0 million under the New
Credit Facility, reduced by commitments under letters of credit. The New Credit
Facility replaced the existing $50.0 million Revolving Credit Facility
contemporaneous with the Pearle acquisition. There were no working capital
borrowings during the first
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<PAGE> 11
nine months of fiscal 1996. The maximum amount outstanding during the first nine
months of fiscal 1995 was $3.5 million.
The New Credit Facility contains covenants restricting the ability of the
Company's operating subsidiaries to, among other things, pay dividends or make
other restricted payments to the Company or CNG. The New Credit Facility will
permit the Company's subsidiaries to pay dividends to CNG to the extent
necessary to permit CNG to pay all interest and principal on the Senior Notes
and the Notes when due.
The issuance of the Notes by CNG in connection with the Pearle Acquisition
will result in an increase in annual interest expense of approximately $14.9
million including amortization of discount on the Notes. Amortization of
deferred financing costs related to the Notes and the New Credit Facility will
increase non-cash interest expense by $0.8 million annually.
During the second quarter of fiscal 1996, the Company completed a public
offering of 1,437,500 shares of its Class A Common Stock at an offering price of
$19.25 per share. The net proceeds from the offering were $26.2 million. A
portion of the net proceeds was used to purchase in the open market $15.1
million of the Company's 11.25% Senior Notes plus accrued interest thereon
resulting in a reduction of interest expense of $1.7 million annually.
The Company has no significant principal payment obligations under any of
its outstanding indebtedness until the Senior Notes mature in 2001. The ability
of the Company and its subsidiaries to satisfy the obligations under the Senior
Notes will be primarily dependent upon future financial and operating
performance of the subsidiaries and upon the Company's ability to renew or
refinance borrowings or to raise additional equity capital.
Operations for the first nine months provided cash of $8.3 million in
fiscal 1996 compared to $5.5 million provided in 1995. The increase in cash
provided by operations resulted from an increase in net income and favorable
changes in accounts receivable, prepaid expenses, accounts payable and accrued
liabilities. These favorable changes were partially offset by unfavorable
changes in inventory in fiscal 1996 as compared to fiscal 1995.
Net capital additions were $15.7 million and $14.2 million for the first
nine months of fiscal 1996 and fiscal 1995, respectively. The majority of the
capital additions were for store fixtures, equipment and leasehold improvements
for new stores and the remodeling of existing stores. For the balance of fiscal
1996, the Company expects to continue to expand the number of stores as well as
remodel and relocate stores. The Company currently estimates capital
expenditures in fiscal 1996 will exceed $20.0 million and for 1997, including
Pearle, will exceed $30.0 million.
The Company has acquired the land to construct a new warehouse and
distribution facility for Cole Gift that is expected to improve distribution
efficiencies. The facility, which the Company expects will be completed in
fiscal 1997, will most likely be financed through a sale and lease-back
transaction or through conventional secured real estate financing. The Company
estimates the cost for this facility to be approximately $10 million.
The Company believes that funds provided from operations along with funds
available under the New Credit Facility will provide adequate sources of
liquidity to allow the Company's operating subsidiaries to continue to expand
the number of stores.
FORWARD-LOOKING INFORMATION
Certain sections of this Form 10-Q contain statements that are "forward-
looking statements" within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. Forward-looking statements are made based upon
management's expectations and beliefs concerning future events impacting the
Company, and include, among other things, the discussions of the Company's
business strategy and expectations concerning the Company's future operations,
margins, profitability, liquidity and capital resources, as well as statements
concerning the integration of the Pearle acquisition and achievement of cost
savings and other efficiencies in connection therewith. Readers are cautioned
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<PAGE> 12
that reliance on any forward-looking statement involves risks and uncertainties,
and that although the Company believes that the assumptions on which the
forward-looking statements contained herein are based are reasonable, any of
those assumptions could prove to be inaccurate, and as a result, the forward-
looking statements based on those assumptions also could be materially
incorrect. Actual results may differ materially due to a variety of factors that
can adversely affect the Company, such as the integration of Pearle's
operations, the ability to select and stock merchandise attractive to customers,
general economic cycles affecting consumer spending, weather factors affecting
retail operations, its quality controls in optical manufacturing and engraving,
operating factors affecting customer satisfaction, the Company's relationships
with its host stores and franchisees, the mix of goods sold, pricing and other
competitive factors, and the seasonality of the Company's business. In light of
these and other uncertainties, the inclusion of a forward-looking statement
herein should not be regarded as a representation by the Company that the
Company's plans and objectives will be achieved.
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PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. The following Exhibits are filed herewith and made a part
hereof:
10.01 Lease agreement (Salt Lake) dated as of November 1, 1996
by and between Gibbons Realty Company and Cole Vision
Corporation.
27 Financial Data Schedule
(b) Reports on Form 8-K
On September 25, 1996, the Company filed a report on Form 8-K announcing
that it had agreed to purchase the stock and certain assets of Pearle,
Inc. from The Pillsbury Company, a subsidiary of Grand Metropolitan PLC.
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<PAGE> 14
SIGNATURE
---------
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.
COLE NATIONAL CORPORATION
By: /s/ Wayne L. Mosley
--------------------------------------
Wayne L. Mosley
Vice President and Controller
(Duly Authorized Officer and Principal
Accounting Officer)
Date: December 13, 1996
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<PAGE> 15
COLE NATIONAL CORPORATION
FORM 10-Q
QUARTER ENDED NOVEMBER 2, 1996
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
10.01 Lease agreement (Salt Lake) dated
as of November 1, 1996 by and
between Gibbons Realty Company
and Cole Vision Corporation.
27 Financial Data Schedule
-13-
<PAGE> 1
Exhibit 10.01
OFFICE LEASE AGREEMENT
BETWEEN
GIBBONS REALTY COMPANY
AND
COLE VISION CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Building Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Lease Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Lease Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Prevailing Market Rental Rate . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Related Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Term Expiration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 LEASE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Acceptance of Premises; Possession . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Landlord's Access to Premises . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 3 LEASE TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Lease Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Surrender of Premises on Term Expiration . . . . . . . . . . . . . . . . . . . 4
3.4 Merger Upon Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Removal of Tenant's Personal Property and Fixtures . . . . . . . . . . . . . . 4
3.6 Tenant's Property Left on the Premises . . . . . . . . . . . . . . . . . . . . 4
3.7 Delivery of Certain Documents to Landlord . . . . . . . . . . . . . . . . . . 5
3.8 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 4 RENT AND OTHER PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Minimum Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Payments by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.4 Interest on Past Due Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.5 Late Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 5 OPERATING EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Payment of Increases in Operating Expenses . . . . . . . . . . . . . . . . . . 6
5.2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.4 Final Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 SERVICES AND UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Utilities to the Premises . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 Failure of Utility Services . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.3 Common Area Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Tenant's Property Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.2 Additional Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.3 Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 8 USE; MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Designated Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 Insurance Requirements; Governmental Regulations . . . . . . . . . . . . 8
8.3 Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . 8
8.4 Restrictions on Use . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.5 Repairs and Maintenance by Landlord . . . . . . . . . . . . . . . . . . 9
8.6 Repairs and Maintenance by Tenant . . . . . . . . . . . . . . . . . . . 10
8.7 Alterations and Improvements . . . . . . . . . . . . . . . . . . . . . . 10
8.8 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.9 Building/Building Remodeling or Alterations . . . . . . . . . . . . . . 11
ARTICLE 9 INSURANCE; CASUALTY LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9.1 General Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 11
9.2 Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9.3 Landlord's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.4 Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.5 Damage or Destruction; Landlord to Rebuild . . . . . . . . . . . . . . . 12
9.6 Option to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.7 Portions to be Rebuilt by Landlord and Tenant . . . . . . . . . . . . . 13
9.8 Non-Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.9 Operations During Reconstruction Period . . . . . . . . . . . . . . . . 13
ARTICLE 10 EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.1 Entire or Substantial Taking . . . . . . . . . . . . . . . . . . . . . . 14
10.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.3 Disposition of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 11 SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11.1 Erection and Removal of Signs . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 12 COMMON AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12.1 Use of Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12.2 Management and Operation of Common Area . . . . . . . . . . . . . . . . 15
ARTICLE 13 RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13.1 Building Rules and Regulations . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 14 ASSIGNMENT AND SUBLETTING; SALE BY LANDLORD . . . . . . . . . . . . . . . . . 15
14.1 Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . 15
14.2 Licensees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14.3 Indirect Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14.4 Assignment by Operation of Law; Bankruptcy . . . . . . . . . . . . . . . 16
14.5 Sale of Premises by Landlord . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 15 LIENS AND ENCUMBRANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15.1 Encumbering the Premises . . . . . . . . . . . . . . . . . . . . . . . . 16
15.2 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 16 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 17 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
17.1 Remedies of Landlord . . . . . . . . . . . . . . . . . . . . . . . . . 18
17.2 Remedies of Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17.3 Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 18 ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18.1 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 19 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19.1 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19.2 No Accord and Satisfaction . . . . . . . . . . . . . . . . . . . . . . 20
19.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19.4 Relationship of the Parties . . . . . . . . . . . . . . . . . . . . . 20
19.5 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.6 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.8 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.9 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.10 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.11 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.12 Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.13 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.14 Execution of Additional Documents . . . . . . . . . . . . . . . . . . 21
19.15 Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
19.16 Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A SCHEMATIC DIAGRAM OF THE PREMISES
EXHIBIT B DEFINITION OF OPERATING EXPENSES
</TABLE>
iii
<PAGE> 5
OFFICE LEASE AGREEMENT
This LEASE (the "LEASE") is made as of November 1, 1996, by and
between GIBBONS REALTY COMPANY, a Utah corporation, whose address is P.O. Box
25744, Salt Lake City, Utah 84125 ("LANDLORD") and COLE VISION CORPORATION, a
Delaware corporation, whose address is 18903 South Miles Road, Warrensville
Heights, Ohio 44128 ("TENANT").
