<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A-1
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997
Commission File Number 0-14692
GLOBAL MAINTECH CORPORATION
MINNESOTA 41-1523657
State of Incorporation I.R.S. Employer Identification No.
6468 City West Parkway
Eden Prairie, MN 55344
(612) 944-0400
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under Section 12(g) of the Exchange Act: COMMON STOCK, NO
PAR VALUE
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such period
that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days.
Yes [X] No [_]
Check if disclosure of delinquent filers in response to Item 405 of Regulations
S-B is not contained in this form, and no disclosure will be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [X]
The Company's revenues for the Fiscal Year Ended December 31, 1997 totaled
$3,003,000
The aggregate market value of voting stock held by non-affiliates of the
registrant as of March 5, 1998 was approximately $31,230,000 based upon the
closing bid price on the OTC Bulletin Board on that date. The number of shares
of the Company's no par value common stock outstanding as of March 5, 1998 was
17,104,691.
Transitional Small Business Disclosure Format (Check One):
Yes [_] No [X]
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's Proxy Statement for the Annual Meeting of Shareholders
for the year ended December 31, 1997 are incorporated by reference in part III
COPIES OF THE COMPANY'S FORMS 10-KSB, AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION, MAY BE OBTAINED FREE OF CHARGE FROM JAMES GEISER AT THE COMPANY,
6468 CITY WEST PARKWAY, EDEN PRAIRIE, MINNESOTA 55344, PHONE 612-944-0400
<PAGE>
SAFE HARBOR STATEMENT UNDER THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This Annual Report on Form 10-KSB contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. These
forward-looking statements involve risks and uncertainties that may cause the
Company's actual results to differ materially from the results discussed in the
forward-looking statements. Factors that might cause such differences include,
but are not limited to, the uncertainty in the Company's ability to continue to
operate profitably in the future; failure of the Company to meet its future
additional capital requirements; loss of key personnel; failure of the Company
to respond to evolving industry standards and technological changes; inability
of the Company to compete in the industry in which it operates; lack of market
acceptance of the Company's products; failure of the Company to secure adequate
protection for the Company's intellectual property rights; and the Company's
exposure to product liability claims. The forward-looking statements are
qualified in their entirety by the cautions and risk factors set forth in
Exhibit 99, under the caption "Cautionary Statement," to this Annual Report on
Form 10-KSB for the year ended December 31, 1997.
PART I
ITEM 1. DESCRIPTION OF BUSINESS.
General
The Company, through its wholly owned subsidiary Global MAINTECH, Inc.,
designs, develops and markets a computer system, consisting of hardware and
software, which monitors and controls diverse computers in a data center from a
single, master console. The Virtual Command Center ("VCC" or "VCC Unit") can
simultaneously manage mainframes, mid-range computers (e.g., UNIX, Microsoft and
Windows NT platforms) and networks. The VCC is designed to perform three primary
functions: (a) consolidate consoles (computer terminal with access to the
internal operation of a computer) into one monitor, a "virtual console" or
single point of control: (b) monitor and control the computers connected to the
virtual console; and (c) automate most, if not all, of the routine processes
performed by computer platforms and operating systems. It is an external system
that monitors and controls the subject mainframe and other data center computers
from a workstation-quality reduced instruction set computer ("RISC") which is
housed separately from the computers it controls. VCC users are able to reduce
staffing levels, consolidate all data center operations and technical support
functions to a single location regardless of the physical location of the data
center(s) and achieve improved levels of operational control and system
availability.
In 1995, the Company installed it first three VCC Units in the data centers
of a large industrial and financial company. In 1996, the Company sold or leased
seven additional VCC Units and added two new customers. As of December 31, 1997,
the Company had sold or leased a cumulative total of twenty-one VCC Units to a
total of eight customers and had shipped four VCC Units for evaluation purposes
to three prospective customers. The Company's customers include: General
Electric Capital Corporation, Burlington Northern Santa Fe Railroad, Storage
Technology Corporation, Systems Management Specialists, Inc., Ferntree Computer
Corp. (Australia), SAP America, Inc., Deluxe Corporation, Bank One Services
Corp., BMC Software, Frontier Information Technologies, Inc. and Merrill Lynch &
Co. Inc.
Systems Management Software
The VCC competes with internal monitoring software, which monitors certain
pieces of hardware and software applications in the computer in which such
internal software is installed, sold by other companies. Annual sales of
systems-management software were estimated to be $3 billion as of November 1996.
It is believed this market will grow to almost $9 billion by 2000, which would
represent a compound annual growth rate of approximately 30%.
The Company believes the VCC also is well suited for use in enterprise
computing applications. Enterprise computing is the term associated with the
hardware and software which enables computer that contain different processors
to be linked together. The VCC has its own proprietary software and hardware
which allow it to form an enterprise computing management system. The VCC can be
used to monitor and control desktops, mid-range servers and mainframes. Sales of
all such UNIX-based systems in 1995 were approximately $19 billion.
The Company is engaged solely in the business of manufacturing and selling
VCC Units. This line of business generated all of the Company's revenue in 1996
and 1997. Certain of the revenues represent maintenance service revenue and
consulting revenue from its customer base.
2
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The Company was incorporated under the laws of the State of Minnesota in
1985 under the name Computer Aided Time Share, Inc. In 1995, the Company changed
its name to Global MAINTECH Corporation. As of December 31, 1997 the Company had
no employees and its operating subsidiary, Global MAINTECH, Inc., had 26
employees.
See also "Item 6. Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Recent Developments."
ITEM 2. DESCRIPTION OF PROPERTY.
The Company's headquarters is located at 6468 City West Parkway, Eden
Prairie, MN 55344, with additional office space located at 6542 City West
Parkway, Suite 200, Eden Prairie, MN 55344. The leases for each of these
locations terminate on July 31, 1998. As of March 31, 1998 the Company entered
into a new 20 month lease for 10,500 square feet at 7574 Market Place Drive,
Eden Prairie, MN 55344 with a term beginning August 1, 1998. The Company
anticipates consolidating its headquarters into this office space at such time.
In August 1996 the Company entered into an office lease with 1,545 square feet
at 17310 Redhill Avenue, Suite 115, Irvine, CA 92714 and has a smaller office at
599 N. Mathilda Ave., Sunnyvale, CA 94086. These leases provide for monthly
payments through July 31 and August 31, 1998, respectively and are used as sales
and technical development offices. The Company is responsible for utilities,
insurance, and other operating expenses at all locations.
ITEM 3. LEGAL PROCEEDINGS.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
There were no matters submitted to a vote of the Company's shareholders
during the quarter ended December 31, 1997.
3
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PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
The Company's common stock trades on the OTC Bulletin Board under the
symbol "GLBM". Prior to November 12, 1996, the Company's common stock traded
under the symbol "GBMT." The Company effected a 1-for-5 reverse split of its
common stock on November 12, 1996.
The following are the high and low bid quotations for the Company's
common stock as reported on the OTC Bulletin Board during each quarter of the
fiscal years ended December 31, 1997 and 1996. These quotations represent prices
quoted between dealers as if the 1-for-5 reverse stock split had occurred on
January 1, 1996, without retail mark-up, mark-down or commission, and may not
necessarily represent actual transactions.
YEAR ENDED DECEMBER 31, 1997
COMMON STOCK
QUARTER LOW HIGH
--------------------------------------
First $ 1.44 $ 2.56
Second 1.50 2.75
Third 1.69 2.38
Fourth 1.94 2.88
YEAR ENDED DECEMBER 31, 1996
COMMON STOCK
QUARTER LOW HIGH
--------------------------------------
First $ 0.30 $ 0.75
Second 0.40 1.60
Third 0.65 1.30
Fourth 0.90 1.81
As of March 5, 1998, the Company had approximately 2,617 shareholders of
record. The Company has not paid cash dividends on its common stock and does not
anticipate paying cash dividends in the foreseeable future.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
Results of Operations
The consolidated financial statements that accompany this discussion show
the operating results of the Company for the years ended December 31, 1997 and
1996. These results include the operations of Global MAINTECH, Inc., the
Company's wholly owned subsidiary.
Sales from continuing operations for the year ended December 31, 1997 were
approximately $3,003,000 compared to sales from continuing operations of
$2,130,000 in the year ended December 31, 1996. Sales of the Virtual Command
Center or VCC were approximately $2,138,000 in 1997 compared to approximately
$1,797,000 in 1996. Maintenance fees were approximately $702,000 in 1997 on
previously sold systems. Revenue in 1997 also included approximately $132,000 of
consulting revenue and $30,000 from sales of miscellaneous computer parts.
Revenue in 1996 related to maintenance, consulting, and other activities totaled
approximately $332,000. These revenue activities reflect the installation of a
cumulative total of 21 VCC units with eight customers compared to a cumulative
total of 10 VCC units with three customers in 1996. The gross margin on sales
was approximately 75% in 1997 compared to 71% in the year ended December 31,
1996. The increase in gross margin in 1997 is primarily related to the increase
in maintenance fees in 1997.
Selling, general and administrative costs for the year ended December 31,
1997 were approximately $1,649,000 compared to approximately $962,000 for the
same period in the prior year. This $687,000 increase is related to a $235,000
increase in salary expense which reflects an increase in paid employees which
grew during the year from 16 to 26. Advertising, travel and entertainment costs
increased $134,000 and $97,000, respectively in the year ended
1997 versus 1996. This reflects the increased activities in the business:
marketing and travel expenses are directly related to increased selling
activities. Nearly all the other "S,G&A" costs increased by amounts ranging from
$84,000 to $15,000 including professional and technical costs, depreciation
expense, and supplies, insurance, rent
4
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and utilities costs. These increases are all primarily related to increased
business activities of the Company. Professional and technical expenses which
include legal, accounting and investor relations expenses increased due to
additional governance costs and a recovery of reserves which offset such
expenses in 1996. There were no new litigation expenses in either 1997 or 1996.
Depreciation expense increased as a function of the increase in equipment
purchases for new employees. Office and warehouse supplies, insurance, rent and
utilities all increased due to additional employees and additional offices.
Insurance expense in 1996 was also unusually low due to an insurance refund
received in 1996. Research and development expenses in 1997 and 1996 relate to
the ongoing maintenance of existing software and comprise salaries and
consulting fees for technical expertise. In 1997 this cost reflects fees paid of
nearly $100,000 to a technical search firm hired to find additional technical
employees.
Non-operating expenses in the year ended December 31, 1997 consisted of
interest expense, interest income and amortization of deferred debt issue costs
indicated as "Other". In the last six months of 1997 interest expense includes
only the cost of the $2,000,000 of subordinated debt issued by the Company on
June 19, 1997. In the prior year interest expense represented the costs of the
Company's convertible subordinated debentures, notes payable to vendors, a bank,
and individuals, the principal amount of which totaled approximately $380,000 at
December 31, 1996. Interest income in 1997 is the result of short-term
investments of excess cash. Amortization ($44,294 annually on a straight-line
basis over five years) of deferred debt issue costs of $221,470 relates to the
issuance of $2,000,000 of subordinated debt.
Net cash used in operating activities for the year ended December 31, 1997
was approximately $302,000 compared to approximately $163,000 provided by such
activities in the year ended December 31, 1996. During the year ended December
31, 1997 operating funds of approximately $662,000 were provided by net income
prior to depreciation/amortization. This increase was more than offset by a use
of operating funds for assets including inventory, accounts receivable, and
prepaid expenses of approximately $760,000 and for short-term liabilities of
approximately $204,000.
Cash used for investing activities in the year ended December 31, 1997 of
approximately $2,270,000 reflects investments of approximately $780,000 in
capitalized computer software development costs, which represent costs incurred
after technological feasibility has been established in connection with the
development of enhancements to one or more particular software programs, and
approximately $109,000 in software licenses and patent costs. Additionally, the
Company invested approximately $780,000 in sales-type leases covering the
Company's products, purchased approximately $362,000 of property and equipment
and invested approximately $163,000 in operating leases covering the Company's
products. The Company also invested $75,000 in a note receivable from a software
company due in 1998. In 1996 the Company invested approximately $473,000 in
capitalized computer software development costs, $107,000 in leased equipment,
$68,000 in patent costs and purchased $37,000 of property and equipment.
Net cash of approximately $4,266,000 was provided by financing activities
in the year ended December 31, 1997. This is the result of net proceeds from the
issuance of common stock of $2,768,000 primarily through two separate private
placements at per share prices of $0.75, $1.40, and a net issuance of long-term
notes payable of $2,000,000. These proceeds were partially offset by payments of
short-term notes payable of $320,000 and disbursements of approximately $212,000
for the issuance of new debt in the year ended December 31, 1997. In the year
ended December 31, 1996 cash was provided by financing activities of
approximately $516,000. This is the result of approximately $675,000 of proceeds
from the issuance of common stock offset by decreases in short-term and long-
term notes payable of approximately $159,000.
Liquidity and Capital Resources
As of December 31, 1997, the Company had positive working capital of
approximately $2,884,000 compared to negative working capital of approximately
$400,000 as of December 31, 1996. The positive working capital as of December
31, 1997 is primarily due to the issuance of common stock and five-year
subordinated debt and the Company's profitability during 1997. As of December
31, 1996, the Company was delinquent in principal payments of $283,000 of debt.
The Company resolved such delinquencies during 1997.
Presently, the Company believes it has sufficient working capital to pay
its current liabilities. In addition to the proceeds received from the debt and
equity issuances discussed above, the Company believes its working capital will
continue to improve as the Company's profitability improves. This depends on the
Company's ability to collect its accounts receivable and to make sales
sufficient to realize the full value of its current inventory. Since the Company
has recently achieved gross margins of approximately 70% on its sales and has
not experienced any bad debts on its accounts receivable, management believes
the Company's financial health will continue to improve as additional sales are
realized. To that end, the Company has continued to purchase additional
inventory in anticipation of
5
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additional sales. Such profitability also has improved the Company's access to
the capital markets. Nevertheless, the Company can provide no assurance as to
its continued profitability and access to the capital markets.
During the year ended December 31, 1997, the Company's liquidity and
capital resources were substantially improved. The Company's operating plan for
the year ending December 31, 1998 anticipates a substantial increase in sales
over the year ended December 31, 1997 with a commensurate increase in net
income. As a result this operating plan projects a significant increase in the
liquidity and capital resources of the Company. While the Company believes in
the viability of its operating plan and currently anticipates that its operating
plan will be achieved, there can be no assurances to that effect.
Year 2000 Issue
The Company has analyzed the potential effect of the year 2000 issue on
both the system software included in the Company's equipment and on application
software licensed or purchased by the Company and used in its internal
operations. The Company has tested all of the system software included in its
products and determined that it will not be affected. In addition, the Company
has requested and received documentation from vendors supplying software for its
primary business application addressing year 2000 compliance. In all cases,
vendors responses indicated that their applications were either currently year
2000 compliant or that they would be compliant by the end of 1998, although the
Company has not independently tested these applications for compliance. Based on
this analysis, the Company does not anticipate a material cost associated with
its systems relative to the year 2000 issue.
Recent Developments
On February 27, 1998 the Company purchased certain software and other
assets relating to the system software business of Infinite Graphics
Incorporated ("IGI"), a Minnesota corporation based in Minneapolis. The
acquisition will be recorded as an asset purchase. The acquisition agreement
provides for an initial payment of $500,000 and additional payments of up to
$3,500,000. The payment of up to $3,300,000 of this additional payment is
contingent on the future net income of this business segment and is determinable
as of May 31, 1999. In the twelve months ended December 31, 1997 the unaudited
revenue of IGI's software segment was $1,683,000 and the gross margin was
$621,000.
The acquired software and assets will be used by the Company to design,
assemble and market computer-aided design and manufacturing software systems
that operate on a variety of mid-range and personal computer platforms.
Assets purchased in the acquisition include inventory, machinery and
equipment, furniture and fixtures, a perpetual exclusive software license of a
majority of the IGI software products used in the system software business and a
non-exclusive license of certain software used in IGI's remaining business
segment. IGI will reimburse the Company for the liabilities of IGI explicitly
assumed by the Company in connection with the acquisition. The Company also
agreed to satisfy IGI's unrecorded service obligations to the software end users
in return for which the Company expects to receive support payments from such
end users.
In addition, in February 1998 the Company began a 400,000 share private
placement of common stock at $1.90 per share and had issued 221,000 shares as
of March 23, 1998. Maven Securities, Inc. acted as the placement agent wherein
the Company agreed to pay the placement agent a 10% commission, a 3% fee for
expenses and to issue to such agent a warrant to purchase up to 10% of the
number of shares of common stock issued in connection with such offering at an
exercise price of $1.90 per share. The shares of common stock issued pursuant to
this issuance are exempt from registration under Rule 506 of Regulation D of the
Securities Act of 1933, as amended.
6
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ITEM 7. FINANCIAL STATEMENTS.
Index to Financial Data
PAGE
Independent Auditors' Report 8
Consolidated balance sheets 9
Consolidated statements of operations 11
Consolidated statements of stockholders' equity 12
Consolidated statements of cash flows 13
Notes to consolidated financial statements 14
7
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INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders of Global MAINTECH Corporation:
WE HAVE AUDITED THE ACCOMPANYING CONSOLIDATED BALANCE SHEETS OF GLOBAL MAINTECH
CORPORATION AND SUBSIDIARY AS OF DECEMBER 31, 1997 AND 1996, AND THE RELATED
CONSOLIDATED STATEMENTS OF OPERATIONS, STOCKHOLDERS' EQUITY, AND CASH FLOWS FOR
THE YEARS THEN ENDED. THESE CONSOLIDATED FINANCIAL STATEMENTS ARE THE
RESPONSIBILITY OF THE COMPANY'S MANAGEMENT. OUR RESPONSIBILITY IS TO EXPRESS AN
OPINION ON THESE CONSOLIDATED FINANCIAL STATEMENTS BASED ON OUR AUDITS.
WE CONDUCTED OUR AUDITS IN ACCORDANCE WITH GENERALLY ACCEPTED AUDITING
STANDARDS. THOSE STANDARDS REQUIRE THAT WE PLAN AND PERFORM THE AUDIT TO OBTAIN
REASONABLE ASSURANCE ABOUT WHETHER THE FINANCIAL STATEMENTS ARE FREE OF MATERIAL
MISSTATEMENT. AN AUDIT INCLUDES EXAMINING, ON A TEST BASIS, EVIDENCE SUPPORTING
THE AMOUNTS AND DISCLOSURES IN THE FINANCIAL STATEMENTS. AN AUDIT ALSO INCLUDES
ASSESSING THE ACCOUNTING PRINCIPLES USED AND SIGNIFICANT ESTIMATES MADE BY
MANAGEMENT, AS WELL AS EVALUATING THE OVERALL FINANCIAL STATEMENT PRESENTATION.
WE BELIEVE THAT OUR AUDITS PROVIDE A REASONABLE BASIS FOR OUR OPINION.
IN OUR OPINION, THE CONSOLIDATED FINANCIAL STATEMENTS REFERRED TO ABOVE PRESENT
FAIRLY, IN ALL MATERIAL RESPECTS, THE FINANCIAL POSITION OF GLOBAL MAINTECH
CORPORATION AND SUBSIDIARY AS OF DECEMBER 31, 1997 AND 1996, AND THE RESULTS OF
THEIR OPERATIONS AND THEIR CASH FLOWS FOR THE YEARS THEN ENDED, IN CONFORMITY
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
KPMG Peat Marwick LLP
Minneapolis, Minnesota
March 23, 1998
8
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GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
ASSETS
December 31, December 31,
1997 1996
------------ ------------
CURRENT ASSETS
Cash and cash equivalents $1,726,889 $ 32,890
Accounts receivable, less allowance for
doubtful accounts of $15,000 576,573 451,599
Other receivables 26,111 21,519
Inventories 797,435 217,943
Prepaid expenses and other 77,308 26,706
Notes receivable 75,000 --
Current portion of investment in
sales-type leases 286,997 --
---------- ----------
Total current assets 3,566,313 750,657
Property and equipment, net 308,347 31,221
Leased equipment 209,033 82,377
Software development costs, net 955,835 425,519
Net investment in sales-type leases,
net of current portion 492,918 --
Other assets, net 331,003 61,779
---------- ----------
TOTAL ASSETS $5,863,449 $1,351,553
========== ==========
The accompanying notes are an integral part of these consolidated statements.