FUNDAMENTAL PROVISIONS
- ----------------------
PREMISES: That portion of Building A (defined in SECTION 1.1
below), containing approximately 14,840 square feet,
consisting of Units B-3 and B-4, located at 1887
South 3230 West, Salt Lake City, Utah and which is
indicated as the Premises on the diagram attached to
this Lease as EXHIBIT A.
MINIMUM RENT: $4748.80 per month for the first 30 months of the
Lease Term, based on a monthly rental rate of $0.32
per square foot in the Premises, and $5194.00 per
month for the next 30 months of the Lease Term, based
on a monthly rental rate of $0.35 per square foot in
the Premises, as adjusted pursuant to SECTION 3.2.
TENANT'S PRO RATA 25%, being the ratio between the total square footage
SHARE: in the Premises and the total square footage in the
Building, expressed as a percentage.
TERM November 1, 1996
COMMENCEMENT:
INITIAL TERM Midnight on October 31, 2001.
EXPIRATION:
AVAILABLE RENEWAL One (1).
TERM:
RENEWAL TERM Five (5) years for the Available Renewal Term.
PERIOD:
PERMITTED USE: Optical laboratory.
HOLDOVER 125%.
PERCENTAGE:
DEFAULT RATE: 18% per annum.
<PAGE> 6
ARTICLE 1
DEFINITIONS
As used in this Lease, in addition to the defined terms contained in
the Fundamental Provisions, certain other capitalized terms have the following
meanings:
1.1 BUILDING: Collectively, the building ("BUILDING A") located
at 1867-1887 South 3230 West, Salt Lake City, Utah, containing approximately
31,020 square feet, and the building ("BUILDING B") located at 1837-1847 South
3230 West, Salt Lake City, Utah. Building A and Building B (collectively, the
"BUILDING") contains a total of approximately 59,364 square feet.
1.2 BUILDING RULES AND REGULATIONS: The rules and regulations
adopted in accordance with SECTION 13.1.
1.3 COMMON AREAS: All areas, structural portions, facilities and
equipment of the Building outside the Premises and the premises of other
tenants but within the exterior boundaries of the parcel of property on which
the Building is situated, that are provided and designated by Landlord from
time to time for the general use, benefit and/or convenience of Tenant and/or
other tenants of the Building and/or their respective authorized
representatives and invitees. Common Areas include, without limitation,
pedestrian walkways, landscaped areas, sidewalks, service corridors, roofs,
walls, throughways, load areas, and parking areas.
1.4 LEASE TERM: The period from the Term Commencement through the
Term Expiration.
1.5 LEASE YEAR: The period during the Lease Term commencing on
January 1st in each year and ending at midnight on the 31st of December of that
year, except that the first Lease Year will commence at the start of the Lease
Term and will end at midnight on the 31st of December of that year, and except
that the last Lease Year will end at Term Expiration.
1.6 PREVAILING MARKET RENTAL RATE: The average annual rental rate
then being charged in Salt Lake City, Utah for comparable space in comparable
buildings for which Prevailing Market Rental Rate is being determined, taking
into consideration use, location and floor level within the applicable
building, the location, quality and age of the building, the definition of
rentable area or net rentable area, as the case may be, with respect to which
such rental rates are computed, leasehold improvements provided, rental
concessions (such as abatements, lease assumptions or takeovers and moving
expenses), the date the particular rate under consideration became effective,
the term of the lease under consideration, the extent of services provided
thereunder, any other adjustments (including adjustments by way of indices) to
base rental, and any other relevant term or condition in making such
evaluation, including bona fide written offers made to Landlord by third
parties at arms length to lease the same or comparable space for which the
Prevailing Market Rental Rate is being determined.
1.7 RELATED PARTIES: The officers, directors, shareholders,
members, partners, employees, agents, consultants, accountants, attorneys,
successors, assigns, contractors, and invitees of a particular person or
entity.
1.8 TERM EXPIRATION. The date of Initial Term Expiration unless
the Lease is extended pursuant to SECTION 3.2, in which case "TERM EXPIRATION"
will be the last day of the applicable renewal term, or unless terminated
earlier as permitted by this Lease, in which case "TERM EXPIRATION" will be the
date of earlier termination.
2
<PAGE> 7
ARTICLE 2
LEASE OF PREMISES
2.1 LEASE. Landlord leases the Premises to Tenant and Tenant
leases the Premises from Landlord, for the Lease Term, at the rental, and upon
the covenants and conditions contained in this Lease, including the Fundamental
Provisions. The Premises do not include the exterior walls, the roof, the area
above or below the Premises, the Common Areas, or the land upon which the
Premises and Building are located.
2.2 ACCEPTANCE OF PREMISES; POSSESSION.
(a) INSPECTION AND ACCEPTANCE. Tenant has been in
possession of the Premises pursuant to a Lease for Multi-Tenancy
Space, dated October 30, 1981. That lease expires October 31, 1996
and this Lease replaces and supersedes that lease. Tenant agrees that
Tenant is leasing the Premises, and Tenant accepts the Premises, "AS
IS, WHERE IS", including any and all defects, patent, latent or
otherwise, with no representation or warranty by Landlord as to the
fitness, suitability, habitability, or usability of the Premises, as
to compliance of the Premises with any laws, regulations, or
ordinances, or as to the presence or absence of any Hazardous
Materials (as defined in SECTION 8.3) on, about or adjacent to the
Premises. In addition, the Premises are leased subject to current
taxes and assessments, reservations in patents and all rights-of-way,
easements, covenants, conditions, restrictions, obligations, liens,
encumbrances, and liabilities of record as of the date of this Lease,
and to all zoning and building code requirements and other
governmental laws, rules, and regulations.
(b) POSSESSION. Possession of the Premises pursuant to
this Lease will be deemed to have been delivered to Tenant on the date
of Term Commencement.
2.3 LANDLORD'S ACCESS TO PREMISES. Landlord and Landlord's
employees and agents may enter the Premises at all reasonable hours and upon
reasonable written notice (and in emergencies at all times) without diminution
or abatement of rent and without liability to Tenant, to: (a) inspect the
Premises; (b) make repairs, additions or alterations to the Premises, the
Building, or any property owned or controlled by Landlord (and for such
purposes Landlord may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing the entrance to the Premises will not be blocked thereby); (c) serve
or post any notice required or permitted under the provisions of this Lease or
by law; (d) cure any event of default by Tenant once all cure periods provided
for such default herein have expired (except in the case of an emergency in
which case Landlord may make an immediate cure of such default) or to exercise
any remedy of Landlord available for an event of default; (e) during the last
six months of the Lease Term, show the Premises to prospective new tenants;
provided, however, that Tenant shall have the right to place a sign in front of
the Premises (so long as such sign does not block the signage or visibility of
other tenants), in a place visible to Tenant's customers, directing Tenant's
customers to another store of Tenant and/or providing Tenant's customers with
Tenant's telephone number and provided further that Tenant shall be entitled to
leave said sing(s) at the front of the Premises until Tenant vacates the
Premises; and (f) for any other lawful purpose. For the purpose of providing
access as required by this Section, Landlord will have a key to unlock all
doors on the Premises, excluding Tenant's vaults. If an excavation is made or
is authorized to be made upon land adjacent to the Premises or the Building,
Tenant agrees to permit all necessary persons to enter the Premises for the
purpose of doing such work as Landlord deems reasonably necessary to preserve
the walls of the Building from injury or damage.
3
<PAGE> 8
2.4 QUIET ENJOYMENT. Conditioned upon Tenant paying the rent in
this Lease and performing and fulfilling all of the covenants, agreements,
conditions, and provisions in this Lease to be kept, observed or performed by
Tenant, Tenant may at all times during the Lease Term peaceably, quietly, and
exclusively have, hold, and enjoy the Premises, subject to the terms and
conditions of this Lease.
ARTICLE 3
LEASE TERM
3.1 LEASE TERM. The Lease Term will be as specified in SECTION
1.6.
3.2 OPTION TO RENEW. Tenant is hereby granted the option to renew
this Lease for the Available Renewal Term specified in the Fundamental
Provisions, with such Available Renewal Term to be for a period equal to the
Renewal Term Period stated in the Fundamental Provisions. The renewal will be
upon the same terms and conditions as are applicable during the initial term of
this Lease, except that the Minimum Rent for the Renewal Term will be in an
amount equal to the greater of (a) 100% of the Prevailing Market Rental Rate as
of commencement of the renewal term but not to exceed 120% of the monthly
Minimum Rent in effect immediately prior to expiration of the initial term of
this Lease or (b) the monthly Minimum Rent in effect immediately prior to
expiration of the initial term of this Lease. Written notice of Tenant's
election to exercise the renewal option is required at least 180 days in
advance of the expiration of the initial term. Any other provision of this
Lease to the contrary notwithstanding, Tenant shall not be entitled to renew
this Lease if at the time of exercise of the renewal option or at the time the
renewal term would commence, an event of default by Tenant has occurred and is
continuing (or an event has occurred and is continuing which, with the giving
of notice or the passage or time, or both, would constitute an event of default
by Tenant under this Lease).
3.3 SURRENDER OF PREMISES ON TERM EXPIRATION. On Term Expiration,
Tenant agrees to quit and surrender the Premises, broom clean, in good
condition and repair (reasonable wear and tear and insured casualty loss
excepted) together with all alterations, additions and improvements which may
have been made in, to or on the Premises, subject to the rights and obligations
of Tenant to remove personal property and trade fixtures as provided in SECTION
3.5.
3.4 MERGER UPON SURRENDER. The voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation of this Lease, will not
automatically work a merger, and Landlord may either terminate all or any
existing subtenancies or treat the surrender or cancellation as an assignment
to Landlord of any or all such subtenancies.
3.5 REMOVAL OF TENANT'S PERSONAL PROPERTY AND FIXTURES. Provided
no event of default by Tenant has occurred and is continuing (and no event has
occurred and is continuing which, with the giving of notice or the passage or
time, or both, would constitute an event of default by Tenant under this
Lease), prior to Term Expiration, Tenant will remove from the Premises any and
all personal property of Tenant located on the Premises, including, but not
limited to, furniture, equipment, and fixtures belonging to or leased by
Tenant; provided, however, Tenant will repair any damage to the Premises or any
improvements on the Premises caused by such removal.
3.6 TENANT'S PROPERTY LEFT ON THE PREMISES. If any personal
property (including trade fixtures) of Tenant are left on the Premises
following Term Expiration, Landlord may treat such property as abandoned by
Tenant. In addition to any other rights and remedies available to Landlord,
Landlord, at Landlord's option and without any further notice to Landlord, may
either sell any such property and
4
<PAGE> 9
retain all of the proceeds of sale without any accounting to Tenant or Landlord
may store such property, on or off of the Premises, in Tenant's name and at
Tenant's expense. Tenant agrees to pay such amounts to Landlord within ten
(10) days of receipt of an invoice from Landlord.
3.7 DELIVERY OF CERTAIN DOCUMENTS TO LANDLORD. On or prior to
Term Expiration, Tenant will deliver to Landlord, for Landlord's use at no cost
to Landlord, copies of all engineering, environmental, architectural and site
plans, inspection reports, tests, feasibility reports, and other documents
relating to the Premises and prepared for or on behalf of Tenant and which are
non-confidential to Tenant, as reasonably determined by Tenant.
3.8 HOLDING OVER. If the Premises are not surrendered at the end
of the Lease Term, Tenant will indemnify Landlord and Landlord's Related
Parties for, from and against any loss or liability resulting from delay by
Tenant in so surrendering the Premises, including without limitation, any
claims made by any succeeding tenant based on such delay. This indemnity will
survive the expiration or earlier termination of the Lease Term and any
holdover term. If Tenant or any of Tenant's Related Parties should remain in
possession of the Premises after the expiration of the Lease Term without
executing a new lease, then such holding over will be construed as a tenancy
from month to month, subject to all the covenants, terms, provisions and
obligations of this Sublease except that the Minimum Rent during any holdover
tenancy will be equal to the Minimum Rent in effect at the expiration of the
Lease Term multiplied by the Holdover Percentage. Nothing contained in this
Section or elsewhere in this Lease will be construed as Landlord's permission
for Tenant to hold over or as limiting Landlord's remedies against a holdover
lessee.
ARTICLE 4
RENT AND OTHER PAYMENTS
4.1 MINIMUM RENT. Tenant will pay Landlord for each month during
the Lease Term, rent equal to the Minimum Monthly Rent (subject to adjustment
as provided in SECTION 3.2). Minimum Rent will be paid monthly in advance on
the first day of each month of the Lease Term, without any deduction or offset.
If the Lease Term commences on a day other than the first day of a calendar
month, then upon the commencement of the Lease Term, Tenant will pay to
Landlord, as Minimum Rent for the partial month, a pro rata portion of the
Minimum Rent payable for a full month, based on the number of days in the month
from Term Commencement to the end of that month.
4.2 ADDITIONAL RENT. In addition to Minimum Rent, all other
payments to be made by Tenant under this Lease will be deemed "ADDITIONAL RENT"
and will be due and payable within ten (10) days of receipt by Tenant of an
invoice from Landlord, if no other time for payment is specified.
4.3 PAYMENTS BY LANDLORD. Landlord may pay any sum or do any act
which Tenant has failed to do within applicable cure periods, and Tenant agrees
to pay Landlord, within ten (10) days of receipt by Tenant of an invoice from
Landlord, all sums so expended by Landlord, together with interest at the
Default Rate from the due date until paid. Such sum and interest will also be
deemed Additional Rent.
4.4 INTEREST ON PAST DUE AMOUNTS. Any sum of money due to
Landlord and not paid when due will bear interest from the due date until paid
at the Default Rate.
4.5 LATE FEES. Landlord may assess a late fee of two percent (2%)
of the amount due for any payment due to Landlord and not paid within five (5)
days of the date due, to compensate Landlord
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for the extra expense of handling late payments. Such late fee will be in
addition to any and all interest and costs of collection of late due amounts.
ARTICLE 5
OPERATING EXPENSES
5.1 PAYMENT OF INCREASES IN OPERATING EXPENSES. Tenant will pay
as Additional Rent during the term of this Lease Tenant's Pro Rata Share of the
Operating Expenses (as defined in EXHIBIT B) of the Building during the term.
Tenant's share of Operating Expenses will be estimated at the beginning of each
Lease Year (the "ESTIMATED EXPENSE PAYMENT") and will be paid in quarterly
installments on or before the first day of each calendar quarter, in advance,
in an amount reasonably estimated by Landlord. Tenant's Estimated Expense
Payment for a partial quarter will be pro rated based on a 90 day quarter and
the actual number of days in such partial quarter.
5.2 STATEMENT. Within ninety (90) days following the end of each
Lease Year, Landlord will furnish to Tenant a statement showing the total
actual amount of Operating Expenses for the Lease Year just expired (the
"ACTUAL OPERATING EXPENSES"). If Tenant's Pro Rata Share of the Actual
Operating Expenses for such Lease Year exceed the aggregate of Tenant's
Estimated Expense Payments for such Lease Year, Tenant will pay to Landlord the
deficiency within thirty (30) days after receipt of said statement. If the
aggregate of Tenant's Estimated Expense Payments exceed Tenant's Pro Rata Share
of the Actual Operating Expenses, as shown on such statement, Tenant will be
entitled to offset the excess against payments next thereafter becoming due
under this Lease.
5.3 AUDIT. Tenant shall have the right at any time within two (2)
years after the close of each lease year and partial lease year, but not more
often than once with respect to any lease year and partial lease year, to cause
an audit to be made by an independent accountant, upon at least three (3) days'
prior written notice to Landlord. Tenant agrees that any information obtained
from all such records and reports examined by it or by its designated
accountant shall be held in strict confidence. All such actions or claims for
overpayment of Additional Rent shall be barred after said two-year period. If
Tenant should make such an audit and any portion of the Additional Rent shown
by Landlord's quarterly statement has been overstated by more than five (5%)
and if such overstatement resulted in an overpayment of any portion of
Additional Rent by at least One Thousand Dollars ($1,000), then, Landlord, in
addition to refunding that portion of Additional Rent overpaid as determined by
such audit, shall pay to Tenant the reasonable cost of such audit.
5.4 FINAL ASSESSMENT. Tenant will be liable for Tenant's Pro Rata
Share of Operating Expenses for the year in which the Lease terminates,
prorated to the date of expiration of the Lease Term, even though the Lease
Term has expired and Tenant has vacated the Premises at the time that such
Operating Expenses are finally computed. Within thirty (30) days after
Tenant's receipt of a statement of the final computation of the Operating
Expenses for the year in which the Lease terminates, Tenant will pay to
Landlord or Landlord will pay to Tenant, as the case may be, the amount by
which the estimated payments made by Tenant were less than, or exceeded,
Tenant's Pro Rata Share of the Operating Expenses for such final Lease Year.
The obligations of Landlord and Tenant provided in this ARTICLE 5 will survive
the termination of the Lease.
ARTICLE 6
SERVICES AND UTILITIES
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6.1 UTILITIES TO THE PREMISES. Landlord will furnish to the
Premises heating and air conditioning required for the comfortable use and
occupation of the Premises, twenty four hours per day, seven days per week.
Electricity to the Premises for normal lighting and fractional horsepower
office machines will be furnished twenty four hours per day seven days per
week. Water to the Premises will also be furnished. All utilities to the
Premises will be separately metered and the costs for all utilities used at the
Premises will be paid directly by Tenant as and when due. Tenant will be
responsible for light bulb replacement within the Premises.
6.2 FAILURE OF UTILITY SERVICES. Unless resulting from Landlord's
negligence or wilful misconduct and except as provided below, Landlord will not
be liable in damages or otherwise for any failure or interruption of any
utility service to the Premises. No failure or interruption of utility service
will entitle Tenant to terminate this Lease. Landlord will provide Tenant with
at least three (3) days advance notice delivered to the Premises if Landlord
intends to interrupt or cause to be interrupted any utility services at the
Premises. If utility services to the Premises are to be interrupted for a
period of time longer than seventy-two (72) hours by virtue of the act or
omission of Landlord, Minimum Rent will be abated during the period of
interruption, as Tenant's sole remedy, until such services are restored.
Landlord will not be liable for, and Tenant will not be entitled to, any
reduction of rental or other damages by reason of Landlord's failure to furnish
any utility services when such failure is caused by Tenant or Tenant's Related
Parties, by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other cause, similar
or dissimilar, beyond the reasonable control of Landlord.
6.3 COMMON AREA SERVICES. Landlord will also maintain and keep
lighted the Common Areas, which damage will be repaired by Landlord at Tenant's
expense. Wherever heat generating machines or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system in other parts of the Building, Landlord reserves the
right, but will have no obligation, to install supplementary air conditioning
units in the Premises, and the cost thereof, including the cost of
installation, and the cost of operation and maintenance thereof, will be paid
by Tenant to Landlord within ten (10) days of receipt of an invoice therefor
from Landlord.