9
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GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
December 31, December 31
1997 1996
------------ ------------
<S> <C> <C>
CURRENT LIABILITIES
Accounts payable $ 396,159 $ 396,004
Current portion of subordinated notes payable 100,000 211,613
Convertible subordinated debentures -- 151,750
Accrued liabilities
Compensation and payroll taxes 123,605 79,655
Interest -- 13,960
Other 10,588 38,325
Deferred revenue 52,443 259,747
----------- -----------
Total current liabilities 682,795 1,151,054
----------- -----------
Subordinated notes payable, less current portion 1,900,000 16,600
----------- -----------
Total liabilities 2,582,795 1,167,654
STOCKHOLDERS' EQUITY
Voting, convertible preferred stock - Series A,
convertible into one common stock share for
each preferred share, no par value; 887,980
shares authorized; 244,113 shares in 1997 and
700,667 shares in 1996 issued and outstanding;
total liquidation preference of outstanding
shares-$458,000 114,489 328,601
Common stock, no par value; 49,112,020 shares
authorized; 17,084,587 shares in 1997 and
13,260,533 shares in 1996 issued and outstanding -- --
Additional paid-in-capital 5,295,829 2,243,438
Notes receivable-officers (294,500) (324,500)
Accumulated deficit (1,835,164) (2,063,640)
----------- -----------
Total stockholders' equity 3,280,654 183,899
----------- -----------
$ 5,863,449 $ 1,351,553
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
10
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GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
Year Ended
December 31,
1997 1996
------------ -------------
Net sales
Systems $ 2,138,323 $ 1,797,295
Maintenance, consulting and other 864,184 332,208
------------ ------------
Total net sales 3,002,507 2,129,503
Cost of sales
Systems 417,225 538,803
Maintenance, consulting and other 344,808 86,664
------------ ------------
Total cost of sales 762,033 625,467
------------ ------------
Gross profit 2,240,474 1,504,036
Operating expenses
Selling, general and administrative 1,649,394 962,398
Research and development 319,859 150,273
------------ ------------
Income from operations 271,221 391,365
Other income (expense):
Interest expense (183,004) (60,746)
Interest income 92,406 --
Other (22,147) (2,554)
------------ ------------
Total other expense, net (112,745) (63,300)
------------ ------------
Income from continuing operations before
income taxes 158,476 328,065
------------ ------------
Provision for income taxes -- 18,500
------------ ------------
Income from continuing
operations 158,476 309,565
Gain from discontinued operations 70,000 --
------------ ------------
Net income $ 228,476 $ 309,565
============ ============
Basic earnings per common share:
Continuing operations $ 0.010 $ 0.026
Discontinued operations 0.004 --
------------ ------------
Net earnings $ 0.014 $ 0.026
============ ============
Diluted earnings per common share:
Continuing operations $ 0.008 $ 0.022
Discontinued operations 0.004 --
------------ ------------
Net earnings $ 0.012 $ 0.022
============ ============
Shares used in calculations:
Basic 15,918,047 11,988,189
Diluted 19,555,417 14,268,610
The accompanying notes are an integral part of these consolidated statements.
11
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GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1997 AND 1996
<TABLE>
<CAPTION>
Preferred stock Common stock Additional Notes
-------------------- --------------------- paid-in receivable- Accumulated
Shares Amount Shares Amount capital officers defict Total
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995 865,207 $ 405,770 10,487,695 $ -- $ 906,658 $ -- $(2,373,206) $(1,060,778)
Net income -- -- -- -- -- -- 309,566 309,566
Common stock issued -- -- 1,609,965 -- 777,545 -- -- 777,545
Stock issue costs -- -- -- -- (119,434) -- -- (119,434)
Voluntary stock reduction -- -- (1,340,000) -- -- -- -- --
Conversion of notes payable -- -- 200,000 -- 150,000 -- -- 150,000
Conversion of subordinated
debentures -- -- 168,333 -- 110,000 -- -- 110,000
Common stock options and
warrants exercised -- -- 1,970,000 -- 341,500 -- -- 341,500
Exercise officer stock
options -- -- -- -- -- (324,500) -- (324,500)
Converted preferred shares (164,540) (77,169) 164,540 -- 77,169 -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1996 700,667 $ 328,601 13,260,533 $ -- $2,243,438 $(324,500) $(2,063,640) 183,899
Net income -- -- -- -- -- -- 228,476 228,476
Common stock issued -- -- 2,752,800 -- 2,779,600 -- -- 2,779,600
Stock issue costs -- -- -- -- (312,278) -- -- (312,278)
Common stock options and
warrants exercised -- -- 614,970 -- 300,957 -- -- 300,957
Stock options exercised in
conjunction wtih retirement
of note payable -- -- -- -- 60,000 -- -- 60,000
Receipt of payment of officer
note receivable related to
stock options exercised in 1996 -- -- -- -- -- 30,000 -- 30,000
Warrants issued in conjunction
with issuance of notes
payable -- -- -- -- 10,000 -- -- 10,000
Converted preferred shares (456,554) (214,112) 456,554 -- 214,112 -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 244,113 $ 114,489 17,084,857 $ -- $5,295,829 $(294,500) $(1,835,164) $3,280,654
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
12
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GLOBAL MAINTECH CORPORATION SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended
December 31,
--------------------------
1997 1996
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 228,476 $ 309,566
Adjustments to reconcile net income to
net cash used in operating activities:
Depreciation and amortization 433,981 101,215
Changes in operating assets and liabilities:
Increase in accounts
and other receivables (129,566) (111,848)
Increase in inventory (579,492) (31,131)
Increase in prepaid expenses (50,602) (5,702)
Increase (decrease) in accounts payable 155 (412,426)
Increase in accrued expenses 2,253 53,630
Increase (decrease) in deferred revenue (207,304) 259,747
----------- -----------
Cash provided (used) by operating
activities (302,099) 163,051
----------- -----------
Cash flows from investing activities:
Net increase in investment in sales-type leases (779,915) --
Purchase of property and equipment (361,869) (37,173)
Investment in leased equipment (162,548) (107,140)
Investment in software development costs (781,516) (473,719)
Investment in other intangibles (108,900) (67,779)
Investment in note receivable (75,000) --
----------- -----------
Cash used by investing activities (2,269,748) (685,811)
----------- -----------
Cash flows from financing activities:
Disbursements for deferred debt costs (212,470) --
Proceeds from issuance of common stock 2,768,279 675,111
Payments of notes payable and convertible
subordinate debentures (319,963) (158,825)
Payments received on officers note receivable 30,000 --
Proceeds from issuance of notes payable 2,000,000 --
----------- -----------
Cash provided by financing
activities 4,265,846 516,286
----------- -----------
Net increase (decrease) in cash 1,693,999 (6,474)
Cash and cash equivalents at beginning of year 32,890 39,364
----------- -----------
Cash and cash equivalents at end of year $ 1,726,889 $ 32,890
=========== ===========
</TABLE>
Supplemental disclosures of cash flow information:
Cash paid during the year for: Interest $ 200,584 $ 62,686
Income taxes 9,999 --
Supplemental disclosure of noncash investing and financing activities:
During 1997, warrants to purchase shares of common stock were issued in
connection with the issuance of notes payable. The estimated value of
warrants ($10,000) was capitalized related to this transaction (Note 7).
During 1997, options held by a vendor were exercised in connection with the
retirement of $60,000 of outstanding notes payable.
The accompanying notes are an integral part of these consolidated statements.
13
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF BUSINESS: Global MAINTECH, Inc., the Company's principal operating
subsidiary, produces and assembles a computer software and hardware product that
it sells as a console consolidation and console management solution to the
systems and network management marketplace primarily in the United States. The
product is called the Virtual Command Center ("VCC").
The VCC is a tool designed to do three functions: the first is to consolidate
consoles (computer terminals with access to the internal operation of a
computer) into one monitor, a "virtual console" or single point of control; the
second is to monitor and control the computers connected to the virtual console;
and, the third is to automate most, if not all, of the routine processes
performed by computer operators in data centers. The VCC can be operated from a
remote location and accepts multiple different computer platforms and operating
systems. It is an external system that monitors and controls the subject
mainframe and other data center computers from a workstation quality RISC
computer, which is housed separately from the computers it controls. VCC users
are able to reduce staffing levels, consolidate all data center operations and
technical support functions to a single location regardless of the physical
location of the data center(s) and achieve improved levels of operational
control and system availability.
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include the
accounts of Global MAINTECH Corporation and its operating subsidiary, Global
MAINTECH, Inc. All significant intercompany accounts and transactions have been
eliminated.
NEW ACCOUNTING PRONOUNCEMENTS: Effective for 1997, the Company implemented SFAS
No. 128, Earnings Per Share, and SFAS No. 129, Disclosure of Information about
Capital Structure. The effect of SFAS 128 is described below. SFAS 129
incorporated several existing disclosure requirements on capital structure into
a single accounting standard and had no effect on the Company's reporting.
SFAS No. 130, Reporting Comprehensive Income, is effective for the Company for
all periods reported after December 31, 1997. This standard prescribes a new way
of reporting and displaying the balances of and changes in certain equity
accounts. SFAS 130 does not affect the measurement or accounting for these
accounts. By its nature, SFAS 130 will, when implemented, have no effect on the
Company's reported operations or financial position. The Company is considering
alternative presentations to meet the new requirements.
CASH AND CASH EQUIVALENTS: The Company considers all highly liquid investments
purchased with an original maturity of three months or less to be cash
equivalents.
INVENTORY: Inventory is stated on a first in, first out (FIFO) basis at the
lower of cost or market.
PROPERTY AND EQUIPMENT: Property and equipment is recorded at cost and comprised
primarily of computer and office equipment. Depreciation is provided for
principally using the double declining balance method, based on the estimated
useful lives of the respective assets which generally have lives of three years.
Maintenance and repairs are charged to expense as incurred.
REVENUE RECOGNITION: Revenue from product sales is recognized upon the latter of
shipment or final acceptance. Deferred revenue is recorded when the Company
receives customer payments before shipment or acceptance or before maintenance
revenues are earned. The Company sells maintenance agreements which require
minor updates of software to be delivered to the customers free of charge. New
versions of the Company's software representing a major upgrade are not a part
of the maintenance agreements. The Company expenses the costs of minor updates
to its software as incurred.
The Company recogizes revenue from leasing activities in accordance with SFAS
No. 13, Accounting for Leases. Accordingly, leases that transfer substantially
all the benefits and risks of ownership are accounted for as sales-type leases.
All other leases are accounted for as operating leases.
Under the sales-type method, profit is recognized at lease inception by
recording revenue and cost. Revenue consists of the present value of the future
minimum leae payments discounted at the rate implicit in the lease. Cost
consists of the equipment's book value. The present value of the estimated value
of the equipment at lease termination (the residual value), which is generally
not material, and the present value of the future minimum lease
14
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
payments are recorded as assets. In each period, interest income is recognized
as a percentage return on asset carrying values.
The Company is the lessor of equipment under operating leases expiring in
various years. The cost of equipment subject to such leases is recorded as
leased equipment and is depreciated on a straight-line basis over the estimated
service life of the equipment. Operating lease revenue is recognized as earned
over the term of the underlying lease.
CAPITALIZED SOFTWARE DEVELOPMENT COSTS: Under the criteria set forth in SFAS No.
86, Accounting for the Costs of Computer Software to be Sold, Leased or
Otherwise Marketed, capitalization of software development costs begins upon the
establishment of technological feasibility of the software. The establishment of
technological feasibility and the ongoing assessment of the recoverability of
these costs require considerable judgment by management with respect to certain
external factors, including, but not limited to, anticipated future gross
product revenues, estimated economic life, and changes in software and hardware
technology. Capitalized software development costs are amortized utilizing the
straight-line method over the estimated economic life of the software not to
exceed three years.
The carrying value of a software development asset is regularly reviewed by the
Company and a loss is recognized when the unamortized costs are not recoverable
based on the estimated cash flows to be generated from the applicable software.
OTHER ASSETS: Other assets is comprised of patents, capitalized software license
fees, and capitalized debt issuance costs. Patents and capitalized software
license fees are stated at costs and are amortized over three years or over the
useful life of the license using the straight-line method. Capitalized debt
issuances costs are stated at cost and are amortized over the term of the
related debt agreement. Recorded amounts for patents and license fees are
regularly reviewed and recoverability assessed. The review considers factors
such as whether the amortization of these capitalized amounts can be recovered
through forecasted undiscounted cash flows.
RESEARCH AND DEVELOPMENT: Research and development costs are expensed as
incurred.
STOCK BASED COMPENSATION: The Company has adopted the disclosure requirements
under SFAS No. 123, Accounting and Disclosure of Stock-Based Compensation. As
permitted under SFAS No. 123, the Company applies Accounting Principles Board
Opinion No. 25 (APB No. 25), Accounting for Stock Issued to Employees and
related interpretations in accounting for is plans. Accordingly, no compensation
expense has been recognized for its stock-based compensation plans.
EARNINGS PER SHARE: SFAS 128 Earnings per Share, became effective to the
Company for the year ended December 31, 1997 and requires restatement of all
earnings per share amounts presented for prior periods. Under the new standard,
primary earnings per share will no longer be presented. Basic earnings per share
will represent earnings, reduced by any dividends on preferred stock, divided by
the weighted average number of common shares outstanding for the reporting
period. Diluted earnings per share (formerly called "fully diluted") will
represent earnings divided by the sum of the weighted average number of common
shares outstanding plus shares derived from other potentially dilutive
securities. For the Company, potentially dilutive securities include "in the
money" stock options and warrants for the purchase of shares of common stock
and the amount of common shares which would be added by conversion of the
outstanding convertible preferred stock. The number of shares added for stock
options and warrants is determined by the treasury stock method, which assumes
exercise of these securities and the use of any proceeds from these actions to
repurchase a portion of these shares at the average market price for the period.
When the results of continuing operations are a loss, other potentially dilutive
securities will not be included in the calculation of loss per share.
15
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AND SUBSIDIARY
- --------------------------------------------------------------------------------
The weighted average shares and total dilutive shares used in the calculation of
basic and diluted earnings per share are as follows:
Years Ended December 31,
1997 1996
---------------------------------
BASIC EARNINGS PER SHARE
Weighted average shares 15,918,047 11,988,189
DILUTED EARNINGS PER SHARE
Weighted average shares 15,918,047 11,988,189
Stock options 2,765,174 1,416,352
Warrants 628,083 163,402
Conversion of preferred stock 244,113 700,667
---------------------------------
Total dilutive shares 19,555,417 14,268,610
=================================
Antidilutive stock options excluded 83,000 83,000
Antidilutive warrants excluded 600,000 -
No adjustments to net income presented on the Consolidated Statements of
Operations were made in the determination of earnings per share.
INCOME TAXES: Deferred taxes are provided on an asset and liability method for
temporary differences and operating loss and tax credit carryforwards. Temporary
differences are the differences between the reported amounts of assets and
liabilities and their tax bases. Deferred tax assets are reduced by a valuation
allowance when, in the opinion of management, it is more likely than not that
some portion or all of the deferred tax assets will not be realized. Deferred
tax assets and liabilities are adjusted for the effects of changes in tax laws
and rates on the date of enactment.
FAIR VALUE OF INSTRUMENTS: All financial instruments are carried at amounts that
approximate estimated fair values.
USE OF ESTIMATES: Management of the Company has made a number of estimates and
assumptions relating to the reporting of assets and liabilities and the
disclosure of contingent assets and liabilities to prepare these consolidated
financial statements in conformity with generally accepted accounting
principles. Actual results could differ from these estimates.
RECLASSIFICATIONS: Certain amounts previously reported in 1996 have been
reclassified to conform to the 1997 presentation.
NOTE 2. RECOVERY FROM DISCONTINUED OPERATION
The Company's Board of Directors made the decision to discontinue that portion
of the operations which brokered and sold parts for IBM mainframe computers in
1995. Effective December 31, 1995 these operations were sold to Norcom
Resources, Inc. ("Norcom") for $123,000. A portion of the sale included a
$70,000 note receivable from Norcom which the Company treated as uncollectible.
However, in March 1997 the Company collected the full amount of such note
receivable and recorded a recovery related to the discontinued operation.
16
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 3. INVENTORIES
Inventories consists of the following:
December 31,
--------------------------------
1997 1996
------------ ------------
Raw materials $526,379 $108,484
Completed systems 271,056 109,459
Total Inventories $797,435 $217,943
======== ========
NOTE 4. NET INVESTMENT IN SALES-TYPE LEASES
The Company began leasing equipment as lessor under sales-type leases in 1997.
The components of net investment in sales-type leases as of December 31, 1997
are as follows:
Minimum lease payments receivable $ 892,323
Less: Unearned revenue (112,408)
-------------
779,915
Less: current portion (286,997)
-------------
Investment in sales-type lease, net of current portion $ 492,918
Future minimum lease payments to be received under sales-type leases are
$328,361, $328,361, and $235,601 in 1998, 1999, and 2000, respectively.
NOTE 5. CAPITAL ASSETS
Certain of the Company's capital assets are comprised of the following:
December 31,
-----------------------
1997 1996
-------- --------
PROPERTY AND EQUIPMENT
Computer and office equipment $ 400,192 $ 166,656
Accumulated depreciation (91,845) (135,435)
---------- ----------
Property and equipment, net $ 308,347 $ 31,221
LEASED EQUIPMENT
Leased equipment $ 269,688 $ 107,140
Accumulated depreciation (60,655) (24,763)
---------- ----------
Leased equipment, net $ 209,033 $ 82,377
SOFTWARE DEVELOPMENT COSTS
Software development costs $1,255,235 $ 473,719
Accumulated amortization (299,400) (48,200)
----------- ----------
Software development costs, net $ 955,835 $ 425,519
OTHER ASSETS
Patents $ 101,680 $ 67,779
Software licenses 75,000 --
Other 221,470 --
----------- ----------
398,150 67,779
Accumulated amortization (67,147) (6,000)
----------- ----------
Other assets, net $ 331,003 61,779
17
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 6. CONVERTIBLE SUBORDINATED DEBENTURES
The Company's 11% convertible subordinated debentures were due July 1, 1996,
with interest due semi-annually, and prior to maturity were redeemable by the
Company or convertible at the option of the holder into 41,880 common shares at
a price per share of $6.25. During the year ended December 31, 1996, debentures
valued at $110,000 converted to equity pursuant to conversion terms other than
the original $6.25 per share. In 1997, the Company paid all of the principal
outstanding to debentureholders along with interest payments calculated at 11%
per year. Expenses associated with the original issuance of the unconverted
debentures were fully amortized as of July 1, 1996.
NOTE 7. NOTES PAYABLE
Notes payable at December 31, 1997 and 1996 are comprised of the following:
<TABLE>
<CAPTION>
1997 1996
---------------------- ---------------------
Interest Interest
Amount rate Amount rate
---------------------- --------------------
<S> <C> <C> <C> <C>
Subordinated notes payable to
Mezzanine Capital Partners and
Marquette Bancshares, Inc. due
in installments of various
amounts as described below
through June 30, 2002 $2,000,000 14.00% - -
Notes payable to First Bank,
paid in 1997 - - 83,000 10.25%
Note payable to related party,
paid in 1997 - - 16,667 13.00%
Note payable to vendor, paid in 1997 - - 108,532 16.50%
Note payable to officer, paid in 1997 - - 15,000 18.00%
Note payable to vendor, paid in 1997 - - 5,014 6.00%
------------- -----------
2,000,000 228,213
Less current portion (100,000) (211,613)
------------- -----------
$1,900,000 $16,600
============= ===========
</TABLE>
The Company issued subordinated notes payable in the form of two $1,000,000
notes payable to Mezzanine Capital Partners, Inc. and Marquette Bancshares,
Inc., respectively. The interest rate of 14% is fixed for the term of the notes.