ARTICLE 7
TAXES
7.1 TENANT'S PROPERTY TAXES. Tenant will pay, or cause to be
paid, before delinquency, any and all taxes levied or assessed and which become
payable during the term hereof upon Tenant's equipment and furniture, fixtures
installed at Tenant's direct expense, and Tenant's personal property located in
the Premises. In the event any or all of the Tenant's equipment or furniture,
fixtures installed at Tenant's direct expense, or Tenant's personal property
will be assessed and taxed with the Building, Tenant will pay to Landlord its
equitable share of such taxes within thirty (30) days after delivery to Tenant
by Landlord of a notice of assessment from the Salt Lake County Assessor
showing such joint assessment accompanied by a statement in writing from
Landlord setting forth the amount of such taxes applicable to Tenant's
property.
7.2 ADDITIONAL TAXES. In addition to all other amounts which
Tenant is required to pay under this Lease, Tenant will pay before delinquency
any and all taxes, assessments or other charges of any kind imposed by any
federal, state, county, municipal or other governmental body or agency and
payable by Landlord or Tenant (excluding income, franchise, inheritance or
estate taxes), whether or not now customary or within the contemplation of the
parties, with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises.
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7.3 SALES TAX. Tenant agrees to pay to Landlord a sum equal to
the amount which Landlord is required to pay or collect by reason of any
privilege tax, sales tax, gross proceeds tax, rent tax, or like tax levied,
assessed or imposed by any federal, state, county or municipal governmental
authority, or any subdivision thereof, upon any rent or other charges required
to be paid under this Lease. Such sum will be paid simultaneously with the
rental payment or other charge upon which such sum is based.
ARTICLE 8
USE; MAINTENANCE AND REPAIRS
8.1 DESIGNATED USE. Tenant agrees to use the Premises solely for
the Permitted Uses. Tenant will not use or permit the Premises to be used for
any other purpose whatsoever without Landlord's prior written consent, which
consent may be given or withheld in Landlord's sole discretion.
8.2 INSURANCE REQUIREMENTS; GOVERNMENTAL REGULATIONS. Tenant will
not do or permit anything to be done in or about the Premises, or bring or keep
anything on the Premises, which will in any way increase the rate of fire
insurance on the Building. At Tenant's expense, Tenant agrees to comply, in
all respects, with all fire and public liability insurance requirements
relating to the Premises. Tenant agrees to comply promptly, in all respects,
with all governmental laws, ordinances, orders, rules and regulations affecting
the Premises. Tenant hereby agrees to indemnify and hold Landlord and
Landlord's Related Parties harmless for, from and against any losses,
liabilities, damages, costs, expenses, and claims of any kind whatsoever,
including reasonable attorneys' fees, arising from or relating to the violation
of the provisions of this SECTION 8.2 or of SECTION 8.3. This indemnity will
survive the expiration or earlier termination of the Lease Term.
Notwithstanding the above, Tenant shall not be responsible to indemnify or hold
Landlord and Landlord's Related Parties harmless for, from and against any
losses, liabilities, damages, costs, expenses, and claims of any kind
whatsoever, including reasonable attorneys' fees, arising from or relating to
any environmental remediation on the Premises as a result of the disposal,
generation, manufacture, presence, processing, production, release, storage,
transportation, treatment, or use of Hazardous Materials on, under or about the
Premises for which Tenant is not liable under SECTION 8.3.
8.3 ENVIRONMENTAL COMPLIANCE. Tenant will not dispose of,
generate, manufacture, process, produce, release, store, transport, treat, or
use, nor will it permit the disposal, generation, manufacture, presence,
processing, production, release, storage, transportation, treatment, or use of
Hazardous Materials (other than De Minimis Amounts) on, under, or about the
Premises. In that connection, Tenant agrees that Tenant will comply and cause
all of its Related Parties to (a) comply with all Environmental Laws; (b)
obtain and maintain or cause to be obtained and maintained all permits,
licenses, and approvals required under Environmental Laws or otherwise relating
to Hazardous Materials; and (c) comply with all conditions and requirements of
such permits, licenses, and approvals. As used in this SECTION 8.3, certain
capitalized terms are defined as follows:
(a) DE MINIMIS AMOUNTS: means Hazardous Materials (i)
being stored for future use on the Premises or (ii) being used on the
Premises in such quantities that as to (i) and (ii), (A) do not
constitute a violation of any Environmental Law, and (B) are
customarily employed in, or associated with similar businesses as
operated by Tenant. De Minimis Amounts does not include Hazardous
Materials being disposed of, generated, manufactured, processed,
produced, released, transported, or treated.
(b) ENVIRONMENTAL LAWS: means the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act
of 1977, 33 U.S.C. Section 1251 et seq., as amended by the
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Water Quality Act of 1987; FIFRA; the Marine Protection, Research, and
Sanctuaries Act of 1972, 33 U.S.C. Section 1401 et seq.; the National
Environmental Policy Act of 1969, 42 U.S.C. Section 4321 et seq.; the
Noise Control Act of 1972, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et
seq., as amended by the Hazardous and Solid Waste Amendments of 1984;
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; CERCLA,
as amended by the Superfund Amendments and Reauthorization Act, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Section 11001, and the Radon Gas and Indoor Air Quality Research Act
of 1986, 42 U.S.C. Section 7401; The Utah Indoor Clean Air Act; RCRA;
TSCA; AREA; and NWPA, all as may be amended, with implementing
regulations and guidelines. Environmental Laws will also include all
federal, state, regional, county, municipal, and other local laws,
regulations, and ordinances insofar as they are equivalent or similar
to the federal laws above or purport to regulate (now or in the
future) Hazardous Material.
(c) HAZARDOUS MATERIALS: means any hazardous substance,
pollutant, or contaminant regulated under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq. ("CERCLA"); oil and petroleum
products and by-products and natural gas, natural gas liquids,
liquefied natural gas, and synthetic gas usable for fuel, urea
formaldehyde foam insulation, and chlorofluorocarbons; pesticides
regulated under the Federal Insecticide, Fungicide and Rodenticide
Act, as amended, 7 U.S.C. Section 136 et seq. ("FIFRA"); asbestos,
polychlorinated biphenyl, and other substances regulated under the
Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et
seq. ("TSCA"); chemicals subject to the Occupational Safety and Health
Standards, Hazard Communication, 29 C.F.R. Section 1910.1200, as
amended; source material, special nuclear, by-product materials, and
any other radioactive materials or radioactive wastes, however
produced, regulated under the Atomic Energy Act of 1954, as amended,
42 U.S.C. Section 2011 et seq. ("AREA"); or the Nuclear Waste Policy
Act of 1982, as amended, 42 U.S.C. Section 10101 et seq. ("NWPA");
industrial process and pollution control wastes whether or not
hazardous within the meaning of the Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. Section 6901 et seq. ("RCRA"); and
any other hazardous substance, pollutant or contaminant that is
regulated or becomes regulated under any other Environmental Laws.
8.4 RESTRICTIONS ON USE. No auction, fire or bankruptcy sales may
be conducted in the Premises without Landlord's prior written consent, which
consent Landlord may give or withhold in Landlord's sole and absolute
discretion. Tenant will not perform any acts or carry on any practices which
may injure the Building or be a nuisance or menace to other tenants in the
Building. Tenant will not burn any trash or garbage of any kind in or about
the Premises or Building. Tenant will not make any use of the Premises which
is not in compliance with the terms of this Lease or with the Building Rules
and Regulations, or with the restrictive covenants of the research park in
which the Building is located. Tenant will not overload any floor or facility,
throw any foreign substances in plumbing fixtures or use the plumbing fixtures
for any purpose other than that for which constructed. All rules and
regulations promulgated by Landlord shall be reasonable and uniform in
application, and Tenant's obligation to comply shall be applicable to the
extent such rules and regulations are not inconsistent with the terms of the
Lease.
8.5 REPAIRS AND MAINTENANCE BY LANDLORD. Landlord agrees to
repair the foundations, the structural columns contained in walls shared by
Tenant and other tenants in the Building, exterior walls (other than Premises
fronts and exterior entrances), the roof of the Premises, and, to the extent
not located on the Premises or premises leased to other tenants, the plumbing,
sewage, heating, cooling, and ventilation systems; provided, however, Landlord
will not have any duty to make any of the foregoing repairs until a reasonable
time after Landlord has received written notice from Tenant that
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such repairs need to be made. Landlord also agrees to maintain any portion of
the Building used in common with other tenants in the Building. Landlord will
also keep the sidewalks and parking areas reasonably free from ice and snow.
Except as otherwise set forth herein, all other items of maintenance and repair
are the sole responsibility and expense of Tenant. Notwithstanding the
foregoing, Tenant agrees, at Tenant's expense, upon at least ten (10) days
prior written notice, to make all necessary repairs to the Premises or the
Building caused by the acts or omissions of Tenant, its agents, employees or
licensees. Where the interior of the Premises, any of Tenant's fixtures or
trade equipment is damaged due to the negligence of Landlord, its employees,
agents or contractors, Landlord shall reimburse Tenant for the reasonable
repair and/or replacement cost of any such damaged items.
8.6 REPAIRS AND MAINTENANCE BY TENANT. Tenant agrees, at Tenant's
expense, to keep the Premises in a clean, safe and sanitary condition. Tenant
agrees to immediately replace broken glass in exterior and interior windows and
doors with glass of the same quality, and, on Landlord's request, to remove any
encroachments maintained or authorized by Tenant on any public place without
Landlord's prior written consent. Tenant also agrees to keep the Premises
(including exterior entrances, fronts and the interior of exterior walls), all
partitions, doors, fixtures and equipment (including lighting, heating and
plumbing fixtures and any air conditioning system) in the Premises in good
order, condition and repair and in compliance with all applicable laws, rules
and regulations. Tenant agrees to keep the Premises, the walkways adjacent to
the Premises, and any loading platform and service areas allocated for the
exclusive use of Tenant, clean and free from rubbish and dirt at all times.