Aggregate installments of $100,000, $200,000, $300,000, $300,000, and $1,100,000
are due for the years 1998 through 2002, respectively. The notes are subject to
a 5% prepayment penalty through June 30, 1998 and 4% prepayment penalty from
July 1, 1998 through June 30, 1999 and may be prepaid without penalty
thereafter. The Company incurred costs related to the issuance of this debt in
the amount of $221,470 which includes the estimated fair value of warrants to
purchase a total of 530,000 shares of common stock at $1.80 per share that were
issued in connection with the issuance of notes payable. These costs are being
amortized on a straight-line basis over the five year term of such debt.
NOTE 8. STOCKHOLDERS' EQUITY
COMMON STOCK WARRANTS: The Company issued warrants in 1997 in conjunction with
common stock issued pursuant to the Private Placement Memorandum dated November
25, 1996. These warrants are exercisable at $0.75 per share and expire on
February 28, 2002. During 1997 the Company also issued warrants pursuant to a
subsequent private placement of common stock in June 1997, which are exercisable
at $1.40 and expire on June 6, 2002. An additional 530,000 warrants were issued
in 1997, which are exercisable at a per share price of $1.80 and expire in the
year 2002. These warrants were issued in connection with the $2,000,000 of
subordinated debt issued in June 1997. The total warrants outstanding as of
December 31, 1997 was 1,724,298. Such warrants are exercisable at a weighted
average price of $1.94 per share and expire in 2000 through 2004.
COMMON STOCK OPTIONS: The Company's stock option plan ("Plan"), provides for
granting to the Company's employees, directors and consultants, qualified
incentive and nonqualified options to purchase common shares of stock. The Plan
was amended during 1995 to increase the number of aggregate options that can be
issued to
18
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
10,000,000 shares of common stock. Qualified incentive options must be granted
with exercise prices equal to the fair market value of the stock at the date of
grant. Nonqualified options must be granted with exercise prices equal to at
least 85% percent of the fair market value of the stock at the date of grant.
The Company applies APB No. 25, Accounting for Stock Issued to Employees, and
related interpretations in accounting for its stock options. As a result no
compensation expense has been recognized for stock-based compensation plans. Had
the Company determined compensation cost based on the fair value at the grant
date for its stock options under SFAS No. 123, Accounting and Disclosure of
Stock-Based Compensation, the Company's net income and earnings per share would
have been reduced by approximately $18,000 in 1997 and by an immaterial amount
in 1996. The Company made this calculation using the Black-Scholes option
pricing model with the following assumptions: volatility of 113%, risk-free
interest rate of 5.5%, and an expected life of 5 years.
This pro-forma effect does not include the compensation cost of stock options
currently issued but which do not vest until future years nor does it include
the compensation cost of stock options issued prior to 1995. Therefore, the full
impact of calculating compensation cost for stock options under SFAS No. 123 is
not reflected in the pro-forma net income amounts presented above.
Information with respect to stock options under the plan are summarized as
follows:
<TABLE>
<CAPTION>
Incentive Stock Options Nonqualified Options
---------------------------------- -----------------------------
Shares Weighted average Shares Weighted average
exercise price exercise price
------------- ---------------- ----------- -----------------
<S> <C> <C> <C> <C>
Total outstanding at December 31, 1995 4,232,000 $0.35 83,000 $5.87
Granted 941,000 $0.59 -- --
Canceled (620,000) $0.30 -- --
Exercised (1,938,000) $0.17 -- --
-------------- --------------- ----------- ----------------
Total outstanding at December 31, 1996 2,615,000 $0.49 83,000 $5.87
Granted 1,432,000 $1.51 -- --
Canceled (75,000) $1.00 -- --
Exercised (455,000) $0.40 -- --
---------------------------------- -----------------------------
Total outstanding at December 31, 1997 3,517,000 $0.79 83,000 $5.87
================================== =============================
</TABLE>
Options for 2,152,000 shares of common stock were exercisable at a weighted
average exercise price of $0.54 as of December 31, 1997.
COMMON STOCK ISSUED: In 1997 the Company issued a total of
approximately 2,752,800 shares of common stock. These shares were issued
pursuant to two separate private placement issues: one ending February 1997; and
one ending July 1997. In addition, 456,554 and 164,540 shares of common stock
were issued to holders of preferred stock series A on a one-for-one exchange
conversion in accordance with terms of the preferred stock in 1997 and 1996,
respectively.
Specifically, the Company issued 1,652,800 and 653,500 shares of common stock in
1997 and 1996, respectively at $0.75 per share pursuant to the private placement
memorandum dated November 1996. During 1997 the Company also issued 1,100,000
shares of common stock at $1.40 per share pursuant to a private placement dated
June 1997. In addition, 455,000 shares of common stock were issued due to the
exercise of qualified stock options by certain non-officer employees or former
employees of the Company and 159,970 shares of common stock were issued to
converting warrantholders. Stock issue costs were $312,278 and $119,434 in 1997
and 1996, respectively.
19
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 9. INCOME TAXES
At December 31, 1997, the Company had a net operating loss carryforward of
approximately $3.3 million. The net operating loss carryforward will be subject
to an annual limitation as defined by Section 382 of the Internal Revenue Code
of approximately $200,000.
Future equity transactions could further limit the net operating losses
available in any one year.
The tax effects of temporary differences that give rise to significant portions
of the deferred tax assets and liabilities as of December 31, 1997 and 1996 are
shown as follows:
Year Ended Year Ended
December 31, December 31,
1997 1996
------------------ -------------------
Deferred tax assets
Allowance for doubtful accounts $5,000 $5,000
Net operating loss carryforward 1,360,000 1,454,000
------------------ -------------------
Subtotal 1,365,000 1,459,000
Less valuation allowance for deferred
tax asset (1,212,000) (1,306,000)
------------------ -------------------
153,000 153,000
Deferred tax liabilities (153,000) (153,000)
------------------ -------------------
Net deferred tax assets $0 $0
================== ===================
The provision for income taxes consists of the following for the years ended
December 31, 1997 and 1996:
Year Ended Year Ended
December 31, December 31,
1997 1996
------------------ -------------------
Current
Federal $ - $9,500
State - 9,000
------------------ -------------------
Total - 18,500
Deferred - -
------------------ -------------------
Total $ - $18,500
================== ===================
20
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
The income tax expense (benefit) differed from the amounts computed by applying
the U. S. federal income tax rate of 34% as a result of the following:
Year Ended Year Ended
December 31, December 31,
1997 1996
------------------ -------------------
Expense (benefit) at statutory rate $ 77,000 $112,000
State income tax benefit,
net of federal 13,000 6,000
Change in valuation allowance (94,000) (139,000)
Effect of change in ownership on
net operating loss carryforward - -
Other 4,000 39,500
------------------ -------------------
Actual tax expense (benefit) - $18,500
================== ===================
NOTE 10. OPERATING LEASES
COMPANY AS LESSOR: The Company leases equipment, primarily VCC units, under
noncancelable operating leases expiring in various years. The cost of equipment
subject to such leases is recorded as leased equipment.
The operating lease payment stream related to leases initiated in 1996 was
assigned to a third party, on a non-recourse basis, for a lump sum payment to
the Company in 1996. The present value of the cash received was recorded as
deferred revenue and is being recognized into revenue over the term of the
underlying leases. These underlying leases terminate in 1997 and 1998. Deferred
revenue recorded by the Company related to these leases as of December 31, 1997
and 1996 was approximately $20,000 and $116,000, respectively. Future minimum
lease payments to be received for operating leases in which the payment stream
has not been assigned to a third party are $15,192, $15,192 and $11,224 for
1998, 1999, and 2000, respectively.
COMPANY AS LESSEE: The Company has operating leases for certain development
related IBM computers, office equipment and its office premises. The rental
payments under these leases are charged to expense as incurred. All the leases
provide that the Company pay taxes, maintenance, insurance, and other operating
expenses applicable to the leases. Lease expense in 1997 and 1996 was
approximately $112,000 and $103,000, respectively. The future minimum lease
payments are approximately $94,000, $22,000 and $2,000 for the years 1998, 1999
and 2000, respectively.
NOTE 11. SUBSEQUENT EVENT
On February 27, 1998 the Company purchased certain software and other assets
relating to the system software business of Infinite Graphics Incorporated
("IGI"), a Minnesota corporation based in Minneapolis. The acquisition will be
recorded as an asset purchase. The acquisition agreement provides for an initial
payment of $500,000 and additional payments of up to $3,500,000. The payment of
up to $3,300,000 of this additional payment is contingent on the future net
income of this business segment and is determinable as of May 31, 1999. In the
twelve months ended December 31, 1997 the unaudited revenue of IGI's software
segment was $1,683,000 and the gross margin was $621,000.
The acquired software and assets will be used by the Company to design, assemble
and market computer-aided design and manufacturing software systems that operate
on a variety of mid-range and personal computer platforms. Assets purchased in
the acquisition include inventory, machinery and equipment, furniture and
fixtures, a perpetual exclusive software license of a majority of the IGI
software products used in the system software business and a non-exclusive
21
<PAGE>
GLOBAL MAINTECH CORPORATION AND SUBSIDIARY
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
license of certain software used in IGI's remaining business segment. IGI will
reimburse the Company for the liabilities of IGI explicitly assumed by the
Company in connection with the acquisition. The Company also agreed to satisfy
IGI's unrecorded service obligations to the software end users in return for
which the Company expects to receive support payments from such end users.
In addition, in February 1998 the Company began a 400,000 share private
placement of common stock at $1.90 per share and had issued 221,000 shares as of
March 23, 1998. Maven Securities, Inc. acted as the placement agent wherein the
Company agreed to pay the placement agent a 10% commission, a 3% fee for
expenses and to issue to such agent a warrant to purchase up to 10% of the
number of shares of common stock issued in connection with such offering at an
exercise price of $1.90 per share. The shares of common stock issued pursuant to
this issuance are exempt from registration under Rule 506 of Regulation D of the
Securities Act of 1933, as amended.
22
<PAGE>
PART III
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS.
Not applicable.
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT.
The information with respect to Directors of the Company under the caption
"Election of Board of Directors" contained in the Company's Proxy Statement
relating to the Annual Meeting of Shareholders for the year ending December 31,
1997 is incorporated herein by reference.
The information with respect to the Executive Officers of the Company under
the caption "Executive Officers" contained in the Company's Proxy Statement
relating to the Annual Meeting of Shareholders for the year ending December 31,
1997 is incorporated herein by reference.
The information contained under the caption "Compliance with Section 16(a)
of the Securities Exchange Act of 1934" contained in the Company's Proxy
Statement relating to the Annual Meeting of Shareholders for the year ending
December 31, 1997 is incorporated herein by reference.
ITEM 10. EXECUTIVE COMPENSATION.
The information contained under the caption "Executive Compensation" in the
Company's Proxy Statement relating to the Annual Meeting of Shareholders for the
year ending December 31, 1997 is incorporated herein by reference.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The information contained under the caption "Security Ownership of Certain
Beneficial Owners and Management" in the Company's Proxy Statement relating to
the Annual Meeting of Shareholders for the year ending December 31, 1997 is
incorporated herein by reference.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information contained under the caption "Related Transactions" in the
Company's Proxy Statement relating to the Annual Meeting of Shareholders for the
year ending December 31, 1997 is incorporated herein by reference.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Index of Exhibits (Not included herein.)
EXHIBIT
DESCRIPTION NUMBER
- ----------- -------
Agreement and Plan of Merger dated December 6, 1994, 2
as amended, among the Company, Mirror Consolidation Company, and
MAINTECH Resources, Inc. (the Articles of Merger are attached
thereto as Exhibit A) (incorporated herein by reference to the
Registrant's Form 8-K filed with the Commission on January 19,
1995).
Bylaws of the Company, as amended (incorporated herein 3.2
by reference to the Registrant's Form S-1 (File No. 33-34894)).
Restated Articles of Incorporation of the Company, as amended in 3.3
May 15, 1995 annual meeting of common stockholders (corporate name
change and increase in authorized stock) (incorporated herein by
23
<PAGE>
reference to the Registrant's Form 10-KSB for the year ended
December 31, 1995).
Amendment to Amended and Restated Articles of Incorporation of 3.4
the Company, filed November 12, 1996 (incorporated herein by
reference to the Registrant's Form 10-KSB for the year ended
December 31, 1997).
Form of 11% Convertible Subordinated Debenture due 4.2
July 1, 1996 (incorporated herein by reference to the Registrant's
Form 10-KSB for the year ended March 31, 1991.)
Form of Registration Agreement between the Company and 4.3
holders of the Company's 11% Convertible Subordinated Debentures
Due July 1, 1996 (incorporated herein by reference to the
Registrant's Form 10-K for the year ended March 31, 1991).
Form of Certificate of the Company's Series A 4.4
Convertible Preferred Stock (incorporated herein by reference to
the Registrant's Form 10-KSB for the year ended December 31, 1994).
Form of Certificate of the Company's Common Stock 4.5
following change of corporate name (incorporated herein by
reference to the Registrant's Form 10-KSB for the year ended
December 31, 1995).
The Company's 1989 Stock Option Plan (incorporated 10.1
herein by reference to Exhibit 28 to the Registrant's Registration
Statement on Form S-8, (File 33-33576)).
Amendments No. 1 and 2, dated October 17, 1991 and April 24, 10.2
1992, respectively, to the Company's 1989 Stock Option Plan
(incorporated herein by reference to the Registrant's Form 10-K for
the year ended March 31, 1992).
Mirror Technologies, Incorporated 401(K) Plan effective 10.3
April 1, 1992 (incorporated herein by reference to the Registrant's
Form 10-K for the year ended March 31, 1992).
Lease Agreement dated April 22, 1993 between the Company and 10.4
Opus Corporation (incorporated by reference to the Registrant's
Form 10-KSB for the year ended March 31, 1993).
Sales Agency Agreement dated January 6, 1994 between the 10.5
Company and MacUSA, Inc. (incorporated by reference to the
Registrant's Form 8-K filed on January 21, 1994).
Office Lease Agreement between the Company and Jason Bassett 10.6
Creek Plaza dated March 28, 1994 (incorporated herein by reference
to the Registrant's Form 10-KSB for the fiscal year ended March 31,
1994).
Office Lease Agreement between the Company and Physician's 10.7
and Surgeon's Capital Corporation dated October 1, 1994
(incorporated herein by reference to the Registrant's Form 10-KSB
for the year ended December 31, 1994).
Office and Warehouse Lease Agreement between MAINTECH 10.8
Resources, Inc. and David D. Heinen dated December 20, 1994
(incorporated herein by reference to the Registrant's Form 10-KSB
for the year ended December 31, 1994).
24
<PAGE>
Exclusive Distributor and Licensing Agreement between 10.9
Yutaka Takagi and Circle Corporation and MAINTECH Resources, Inc.
and Global MAINTECH, Inc. dated December 20, 1994 (incorporated
herein by reference to the Registrant's Form 10-KSB for the year
ended December 31, 1994).
Office Lease Agreement between the Company and Charles and 10.10
Sharron Mills dated December 12, 1995 (incorporated herein by
reference to the Registrant's Form 10-KSB for the year ended
December 31, 1995).
Brokerage Asset Purchase Agreement between Norcom Resources, 10.11
Inc. and Global MAINTECH, Inc. dated December 31, 1995
(incorporated herein by reference to the Registrant's Form 10-KSB
for the year ended December 31, 1995).
Amendment No. 3, dated May 15, 1995 to the Company's 1989 10.12
Stock Option Plan (incorporated herein by reference to the
Registrant's Form 10-KSB for the year ended December 31, 1995).
Sale contract between Burlington Northern Railroad Company and 10.13
Global MAINTECH, Inc. dated March 21, 1996 (incorporated herein by
reference to the Registrant's Form 10-KSB for the year ended
December 31, 1995).
License and Asset Purchase Agreement between Infinite Graphics 10.14
Incorporated and the Company dated February 27, 1998.
Office Lease between the Company and Compass Marketing, Inc., 10.15
sublessor, and Glenborough Reality Trust Incorporated, lessor,
dated March 3, 1998.
Subsidiaries of the Registrant (incorporated herein by reference to 21
the Registrant's Form 10-KSB for the year ended December 31, 1994).
Consent of KPMG Peat Marwick LLP 23
Financial Data Schedule 27
Cautionary Statement 99
(b) Reports on Form 8-K
No Form 8-K was filed in the last quarter of the twelve month period ended
December 31, 1997.
25
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Global MAINTECH Corporation
Dated: April 8, 1998 By /S/ JAMES GEISER
---------------------------
James Geiser
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/S/ DAVID MCCAFFREY Chief Executive Officer April 8, 1998
- --------------------------------- (Principal Executive Officer) and
David McCaffrey Director
/S/ JAMES GEISER Chief Financial Officer and Secretary April 8, 1998
- --------------------------------- (Principal Financial and Accounting
James Geiser Officer)
/S/ ROBERT E. DONALDSON Director April 8, 1998
- ---------------------------------
Robert E. Donaldson
/S/ JOHN E. HAUGO Director April 8, 1998
- ---------------------------------
John E. Haugo
</TABLE>
26
<PAGE>
Exhibit Index
EXHIBIT
DESCRIPTION NUMBER
- ----------- -------
*License and Asset Purchase Agreement between Infinite Graphics 10.14
Incorporated and the Company dated February 27, 1998.
Office Lease between the Company and Compass Marketing, Inc.,
sublessor, and Glenborough Realty Trust Incorporated, lessor, 10.15
dated March 3, 1998
*Consent of KPMG Peat Marwick LLP 23
*Financial Data Schedule 27
*Cautionary Statement 99
- ----------
*Previously filed on March 31, 1998
<PAGE>
Exhibit 10.15
Office Lease
LANDLORD'S CONSENT TO SUBLEASE
Glenborough Properties, L.P., successor in interest to Outlook Income Fund 9,
hereby consents to this Sublease dated March 3, 1998, between Compass Marketing,
Inc., as Sublessor, and Global Maintech, Inc., as Sublessee, without waiver of
any restriction in the Lease concerning further assignment or subletting and
without waiver of any of its rights in the Lease as to Compass Marketing, Inc.
GLENBOROUGH PROPERTIES, L.P.,
a California limited partnership
By: Glenborough Realty Trust Incorporated,
a Maryland corporation
Its General Partner
By: /s/ S.M. Boyle
-------------------------------
Its: Exec. Vice President
-------------------------------
<PAGE>
SUBLEASE AGREEMENT
THIS AGREEMENT is made as of this 3rd day of March, 1998 between Compass
Marketing, Inc. (a Minnesota corporation), hereinafter referred to as
"Sublessor", and Global Maintech, Inc. (a Minnesota corporation), hereinafter
referred to as "Sublessee".
WITNESSETH, WHEREAS:
Sublessor, as Tenant, entered into a lease with Outlook Income Fund 9, as
Landlord, dated November 12, 1993 and amended on January 28, 1997, leasing
certain space containing approximately 10,543 square feet of space in the
building located at Bryant Lake Business Center, 7574-7578 Market Place Drive,
Eden Prairie, Minnesota (the "Building"), to which lease (hereinafter, the
"Prime Lease") reference is hereby made, and which is incorporated by reference
as if the same were herein set forth at length; and
The parties hereto have agreed that Sublessor shall sublet approximately
10,543 square feet of such space to Sublessee;
NOW THEREFORE, the parties hereto hereby covenant and agree as follows:
1. Sublessor hereby subleases to Sublessee said 10,543 square feet, more or
less, of the space in said Building, as depicted on Exhibit "A" attached hereto
and made a part hereof, (the "Subleased Premises"), for a term beginning July 1,
1998 and ending March 31, 2000, unless sooner terminated in accordance herewith.
Sublessee to pay to Sublessor a monthly Base Rental rate as follows:
Base Rent Total Base Rent
Per Month Per Period
--------- ---------------
July 1, 1998 through and
including July 31, 1998 $ 0.00 $ 0.00
August 1, 1998 through and
including December 31, 1998 $6,282.00 $31,410.00
January 1, 1999 through and
including December 31, 1999 $6,827.00 $81,924.00
January 1, 2000 through and
including March 31, 2000 $7,027.00 $21,081.00
Sublessee shall also be responsible for any Additional Rent as set forth in
paragraph 4 hereof, on the first day of each and every month during the term
hereof.
2. The Subleased Premises shall be used for a network management and
maintenance equipment company.