Tenant agrees to store all trash and garbage within the Premises and to arrange
for the regular pick-up of such trash and garbage at Tenant's expense, unless
garbage pick-up is provided by Landlord. The cost of maintenance and repair of
that part of any wall shared with other tenants of the Building will be borne
equally by all tenants sharing such wall; provided, however, Tenant will be
solely responsible for repairs to such shared walls necessitated by the
negligence or intentional acts or omissions of Tenant, its agents, employees or
licensees. If Tenant refuses or neglects to commence repairs within ten (10)
days after receipt of written demand from Landlord, or adequately to complete
such repairs within a reasonable time after such demand, Landlord, in addition
to any other rights and remedies contained in this Lease or available to
Landlord at law or in equity, may enter the Premises and make the repairs, at
Tenant's expense and without liability to Tenant for any loss or damage which
may accrue to Tenant's stock or business by reason of such entry and repair
work. Landlord may enter into repair or maintenance contracts covering the
heating, air conditioning and ventilation systems located on the Premises and
other parts of the Building, and Tenant agrees to pay for the service or
repairs rendered under such contracts to the extent that such charges are
attributable to items which Tenant is obligated to maintain and repair under
this SECTION 8.6.
8.7 ALTERATIONS AND IMPROVEMENTS. Tenant may not make any
alterations, improvements, renovations, additions, or utility installations in,
on or to the Premises, the exterior of the Premises, the exterior walls, the
roof, or any structural, mechanical or electrical component without Landlord's
prior written consent (which consent will not be unreasonably withheld), other
than improvements and alterations costing less than $5,000 and which do not
alter the exterior or any structural elements of the Premises, the Common Areas
or the Building. All improvements and alterations undertaken by Tenant will be
done in a good and workmanlike manner by contractors licensed in the State of
Utah and will be prosecuted diligently to completion, with a minimum of
disruption to other tenants in the Building. The installation or removal of
any equipment or trade fixtures of Tenant will not constitute an alteration or
improvement. All improvements which may be made or installed by either
Landlord or Tenant will remain upon the Premises and will become the property
of Landlord upon termination of this Lease for any reason, unless Landlord
requests removal of a particular item by Tenant, in which case Tenant will
remove the item and restore the Premises to the condition prior to installation
of the particular item.
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8.8 LIENS. Tenant agrees to keep the Premises and the Building
free from any liens arising out of any work performed on the Premises or
materials furnished to the Premises. Landlord may, at any time and in
accordance with applicable law, post notices of non-responsibility on the
Premises and record verified copies of those notices in connection with all
work of any kind upon the Premises.
8.9 BUILDING/BUILDING REMODELING OR ALTERATIONS. In the event
Landlord is performing or is causing to perform remodeling and/or alterations
on the Building, Tenant will attempt to continue to operate its business if it
can do so in a clean and safe environment. If Tenant cannot do so, or if
Tenant is required to close its operation by virtue of such remodeling or
alterations, as Tenant's sole remedy, Minimum Rent and all other charges under
the Lease will be abated until such time as Tenant reopens for business. If
such interruption in the operation of Tenant's business shall continue for a
period of more than forty-five (45) days, Tenant may terminate this Lease at
any time thereafter upon thirty (30) days written notice to Landlord.
ARTICLE 9
INSURANCE; CASUALTY LOSS
9.1 GENERAL INDEMNIFICATION. Tenant covenants and agrees to
indemnify and save Landlord and Landlord's Related Parties entirely harmless
for, from and against each and every claim, demand, liability, loss, cost,
damage and expense, including, without limitation, reasonable attorneys' fees
and court costs, arising out of any accident or other occurrence causing injury
to or death of persons or damage to property by reason of construction or
maintenance of any improvements on the Premises, of any additions, alterations
or renovations thereto, or due to the condition of the Premises, or the use or
neglect thereof by Tenant or any of Tenant's Related Parties, or any other
person, or otherwise occurring upon the Premises, unless caused by the
negligence or wilful misconduct of Landlord. Tenant further agrees to
indemnify and save Landlord and Landlord's Related Parties and their respective
interests in the Premises entirely harmless for, from and against all claims,
demands, liabilities, damages and penalties arising out of any failure of
Tenant to comply with any of Tenant's obligations under this Lease, including
without limitation reasonable attorneys' fees and court costs.
Landlord agrees to indemnify and save Tenant and Tenant's Related Parties
entirely harmless for, from and against each and every claim, demand,
liability, loss, cost, damage and expense, including, without limitation,
reasonable attorneys' fees and court costs, arising out of any accident or
other occurrence causing injury to or death of persons or damage to property by
reason of maintenance of the Common Areas, of any additions, alterations or
renovations thereto, or due to the condition of the Common Areas, or the use or
neglect thereof by Landlord or any of Landlord's Related Parties, or any other
person, or otherwise occurring upon the Common Areas, unless caused by the
negligence or wilful misconduct of Tenant or any of Tenant's Related Parties.
Landlord further agrees to indemnify and save Tenant and Tenant's Related
Parties and their respective interests in the Premises entirely harmless for,
from and against all claims, demands, liabilities, damages and penalties
arising out of any failure of Landlord to comply with any of Landlord's
obligations under this Lease, including without limitation reasonable
attorneys' fees and court costs. These indemnity provisions, as well as all
other indemnity provisions in this Lease, will survive the expiration of this
Lease or the earlier termination thereof.
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9.2 TENANT'S INSURANCE. Tenant agrees, at Tenant's expense, to
maintain the following insurance policies during the entire Lease Term:
(a) A policy of comprehensive liability and property
damage insurance providing coverage against liability for injury or
death to persons and for property damage occurring in or about the
Premises. The bodily injury insurance will have a policy limit of not
less than $1,000,000 per occurrence, and the property damage liability
insurance will have a policy limit of not less than $1,000,000 per
occurrence;
(b) A policy of plate glass insurance covering all plate
and other glass in the Premises; provided, however, that Tenant may
self-insure as to any plate glass and personal property at the
Premises so long as Tenant's net worth during the period of self-
insurance shall not be less than Fifteen Million Dollars
($15,000,000);
(c) A policy providing fire and extended coverage,
vandalism, malicious mischief, sprinkler leakage and special extended
coverage insurance in an amount adequate to cover the full cost of
replacement of all personal property, inventory, decorations, trade
fixtures, furnishings, equipment and other contents in the Premises;
and
(d) Such other insurance policies as Landlord may
reasonably require from time to time or as are customary for
reasonably prudent tenants similarly situated to Tenant to carry.
All such insurance policies will name Tenant as insured, with the Landlord
named as an additional insured (as well as such other persons, firms or
corporations as Landlord may designate) and will be written by one or more
insurance companies licensed to do business in Utah and rated "B- VIII" or
better by the then most current edition of Best's Insurance Guide (or if such
guide is no longer published, then having a comparable rating as specified by
Landlord from time to time). Such policies will also include an endorsement
requiring the company writing such policy to give Landlord at least thirty (30)
days' notice in writing in advance of any cancellation or lapse of such policy
or the effective date of any reduction in the amount of coverage under such
policy. All public liability, property damage, and other casualty insurance
policies obtained by Tenant pursuant to this Section will be written as primary
insurance and not contributing with separate coverage which Landlord may carry.
Tenant agrees to furnish Landlord with certificates of insurance showing that
insurance meeting the requirements of this Section has been obtained and fully
paid for by Tenant. Similar certificates of insurance as to renewal policies
will be provided to Landlord at least fifteen (15) days prior to the expiration
of any policy. The parties hereby acknowledge and accept Zurich-American
Insurance Company as Tenant's insurer.
9.3 LANDLORD'S INSURANCE. Landlord agrees to carry during the
entire Lease Term the following insurance policies:
(a) Fire and extended coverage insurance on the Building
in the amount of the full replacement cost thereof; and
(b) Comprehensive liability and property damage insurance
against claims for bodily injury, loss of life or property damage
occurring on or in the Building and on the portion of the streets and
sidewalks adjacent thereto with bodily injury, loss of life and
property damage coverage in a combined single limit of not less than
$1,000,000 for total claims for any one occurrence with Tenant named
as an additional insured.
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9.4 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waive
any and all rights of recovery against the other or against the Related Parties
of the other, on account of loss or damage occasioned to such waiving party or
its property or any property of others under its control to the extent that
such loss or damage is insured under the insurance required to be maintained
pursuant to this Lease. Landlord and Tenant will each, upon obtaining the
respective policies of insurance required under this Lease, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this Lease and obtain from the respective carriers an
endorsement waiving any right of subrogation in favor of the insurer.
9.5 DAMAGE OR DESTRUCTION; LANDLORD TO REBUILD. In case the
Premises are partially or totally destroyed by fire or other casualty insurable
under Landlord's fire and extended coverage insurance so as to become partially
or totally untenantable, Landlord agrees to rebuild and repair the Premises as
provided in SECTION 9.7, unless Landlord elects not to rebuild as provided in
SECTION 9.6.