3. Sublessee shall not assign its interest in this Sublease nor further
sublet the Subleased Premises in whole or in part; and shall not permit its
interest in this Sublease to be vested in any third party by operation of law or
otherwise.
4. Sublessee shall also pay its share of Additional Rent as described in
Section 2.18 in the Prime Lease in monthly installments in advance on the first
day of each and every month during the term
<PAGE>
Sublease Agreement
Page 2
hereof, commencing August 1, 1998. Electricity, gas, garbage removal and phone
hook-ups shall be in the name of Sublessee and paid for directly by Sublessee
commencing July 1, 1998.
5. This Sublease is subject and subordinate to the Prime Lease. Except as
may be inconsistent with the terms hereof, all the terms, covenants and
conditions contained in the Prime Lease shall be applicable to this Sublease
with the same force and effect as if Sublessor were the lessor under the Prime
Lease and Sublessee were the lessee thereunder, and in the case of any breach
hereof by Sublessee, Sublessor shall have all the rights against Sublessee as
would be available to the lessor against the lessee under the Prime Lease if
such breach were by the lessee thereunder.
6. Notwithstanding anything to the contrary herein set forth, the only
services or rights to which Sublessee may be entitled hereunder are those to
which Sublessor may be entitled under the Prime Lease.
7. Sublessee shall neither do nor permit anything to be done which would
cause the Prime Lease to be terminated or forfeited by reason of any right of
termination or forfeiture reserved or vested in the lessor under the Prime
Lease, and Sublessee shall indemnify and hold Sublessor harmless from and
against all claims of any kind whatsoever by reason of which the Prime Lease may
be terminated or forfeited.
8. Sublessee has paid Sublessor on the execution and delivery of this
Sublease the sum of Ten Thousand Eight Hundred Thirty-One and 27/100 Dollars
($10,831.27) as security for the full and faithful performance of the terms,
covenants and conditions of this sublease on Sublessee's part to be performed or
observed, including but not limited to payment of Base Rent and Additional Rent
in default or for any other sum which Sublessor may expend or be required to
expend by reason of Sublessee's default, including any damages or deficiency in
reletting the Subleased Premises, in whole or in part, whether such damages
shall accrue before or after summary proceedings or other re-entry by Sublessor
or the Prime Landlord. If Sublessee shall fully and faithfully comply with all
the terms, covenants and conditions of this sublease on Sublessee's part to be
performed or observed, the security, or any unapplied balance thereof, shall be
returned to Sublessee after the time fixed as the expiration of the demised term
and after the removal of Sublessee and surrender of possession of the Subleased
Premises to Sublessor.
9. If actual possession of the Subleased Premises shall not be available
by September 1, 1998, Sublessee may elect, within thirty (30) days thereafter,
to cancel this Sublease. If this Sublease shall be so canceled, Sublessor shall
refund to Sublessee any rent or security theretofore paid or delivered to
Sublessor hereunder, and upon such refund this Sublease shall have no force or
effect.
10. Sublessee represents that it has read and is familiar with the terms of
the Prime Lease.
11. All prior understandings and agreements between the parties are merged
within this Agreement, which alone fully and completely sets forth the
understanding of the parties; and this Sublease may not be changed or terminated
orally or in any manner other than by an agreement in writing to which the
written consent of the lessor under the Prime Lease shall have been obtained.
12. Any notice or demand which either party may or must give to the other
hereunder shall be in writing and delivered personally or sent by certified
mail, return receipt requested, addressed if to Sublessor as follows:
<PAGE>
Sublease Agreement
Page 3
Compass Marketing, Inc.
Attn:
with a copy thereof to the Landlord under the Prime Lease in the manner and at
the place designated in the Prime Lease, and if to Sublessee, as follows:
Global Maintech, Inc.
7575 Market Place Drive
Eden Prairie, MN 55344
Attn:
with a copy thereof to the Landlord under the Prime Lease in the manner and at
the place designated in the Prime Lease. Either party may, by notice in writing,
direct that future notices or demands be sent to a different address.
14. The Sublessor agrees to provide the following improvements to
the Subleased Premises:
a) Service and certify that the HVAC unit(s) serving the Subleased
Premises are in good working condition as of the commencement date.
b) Shampoo the carpet throughout.
c) Replace any burned out lights.
d) Re-key the Subleased Premises.
13. The covenants and agreements herein contained shall bind and inure to
the benefit of Sublessor, Sublessee, and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the date and year first above written.
SUBLESSEE: SUBLESSOR:
GLOBAL MAINTECH, INC. COMPASS MARKETING, INC.
(A MINNESOTA CORPORATION) (A MINNESOTA CORPORATION)
By: /s/ James Geiser By: /s/ Keith A. Harrison
---------------------------- -----------------------------
Its: CFO Its: Vice President
-------------------------- -----------------------------
Date: 1/21/98 Date: 2/19/98
------------------------- -----------------------------
<PAGE>
EXHIBIT "A"
[Description of Floor Plan]
<PAGE>
EXHIBIT "B"
FIRST AMENDMENT TO LEASE
This First Amendment to Lease is made and entered into this 28th day of
January, 1997, by and between Outlook Income Fund 9, a California limited
partnership ("Landlord"), and Arundel-Doerr-Harrison Co., Inc., a Minnesota
corporation ("Tenant").
RECITALS
--------
This First Amendment is made with reference to the following facts and
objectives:
A. By Lease Agreement and Addendum to Lease dated November 12, 1993
(collectively, the "Lease"), Tenant leased from Landlord the premises described
in Section 2.13. of the Lease (the "Premises"), which consists of approximately
6,195 square feet of office and warehouse space (further identified as Units 1 &
2) in that certain building located at 7576-7578 Market Place Drive, which is a
part of the Project known as Bryant Lake Business Center in Eden Prairie,
Minnesota.
B. Landlord and Tenant desire to extend the term of the Lease, expand the
Premises, and to otherwise amend the terms and conditions of the Lease as
hereinafter set forth.
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
AGREEMENT
---------
1. Section 2.5. of the Lease is hereby modified and amended to set forth
the Expiration Date as March 31, 2000.
2. Effective as of April 1, 1997, Tenant shall lease from Landlord an
additional approximately 4,348 rentable square feet of space (further identified
as Unit 3) located at 7574 Market Place Drive in the Bryant Lake Business Center
(the "Expansion Premises"), as shown on Exhibit A-1 attached hereto and
incorporated herein by this reference, for a period coterminous with the
existing Lease Term. Section 2.13. of the Lease shall thereupon be modified and
amended to set forth that the Premises, as expanded, shall be approximately
10,543 square feet of rentable space.
3. Effective as of April 1, 1997, Sections 2.2. and 2.9. of the Lease
shall be modified and amended to set forth Monthly Installments of Base Rent for
the Expansion Premises as follows:
April 1, 1997 through March 31, 1998 $2,152.00
April 1, 1998 through March 31, 1999 $2,217.00
April 1, 1999 through March 31, 2000 $2,283.00
4. Effective as of January 1, 1999, Sections 2.2. and 2.9. of the Lease
shall be further modified and amended to set forth Monthly Installments of Base
Rent for the Units 1 & 2 as follows:
January 1, 1999 through December 31, 1999 $4,610.00
January 1, 2000 through March 31, 2000 $4,744.00
5. Effective as of April 1, 1997, Section 2.18. of the Lease shall be
modified and amended to set forth Tenant's Proportionate Share as 17.36%.
6. Section 2.7. of the Lease is hereby modified and amended to set forth
Landlord's rent payment address as follows:
Outlook Income Fund 9
c/o Glenborough Corporation
10330 Regency Parkway Drive, Suite 304
Omaha, NE 68114
7. The Lease is hereby modified and amended to include the following:
Telecommunications.
------------------
(a) Telecommunications Companies. Tenant and Tenant's
----------------------------
telecommunications companies, including but not limited to local exchange
telecommunications companies and alternative access vendor services companies
("Telecommunications Companies"), shall have no right of access to and within
the lands or Buildings comprising Landlord's real property for the installation
and operation of telecommunications systems including but not limited to voice,
video, data, and any other telecommunications services provided over wire, fiber
optic, microwave, wireless and any other transmission systems, for part or all
of Tenant's telecommunications within the Building and from the Building to any
other location (hereinafter collectively referred to as "Telecommunications
Systems"), without Landlord's prior written consent, which Landlord may withhold
in its sole and absolute discretion. Notwithstanding the foregoing, Tenant may
perform any installation, repair and maintenance to its Telecommunications
Systems without Landlord's consent where the equipment being installed, repaired
or maintained is not located in an area in which the Telecommunications Systems
or any part thereof of any other tenant or of Landlord are located.
(b) Tenant's Obligations. If at any time, Tenant's Telecommunications
Companies or appropriate governmental authorities relocate the point of
demarcation from the location of Tenant's telecommunications equipment in
Tenant's telephone equipment room or other location, to some other point, or in
2
<PAGE>
any other manner transfer any obligations or liabilities for
telecommunications to Landlord or Tenant, whether by operation of law or
otherwise, upon Landlord's election, Tenant shall, at Tenant's sole expense
and cost: (1) within thirty (30) days after notice is first given to Tenant
of Landlord's election, cause to be completed by an appropriate
telecommunications engineering entity approved in advance in writing by
Landlord, all details of the Telecommunications Systems serving Tenant in
the Building which details shall include all appropriate plans, schematics,
and specifications; and (2) immediately undertake the operations, repair
and maintenance of the Telecommunications Systems serving Tenant in the
Building; and (3) upon the termination of the Lease for any reason, or upon
expiration of the Lease, immediately effect the complete removal of all or
any portion or portions of the Telecommunications Systems serving Tenant in
the Building and repair any damage caused thereby (to Landlord's reasonable
satisfaction).
Prior to the commencement of any alterations, additions, or
modifications to the Telecommunications Systems serving Tenant in the
Building, except for minor changes, Tenant shall first obtain Landlord's
prior written consent by written request accompanied by detailed plans,
schematics, and specifications showing all alterations, additions and
modifications to be performed, with the time schedule for completion of the
work, and the identity of the entity which will perform the work, for
which, except as otherwise provided in Paragraph (c) below, Landlord may
withhold consent in its sole and absolute discretion.
(c) Landlord's Consent. Without in any way limiting Landlord's right
------------------
to withhold its consent to a proposed request for access, or for
alterations, additions or modifications of the Telecommunications Systems
serving Tenant in the Building, Landlord shall consider the following
factors in making its determination:
i. If the proposed actions of Tenant and its Telecommunications
Companies will impose new obligations on Landlord, or expose Landlord
to liability of any nature or description, or increase Landlord's
insurance premiums for the Building, or create liabilities for which
Landlord is unable to obtain insurance protection, or imperil
Landlord's insurance coverage;
ii. If Tenant's Telecommunications Companies are unwilling to pay
reasonable monetary compensation for the use and occupation of the
Building for the Telecommunications Systems;
iii. If Tenant and its Telecommunications Companies would cause
any work to be performed that would adversely affect the land and
Building or any space in the Building in any manner;
iv. If Tenant encumbers or mortgages its interest in any
telecommunications wiring or cabling; or
v. If Tenant is in default under this Lease.
(d) Indemnification. Tenant shall indemnify and hold harmless Landlord
---------------
and its employees, agents, officers, and directors from and against any
claims, demands, penalties, fines, liabilities, settlements, damages,
costs, or expenses of any kind or nature, known or unknown, contingent or
otherwise, arising out of or in any way related to the acts and omissions
of Tenant, Tenant's officers, directors, employees, agents, contractors,
subcontractors, subtenants, and invitees with respect to (1) any
Telecommunications Systems serving Tenant in the Building which are on,
from, or affecting the land and Building; (2) any personal injury
(including wrongful death) or property damage (real or personal) arising
out
3
<PAGE>
of or related to any Telecommunications Systems serving Tenant in the
Building which are on, from, or affecting the Building; (3) any lawsuit
brought or threatened, settlement reached, or governmental order relating
to such Telecommunications Systems; (4) any violations of laws, orders,
regulations, requirements, or demands of governmental authorities, or any
reasonable policies or requirements of Landlord, which are based upon or in
any way related to such Telecommunications Systems, including, without
limitation, attorney and consultant fees, court costs, and litigation
expenses. This indemnification and hold harmless agreement will survive
this Lease. Under no circumstances shall Landlord be required to maintain,
repair or replace any Building systems or any portions thereof, when such
maintenance, repair or replacement is caused in whole or in part by the
failure of any such system or any portions thereof, and/or the requirements
of any governmental authorities. Under no circumstances shall Landlord be
liable for interruption in telecommunications services to Tenant or any
other entity affected, for electrical spikes or surges, or for any other
cause whatsoever, whether by Act of God or otherwise, even if the same is
caused by the ordinary negligence of Landlord, Landlord's contractors,
subcontractors, or agents or other tenants, subtenants, or their
contractors, subcontractors, or agents.
8. All other terms and conditions of the Lease shall remain in full force
and effect.
This First Amendment modifies and amends the Lease. To the extent there are
any inconsistencies between this First Amendment and the Lease, the terms and
provisions of this First Amendment shall control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
to Lease as of the date first above written.
LANDLORD:
OUTLOOK INCOME FUND 9,
a California limited partnership
By: Glenborough Corporation
a California corporation
Its Managing General Partner
By: /s/ Sandra M. Boyle
--------------------------
Its President
----------------------
TENANT:
ARUNDEL-DOERR-HARRISON CO., INC.,
a Minnesota corporation
By: /s/ Robert H. Doerr
--------------------------
Its Vice President
----------------------
By:
--------------------------
Its
----------------------
4
<PAGE>
Exhibit A-1
-----------
Floor Plan
[MAP]
Information contained herein has been obtained from the owner of the property or
from other sources that we deem reliable. We have no reason to doubt its
accuracy, but we do not guarantee it.
<PAGE>
BRYANT LAKE BUSINESS CENTER
Lease Agreement
<PAGE>
TABLE OF CONTENTS
1. LEASE OF PREMISES.................................................... 1
2. DEFINITIONS.......................................................... 1
3. EXHIBITS AND ADDENDA................................................. 2
4. DELIVERY OF POSSESSION............................................... 3
5. INTENDED USE OF THE PREMISES......................................... 3
6. RENT................................................................. 3
6.1. Payment of Base Rent......................................... 3
6.2. Adjusted Base Rent........................................... 3
6.3. Additional Rent for Operating Expenses, Real Property Taxes
and Insurance Costs.......................................... 3
6.4. Taxes on Tenant's Use and Occupancy.......................... 5
6.5. Net Lease.................................................... 5
7. INTEREST AND LATE CHARGES............................................ 6
8. SECURITY DEPOSIT..................................................... 6
9. TENANT'S USE OF THE PREMISES......................................... 6
9.1. Use.......................................................... 6
9.2. Observance of Law............................................ 6
9.3. Insurance.................................................... 7
9.4. Nuisance and Waste........................................... 7
9.5. Load and Equipment Limits.................................... 7
9.6. Hazardous Material........................................... 7
9.7. Use of Common Area........................................... 8
10. SERVICES AND UTILITIES............................................... 8
11. REPAIRS AND MAINTENANCE.............................................. 8
11.1. Landlord's Obligations....................................... 8
11.2. Tenant's Obligations......................................... 8
11.3. Compliance with Law.......................................... 9
11.4. Notice of Defect............................................. 9
11.5. Landlord's Liability......................................... 9
12. CONSTRUCTION, ALTERATIONS AND ADDITIONS.............................. 9
12.1. Landlord's Construction Obligations.......................... 9
12.2. Tenant's Construction Obligations............................ 9
12.3. Tenant's Alterations and Additions........................... 9
12.4. Payment...................................................... 9
12.5. Property of Landlord......................................... 10
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY............................ 10
13.1. Leasehold Improvements....................................... 10
13.2. Tenant's Property............................................ 10
14. INDEMNIFICATION...................................................... 10
14.1. Tenant Indemnification....................................... 10
14.2. Landlord Not Liable.......................................... 10
15. TENANT'S INSURANCE................................................... 11
15.1. Insurance Requirement........................................ 11
15.2. Fire and Extended Coverage................................... 11
15.3. General Liability and Property Damage........................ 11
15.4. Increases in Insurance Policy Limits......................... 11
15.5. Worker's Compensation Insurance.............................. 11
15.6. Waiver of Subrogation........................................ 11
16. DAMAGE OR DESTRUCTION................................................ 12
16.1. Damage....................................................... 12
16.2. Repair of Premises in Excess of One Hundred Eighty Days...... 12
16.3. Repair Outside Premises...................................... 12
16.4. Tenant Repair................................................ 12
16.5. Election Not to Perform Landlord's Work...................... 12
16.6. Express Agreement............................................ 12
i
<PAGE>
17. EMINENT DOMAIN....................................................... 12
17.1. Whole Taking................................................. 12
17.2. Partial Taking............................................... 12
17.3. Proceeds..................................................... 13
17.4. Landlord's Restoration....................................... 13
18. ASSIGNMENT AND SUBLETTING............................................ 13
18.1. No Assignment or Subletting.................................. 13
18.2. Landlord's Consent........................................... 13
18.3. Tenant Remains Responsible................................... 14
18.4. Payment of Fees.............................................. 14
19. DEFAULT.............................................................. 14
19.1. Tenant's Default............................................. 14
19.2. Landlord Remedies............................................ 15
19.3. Damages Recoverable.......................................... 15
19.4. Landlord's Right to Cure Tenant's Default.................... 16
19.5. Landlord's Default........................................... 16
19.6. Mortgagee Protection......................................... 16
19.7. Tenant's Right to Cure Landlord's Default.................... 16
20. WAIVER............................................................... 16
21. SUBORDINATION AND ATTORNMENT......................................... 16
22. TENANT ESTOPPEL CERTIFICATES......................................... 17
22.1. Landlord Request for Estoppel Certificate.................... 17
22.2. Failure to Execute........................................... 17
24. TRANSFER OF LANDLORD'S INTEREST...................................... 17
25. SURRENDER OF PREMISES................................................ 17
25.1. Clean and Same Condition..................................... 17
25.2. Failure to Deliver Possession................................ 18
25.3. Property Abandoned........................................... 18
26. HOLDING OVER......................................................... 18
27. RULES AND REGULATIONS................................................ 18
28. CERTAIN RIGHTS RESERVED BY LANDLORD.................................. 18
29. ADVERTISEMENTS AND SIGNS............................................. 19
30. RELOCATION OF PREMISES............................................... 19
31. GOVERNMENT ENERGY OR UTILITY CONTROLS................................ 19
32. FORCE MAJEURE........................................................ 19
33. BROKERAGE FEES....................................................... 19
34. QUIET ENJOYMENT...................................................... 20
35. MISCELLANEOUS........................................................ 20
35.1. Accord and Satisfaction; Allocation of Payments.............. 20
35.2. Addenda...................................................... 20
35.3. Attorneys' Fees.............................................. 20
35.4. Captions and Section Numbers................................. 20
35.5. Changes Requested by Lender.................................. 20
35.6. Choice of Law................................................ 20
35.7. Consent...................................................... 20
35.8. Corporate Authority.......................................... 20
35.9. Counterparts................................................. 20
35.10. Execution of Lease; No Option................................ 20
35.11. Furnishing of Financial Statements; Tenant's Representations. 20
35.12. Further Assurances........................................... 20
35.13. Prior Agreements; Amendments................................. 21
35.14. Recording.................................................... 21
35.15. Severability................................................. 21
35.16. Successors and Assigns....................................... 21
35.17. Time of the Essence.......................................... 21
ii
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LEASE
-----
This lease between Outlook Income fund 9, a California limited partnership
(herein Landlord), and Arundel - Doerr - Harrison Co., Inc. a Minnesota
------------------------------------ ---------
Corporation (herein Tenant), is dated for reference purposes only as of this
- -----------
12th day of November, 1993.
- ---- -------- --
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 6.) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A", and further described at Section 2.14. The Premises are located within the
building and Project (as described in Sections 2.14. and 2.13.). Tenant shall
have the nonexclusive right (unless otherwise provided herein) in common with
Landlord, other tenants, subtenants and invitees, to use the Common Area (as
defined in Section 2.4.). This Lease confers no rights either with regard to the
subsurface of the land below the ground level of the Building in which the
Premises is located or with regard to airspace, interior or exterior, above the
ceiling of the Building.