9.6 OPTION TO TERMINATE. If it so happens that:
(a) Fifty percent (50%) or more of the gross leasable
Floor Area of the Building is destroyed or damaged by fire or other
casualty insurable under Landlord's fire and extended coverage,
notwithstanding that the Premises may have sustained little or no
damage;
(b) The Building is destroyed to the extent of at least
thirty-three and one-third percent (33-1/3%) of the replacement cost
thereof;
(c) Either the Premises or the Building are partially or
totally destroyed by a cause or casualty other than those covered by
Landlord's fire and extended coverage insurance; or
(d) Either the Premises or the Building are declared
unsafe or unfit for occupancy by any governmental authority and
repairs are thereby required;
then, in any such event, Landlord may, if Landlord elects, rebuild or put the
Building in good condition and fit for occupancy within a reasonable time after
such destruction or damage (using due diligence but subject to force majeure
events), or Landlord may give notice in writing to Tenant not later than thirty
(30) days after any such damage or destruction terminating this Lease. Unless
Landlord elects to terminate this Lease, this Lease will remain in full force
and effect and the parties waive the provisions of any law to the contrary.
Should the Premises be diminished or the square footage reduced, Tenant's
Annual Minimum Rent shall be adjusted on a prorated basis.
9.7 PORTIONS TO BE REBUILT BY LANDLORD AND TENANT. Landlord's
obligation to rebuild (should Landlord elect or be obligated to repair or
rebuild) will be limited to the Building and the Premises, as originally
provided to Tenant at Term Commencement, to the extent that insurance proceeds
are available to Landlord to rebuild. Tenant, at Tenant's expense, will
replace and fully repair all of Tenant's exterior signs, trade fixtures,
equipment, and other installations originally installed by Tenant, to the
extent of Tenant's available insurance proceeds. All insurance proceeds
payable under Landlord's fire and extended coverage risk insurance will be
payable solely to Landlord, and Tenant will have no interest in such proceeds.
9.8 NON-LIABILITY. Tenant will not be entitled to any
compensation or damages from Landlord for loss of the use of the whole or any
part of the Premises, the Building, Tenant's personal property or any
inconvenience or annoyance caused by such damage, repair, or reconstruction
unless caused by the gross negligence or wilful misconduct of Landlord or its
agents. Notwithstanding the destruction of or injury to the Premises or any
part of the Premises, whether or not the same are
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rendered untenantable or unfit for occupancy, Tenant will have no right to quit
and surrender possession and will have no right to any abatement of rent,
except as specifically provided in SECTION 9.9.
9.9 OPERATIONS DURING RECONSTRUCTION PERIOD. During any period of
repair and reconstruction, the Minimum Rent will be abated proportionately with
the degree to which Tenant's use of the Premises is impaired, such abatement to
commence with the date of damage or destruction and to continue throughout the
period of repair. Tenant agrees to continue the operation of Tenant's business
on the Premises during any such period to the extent reasonably practicable
from the standpoint of prudent business management. The obligation of Tenant
to pay Additional Rent will remain in full force and effect under all
circumstances, unless the casualty events leading to the loss of use of the
Premises were caused by the gross negligence or wilful misconduct of Landlord
or its agents.
ARTICLE 10
EMINENT DOMAIN
10.1 ENTIRE OR SUBSTANTIAL TAKING. If title to all or a
substantial portion of the Premises is taken for any public or quasi-public use
under any statute or by right of eminent domain, or by purchase in lieu of
condemnation, so that a reasonable amount of reconstruction of the Premises
will not result in the Premises being reasonably suited for Tenant's continued
occupancy for the uses and purposes for which the Premises are leased, this
Lease will terminate as of the date that possession of said Premises, or part
thereof, is taken.
10.2 PARTIAL TAKING. If any part of the Premises are taken and the
remaining part (after reconstruction of the then existing Building) is
reasonably suitable for Tenant's continued occupancy for the purposes and uses
for which the Premises are leased, this Lease will terminate as to the part so
taken as of the date that possession of such part of the Premises is taken, and
the Minimum Rent will be reduced in the same proportion that the Floor Area of
the portion of the Premises so taken (less any additions to the Premises by
reason of any reconstruction) bears to the original Floor Area of the Premises.
Landlord will make such repairs and alterations to the Premises and to the
Building as may be reasonably necessary to restore the part not taken to useful
condition. A just and proportionate part of the Minimum Rent will be abated
during such restoration if there is a substantial interference with Tenant's
business. If part of the Premises are taken and the remaining part (after
reconstruction of the then existing Building) would not be reasonably suitable
for Tenant's continued occupancy for the purposes and uses for which the
Premises are leased, Tenant, at Tenant's option exercisable within thirty (30)
days after such taking, may terminate the Lease as of the date possession is
taken.
10.3 DISPOSITION OF PROCEEDS. All compensation awarded or paid
upon a total or partial taking of the Building or the Premises will belong to
Landlord, whether such compensation is awarded or paid as compensation for
diminution in value of the leasehold or the fee. Landlord will not be entitled
to any award made to Tenant for loss of business, depreciation to, and cost of
removal of stock and fixtures.
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ARTICLE 11
SIGNS
11.1 ERECTION AND REMOVAL OF SIGNS. Tenant may, if Building policy
permits, place suitable signs on the Premises for the purpose of indicating the
nature of the business carried on by Tenant in the Premises; provided, however,
that such signs will be in keeping with other signs in the district where the
Premises are located, will comply with all local ordinances, and that the
location and size of such signs will be approved by Landlord prior to their
erection, such approval not to be unreasonably withheld. Signs will be removed
prior to the expiration of this Lease and any damage to the Premises caused by
installation or removal of signs will be repaired at expenses of Tenant. All
work will be completed in a good workmanlike manner. Tenant agrees properly to
maintain all approved signs.
ARTICLE 12
COMMON AREAS
12.1 USE OF COMMON AREAS. Landlord grants to Tenant and its
agents, employees and customers the non-exclusive right to use the Common Areas
and the improvements located on the Common Areas at all times during the Lease
Term in accordance with the terms hereof, subject to the exclusive control and
management thereof at all times by Landlord, and subject further to Landlord's
right to establish rules and regulations for the use of the Common Areas in
accordance with SECTION 13.1.
12.2 MANAGEMENT AND OPERATION OF COMMON AREA. Landlord will
operate and maintain or will cause to be operated and maintained the Common
Areas in a manner deemed by Landlord to be reasonable and appropriate and in
the best interests of the Building. Landlord will have the right: (i) to
establish, modify, and enforce reasonable and non-discriminatory rules and
regulations with respect to the Common Areas; (ii) to enter into, modify and
terminate easement and other agreements pertaining to the use and maintenance
of the Common Areas; (iii) to close all or any portion of the Common Areas to
such extent as may, in the opinion of Landlord, be in the best interest of the
Building; (iv) to close temporarily any or all portions of the Common Areas;
and (v) to do and perform such others costs in and to said areas and
improvements as, in the exercise of good business judgment, Landlord will
determine to be advisable, and Landlord will have no liability to Tenant for
any such actions taken in accordance with the provisions of this Section.
Except as may be required on a temporary basis with respect to maintenance and
repairs of certain items, including, without limitation, Common Areas and
utilities, no structures shall be installed by Landlord in such a manner as to
unreasonably interfere with (a) the visibility of signage; (b) ingress and
egress to and from the Premises; and (c) the parking spaces nearest to the
Premises. Landlord further agrees not to reduce the number of parking spaces
depicted on Exhibit "A" attached hereto below the number required by law and
shall not remove the ten (10) parking spaces closest to the front entrance of
the Premises. Landlord shall cause the Common Areas of the Building to be kept
and maintained in a good and sanitary condition, free from snow, ice, debris
and rubbish and shall cause all repairs to be made in and to the Common Areas,
including all utility lines leading to and from the Premises.
ARTICLE 13
RULES AND REGULATIONS
13.1 BUILDING RULES AND REGULATIONS. Landlord may promulgate such
reasonable rules and regulations relating to the use of the Premises and the
Building as Landlord may deem appropriate and for the best interests of the
Building. Such rules and regulations will be binding upon Tenant upon
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delivery of a copy thereof to Tenant. The rules and regulations may be amended
by Landlord from time to time, with advance notice, and all such amendments
will be effective upon delivery of a copy to Tenant, provided such amendments
are uniformly applicable to all Building tenants in a non-discriminatory
manner.
ARTICLE 14
ASSIGNMENT AND SUBLETTING; SALE BY LANDLORD
14.1 ASSIGNMENT AND SUBLETTING. Tenant may assign its interest in
this Lease or sublet the Premises only with the prior written consent of
Landlord, which consent Landlord may give or withhold in its sole and absolute
discretion. Any attempted assignment or subletting without Landlord's prior
written consent will be void, will confer no rights upon any third person and
will constitute an event of default under this Lease, entitling Landlord to
immediately terminate this Lease. Each assignment or subletting to which
Landlord has consented will be evidenced by an instrument in writing in form
satisfactory to Landlord and will be executed by the assignor or sublessor and
by the assignee or subtenant. Each assignee or subtenant will also agree in
writing to assume, to be bound by, and to perform the terms, covenants, and
conditions of this Lease to be done, kept, and performed by Tenant. One
executed copy of such written instrument will be delivered to Landlord. No
such assignment or subletting will release Tenant from Tenant's obligations to
Landlord under this Lease unless Landlord agrees in writing to such release.
Landlord's consent to an assignment or sublease on one occasion will not be
deemed a consent to any subsequent assignment or sublease. Notwithstanding the
foregoing, nothing contained in this Lease shall be construed to prohibit or
require the consent of Landlord to an assignment or sublease (i) to a parent or
wholly-owned subsidiary corporation or other entity wholly owned by Tenant; or
(ii) resulting from a merger, consolidation, reorganization or in connection
with the transfer of substantially all of the assets or stock of Tenant.
14.2 LICENSEES. Tenant agrees not to permit any business to be
operated in or from the Premises by any licensee or other person without the
prior written consent of Landlord, which consent Landlord may give or withhold
in its sole and absolute discretion.
14.3 INDIRECT TRANSFERS. Any sale, transfer, encumbrance, or other
disposition of a Controlling Interest in Tenant will be deemed a prohibited
assignment of this Lease under SECTION 14.1, unless Tenant has complied with
the provisions of SECTION 14.1. As used herein, "CONTROLLING INTEREST" means
an interest, the ownership of which empowers the holder to exercise a
controlling influence over the management, policies or personnel of a
corporation, general partnership, joint venture, limited partnership, limited
liability partnership, limited liability company, trust, estate or other
entity. Ownership of 10% or more of the equity or voting securities of a
corporation, limited liability company or limited liability partnership or
ownership of any general partnership interest in a partnership will be deemed
conclusively to constitute a Controlling Interest in the corporation, limited
liability company, or partnership, as the case may be.
14.4 ASSIGNMENT BY OPERATION OF LAW; BANKRUPTCY. In no event will
this Lease or any interest in this Lease be assigned or assignable by operation
of law or by voluntary or involuntary bankruptcy proceedings without the prior
written consent of Landlord. In no event will this Lease or any rights or
privileges under this Lease be an asset of Tenant under any bankruptcy,
insolvency or reorganization proceedings.
14.5 SALE OF PREMISES BY LANDLORD. Provided that (i) none of
Tenant's rights under this Lease shall be disturbed unless Tenant is in
default, and (ii) a Non-Disturbance Agreement is executed by all appropriate
parties, in the event of any sale or exchange of the Premises by Landlord and
the
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assignment by Landlord of this Lease and execution by the new owner of an
assumption agreement agreeing to recognize the tenancy of Tenant pursuant to
this Lease and to assume all of Landlord's obligations hereunder, Landlord will
be and is hereby entirely released of all liability under any and all of its
covenants and obligations contained in or derived from this Lease occurring
after the consummation of such sale or exchange and assignment.
ARTICLE 15
LIENS AND ENCUMBRANCES
15.1 ENCUMBERING THE PREMISES. During the Term of this Lease,
Tenant will not cause or permit any lien, claim, charge or encumbrance of any
nature or description whatsoever to attach to or encumber the Premises, the
Building, or any part thereof.
15.2 SUBORDINATION.
(a) SUBORDINATION. Provided that (i) none of Tenant's
rights under this Lease shall be disturbed unless Tenant is in
default, and (ii) a Subordination, Non-Disturbance Agreement is
executed by all appropriate parties, this Lease, at Landlord's option,
will be subordinate to any mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Building
and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. If any mortgagee or trustee will elect to have this Lease
prior to the lien of its mortgage or deed of trust, and will give
written notice thereof to Tenant, this Lease will be deemed prior to
such mortgage or deed of trust, whether this Lease is dated prior or
subsequent to the date of said mortgage or deed of trust or the date
of recording thereof.
(b) EXECUTION OF CERTAIN DOCUMENTS. Tenant agrees to
execute any documents required to effectuate an attornment or a
subordination or to make this Lease prior to the lien of any mortgage
or deed of trust, as the case may be. Tenant's failure to execute
such documents within ten (10) days after written demand will
constitute a material default by Tenant under this Lease.
ARTICLE 16
EVENTS OF DEFAULT
16.1 EVENTS OF DEFAULT. The following will constitute events of
default by Tenant under this Lease:
(a) If Tenant fails to pay any rent (including Additional
Rent) or any other sums payable pursuant to this Lease on the date
due, whether or not the same will have been demanded, and such failure
continues for a period of ten (10) days after Tenant has received
written notice thereof;
(b) Tenant makes an unauthorized assignment of this Lease
or enters into any unauthorized sublease;
(c) Except as otherwise provided in this SECTION 16.1, if
Tenant fails to observe or perform any of the other covenants or
agreements contained in this Lease to be observed or performed by
Tenant, but such failure, if of a type that can be cured or corrected
by Tenant,
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will not be a default unless such failure continues for thirty (30)
days after written notice of breach is given by Landlord to Tenant
except that if such failure is of such a character as to require more
than thirty (30) days to correct, Tenant will not be in default if
Tenant commences actions to correct such failure within the 30-day
period and thereafter, using reasonable diligence, cures such failure;
(d) If Tenant or any guarantor of this Lease will file a
petition in bankruptcy or for reorganization or for an arrangement
pursuant to any federal or state bankruptcy law or any similar federal
or state law, or is adjudicated a bankrupt or makes an assignment for
the benefit of creditors or admits in writing its inability to pay its
debts generally as they become due, or if a petition or answer
proposing the adjudication of Tenant or any guarantor of this Lease as
a bankrupt or for reorganization of Tenant or such guarantor pursuant
to any federal or state bankruptcy law or any similar federal or state
law is filed in any court and Tenant or such guarantor consents to or
acquiesces in the filing thereof or such petition or answer is not
discharged or denied within sixty (60) days after the occurrence of
any of the foregoing, or if a receiver, trustee or liquidator of
Tenant or such guarantor or of all or substantially all of Tenant's or
such guarantor's assets or Tenant's interest in this Agreement is
appointed in any proceeding brought by Tenant or any guarantor, or if
any such receiver, trustee or liquidator is appointed in any
proceeding brought against Tenant or such guarantor and is not
discharged within sixty (60) days after the occurrence thereof, or if
Tenant or such guarantor consents to or acquiesces in such
appointment; or
(e) Notwithstanding anything contained in the Lease,
expressly or impliedly to the contrary, it is specifically and
expressly understood and agreed that Tenant shall be under no
obligation to continuously conduct its business in the Premises at any
time during the Term; provided, however, Tenant shall remain obligated
for the payment of rent and other charges under the Lease. Tenant's
failure to conduct its business in the Premises shall not, in and of
itself, in any way be deemed an event of default under the Lease nor
shall such failure, in and of itself, otherwise entitle Landlord to
commence or to maintain any action, suit or proceeding, whether in law
or in equity, relating in any way to Tenant's failure to continuously
conduct its business in the Premises. Landlord and Tenant agree that
if Tenant vacates the Premises and all or any portion of the Premises
remain vacant for a consecutive thirty (30) day period from the date
such space was vacated, Landlord shall have the option at any time
after the expiration of said thirty (30) day period to terminate the
Lease by giving Tenant fifteen (15) days' prior written notice to
terminate the Lease, and such notice shall cancel and terminate the
Lease at the end of said fifteen (15) day notice period.
ARTICLE 17
REMEDIES
17.1 REMEDIES OF LANDLORD. On any event of default, Landlord, at
Landlord's option, without further notice or demand beyond that provided in
ARTICLE 16, may exercise any and all rights and remedies available at law or in
equity or pursuant to this Lease, in any order, successively or concurrently,
including the following:
(a) CURE OF DEFAULT. Landlord may take any action deemed
necessary by Landlord, in Landlord's sole and absolute discretion, to
cure the default. Tenant will be liable to Landlord for all of
Landlord's expenses so incurred, as Additional Rent, payable within
ten (10) days of receipt by Tenant of an invoice therefor demand.
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(b) TERMINATION OF LEASE. Landlord may terminate this
Lease by written notice to Tenant of Landlord's election to do so.
Upon the giving of such notice, the term of this Lease and the estate
hereby granted will expire and terminate on the date set forth in such
notice as fully and completely and with the same effect as if such
date were the date herein fixed for the expiration of the Lease Term,
and all rights of Tenant will expire and terminate, but Tenant will
remain liable as hereinafter provided. Upon Landlord's notice of
termination, Landlord may recover from Tenant:
(i) The worth at the time of award of the unpaid
Minimum Rent and Additional Rent which had been earned at the
time of termination;
(ii) The worth at the time of award of the amount
by which the unpaid Minimum Rent which would have been earned
after termination until the time of award exceeds the amount
of such rental loss that Tenant proves could be reasonably
avoided;
(iii) The worth at the time of award of the amount
by which the unpaid Minimum Rent for the balance of the term
after the time of award exceeds the amount of such rental loss
that Tenant proves could be reasonably avoided; and
(iv) Any other amount reasonably necessary to
compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform his obligations under the
Lease.
The "worth at the time of the award" of the amounts referred to in
SUBSECTIONS (I) and (II) above will be computed by allowing interest
at the rate of 12% per annum. The "worth at the time of the award" of
the amount referred to in SUBSECTION (III) above will be computed by
discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus 1 percent.
(c) RIGHT TO RE-ENTER. Landlord will have the immediate
right by proper legal process, whether or not the term of this Lease
will have been terminated pursuant to SECTION 19.1(B), to re-enter and
repossess the Premises by summary proceedings, ejectment, any other
legal action or in any lawful manner Landlord determines to be
necessary or desirable and to remove all persons and property
therefrom. No such re-entry or repossession of the Premises will be
construed as an election by Landlord to terminate the term of this
Lease unless a notice of such termination is given to Tenant pursuant
to SECTION 17.1(B).
(d) RELETTING OF THE PREMISES. At any time or from time
to time after the re-entry or repossession of the Premises pursuant to
SECTION 17.1(C), whether or not the term of this Lease will have been
terminated pursuant to SECTION 17.1(B), Landlord will use reasonable
efforts to relet the Premises for the account of Tenant at a rental
which is reasonable in light of the then existing market conditions in
the community, in the name of Tenant or Landlord or otherwise, without
notice to Tenant, for such term or terms and on such other conditions
and for such uses as Landlord, in its absolute discretion, may
determine. Landlord may collect and receive any rents payable by
reason of such reletting. The parties recognize Landlord's duty to
mitigate damages.