2. DEFINITIONS.
As used in this Lease the following terms shall have the following meanings:
2.1. ADJUSTMENT DATE: Each successive anniversary of Tenant's First
Adjustment Date (as described in Section 2.17.).
2.2. ANNUAL BASE RENT:
Lease Year 1: $45,966.90*
----------
Lease Year 2: $45,966.90
----------
Lease Year 3: $49,560.00
----------
Lease Year 4: $49,560.00
----------
Lease Year 5: $49,560.00
----------
*Landlord shall abate monthly installments of Base Rent for months
------------------------------------------------------------------
1-3, of lease year one (1), on 3,026 sf, only.
- ----------------------------------------------
2.3. COMMENCEMENT DATE: January 1, 1994. If the Commencement Date is
---------------
other than the first day of a month, then the Expiration Date of the
Lease shall be extended to the last day of the month in which the
Lease expires.
2.4. COMMON AREA: The building parking areas, landscaped areas and other
generally understood public or common area. Landlord shall have the
right to regulate or restrict the use of the Common Area.
2.5. EXPIRATION DATE: December 31, 1998, unless otherwise sooner
-----------------
terminated in accordance with the provisions of this Lease.
2.6. Intentionally left blank.
2.7. LANDLORD'S MAILING ADDRESS:
c/o Glenborough Corporation
400 South El Camino Real, Suite 1100
San Mateo, California 94402-1708
RENT PAYMENT ADDRESS:
Glenborough Corporation
-------------------------------------
11483 Valley View Road
-------------------------------------
Eden Prairie, MN 55344
-------------------------------------
TENANT'S MAILING ADDRESS:
Arundel - Doerr - Harrison Co., Inc.
-------------------------------------
7576-78 Market Place Drive
-------------------------------------
Eden Prairie, MN 55344
-------------------------------------
2.8. LISTING AND LEASING AGENT(S): None
---------------------------------------
------------------------------------------------------------------- .
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2.9. MONTHLY INSTALLMENTS OF BASE RENT:
Lease Year 1: $3,830.58* per month
---------
Lease Year 2: $3,830.58 per month
---------
Lease Year 3: $4,130.00 per month
---------
Lease Year 4: $4,130.00 per month
---------
Lease Year 5: $4,130.00 per month
---------
*Landlord shall abate monthly installments of Base Rent for months
------------------------------------------------------------------
1-3, of Lease year one (1) on 3,026 sf, only.
----------------------------------------------
2.10. NOTICE: Except as otherwise provided herein, Notice shall mean any
notices, approvals and demands permitted or required to be given
under this Lease. Notice shall be given in the form and manner set
forth in Section 23.
2.11. ESTIMATED OPERATING EXPENSES, REAL PROPERTY TAXES INSURANCE COSTS -
YEAR ONE (Section 6.3.): During the first calendar year of the Lease
Term, Landlord's estimate of Operating Expenses, Real Property Taxes
and Insurance Costs is $0.32 per square foot of Usable Area per
----
month.
2.12. PARKING: Tenant shall be entitled to the nonexclusive use of 20
--
parking spaces and the exclusive use of 0 parking spaces located on
-
the Property. The charge for parking shall be $0.00 per month per
-----
parking space for the Term.
2.13. PREMISES: That portion of the Building containing approximately 6,195
-----
square feet of Usable Area (consisting of 5,384 square feet of office
-----
space and 811 square feet of warehouse space), shown by diagonal
---
lines on Exhibit "A", located at 7576-78 Market Place Drive, Eden
--------------------------------
Prairie, MN 55344, and known as Unit 1 & 2.
----------------- -----
2.14. PROJECT: The building of which the Premises are a part (the Building)
and other buildings or improvements on the real property (the
Property) located at 7562-7578 Market Place Drive, Eden Prairie, MN
----------------------------------------------
further described at Exhibit "B". The Project is common known as
Bryant Lake Business Center - Phase I.
-------------------------------------
2.15. SECURITY DEPOSIT (Section 8.): $3,830.58.
--------
2.16. STATE: The State of Minnesota.
---------
2.17. Intentionally left blank.
2.18. TENANT'S PROPORTIONATE SHARE: 10.20%. Such share is a fraction, the
-----
numerator of which is the Usable Area of the Premises, and the
denominator of which is the Usable Area of the Project, as determined
by Landlord from time to time. The Project consists of two (2)
-------
building(s) containing a total of 60,757 square feet.
------
2.19. TENANT'S USE: (Section 9.): Office sales and storage of consumer
-------------------------------------
electronics.
-----------
2.20. TERM: The period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
2.21. USABLE AREA: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to
lease by Tenant and all tenants of the Project, respectively, as
determined by Landlord and applied on a consistent basis throughout
the Project.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are attached hereto and
incorporated by reference in this Lease:
3.1. Exhibit A - Floor Plan showing the Premises.
3.2. Exhibit B - Site Plan of the Project.
3.3. Exhibit C - Building Standard Tenant Improvements.
3.4. Exhibit D - Tenant Work Letter and Drawings.
3.5. Exhibit E - Rules and Regulations.
3.6. Addenda: Attached hereto and made a part of this Lease by reference
are Sections 36-37.
-----
2
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4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date, and such failure is not caused by an act or omission
of Tenant, the Expiration Date shall be extended by the number of days the
Commencement Date has been delayed and the validity of this Lease shall not be
impaired nor shall Landlord be subject to any liability for such failure; but
Rent shall be abated until delivery of possession. Provided, however, if the
Commencement Date has been delayed by an act or omission of Tenant then Rent
shall not be abated until delivery of possession and the Expiration Date shall
not be extended. Delivery of possession shall be deemed to occur on the date
Landlord receives a Certificate of Occupancy or upon substantial completion of
the Premises, as certified by Landlord's architect. If Landlord permits Tenant
to enter into possession of the Premises before the Commencement Date, such
possession shall be subject to the provisions of this Lease, including, without
limitation, the payment of Rent.
Within ten (10) days of delivery of possession Landlord shall deliver to Tenant
and Tenant shall execute an Acceptance of Premises in which Tenant shall
certify, among other things, that (a) Landlord has satisfactorily completed
Landlord's Work to the Premises pursuant to Exhibit "D", unless written
exception is set forth thereon, and (b) that Tenant accepts the Premises.
Tenant's failure to execute and deliver the Acceptance of Premises shall be
conclusive evidence, as against Tenant, that Landlord has satisfactorily
completed Landlord's Work to the Premises pursuant to Exhibit "D".
In the event Tenant fails to take possession of the Premises following execution
of this Lease, Tenant shall reimburse Landlord promptly upon demand for all
costs incurred by Landlord in connection with entering into this Lease
including, but not limited to, broker fees and commissions, sums paid for the
preparation of a floor and/or space plan for the Premises, costs incurred in
performing Landlord's Work pursuant to Exhibit "D", loss of rental income,
attorneys' fees and costs, and any other damages for breach of this Lease
established by Landlord.
5. INTENDED USE OF THE PREMISES.
The statement in this Lease of the nature of the business to be conducted by
Tenant in the Premises does not constitute a representation or guaranty by the
Landlord as to the present or future suitability of the Premises for the conduct
of such business in the Premises, or that it is lawful or permissible under the
certificate of occupancy issued for the Building, or is otherwise permitted by
law. Tenant's taking possession of the Premises shall be conclusive evidence, as
against Tenant, that, at the time such possession was taken, the Premises were
satisfactory for Tenant's intended use.
6. RENT.
6.1. Payment of Base Rent. Tenant shall pay the Base Rent for the
--------------------
Premises. Monthly installments of Base Rent shall be payable in advance on the
first day of each calendar month of the Term. If the Term begins (or ends) on
other than the first (or last) day of a calendar month, the Base Rent for the
partial month shall be prorated based on a thirty (30) day month. The Rent shall
be paid to the Landlord at the Rent Payment Address set forth in Section 2.7.,
or to such other person at such place as Landlord may from time to time
designate in writing, without any prior demand therefor and without deduction or
offset, in lawful money of the United States of America. Tenant shall pay
Landlord the first Monthly Installment of Base Rent upon execution of this
Lease.
6.2. Intentionally Left Blank.
6.3. Additional Rent for Operating Expenses, Real Property Taxes and
---------------------------------------------------------------
Insurance Costs. Tenant shall pay Tenant's Proportionate Share of Operating
- ---------------
Expenses, Real Property Taxes and Insurance Costs (hereinafter sometimes
together referred to as Direct Costs) based on the percentages set forth in
Section 2.18. Tenant's Proportionate Share of Direct Costs shall be deemed
Additional Rent. Additional Rent, together with Base Rent and all other costs
and
3
<PAGE>
expenses Tenant assumes or is obligated to pay to Landlord under the Lease, may
be collectively referred to as Rent.
6.3.1. Definitions. As used in this Section 6.3., the following terms
-----------
shall have the following meanings:
6.3.1.1. Operating Expenses. The term Operating Expenses
------------------
shall mean all costs and expenses of every kind and nature, paid or
incurred by Landlord, because of or in connection with the management,
operations, protection, replacement, repair, ownership, maintenance or
occupation of the Building, Project and such additional facilities and
personal property as Landlord may determine to be necessary or
beneficial; including, without limiting the generality of the
foregoing: (a) maintenance, repair, cleaning, painting and the cost of
replacement of the structural parts of the Building (including the
roof, foundation, floor slab and load bearing walls) amortized over
the useful life of such replacement, the exterior surfaces of the
Building, (b) the cost amortized over the useful life of capital
improvements constructed to comply with any law not in effect or
applicable to the Building or Project as of the Commencement Date; (c)
modification of existing or construction of additional capital
improvements or building service equipment which reduce the
consumption of utilities or services or the Operating Expenses of the
Building or Project and replacement of capital improvements or
building service equipment existing as of the Commencement Date when
required because of normal wear and tear or obsolescence; (d) Common
Area electric, gas and water, plumbing and sewage, the parking area,
the lighting fixtures, directional signs, the irrigation systems and
all landscaping of the Building or Project, snow and ice removal and
fire safety equipment service; (e) the cost of compliance with all
applicable laws and any covenants, conditions or restrictions
(including payment of charges assessed pursuant thereto); (f)
auditing, accounting, legal and other outside services; (g)
depreciation or rental of maintenance and operating machinery and
equipment; (h) that portion of all compensation and payroll (including
benefits and premiums for worker's compensation and other insurance)
paid to or for the benefit of Landlord's employees involved in the
performance of work described in this subsection which is allocable to
the Building or Project; (i) supplies and materials consumed in
connection with the Building or Project; (k) a management fee Not to
exceed 5% of gross receipts; and (j) any other costs or expense which
would be deductible business expense for Federal Income tax purposes.
Notwithstanding the foregoing, the following shall not be
included within Operating Expenses: (v) interest or rent paid to any
Lender; (w) the cost of constructing tenant improvements for Tenant or
any other tenant of the Building or Project; (x) Operating Expenses
charged to and paid by any other tenant of the Building or Project;
(y) the cost of special services, goods or materials provided to any
other tenant of the Building or Project; (z) repairs covered by
proceeds of insurance or from funds provided by Tenant or any other
tenant of the Building or Project.
6.3.1.2. Real Property Taxes. As used herein, the term Real
-------------------
Property Taxes shall include every form of tax (other than general net
income or estate taxes of Landlord), charge, levy, assessment, fee,
license fee, service fee (including, without limitation, those based
on commercial rentals, energy or environmental grounds as well as any
increase due to reassessment or escape assessment whether caused by
sale or lease of the Premises, Building or Project or otherwise),
ordinary or extraordinary, imposed by any authority having direct or
indirect power to tax, including, without limitation, any city,
county, state or federal government or quasi-government entity or any
improvement utility, beautification or similar district against any
legal or equitable interest of Landlord in, or against Landlord's
right to rent, the Premises or the Building, and any such tax, charge,
levy, assessment or fee imposed, in addition to or in substitution for
any tax previously included within the definition of real property
tax, partially or totally, whether or not foreseeable or now within
the contemplation of the parties provided that all separately
identifiable real property taxes attributable solely to Tenant's
business or Tenant's improvements which are valued at an amount in
excess of the Building standard improvements, shall be paid entirely
by Tenant, and not prorated with other tenants of the Building or
Project. Tenant's obligation to pay its share of the assessments, as
provided in this Section 6.3.1.2., shall be calculated on the basis of
the amount due if Landlord allows the assessments to go to bond, and
the assessment is to be paid in installments, even if Landlord pays
the assessment in full. Real Property Taxes for each tax year shall be
apportioned to determine the Real Property Taxes for the subject
calendar years.
6.3.1.3. Insurance Costs. The term Insurance Costs shall mean
---------------
all costs and expenses paid or incurred by Landlord to obtain and keep
in force during the Term of this Lease policies of insurance
providing coverage for (a) public liability; (b) loss of or damage to
the Building or Project in such amount or percentage of replacement
value as Landlord or its insurance advisor deems
4
<PAGE>
reasonable in relation to the age, location, type of construction and
physical condition of the Building or Project and the availability of
such insurance at reasonable rates; and (c) loss of rental income for
a period of one year, which insurance shall also cover all Real
Property Taxes and Insurance Costs for the same period. Such policies
shall provide protection against all perils included with the
classification of fire, extended coverage, vandalism, malicious
mischief, special perils (all risk) sprinkler leakage, and other
perils which Landlord deems necessary.
6.3.2. Determination and Payment of Operating Expenses. Real Property
--------------------------------------------------------------
Taxes and Insurance Costs. Tenant's Proportionate Share of Operating
-------------------------
Expenses, Real Property Taxes and Insurance Costs shall be paid as follows:
6.3.2.1. Monthly Estimate. On or before the last day of each
----------------
December during the Term of the Lease or any extended period thereof,
Landlord shall deliver to Tenant a written statement showing in
reasonable detail Landlord's projected Direct Costs for the ensuing
calendar year. During the ensuing calendar year, Tenant shall pay
Tenant's Proportionate Share of estimated Direct Costs in advance in
equal monthly installments pursuant to the same provisions as Monthly
Installments of Base Rent. If during the course of the calendar year
Landlord determines that actual Direct Costs will vary from its
estimate by more then five percent (5%), Landlord may deliver to
Tenant a written statement showing Landlord's revised estimate of
Direct Costs; whereupon payments of Tenant's Proportionate Share of
estimated Direct Costs shall be adjusted and thereafter paid on the
basis of Landlord's revised estimate.
6.3.2.2. Annual Reconciliation. On or before the first day of
---------------------
each April during the Term of this Lease or any extended period
thereof, Landlord shall furnish to Tenant a written statement of
reconciliation (Reconciliation) showing in reasonable detail
Landlord's actual Direct Costs for the preceding calendar year. In the
event such Reconciliation shows that additional sums are due from
Tenant, Tenant shall pay such sums to Landlord within ten (10) days of
receipt of such Reconciliation to the end that Landlord shall receive
the entire amount of Tenant's Proportionate Share of Direct Costs for
the preceding year and no more. In the event such Reconciliation shows
that a credit is due Tenant, such credit shall be credited against the
next sums becoming due from Tenant, unless this Lease has expired or
been terminated pursuant to the terms hereof (and all sums due
Landlord have been paid), in which event such sums shall be refunded
to Tenant. Neither Landlord's failure to deliver nor late delivery of
the statement of projected Direct Costs nor of such Reconciliation to
Tenant shall constitute a default by Landlord or operate as a waiver
of Landlord's right to collect all Additional Rent or sums due
hereunder. Tenant agrees that no written request of such
Reconciliation shall be made until the Reconciliation for such period
shall be due.
6.3.2.3. Tenant's Inspection of Reconciliation Accounting
------------------------------------------------
Records. Provided Tenant is not in default under the terms of the
-------
Lease and following prior written request to Landlord, Tenant shall
have the right to inspect Landlord's reconciliation accounting records
relating to Direct Costs at Landlord's corporate office, during normal
business hours, within thirty (30) days of receipt of any annual
Reconciliation of Direct Costs, for the purpose of verifying the
charges contained in such statement. Tenant may not withhold any
payment due Landlord pending completion of such inspection.
6.4. Taxes on Tenant's Use and Occupancy. In addition to the Rent and any
-----------------------------------
other charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord
upon demand for any and all taxes payable by Landlord (other than net income
taxes) which are not otherwise reimbursable under this Lease, whether or not
now customary or within the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (a) the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located in
the Premises, or the cost or value of any leasehold improvements made in or to
the Premises by or for Tenant, other than Building Standard Tenant Improvements
made by Landlord, regardless of whether title to such improvements is held by
Tenant or Landlord; (b) the gross or net Rent payable under this Lease,
including, without limitation, any rental or gross receipts tax levied by any
taxing authority with respect to the receipt of the Rent hereunder; (c) the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion thereof; or (d) this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises. If it becomes unlawful for Tenant to
reimburse Landlord for any costs as required under Section 6., the Base Rent
shall be revised to net Landlord the same net Rent after imposition of any tax
or other charge upon Landlord as would have been payable to Landlord but for the
reimbursement being unlawful.
6.5. Net Lease. It is the intention of the parties hereto that this Lease
---------
shall be completely net to Landlord and shall not be terminable for any reason
by Tenant, and that Tenant shall not be entitled to any abatement of or
reduction in Rent or other amounts hereunder, except as herein expressly
provided regardless of disturbance, prevention,
5
<PAGE>
interruption or inconvenience in the use and occupancy of the Premises from any
cause whatsoever, whether within or beyond the present contemplations of the
parties. With respect to the foregoing, any present or future law to the
contrary is hereby waived by Tenant, and shall not alter this agreement of the
parties.
7. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or Additional Rent or other amounts or
charges which Tenant is obligated to pay under the terms of this Lease, then
Tenant shall pay Landlord a late charge equal to six percent (6%) of such
installment if any such installment is not received by Landlord within five (5)
days from the date it is due. Tenant acknowledges that the late payment of any
Rent or Additional Rent will cause Landlord to lose the use of that money and
incur costs and expenses not contemplated under this Lease including, without
limitation, administrative and collection costs and processing and accounting
expenses, the exact amount of which is extremely difficult to ascertain.
Landlord and Tenant agree that this late charge represents a reasonable estimate
of such costs and expenses and is fair compensation to Landlord for the loss
suffered from such nonpayment by Tenant. Acceptance of any late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease. If tenant vacates the premises in
default of the lease, Tenant shall be obligated to pay interest at the maximum
applicable rate then allowed by law on any unpaid monies from the date the
monies became due until payment is received by Landlord. Late charges and
interest shall be deemed Additional Recent and are included collectively in the
term Rent.
In no event shall this provision for the imposition of a late charge be deemed
to grant to Tenant a grace period or an extension of time within which to pay
any Rent or Additional Rent due hereunder or prevent Landlord from exercising
any right or remedy available to Landlord upon Tenant's failure to pay such Rent
or Additional Rent when due.
8. SECURITY DEPOSIT.
Tenant agrees to deposit with Landlord the Security Deposit set forth in Section
2.15. upon execution of this Lease as security for Tenant's faithful
performance of its obligations under this Lease. Landlord and Tenant agree that
the Security Deposit may be commingled with funds of Landlord and Landlord shall
have no obligation or liability for payment of interest on such deposit. Tenant
shall not mortgage, assign, transfer or encumber the Security Deposit without
the prior written consent of Landlord and any attempt by Tenant to do so shall
be void, without force or effect and shall not be binding upon the Landlord.
If Tenant fail to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may, at its option
and without prejudice to any other remedy which Landlord may have on account
thereof, appropriate and apply or use all or any portion of the Security Deposit
for Rent payments or any other amount then due and unpaid, for payment of any
amount for which Landlord has become obligated as a result of Tenant's default
or breach, and for any loss or damage sustained by Landlord as a result of
Tenant's default or breach. If Landlord so uses any of the Security Deposit,
Tenant shall, within ten (10) days after written demand therefor, restore the
Security Deposit to the full amount originally deposited. Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have the
right to exercise any remedy provided for at Section 19. hereof.
If Tenant complies with all of the terms and conditions of this Lease, and
Tenant is not in default on any of its obligations hereunder, then within the
time period statutorily prescribed after Tenant vacates the Premises, Landlord
shall return to Tenant (or, at Landlord's option, to the last subtenant or
assignee of Tenant's interest hereunder) the Security Deposit less any
expenditures made by Landlord to repair damages to the Premises caused by Tenant
and to clean the Premises upon expiration or earlier termination of this Lease.
In the event of bankruptcy or other debtor-creditor proceedings against Tenant,
such Security Deposit shall be deemed to be applied first to the payment of Rent
and other sums due Landlord for all periods prior to the filing of such
proceedings.
9. TENANT'S USE OF THE PREMISES.
The provisions of this Section are for the benefit of the Landlord and are not
nor shall they be construed to be for the benefit of any tenant of the Building
or Project.
9.1. Use. Tenant shall use the Premises solely for the purposes set forth
---
in Section 2.19.
9.2. Observance of Law. Tenant shall not use or occupy the Premises or
-----------------
permit anything to be done in or about the Premises in violation of any
covenant, condition or restriction, or law, statute, ordinance or governmental
rules, regulations or requirements now in force or which may hereafter be
enacted or promulgated. Tenant shall, at its sole cost and
6
<PAGE>
expense, upon Notice from Landlord, immediately discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction to
be a violation of law or the Certificate of Occupancy and promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force which shall be
reason of the nature of Tenant's use or occupancy of the Premises, impose any
duty upon Tenant or Landlord with respect to the nature of Tenant's use or
occupation. The judgment of any court of competent jurisdiction or the admission
by Tenant in any action or proceeding against Tenant, whether Landlord is a
party thereto or not, that Tenant has violated any such law, statute, ordinance,
or governmental regulation, rule or requirement in the use of the Premises shall
be conclusive of the fact as between Landlord and Tenant.
9.3. Insurance. Tenant shall not do or permit to be done anything which
---------
will invalidate or increase the cost of any fire, extended coverage or other
insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of Landlord's insurance carrier(s) or any board of fire
insurance underwriters or other similar body now or hereafter constituted,
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not related to or affected by Tenant's improvements
or acts. Tenant shall promptly upon demand reimburse Landlord for any additional
premium charged for violation of this Section.
9.4 Nuisance and Waste. Tenant shall not do or permit anything to be done
------------------
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or Project, or injure or
annoy them, or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or suffer to
be committed any waste in or upon the Premises.
9.5. Load and Equipment Limits. Tenant shall not place a load upon any
-------------------------
floor of the Premises which exceeds the load per square foot which such floor
was designed to carry as determined by Landlord or Landlord's structural
engineer. The cost of any such determination made by Landlord's structural
engineer in connection with Tenant's occupancy shall be paid by Tenant upon
Landlord's demand. Tenant shall not install business machines or mechanical
equipment which will in any manner cause noise objectionable to or injure other
tenants in the Project.
9.6. Hazardous Material.
------------------
9.6.1. Unless Tenant obtains the prior written consent of Landlord,
Tenant shall not create, generate, use, bring, allow, emit, dispose, or
permit on the Premises, Building or Project any toxic or hazardous gaseous,
liquid or solid material or waste (Hazardous Material), including without
limitation, material or substance (a) having characteristics of
ignitability, corrosivity, reactivity, or extraction procedure toxicity, or
(b) which is listed on any applicable federal, state or local law, rule,
regulation or ordinance, or (c) which has been determined by any state,
federal or local governmental or public authority or agency to be capable
of posing a risk of injury to health, safety or property.
9.6.2. Tenant shall indemnify and hold Landlord harmless from any
claims, liabilities, costs or expenses incurred or suffered by Landlord
arising from such bringing, allowing, using, permitting, generating,
creating, emitting or disposing of Hazardous Material whether or not
consent to same has been granted by Landlord. Tenant's indemnification and
hold harmless obligations include, without limitation (a) claims,
liability, costs or expenses resulting from or based upon administrative,
judicial (civil or criminal) or other action, legal or equitable, brought
by any private or public person under common law or any federal, state,
county or municipal law, ordinance or regulation, including, without
limitation, any subsequent tenant or owner of the Premises or adjacent
property, (b) claims liabilities, costs or expenses pertaining to the
cleanup or containment of Hazardous Material, the identification of the
pollutants in the Hazardous Material, the identification of the scope of
any environmental contamination, the removal of pollutants from soils,
riverbeds or acquifers, the provision of an alternative public drinking
water source, (c) all costs and fees incurred in defending such claims, and
(d) all costs or losses to Landlord arising from inability or delay in
selling or leasing the Premises after the expiration of the Lease,
including, without limitation, reduction in the market value of the
Premises, Building or Project. Tenant shall comply at its sole cost, with
all laws pertaining to such Hazardous Material. Tenant's hold harmless and
indemnity obligations hereunder shall survive the expiration or sooner
termination of this Lease.
9.6.3. Tenant shall provide to Landlord a copy of any permit
applications and/or permits issued by any governmental agency concerning
Tenant's use or generation of Hazardous Material on or about the Premises.
9.6.4. In the event Landlord grants Tenant permission to so bring,
allow, use, permit, generate, create, emit or dispose Hazardous Material as
set forth in Section 9.6.1. above (a) Tenant shall provide to Landlord on
an annual basis a report from a
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person who is, to Landlord's satisfaction, appropriately qualified or
licensed as an expert in the field of hazardous materials laws compliance
matters, certifying that Tenant is complying with all applicable
governmental statues and regulations concerning Hazardous Material, and
that there have been no spills or contamination by Tenant at the Premises
that have not been fully corrected and cleaned up and, (b) prior to any
such bringing, allowing, using permitting, generating, creating, emitting
or disposing of Hazardous Materials, Tenant shall provide proof
satisfactory to Landlord that tests prove there was existing contamination
by such Hazardous Material (which was not the result of acts or omissions
of Tenant) or if Tenant fails to provide such proof it shall be
conclusively presumed between the parties that any such contamination
thereafter existing at, on or emitted from the Premises was caused solely
by Tenant.
9.6.5. In the event of contamination by Hazardous Material at,
from, of or around the Premises, the Building or the Project, the cleanup
of which is the responsibility of Tenant, Landlord may require within
fifteen (15) days after written notification from Landlord, that Tenant
post a bond or other adequate security to the benefit of Landlord, in an
amount equal to Landlord's estimate of costs for cleaning up the
contamination. The posting of the bond does not relieve Tenant from
fulfilling its responsibility to clean up the contamination. After the
contamination has been cleaned up and certified, as set forth above, the
bond or other adequate security shall be returned to Tenant.
9.7. Use of Common Area. Tenant is hereby granted, for so long as it is
------------------
not in default hereunder, a non-exclusive license to use in common with other
occupants of the Building or Project, if any, such facilities within or without
the Building which are designated from time to time for the general use, benefit
or convenience of Tenant and the other tenants or occupants of the Building or
Project or their employees, customers, authorized representatives or invitees.
Tenant shall use the Common Area in conformity with the reasonable rules and
regulations and changes thereto from time to time promulgated by Landlord
governing the use, maintenance, management, and operation of said Common Area.
The manner and nature of the installation and maintenance of the Common Area
shall be subject to the sole discretion of Landlord. Landlord reserves the right
from time to time to make changes in the shape, size, location and extent of
same provided that any such change shall be after Notice to Tenant, except as
may be required by law or government agencies. Landlord retains the right to
promulgate such aforesaid reasonable rules, regulations and changes from time to
time and also retains the right to temporarily close the Common Area from time
to time in order to prevent a dedication thereof or for the making of repairs or
performance of maintenance.
10. SERVICES AND UTILITIES.
Tenant shall make all arrangements for and pay for all utilities and services
furnished to or used by it, including, without limitation, gas, electricity,
heating, air conditioning and other ventilation, janitorial, water, sewage,
telephone service, trash collection, including any taxes thereon, and for all
connection charges, except for those utility and services Landlord is to acquire
for the account of the tenants to service the Common Area.
Landlord shall not be in default hereunder or be liable for any damages directly
or indirectly resulting from, nor shall the Rent be abated by reason of, (a) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services, (b) failure to furnish or delay in
furnishing any such services where such failure or delay is caused by accident
or any condition or event beyond the reasonable control of Landlord, or by the
making of necessary repairs or improvements to the Premises, Building or
Project, or (c) the limitation, curtailment or rationing of, or restrictions on,
use of water, electricity, gas or any other form of energy serving the Premises,
Building or Project. Landlord shall not be liable under any circumstances for a
loss of or injury to property or business, however occurring, through, in
connection with or incidental to the failure to furnish any such services.
11. REPAIRS AND MAINTENANCE.
11.1. Landlord's Obligations. Landlord shall make all structural repairs
----------------------
except as specified herein and shall maintain in good order, condition and
repair the Building and all other portions of the Premises not the obligation of
Tenant or of any other tenant in the Building.
11.2. Tenant's Obligations.
--------------------
11.2.1 Tenant shall, at Tenant's sole expense and except for services
furnished by Landlord pursuant to Section 10. hereof, maintain the Premises
in good order, condition and repair. For the purposes of this Section
11.2.1., the term Premises shall be deemed to include all items and
equipment installed by or for the benefit of or at the expense of Tenant,
including without limitation the interior surfaces of the ceilings, walls
and floors; all doors; all interior and exterior windows; dedicated
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heating, ventilating and air conditioning equipment (Tenant shall procure
and maintain at Tenant's expense a heating and air conditioning system
maintenance contract); all plumbing, pipes and fixtures; electrical
switches and fixtures; and Building Standard Tenant Improvements, if any.
11.2.2. Tenant shall be responsible for all repairs and alterations
in and to the Premises, Building and Project and the facilities and systems
thereof to the satisfaction of Landlord, the need for which arises out of
(a) Tenant's use or occupancy of the Premises, (b) the installation,
removal, use or operation of Tenant's Property (as defined in Section 13.)
in the Premises, (c) the moving of Tenant's Property into or out of the
Building, or (d) the act, omission, misuse or negligence of Tenant, its
agents, contractors, employees or invitees.
11.2.3. If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Notice to Tenant to do such acts
as are reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to completion, then
Landlord shall have the right to do such acts and expend such funds at the
expense of Tenant as are reasonably required to perform such work.
11.3. Compliance with Law. Landlord and Tenant shall each do all acts
-------------------
necessary to comply with all applicable laws, statutes, ordinances, and rules of
any public authority relating to their respective maintenance obligations as set
forth herein.
11.4. Notice of Defect. If it is Landlord's obligation to repair, Tenant
----------------
shall give Landlord prompt Notice of any damage to or defective condition,
regardless of the nature or cause, in any part or appurtenance of the Building.
11.5. Landlord's Liability. Except as otherwise expressly provided in
--------------------
this Lease, Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease or by any other tenant's lease or required by law to make in or to
any portion of the Project, Building or Premises. Landlord shall nevertheless
use reasonable efforts to minimize any interference with Tenant's conduct of its
business in the Premises.
12. CONSTRUCTION, ALTERATIONS AND ADDITIONS.
12.1. Landlord's Construction Obligations. Landlord shall perform
-----------------------------------
Landlord's Work to the Premises as described in Exhibit "D".
12.2. Tenant's Construction Obligations. Tenant shall perform Tenant's
---------------------------------
Work to the Premises as described in Exhibit "D" and shall comply with all of
the provisions of this Section 12.
12.3. Tenant's Alterations and Additions. Except as provided in Section
----------------------------------
12.2. above, Tenant shall not make any other additions, alterations or
improvements to the Premises without obtaining the prior written consent of
Landlord. Landlord's consent may be conditioned on Tenant removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or improvement
shall comply with all applicable laws, ordinances, codes and rules of any public
authority and shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. The work shall be performed in a manner
that will not interfere with the quiet enjoyment of the other tenants in the
Building in which the Premises is located.
Landlord may require, in Landlord's sole discretion and at Tenant's sole cost
and expense, that Tenant provide Landlord with a lien and completion bond in an
amount equal to at least one and one-half (1-1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the Premises.
Nothing contained in this Section 12.3. shall relieve Tenant of its obligation
under Section 12.4. to keep the Premises, Building and Project free of all
liens.
12.4. Payment. Tenant shall pay the costs of any work done on the Premises
-------
pursuant to Sections 12.2. and 12.3., and shall keep the Premises, Building and
Project free and clear of liens of any kind. Tenant hereby indemnifies, and
agrees to defend against and keep Landlord free and harmless from all liability,
loss, damage, costs, attorneys' fees and any other expense incurred on account
of claims by any person performing work or furnishing materials or supplies for
Tenant or any person claiming under Tenant.
Tenant shall give Notice to Landlord at least ten (10) business days prior to
the expected date of commencement of any work relating to alterations, additions
or improvements to the
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Premises. Landlord retains the right to enter the Premises and post such notices
as Landlord deems proper at any reasonable time.
12.5 Property of Landlord. Unless their removal is required by Landlord as
--------------------
provided in Section 12.3., all additions, alterations and improvements made to
the Premises shall become the property of Landlord and be surrendered with the
Premises upon the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures shall remain the Property of Tenant and may be
removed, subject to the provisions of Section 13.2.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
13.1 Leasehold Improvements. All fixtures, equipment (including
----------------------
air-conditioning or heating systems), improvements and appurtenances attached to
or built into the Premises at the commencement or during the Term of the Lease
(Leasehold Improvements), whether or not by or at the expense of Tenant, shall
be and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section 13.2,
unless Landlord, by Notice to Tenant not later than thirty (30) days prior to
the expiration of the Term, elects to have Tenant remove any Leasehold
Improvements installed by Tenant. In such case, Tenant, at Tenant's sole cost
and expense and prior to the expiration of the Term, shall remove the Leasehold
Improvements and repair any damage caused by such removal.
13.2. Tenant's Property. All signs, notices, displays, movable partitions,
-----------------
business and trade fixtures, machinery and equipment (excluding air-conditioning
or heating systems, whether installed by Tenant or not), communications
equipment and office equipment located in the Premises and acquired by or for
the account of Tenant, without expense to Landlord, which can be removed without
structural damage to the Building, and all furniture, furnishings and other
articles of movable personal property owned by Tenant and located in the
Premises (collectively, Tenant's Property) shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term;
provided that if any of Tenant's Property is removed, Tenant shall promptly
repair any damage to the Premises or to the Building resulting from such
removal, including without limitation repairing the flooring and patching and
painting the walls where required by Landlord to Landlord's resonable
satisfaction, all at Tenant's sole cost and expense.
14. INDEMNIFICATION.
14.1. Tenant Indemnification. Tenant shall indemnify and hold Landlord
----------------------
harmless from and against any and all liability and claims of any kind for loss
or damage to any person or property arising out of: (a) Tenant's use and
occupancy of the Premises, or the Building or Project, or any work, activity or
thing done, allowed or suffered by Tenant in, on or about the Premises, the
Building or the Project; (b) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (c) any negligent or otherwise tortious act or
omission of Tenant, its agents, employees, subtenants, licensees, customers,
guests, invites or contractors. At Landlord's request, Tenant shall, at
Tenant's expense, and by counsel satisfactory to Landlord, defend Landlord in
any action or proceeding arising from any such claim. Tenant shall indemnify
Landlord against all costs, attorney's fees, expert witness fees and any other
expenses or liabilities incurred in such action or proceeding. As a material
part of the consideration for Landlord's execution of this Lease. Tenant hereby
assumes all risk of damage or injury to any person or property in, on or about
the Premises from any cause and Tenant hereby waives all claims in respect
thereof against Landlord, except in connection with damage or injury resulting
from the negligence or willful misconduct of Landlord or its authorized agents.
14.2. Landlord Not Liable. Landlord shall not be liable for injury or
-------------------
damage which may be sustained by the person or property of Tenant, its
employees, invitees or customers, or any other person in or about the Premises,
caused by or resulting from fire, steam, electricity, gas, water or rain which
may leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning, lighting fixtures or mechanical or electrical
systems, whether such damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or Project or from other
sources, unless the condition was the result of Landlord's negligence or
willful misconduct. Landlord shall not be liable for any damages arising from
any act or omission of any other tenant of the Building or Project or for the
acts of persons in, on or about the Premises, Building or Project who are not
the authorized agents of Landlord.
Tenant acknowledges that Landlord's election to provide mechanical surveillance
or to post security personnel in the Building or on the Project is within
Landlord's discretion; Landlord shall have no liability in connection with the
decision whether or not to provide such services and Tenant hereby waives all
claims based thereon. Landlord shall not be liable for losses due to theft,
vandalism or like causes. Tenant shall defend, indemnify and hold Landlord
harmless from any such claims made by any employee, licensee, invitee,
contractor, agent or other person whose presence in, on, or about the Premises,
Building or Project is attendant to the business of Tenant.
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15. TENANT'S INSURANCE.
15.1. Insurance Requirement. All insurance required to be carried by
---------------------
Tenant hereunder shall be issued by responsible insurance companies acceptable
to Landlord and Landlord's lender and qualified to do business in the State.
Each policy shall name Landlord, Glenborough Management Corporation and, at
Landlord's request, any mortgagee of Landlord, as additional insureds, as their
respective interests may appear. The issuing companies shall have a rating of
not less than "A" in the latest edition of Best's Insurance Guide and shall be
at least a Class XII company. Each policy shall contain (a) a cross-liability
endorsement, (b) a provision that such policy and the coverage evidenced thereby
shall be primary and noncontributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess insurance,
and (c) a waiver by the insurer of any right of subrogation against Landlord,
its agents, employees and representatives, which arises or might arise by reason
of any act or omission of Landlord, its agents, employees or representatives. A
copy of each paid up policy (authenticated by the insurer) or the certificate of
the insurer evidencing the existence and amount of each insurance policy
required hereunder shall be delivered to Landlord before the date Tenant is
first given the right of possession of the Premises, and thereafter within
thirty (30) days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance policies required
to be maintained by Tenant hereunder. No such policy shall be cancellable or
subject to reduction of coverage or other modification or cancellation except
after thirty (30) days prior written notice to Landlord and Landlord's lender by
the insurer. Tenant shall furnish Landlord with renewals or "binders" of any
such policy at least twenty (20) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance, Landlord
may (but shall not be required to) procure said insurance on Tenant's behalf and
charge the Tenant the cost thereof together with a twenty-five percent (25%)
handling charge, payable upon demand with interest from the date such sums are
extended at the rate set forth in Section 7. hereof. Tenant shall have the right
to provide such insurance coverage pursuant to blanket policies obtained by
Tenant, provided such blanket policies expressly afford coverage to the
Premises, Landlord, Landlord's mortgagee and Tenant as required by this Lease.
15.2. Fire and Extended Coverage. Beginning on the date Tenant is given
--------------------------
access to the Premises for any purpose and continuing until expiration of the
Term, Tenant shall procure, pay for and maintain in effect policies of property
insurance covering (a) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the provisions of
Section 12. hereof), and (b) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not less
than one hundred percent (100%) of their actual replacement cost from time to
time, providing protection against any peril included with the classification
Fire and Extended Coverage insurance with vandalism and malicious mischief and
all risk endorsements subject to the standard exclusions among which are
earthquake and flood. The proceeds of such insurance shall be used for the
repair or replacement of the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under (a) shall be paid
to Landlord, and the proceeds under (b) about shall be paid to Tenant. Landlord
shall, during the term hereof, maintain in effect similar insurance on the
Common Area, including but not limited to insurance for sprinkler damage,
vandalism and malicious mischief, as well as, all risk, fire and extended
coverage.
15.3. General Liability and Property Damage. Beginning on the date
-------------------------------------
Tenant is given access to the Premises for any purpose and continuing until
expiration of the Term, Tenant shall procure, pay for and maintain in effect
comprehensive general liability and property damage insurance with respect to
the construction of improvements on the Premises, the use, operation or
condition of the Premises and the operations of Tenant in, on or about the
Premises, providing personal injury and broad form property damage coverage of
not less than One Million and 00/100 Dollars ($1,000,000.00) combined single
limit for bodily injury, death and property damage liability. Landlord shall,
during the term hereof, maintain in effect similar insurance coverage on the
Common Area.