(e) NO RELEASE. No expiration or termination of the term
of this Lease pursuant to SECTION 17.1(B), by operation of law or
otherwise, and no re-entry or repossession of the Premises pursuant to
SECTION 17.1(C) or otherwise, and no reletting of the Premises
pursuant
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to SECTION 17.1(D) or otherwise, will relieve Tenant of its
liabilities and obligations hereunder, all of which will survive such
expiration, termination, re-entry, repossession or reletting.
(f) DAMAGES. In the event of any expiration or
termination of the term of this Lease or re-entry or repossession of
the Premises by reason of the occurrence of an event of default,
Tenant will pay damages as provided in SECTION 17.1(B) above and in
addition will be liable for and will pay to Landlord all expenses of
Landlord in connection with reletting the Premises (including, but not
limited to, all repossession costs, brokerage commissions, reasonable
attorneys' fees and expenses (including fees and expenses of appellate
proceedings), employees' expenses, alteration and construction costs
and expenses of preparation for such reletting and any and all other
expenses and consequential damages related to Tenant's default. 17.2
17.2 REMEDIES OF TENANT. In the event Landlord fails to keep and
perform any of the covenants or agreements pertaining to the Premises or
directly affecting the Premises in the Lease contained on the part of Landlord
to be kept and performed, Tenant may afford itself of any and all remedies
provided by the Lease, at law or in equity.
17.3 REMEDIES NOT EXCLUSIVE. No right or remedy herein conferred
upon or reserved to either party is intended to be exclusive of any other right
or remedy, and each and every right and remedy will be cumulative and in
addition to any other right or remedy given hereunder, or now or hereafter
existing by law, in equity or by statute.
ARTICLE 18
ESTOPPEL CERTIFICATES
18.1 ESTOPPEL CERTIFICATES. Tenant agrees at any time and from
time to time upon not less than twenty (20) days' prior request by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and effect as modified and
stating the modifications), stating the dates to which the Minimum Rent and
other charges have been paid in advance, if any, and confirming Tenant's
acceptance of the Premises, the commencement of the Lease Term, the rent
provided under the Lease, and such other matters as Landlord may request, it
being intended that any such statement delivered pursuant to this Section may
be relied upon by any prospective purchaser, mortgagee, beneficiary under a
deed of trust, or assignee of any mortgagee of the Premises or the Building.
ARTICLE 19
GENERAL PROVISIONS
19.1 WAIVERS. One or more waivers by either party of any covenant
or condition contained in this Lease or of any breach or default by the other
party will not be construed as a waiver of a subsequent breach or default of
the same or of any other covenant or condition, and the consent or approval by
Landlord to or of any act of Tenant which requires Landlord's consent or
approval will not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent or similar act by Tenant. The subsequent
acceptance by Landlord of rent or of any other payment will not constitute a
waiver of any concurrent or preceding breach or default by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay
the particular rental or payment so accepted, regardless of Landlord's
knowledge of such preceding or concurrent breach or
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default at the time of acceptance of such rent or payment. No waiver will be
effective unless it is in writing and signed by Landlord.
19.2 NO ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the rent provided to be paid will be deemed
to be other than on account of the earliest rent due and payable under this
Lease, nor will any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction.
Landlord may accept any such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy provided
in this Lease.
19.3 NOTICES. All notices, demands, and statements will be in
writing and will be given by (a) personal delivery or (b) deposit in the United
States mail, certified, return receipt requested, postage prepaid, addressed to
the parties at the addresses appearing at the beginning of this Lease or at
such other place as either party may designate in writing to the other party.
The date notice is deemed to have been given and to have become effective will
be (x) the date on which the notice is delivered, if notice is given by
personal delivery, and (y) three (3) days following the date of deposit in the
mail, if the notice is sent through the United States mail.
19.4 RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease
will be deemed or construed by the parties or by any third person to create the
relationship of principal and agent, of partnership, of joint venture or of any
association between Landlord and Tenant, and neither the method of computation
of rent nor any other provision contained in this Lease nor any acts of the
parties will be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
19.5 ATTORNEYS' FEES. In the event of any action or proceeding
brought by either party against the other under this Lease or any guarantee of
this Lease, the prevailing party will be entitled to recover attorneys' fees in
such amount as the court may judge reasonable.
19.6 BINDING EFFECT. Subject to all limitations on assignment and
subletting set forth in this Lease, all of the terms and provisions of this
Lease will inure to the benefit of and be binding upon the successors and
assigns of each of the parties to this Lease.
19.7 SEVERABILITY. If any one or more of the provisions of this
Lease or the applicability of any such provision to a specific situation will
be held invalid or unenforceable, such provision will be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Lease and
all other applications of such provisions will not be affected by such
determination.
19.8 CAPTIONS. The captions of the Sections and Articles of this
Lease are for convenience only and will not be considered or referred to in
resolving questions of interpretation or construction.
19.9 CONSTRUCTION. The laws of the State of Utah will govern the
validity, performance, and enforcement of this Lease. This Lease will not be
construed either for or against Landlord or Tenant. This Lease will be
interpreted in an effort to reach an equitable result. Whenever the context
may require, any pronouns used in this Lease will include the corresponding
masculine, feminine or neuter forms and the singular form of nouns and pronouns
will include the plural and vice versa. If there is more than one Tenant, the
obligations under this Lease will be considered the joint and several
obligations of each. Whenever in this Lease, unless otherwise specified, the
consent of Landlord or Tenant is required, such consent will not be
unreasonably withheld or delayed.
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19.10 JURISDICTION. Tenant hereby consents that any legal action
with respect to this Lease may be commenced and maintained in either the Third
District Court for the State of Utah in Salt Lake County, Utah or the United
States District Court for the District of Utah and consents to the personal and
subject matter jurisdictions of those courts. Tenant also agrees that venue is
proper in either of those courts and waives any objection to venue.
19.11 TIME OF ESSENCE. Time is of the essence with respect to the
performance of each of the covenants and agreements contained in this Lease.
References in this Lease to "SECTIONS" and "ARTICLES" are to the various
Sections and Articles of this Lease, unless otherwise noted.
19.12 RECORDING. Tenant will not record this Lease without the
written consent of Landlord.
19.13 FORCE MAJEURE. In the event that either Landlord or Tenant
will be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of inability to procure materials, failure of
power, riots, insurrection, war or other reason of a like nature (other than
labor disputes) not the fault of the party delayed in performing work or doing
acts required under the terms of this Lease, then performance of such act will
be excused for the period of delay and the time for the performance of any such
act will be extended for a period equivalent to the period of such delay. The
provisions of this Section will not operate to excuse Tenant from the prompt
payment of Minimum Rent, Additional Rent or any other payments required by the
terms of this Lease.
19.14 EXECUTION OF ADDITIONAL DOCUMENTS. Landlord and Tenant each
agree to execute such additional documents as may be necessary or appropriate
to fully carry out the provisions of this Lease.
19.15 TIME PERIODS. If the time for the performance of any
obligation or taking of action under this Lease expires on a Saturday, Sunday
or legal holiday, the time for performance or taking such action will be
extended to the next succeeding day which is not a Saturday, Sunday or legal
holiday.
19.16 ENTIRE AGREEMENT; AMENDMENT. This Lease, together with the
attached Exhibits which are an integral part of this Lease, constitutes the
entire agreement between the parties pertaining to the subject matter of this
Lease. All prior and contemporaneous agreements, representations and
understandings of the parties, oral or written, are superseded and merged in
this Lease. No supplement, modification or amendment of this Lease will be
binding unless in writing and executed by both parties.
IN WITNESS WHEREOF, this Lease has been executed by Landlord and
Tenant as of the date first set forth above.
LANDLORD:
GIBBONS REALTY COMPANY,
a Utah corporation
By: _____________________________
Its: ______________________________
TENANT:
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COLE VISION CORPORATION,
a Delaware corporation
By: ___________________________
Its: _____________________________
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this ______ day of
______________________, 1996, by _________________, as the ______________ of
GIBBONS REALTY COMPANY, a Utah corporation, on behalf of the corporation.
__________________________________
My Commission Expires: NOTARY PUBLIC
______________________ Residing at_______________________
STATE OF ___________ )
: ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ______ day of
______________________, 1996, by ________________________, as
_________________________ of COLE VISION CORPORATION, a Delaware corporation,
on behalf of the corporation.
__________________________________
My Commission Expires: NOTARY PUBLIC
______________________ Residing at_______________________
23
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME
FILED AS PART OF THE QUARTERLY REPORT ON FORM 10-Q AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH QUARTERLY REPORT ON FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> FEB-1-1997
<PERIOD-START> FEB-4-1996
<PERIOD-END> NOV-2-1996
<CASH> 31,489
<SECURITIES> 0
<RECEIVABLES> 20,156
<ALLOWANCES> 0
<INVENTORY> 103,778
<CURRENT-ASSETS> 171,944
<PP&E> 167,680
<DEPRECIATION> 95,304
<TOTAL-ASSETS> 332,114
<CURRENT-LIABILITIES> 107,734
<BONDS> 168,412
<COMMON> 12
0
0
<OTHER-SE> 50,423
<TOTAL-LIABILITY-AND-EQUITY> 332,114
<SALES> 443,057
<TOTAL-REVENUES> 443,057
<CGS> 136,673
<TOTAL-COSTS> 415,797
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,171
<INCOME-PRETAX> 13,089
<INCOME-TAX> 5,759
<INCOME-CONTINUING> 7,330
<DISCONTINUED> 0
<EXTRAORDINARY> (682)
<CHANGES> 0
<NET-INCOME> 6,648
<EPS-PRIMARY> .60
<EPS-DILUTED> 0
</TABLE>