15.4. Increases in Insurance Policy Limits. Not less than every five (5)
------------------------------------
years, if, in the opinion of Landlord or Landlord's lender, the amount of
Tenant's insurance policy limits for all insurance to be carried by Tenant as
set forth in this Section 15. is not adequate, Tenant shall increase the
insurance coverage as recommended by either Landlord or Landlord's lender.
15.5. Worker's Compensation Insurance. Beginning on the date Tenant is
-------------------------------
given access to the Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in effect worker's
compensation insurance as required by law.
15.6. Waiver of Subrogation. Landlord and Tenant each hereby waive all
---------------------
rights of recovery against the other and against the officers, employees, agents
and representatives, contractors, and invites of the other, on account of loss
by or damage to the waiving party or its property or the property of others
under its control, to the extent that such loss or damage is insured against
under any insurance policy which may have been in force at the time of such loss
or damage. Tenant shall, upon obtaining the policies of insurance required under
this Lease, give written notice to its insurance carrier or carriers that the
foregoing
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mutual waiver of subrogation is contained in this Lease. In the event either
party is unable to obtain a waiver of subrogation from its insurer, this Section
15.6. shall become void and of no force or effect.
16. DAMAGE OR DESTRUCTION.
16.1. Damage. If, during the term of this Lease, the Premises or the
------
portion of the Building necessary for Tenant's occupancy is damaged by fire or
other casualty covered by fire and extended coverage insurance carried by
Landlord, Landlord shall promptly repair the damage provided (a) such repairs
can, in Landlord's opinion, be completed, under applicable laws and regulations,
within one hundred eighty (180) days of the date a permit for such construction
is issued by the governing authority, (b) insurance proceeds are available to
pay eighty percent (80%) or more of the cost of restoration, and (c) Tenant
performs its obligations pursuant to Section 16.4. hereof. In such event, this
Lease shall continue in full force and effect, except that if such damage is not
the result of the negligence or willful misconduct of Tenant or Tenant's agents,
employees, contractors, licensees or invitees, Tenant shall be entitled to a
proportionate reduction of Rent to the extent Tenant's use of the Premises is
impaired, commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 16.4. If the damage is due to the
fault or neglect of Tenant or its employees, there shall be no abatement of
Rent.
16.2. Repair of Premises in Excess of One Hundred Eighty Days. If in
-------------------------------------------------------
Landlord's opinion, such repairs to the Premises or portion of the Building
necessary for Tenant's occupancy cannot be completed under applicable laws and
regulations within one hundred eighty (180) days of the date a permit for such
construction is issued by the governing authority, Landlord may elect, upon
Notice to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 16.1. If Landlord does not so elect to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
16.3. Repair Outside Premises. If any other portion of the Building or
-----------------------
Project is totally destroyed or damaged to the extent that in Landlord's opinion
repair thereof cannot be completed under applicable laws and regulations within
one hundred eighty (180) days of the date a permit for such construction is
issued by the governing authority, Landlord may elect upon Notice to Tenant
given within thirty (30) days after the date of such fire or other casualty, to
repair such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section
16.1. If Landlord does not so elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
16.4. Tenant Repair. If the Premises are to be repaired under this Section
-------------
16., Landlord shall repair at its cost any injury or damage to the Building and
Building Standard Tenant Improvements, if any. Notwithstanding anything
contained herein to the contrary, Landlord shall not be obligated to perform
work other than Landlord's Work performed previously pursuant to Section 12.1.
hereof. Tenant shall be responsible at its sole cost and expense for the repair,
restoration and replacement of any other Leasehold Improvements and Tenant's
Property. Landlord shall not be liable for any loss of business, inconvenience
or annoyance arising from any repair or restoration of any portion of the
Premises, Building or Project as a result of any damage from fire or other
casualty.
16.5. Election Not to Perform Landlord's Work. Notwithstanding anything to
---------------------------------------
the contrary contained herein, Landlord shall provide Notice to Tenant of its
intent to repair or replace the Premises, and, within five (5) days of its
receipt of such Notice, Tenant shall provide Notice to Landlord of its intent to
reoccupy the Premises. Should Tenant fail to provide such Notice to Landlord,
then such failure shall be deemed an election by Tenant not to re-occupy the
Premises and Landlord may elect not to perform the repair or replacement of the
Premises. Such election shall not result in a termination of this Lease and all
obligations of Tenant hereunder shall remain in full force and effect, including
the obligation to pay Rent.
16.6. Express Agreement. This Lease shall be considered an express
-----------------
agreement governing any case of damage to or destruction of the Premises,
Building or Project by fire or other casualty, and any present or future law
which purports to govern the rights of Landlord and Tenant in such circumstances
in the absence of express agreement shall have no application.
17. EMINENT DOMAIN.
17.1. Whole Taking. If the whole of the Building or Premises is lawfully
------------
taken by condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and Rent
shall be prorated to such date.
17.2. Partial Taking. If less than the whole of the Building or Premises
--------------
is so taken, this Lease shall be unaffected by such taking, provided that (a)
Tenant shall have the right
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to terminate this Lease by Notice to Landlord given within ninety (90) days
after the date of such taking if twenty percent (20%) or more of the Premises is
taken and the remaining area of the Premises is not reasonably sufficient for
Tenant to continue operation of its business, and (b) Landlord shall have the
right to terminate this Lease by Notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the thirtieth (30th) calendar
day after either such Notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking, the Base
Rent and Tenant's Proportionate Share shall be equitably adjusted according to
the remaining Usable Area of the Premises and Project.
17.3. Proceeds. In the event of any taking, partial or whole, all of
--------
the proceeds of any award, judgment or settlement payable by the condemning
authority shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in any award, judgment or
settlement from the condemning authority; however, Tenant shall have the right,
to the extent that Landlord's award is not reduced or prejudiced, to claim from
the condemning authority (but not from Landlord) such compensation as may be
recoverable by Tenant in its own right for relocation expenses and damage to
Tenant's Property and damage to Leasehold Improvements installed at the sole
expense of Tenant.
17.4. Landlord's Restoration. In the event of a partial taking of the
----------------------
Premises which does not result in a termination of this Lease, Landlord shall
restore the remaining portion of the Premises as nearly as practicable to its
condition prior to the condemnation or taking; provided however, Landlord shall
not be obligated to perform work other than Landlord's Work performed previously
pursuant to Section 12.1. hereof. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of Tenant's Property and
any other Leasehold Improvements.
18. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Section 18.
18.1. No Assignment or Subletting. Tenant shall not, without the prior
---------------------------
written consent of Landlord, assign or hypothecate this Lease or any interest
herein or sublet the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant. Any of the foregoing acts without such
consent shall be voidable and shall, at the option of Landlord, constitute a
default hereunder. This Lease shall not, nor shall any interest of Tenant
herein, be assignable by operation of law without the prior written consent of
Landlord.
18.1.1. For purposes of this Section 18., the following shall be
deemed an assignment:
18.1.1.1. If Tenant is a partnership, any withdrawal or
substitution (whether voluntary, involuntary, or by operation of law,
and whether occurring at one time or over a period of time) of any
partner(s) owning twenty-five (25%) or more (cumulatively) of any
interest in the capital or profits of the partnership, or the
dissolution of the partnership.
18.1.1.2. If Tenant is a corporation, any dissolution, merger,
consolidation, or other reorganization of Tenant, any sale or transfer
(or cumulative sales or transfers) of the capital stock of Tenant in
excess of twenty-five (25%), or any sale (or cumulative sales) of
fifty-one (51%) or more of the value of the assets of Tenant provided,
however, the foregoing shall not apply to corporations the capital
stock of which is publicly traded.
18.2. Landlord's Consent. If, at any time or from time to time during the
------------------
Term hereof, Tenant desires to assign this Lease or sublet all or any part of
the Premises and Tenant is not in default under the term of the Lease, Tenant
shall submit to Landlord a written request for approval setting forth the terms
and provisions of the proposed assignment or sublease and the identity of the
proposed assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition of such
proposed assignee or subtenant as Landlord may reasonably request. Landlord
shall have the right to approve such proposed assignee or subtenant, which
approval shall not be unreasonably withheld. Landlord's consent to any
assignment shall not be construed as a consent to any subsequent assignment,
subletting, transfer of partnership interest or stock, occupancy or use.
18.2.1. Landlord's approval shall be conditioned, among other things,
on Landlord's receiving adequate assurances of future performance under
this Lease and any sublease or assignment. In determining the adequacy of
such assurances, Landlord may base its decision on such factors as it deems
appropriate, including but not limited to:
18.2.1.1. that the source of rent and other consideration due
under this Lease, and, in the case of assignment, that the financial
condition and operating
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performance of the proposed assignee and its guarantors, if any, shall
be similar to the financial condition and operating performance of
Tenant and its guarantors, if any, as of the time Tenant became the
lessee under this Lease;
18.2.1.2. that any assumption or assignment of this Lease will
not result in increased cost or expense, wear and tear, greater
traffic or demand for services and utilities provide by Landlord
pursuant to Section 10. hereof and will not disturb or be detrimental
to other tenants of Landlord;
18.2.1.3. whether the proposed assignee's use of the Premises
will include the use of Hazardous Material, or will in any way
increase any risk to Landlord relating to Hazardous Material; and
18.2.1.4. that assumption or assignment of such lease will not
disrupt any tenant mix or balance in the Project.
18.2.2. The assignment or sublease shall be on the same terms and
conditions set forth in the written request for approval given to Landlord,
or, if different, upon terms and conditions consented to by Landlord;
18.2.3. No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises or any part thereof until
an executed counterpart of such assignment or sublease has been delivered
to Landlord;
18.2.4. No assignee or sublessee shall have a further right to assign
or sublet except on the terms herein contained;
18.2.5. Any sums or other economic considerations received by Tenant
as a result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate (a) the total sums
which Tenant is obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to any portion of the Premises subleased),
plus (b) any real estate brokerage commissions or fees payable to third
parties in connection with such assignment or subletting, shall be shared
equally by Tenant and Landlord as Additional Rent under this Lease without
effecting or reducing any other obligations of Tenant hereunder.
18.3. Tenant Remains Responsible. No subletting or assignment shall
--------------------------
release Tenant of Tenant's obligations under this Lease or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an assignee or
subtenant of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee, subtenant or successor. Landlord
may consent to subsequent assignments of the Lease or sublettings or amendments
or modifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their consent
thereto and any such actions shall not relieve Tenant of liability under this
Lease.
18.4. Payment of Fees. If Tenant assigns the Lease or sublets the Premises
---------------
or requests the consent of Landlord to any assignment or subletting, then Tenant
shall, upon demand, pay Landlord, whether or not consent is ultimately given, an
administrative free of Two Hundred Fifty and 00/100 Dollars ($250.00) plus costs
and other expenses incurred by Landlord in connection with each such act or
request.
19. DEFAULT.
19.1. Tenant's Default. The occurrence of any one or more of the following
----------------
events shall constitute a default and breach of this Lease by Tenant:
19.1.1. If Tenant abandons or vacates the Premises; or
19.1.2. If Tenant fails to pay any Rent or Additional Rent or any
other charges required to be paid by Tenant under this Lease and such
failure continues for three (3) days after receipt of Notice thereof from
Landlord to Tenant; or
19.1.3. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease and such failure
continues for thirty (3) days after Notice thereof from Landlord to Tenant;
or
19.1.4. If a writ of attachment or execution is levied on this Lease
or on any of Tenant's Property; or
19.1.5. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition, extension or
adjustment with its creditors; or
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19.16. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal bankruptcy
laws or other insolvency laws is filed and not withdrawn or dismissed
within forty-five (45) days thereafter, or if under the provisions of
any law providing for reorganization or winding up of corporations, any
court of competent jurisdiction assumes jurisdiction, custody or control
of Tenant or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
19.1.7. If in any proceeding or action in which Tenant is a
party, a trustee, receiver, agent or custodian is appointed to take
charge of the Premises or Tenant's Property (or has the authority to do
so) for the purpose of enforcing a lien against the Premises or Tenant's
Property; or
19.1.8. If Tenant is a partnership or consists of more than one
(1) person or entity, if any partner of the partnership or other person
or entity is involved in any of the acts or events described in Sections
19.1.4. through 19.1.7. above.
19.2. Landlord Remedies. In the event of Tenant's default hereunder,
-----------------
then, in addition to any other rights or remedies Landlord may have under any
law or at equity, Landlord shall have the right, at Landlord's option and
without further notice or demand of any kind, to do the following:
19.2.1. Terminate this Lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession thereof, and
Tenant shall have no further claim to the Premises or under this Lease;
or
19.2.2. Continue this Lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid Rent or other
charges which have or thereafter become due and payable, or
19.2.3. Reenter the Premises under the provisions of Section
19.2.2., and thereafter elect to terminate this Lease and Tenant's right
to possession of the Premises.
If Landlord reenters the Premises under the provisions of Section 19.2.1. or
19.2.3. above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing unless
Landlord notifies Tenant in writing of Landlord's election to terminate this
Lease. Acts of maintenance, efforts to relet the Premises or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. In the
event of any reentry or retaking of possession by Landlord, Landlord shall have
the right, but not the obligation, to remove all or any part of Tenant's
Property in the Premises and place such property in storage at a public
warehouse at the expense and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises which are not covered by the rent received from the
reletting.
19.3. Damages Recoverable. Should Landlord elect to terminate this Lease
-------------------
under the provisions of Section 19.2.1 or 19.2.3 above, Landlord may recover as
damages from Tenant the following:
19.3.1. Past Rent. The worth at the time of the award of any
---------
unpaid Rent which had been earned at the time of termination including
the value of any Rent that was abated during the Term of the Lease; plus
19.3.2. Rent Prior to Award. The worth at the time of the award
-------------------
of the amount by which the unpaid Rent which would have been earned
after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided; plus
19.3.3. Rent After Award. The worth at the time of the award of
----------------
the amount by which the unpaid Rent for the balance of the Term after
the time of award exceeds the amount of the rental loss that Tenant
proves could be reasonably avoided; plus
19.3.4. Proximately Caused Damages. Any other amount necessary
--------------------------
to compensate Landlord for all detriment proximately caused by Tenant's
failure to
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perform its obligations under this Lease or which in the ordinary course
of things would by likely to result therefrom, including, but not
limited to, any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b) maintaining
the Premises after Tenant's default, (c) preparing the Premises for
reletting to a new tenant, including any repairs or alterations, and (d)
reletting the premises, including brokers' commissions.
"The worth at the time of the award" as used in items 19.3.1. and 19.3.2. above,
is to be computed by allowing interest at the maximum rate permitted by law to
be charged by an individual. "The worth at the time of the award" as used in
item 19.3.3. above, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank situated nearest to the Premises at
the time of the award plus one percent (1%).
19.4. Landlord's Right to Cure Tenant's Default. If Tenant defaults in
-----------------------------------------
the performance of any of its obligations under this Lease, Landlord may (but
shall not be obligated to), without waiving such default, perform the same for
the account and at the expense of Tenant. Tenant shall pay Landlord all costs of
such performance immediately upon written demand therefor, and if paid at a
later date these costs shall bear interest in accordance with Section 7.
19.5 Landlord's Default. If Landlord fails to perform any covenant,
------------------
condition or agreement contained in this Lease within thirty (30) days after
receipt of Notice from Tenant specifying such default, or, if such default
cannot reasonably be cured within thirty (30) days if Landlord fails to commence
to cure within that thirty (30) day period, then Landlord shall be liable to
Tenant for any damages sustained by Tenant as a result of Landlord's breach;
provided, however, it is expressly understood and agreed that if Tenant obtains
a money judgment against Landlord resulting from any default or other claim
arising under this Lease, that judgment shall be satisfied only out of the
rents, issues, profits, and other income actually received on account of
Landlord's right, title and interest in the Premises, Building or Project, and
no other real, personal or mixed property of Landlord (or of any of the partners
which comprise Landlord, if any), wherever situated, shall be subject to levy to
satisfy such judgment.
19.6. Mortgagee Protection. Tenant agrees to send by certified or
--------------------
registered mail to any first mortgagee or first deed of trust beneficiary of
Landlord whose address has been furnished to Tenant, a copy of any notice of
default served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, then such mortgagee or beneficiary
shall have such additional time to cure the default as is reasonably necessary
under the circumstances.
19.7. Tenant's Right to Cure Landlord's Default. If, after Notice to
-----------------------------------------
Landlord of default, Landlord (or any first mortgagee or first deed of trust
beneficiary of Landlord) fails to cure the default as provided herein, then
Tenant shall have the right to cure that default at Landlord's expense. Tenant
shall not have the right to terminate this Lease or to withhold, reduce or
offset any amount against any payments of Rent or any other charges due and
payable under this Lease except as otherwise specifically provided herein.
Tenant expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair.
20. WAIVER.
No delay or omission in the exercise of any right or remedy of Landlord upon any
default by Tenant shall impair such right or remedy or be construed as a waiver
of such default. The receipt and acceptance by Landlord of delinquent Rent shall
not constitute a waiver of any other default; it shall constitute only a waiver
of timely payment for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only written
acknowledgement from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of this Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this
Lease.
21. SUBORDINATION AND ATTORNMENT.
This Lease is and shall be subject and subordinate to all ground or underlying
leases which now exist or may hereafter be executed affecting the Building or
the land upon which the
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Building is situated, or both, and to the lien of any mortgages or deeds of
trust in any amount or amounts whatsoever now or hereafter placed on or against
the Building or on or against Landlord's interest or estate herein, or on or
against any ground or underlying lease, without the necessity of the execution
and delivery of any further instruments on the part of Tenant to effectuate such
subordination.
If any mortgagee, trustee or ground lessor shall elect to have this Lease prior
to the lien of its mortgage, deed of trust or ground lease, and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust, or ground lease, or the
date of the recording thereof. Tenant covenants and agrees to execute and
deliver upon demand, without charge therefor, such further instruments
evidencing such subordination of this Lease to such ground or underlying leases,
and to the lien of any such mortgages or deeds of trust as may be required by
Landlord.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
22. TENANT ESTOPPEL CERTIFICATES.
22.1. Landlord Request for Estoppel Certificate. Within ten (10) days
-----------------------------------------
after written request from Landlord, Tenant shall execute and deliver to
Landlord or Landlord's designee, in the form requested by Landlord, a written
statement certifying, among other things, (a) that this Lease is unmodified and
in full force and effect, or is in full force and effect as modified and stating
the modifications; (b) the amount of Base Rent and the date to which Base Rent
and Additional Rent have been paid in advance; (c) the amount of any security
deposited with Landlord; and (d) that Landlord is not in default hereunder or,
if Landlord is claimed to be in default, stating the nature of any claimed
default. Any such statement may be conclusively relied upon by a prospective
purchaser, assignee or encumbrancer of the Premises.
22.2. Failure to Execute. Tenant's failure to execute and deliver such
------------------
statement within the time required shall at Landlord's election be a default
under this Lease and shall also be conclusive upon Tenant that: (a) this Lease
is in full force and effect and has not been modified except as represented by
Landlord; (b) there are no uncured defaults in Landlord's performance and that
Tenant has no right of offset, counter-claim or deduction against Rent and (c)
not more than one month's Rent has been paid in advance.
23. NOTICE.
Notice shall be in writing and shall be deemed duly served or given if
personally delivered, sent by certified or registered U.S. Mail, postage prepaid
with a return receipt requested, or sent by overnight courier service, fee
prepaid with a return receipt requested, as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building manager, and (b) if to Tenant, to
Tenant's Mailing Address; provided, however, Notices to Tenant shall be deemed
duly served or given if delivered or sent to Tenant at the Premises. Landlord
and Tenant may from time to time by Notice to the other designate another place
for receipt of future Notice. Notwithstanding anything contained herein to the
contrary, any notice from Landlord to Tenant arising from Section 19. of the
Lease shall be served or given in accordance with State laws and shall be the
only notice required.
24. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, provided the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. This Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee provided all of Landlord's obligations
hereunder are assumed by such transferee. If any security deposit or prepaid
Rent has been paid by Tenant, Landlord shall transfer the security deposit or
prepaid Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
25. SURRENDER OF PREMISES.
25.1. Clean and Same Condition. Upon the Expiration Date or earlier
------------------------
termination of this Lease, Tenant shall peaceably surrender the Premises to
Landlord clean and in the same condition as when received, except for (a)
reasonable wear and tear, (b) loss by fire or other casualty, and (c) loss by
condemnation. Tenant shall remove Tenant's Property no later
17
<PAGE>
than the Expiration Date. If Tenant is required by Landlord to remove any
additions, alterations, or improvements under Section 12.3., Tenant shall
complete such removal no later than the Expiration Date. Any damage to the
Premises, including any structural damage, resulting from removal of any
addition, alteration, or improvement made pursuant to Section 12.3. and/or from
Tenant's use or from the removal of Tenant's Property pursuant to Section 13.2.
shall be repaired no later than the Expiration Date by Tenant at Tenant's sole
cost and expense. On the Expiration Date Tenant shall surrender all keys to the
Premises.
25.2 Failure to Deliver Possession. If Tenant fails to vacate and
-----------------------------
deliver possession of the Premises to Landlord on the expiration or sooner
termination of this Lease as required by Section 25.1., Tenant shall indemnify
and hold Landlord harmless from all claims, liabilities and damages resulting
from Tenant's failure to vacate and deliver possession of the Premises,
including, without limitation, claims made by a succeeding tenant resulting from
Tenant's failure to vacate and deliver possession of the Premises and rental
loss which Landlord suffers.
25.3. Property Abandoned. If Tenant abandons or surrenders the
------------------
Premises, or is dispossessed by process of law or otherwise, any of Tenant's
Property left on the Premises shall be deemed to be abandoned, and, at
Landlord's option, title shall pass to Landlord under this Lease as by a bill of
sale. If Landlord elects to remove all or any part of such Tenant's Property,
the cost of removal, including repairing any damage to the Premises or Building
caused by such removal, shall be paid by Tenant.
26. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
the term and Base Rent), but the Monthly Installments of Base Rent payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the first day of each
month. If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance Notice of the
date of termination.
27. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"E" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord shall not be liable for any
violation of said rules and regulations by other tenants or occupants of the
Building or Project.
28. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without (a) liability to
Tenant for damage or injury to property, person or business; (b) causing an
actual or constructive eviction from the Premises; or (c) disturbing Tenant's
use or possession of the Premises:
28.1. To name the Building and Project and to change the name or street
address of the Building or Project;
28.2. To install and maintain all signs on the exterior and interior of the
Building and Project;
28.3. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's files, vaults and safes;
28.4. To stripe or restripe, resurface, enlarge, change the grade or
drainage of and control access to the parking lot; to assign and reassign spaces
for the exclusive or nonexclusive use of tenants (including Tenant); and to
locate or relocate parking spaces assigned to Tenant;
28.5. At any time during the Term, with prior telephonic notice to Tenant,
to inspect the Premises, and to show the Premises to any person having an
existing or prospective interest in the Project or Landlord, and during the last
six months of the Term, to show the Premises to prospective tenants thereof; and
28.6. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building, and to
take all steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its best
efforts
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(except in an emergency) to minimize interference with Tenant's business in the
Premises in the course of any such entry.
29. ADVERTISEMENTS AND SIGNS.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation the inside or outside of windows or doors,
without the prior written consent of Landlord. Landlord shall have the right to
remove any signs or other matter installed without Landlord's permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as Additional Rent hereunder, payable within ten (10) days
of written demand by Landlord.
30. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of the
Building in accordance with the following:
30.1. The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as the Premises described in this Lease, and, if
the relocation occurs after the Commencement Date, shall be placed in that
condition by Landlord at its cost.
30.2. Landlord shall give Tenant at least thirty (30) days prior Notice of
Landlord's intention to relocate the Premises.
30.3. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the following
Monday. If the physical relocation has not been completed in that time, Base
Rent shall abate in full from the time the physical relocation commences to the
time it is completed. Upon completion of such relocation, the new premises shall
become the Premises under this Lease.
30.4. All reasonable costs incurred by Tenant as a result of the relocation
shall be paid by Landlord.
30.5. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
30.6. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the reduction of Base
Rent, if any.
31. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
32. FORCE MAJEURE.
Any provision, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
governmental actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Section 32. shall excuse
or delay Tenant's obligation to pay Rent or other charges under this Lease.
33. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except the
Listing and Leasing Agent(s) set forth in Section 2.9. of this Lease. Tenant
shall indemnify and hold Landlord harmless from any cost, expense or liability
(including costs of suit and reasonable attorneys' fees) for any compensation,
commission or fees claimed by any other real estate broker or agent in
connection with this Lease or its negotiation by reason of any act of Tenant.
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34. QUIET ENJOYMENT.
Tenant, upon payment of Rent and performance of all of its obligations under
this Lease, shall peaceably, quietly and exclusively enjoy possession of the
Premises without unwarranted interference by Landlord or anyone acting or
claiming through Landlord, subject to the terms of this Lease and to any
mortgage, lease, or other agreement to which this Lease may be subordinate.
35. MISCELLANEOUS.
35.1. Accord and Satisfaction: Allocation of Payments. No payment by
-----------------------------------------------
Tenant or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest due Rent,
nor shall any endorsement or statement on any check or letter accompanying any
check or payment as Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of the Rent or pursue any other remedy provided for in this Lease.
In connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
35.2. Addenda. If any provision contained in an addendum to this Lease is
-------
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
35.3. Attorneys' Fees. If any action or proceeding is brought by either
---------------
party against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
35.4. Captions and Section Numbers. The captions appearing in the body of
----------------------------
this Lease have been inserted as a matter of convenience and for reference only
and in no way define, limit or enlarge the scope or meaning of this Lease. All
references to Section numbers refer to Sections in this Lease.
35.5. Changes Requested by Lender. Neither Landlord nor Tenant shall
---------------------------
unreasonably withhold its consent to changes or amendments to this Lease
requested by the lender on Landlord's interest, so long as such changes do not
alter the basic business terms of this Lease or otherwise materially diminish
any rights or materially increase any obligations of the party from whom consent
to such change or amendment is requested.
35.6. Choice of Law. This Lease shall be construed and enforced in
-------------
accordance with the Laws of the State.
35.7. Consent. Notwithstanding anything contained in this Lease to the
-------
contrary, Tenant shall have no claim, and hereby waives the right to any claim
against Landlord for money damages, by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and,
in such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, approval or statement of satisfaction.
35.8. Corporate Authority. If Tenant is a corporation, each individual
-------------------
signing this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation, and
that this Lease is binding on Tenant in accordance with its terms. Tenant shall,
at Landlord's request, deliver a certified copy of a resolution of its board of
directors authorizing such execution.
35.9. Counterparts. This Lease may be executed in multiple counterparts,
------------
all of which shall constitute one and the same Lease.
35.10. Execution of Lease: No Option. The submission of this Lease to
-----------------------------
Tenant shall be for examination purpose only and does not and shall not
constitute a reservation of or option for Tenant to Lease, or otherwise create
any interest of Tenant in the Premises or any other premises within the Building
or Project. Execution of this Lease by Tenant and its return to Landlord shall
not be binding on Landlord, notwithstanding any time interval, until Landlord
has in fact signed and delivered this Lease to Tenant.
35.11. Furnishing of Financial Statements: Tenant's Representations. In
------------------------------------------------------------
order to induce Landlord to enter into this Lease, Tenant agrees that it shall
promptly furnish Landlord, from time to time, upon Landlord's written request,
financial statements reflecting Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records and information
furnished by Tenant to Landlord in connection with this Lease are true, correct
and complete in all respects.
35.12. Further Assurances. The parties agree to promptly sign all
------------------
documents reasonably requested to give effect to the provisions of this Lease.
20
<PAGE>
35.13. Prior Agreements: Amendments. This Lease and the schedules and
----------------------------
riders attached, if any, form a part of this Lease together with the rules and
regulations set forth on Exhibit "E" attached hereto, and set forth all the
covenants, promises, assurances, agreements, representations, conditions,
warranties, statements, and understandings (Representations) between the
Landlord and Tenant concerning the Premises and the Building and Project, and
there are no Representations, either oral or written, between them other than
those in this Lease.
This Lease supersedes and revokes all previous negotiations, arrangements,
letters of intent, offers to lease, lease proposals, brochures, representations,
and information conveyed, whether oral or in writing, between the parties
hereto or their respective representatives or any other person purporting to
represent the Landlord or Tenant. Tenant acknowledges that it has not been
induced to enter into this Lease by any Representations not set forth in this
Lease, and that it has not relied on any such Representations. Tenant further
acknowledges that no such Representations shall be used in the interpretation or
construction of this Lease, and that Landlord shall have no liability for any
consequences arising as a result of any such Representations.
Except as herein otherwise provided, no subsequent alteration, amendment,
change, or addition to this Lease shall be binding upon Landlord or Tenant
unless in writing and signed by each of the parties.
35.14. Recording. Tenants shall not record this Lease without the prior
---------
written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a short form memorandum of this Lease for recording
purposes.
35.15. Severability. A final determination by a court of competent
------------
jurisdiction that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish its intended effect.
35.16. Successors and Assigns. This Lease shall apply to and bind the
----------------------
heirs, personal representatives, and successors and assigns of the parties.
35.17. Time of the Essence. Time is of the essence of this Lease.
-------------------
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first set forth on Page 1.
LANDLORD:
OUTLOOK INCOME FUND 9.
a California Limited Partnership
By: Glenborough Realty Corporation,
a California corporation,
Its Managing General Partner
By: /s/ Sandra M. Boyle
------------------------------
Its: Vice President
-----------------------------
TENANT:
Arundel-Doerr-Harrison Co., Inc.
- --------------------------------------
a Minnesota Corporation
- --------------------------------------
By: /s/ Robert H. Doerr
------------------------------
Its: Vice President
-----------------------------
By:
------------------------------
Its:
-----------------------------
<PAGE>
ADDENDUM TO LEASE BETWEEN
Outlook Income Fund 9 (Landlord)
and Arundel-Doerr-Harrison Company, Inc. (Tenant)
Dated November 12, 1993
------------------------
36. TERMINATION OF EXISTING LEASE.
Section 36. adds to and amends the Lease as follows:
The parties hereto are also landlord and tenant, respectively, of a portion of
the Premises by way of a lease dated May 2, 1989 (the "Existing Lease").
Landlord and Tenant shall terminate the Existing Lease, effective as of the
Commencement Date hereof, once this Lease has been fully executed.
37. TENANT IMPROVEMENTS.
Section 37. adds to and amends the Lease as follows:
Prior to the Commencement Date, Landlord shall construct tenant improvements in
the Premises in accordance with Plans and Specifications, as approved by
Landlord and Tenant, to be attached to the Lease as Exhibit D. Landlord shall
contribute a total of $64,608.00 toward the cost of tenant improvements. Any
costs in excess of $64,608.00 shall be paid by Tenant, as Additional Rent,
within ten (10) days of receipt of Landlord's invoice.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum to
Lease as of the date first above written.
LANDLORD:
OUTLOOK INCOME FUND 9,
a California limited partnership
By: Glenborough Realty Corporation
a California corporation
Its Managing General Partner
By: /s/ Sandra M. Boyle
----------------------------------
Its Vice President
------------------------------
TENANT:
ARUNDEL-DOERR-HARRISON COMPANY, INC.,
a Minnesota corporation
By: /s/ Robert H. Doerr
-------------------------------------
Its Vice President
---------------------------------
By:
-------------------------------------
Its
---------------------------------
<PAGE>
Exhibit A
Floor Plan
of
industrial park
<PAGE>
Exhibit B
Floor Plan
of
industrial park
Legal Description - Bryant Lake Business Center
Phase I
Lots 2 and 3, Block 1, Bryant Lake Office Tech
Center
<PAGE>
EXHIBIT "C"
BUILDING STANDARD TENANT IMPROVEMENTS
DELETE
<PAGE>
EXHIBIT E
---------
RULES AND REGULATIONS
BRYANT LAKES BUSINESS CENTER
----------------------------
1. Project Hours: 8:00 a.m. - 6:00 p.m. WEEKDAYS
2. The sidewalks, passages, exits and entrances shall not be obstructed by
Tenant or used for any purpose other than for ingress to and egress from
their respective premises. The Landlord shall in all cases retain the right
to control and prevent access by all persons whose presence, in the judgment
of the Landlord, shall be prejudicial to the safety, character, reputation
and interests of the Building or Project and its Tenants, provided that
nothing herein contained shall be construed to prevent such access to persons
with whom the Tenants normally deal in the ordinary course of Tenant's
business, unless such persons are engaged in illegal activities.
3. The directory of the Project, if any, will be provided exclusively for the
display of the name and location of Tenant only, and Landlord reserves the
right to exclude any other names thereon.
4. No signs shall be attached to or placed in windows. No awning or shade shall
be affixed or installed over or in the windows or the exterior of the
Premises. The windows of the Building shall not be covered or obstructed by
Tenant.
5. The toilets and urinals shall not be used for any purpose other than those
for which they were constructed and no rubbish, newspapers or other
substances of any kind shall be thrown into them. Tenants shall not mark,
drive nails, screw or drill into, paint, nor in any way deface the walls,
ceilings, partitions or floors. The expense of any breakage, stoppage or
damage resulting from a violation of this rule shall be borne by the Tenant
who has caused such breakage, stoppage or damage.
6. Electric wiring of any kind shall be introduced and connected as directed by
Landlord, and no boring or cutting for wires will be allowed except with the
consent of Landlord. The location of telephones, call boxes, etc., shall be
prescribed by Landlord.
7. Landlord reserves the right to prescribe the weight and position of all safes
and other heavy equipment so as to distribute properly the weight thereof and
to prevent any unsafe condition from arising. Safes or other heavy objects
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to properly distribute the weight. Landlord will
not be responsible for any loss or damage to any such safe or property from
any cause; but all damage done to the Building by moving or maintaining any
such safe or property shall be repaired at the expense of Tenant.
<PAGE>
Rules and Regulations
Bryant Lakes Business Center
Page Two
8. No additional lock or locks shall be placed by Tenants on any door in the
Building unless written consent of Landlord shall have first been obtained.
Two keys will be furnished by Landlord for entry door or doors only, and any
additional keys required must be obtained from Landlord, at Tenant's cost,
and neither Tenant nor his agents or employees shall have any duplicate key
made. The Tenant, upon termination of the tenancy, shall deliver to the
Landlord the keys of the offices, rooms and toilet rooms which shall have
been furnished, or shall pay the Landlord the cost of replacing same or
changing the lock or locks opened by such lost key if Landlord deems it
necessary to make such changes.
9. The carrying in or out of freight, furniture or bulky matter of any
description, must take place during such hours as Landlord may from time to
time reasonably determine. The installation and moving of such property
shall be made upon previous notice to the Property Manager for the Project,
but Landlord shall not be responsible for loss of or damage to such
property, from any cause.
10. Tenant shall use, at Tenant's cost, such pest extermination contractor as
Landlord may direct and at such intervals as Landlord may require.
11. Tenant and Tenant's officers, agents and employees shall not make or permit
any loud, unusual or improper noises, nor interfere in any way with other
Tenants or those having business with them, nor bring into nor keep any
animal or bird, or any bicycle, automobile, or other vehicle, except such
vehicles as they are permitted to park in the parking lot, and shall park in
the areas designated from time to time for employee parking.
12. No aerial shall be erected on the roof or exterior walls of the Premises, or
on the grounds, without in each instance, the written consent of Landlord.
13. Tenant shall not lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any
manner, except as approved by Landlord. The expense of repairing any damage
resulting from a violation of this rule or removal of any floor covering
shall be borne by the tenant by whom, or by whose contractors, employees, or
invitees, the damage shall have been caused.
14. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
Landlord.
<PAGE>
Rules and Regulations
Bryant Lakes Business Center
Page Three
15. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and the street address of the
Building of which the Premises are a part.
16. Tenant agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Landlord, and Tenant also shall
provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security
regulations.
17. Tenant shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and caution
that all water faucets or water apparatus are entirely shut off before
Tenant or Tenant's employees leave the Building, and that all electricity
shall be likewise carefully shut off, so as to prevent waste or damage, and
for any default or carelessness Tenant shall make good all injuries
sustained by Tenant, other tenants, or occupants of the Building. Landlord
reserves the right to close and keep locked all entrances and exit doors of
the Building before and after the normal hours of operation, and during
such further hours as Landlord may deem advisable for the adequate
protection of said Building and the property of its tenants.
18. The requirements of Tenant will be attended to only upon application at
Landlord's management office. Employees of Landlord shall not perform any
work or do anything outside of their regular duties unless under special
instructions from Landlord, and no employee will admit any person (Tenant
or otherwise) to any office without specific instructions from Landlord.
19. Landlord reserves the right by written notice to Tenant to add to, rescind,
alter or waive these rules and regulations at any time prescribed for the
Project when, in Landlord's reasonable judgment, it is necessary, desirable
or proper for the best interest of the Project and its Tenants.
20. Tenants shall not disturb, solicit, or canvass any occupant of the Building
or Project and shall cooperate to prevent same.
<PAGE>
Rules and Regulations
Bryant Lakes Business Center
Page Four
All city and county ordinances shall be observed by Tenants in the use of this
Building and leased Premises.
It is understood and agreed between Tenant and Landlord that no assent or
consent to any waiver of any part hereof by Landlord in spirit or letter shall
be deemed or taken as made except when the same is done in writing and attached
to or endorsed hereon by Landlord.
In the event of any conflict between these rules and regulations or any further
or modified rules and regulations from time to time issued by Landlord and the
Lease provisions, the Lease provisions shall govern and control.
GLENBOROUGH CORPORATION
<PAGE>
ADDENDUM TO
-----------
SUBLEASE AGREEMENT
------------------
THIS ADDENDUM TO SUBLEASE AGREEMENT (the "Addendum") amends and supplements
that certain Sublease Agreement of even date herewith by and between Compass
Marketing, Inc. as Sublessee, and Global Maintech, Inc. as Sublessee. All
capitalized terms herein shall have the meanings ascribed thereto in the
Sublease or the Prime Lease, as the case may be. It is further agreed as
follows:
1. Section 1 of the Sublease is amended by adding after the word
---------
"Sublessor" in the fourth line thereof, the words "on the first day of every
month,".
2. Section 4 of the Sublease is amended by adding after the numeral "2.18"
---------
the words "and Section 6.3," and after the words "Prime Lease" the words
",which shall include but not be limited to Sublessor's entire share of
Operating Expenses, Real Property Taxes, Insurance Costs, taxes listed at
Section 6.4 of the Prime Lease and all other elements of Additional Rent,".
3. Section 5 of the Sublease is amended by adding at the end thereof the
---------
following: ", including the right to charge interest and late charges as set
forth in Section 7 of the Prime Lease. Provided, however, any cure period
provided in the event of a default, or any notice period to Sublessee, under the
Sublease shall be shortened by one day from the cure periods and notices allowed
Sublessor under the Prime Lease."
4. Section 5 of the Sublease is amended by adding thereto the following:
---------
"With respect to the Subleased Premises, Sublessee shall keep and perform
promptly each of the terms, convenants, conditions, provisions and agreements of
the lessee under the Prime Lease, except for those provisions thereof which,
under the terms of this Sublease, the Sublessor is to keep or perform."
5. Paragraph 7 of the Sublease is hereby amended by adding thereto the
-----------
following:
"Sublessee agrees to indemnify and save Sublessor harmless against and
from any and all claims, loss, damage and expense by or on behalf of any person
or persons, firm or firms, corporation or corporations, arising from any breach
or default on the part of Sublessee in the performance of any covenant or
agreement on the part of Sublessee to be performed, pursuant to the terms of
this Sublease or the Prime Lease, or arising from any act or negligence on the
part of Sublessee or its agents, contractors, servants, employees or licensees,
or arising from any accident, injury or damage to the extent caused by
Sublessee, its agents, and employees to any person, firm or corporation
occurring during the Sublease
<PAGE>
Term or any renewal thereof, in or about the Subleased Premises and the Building
(as defined in the Prime Lease) and from and against all costs, reasonable
counsel fees, expenses and liabilities incurred in or about any such claim or
action or proceeding brought thereon; and in case any action or proceeding be
brought against Sublessor by reason of any such claim, Sublessee, upon notice
from Sublessor, covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to Sublessor."
6. Section 8 of the Sublease is amended by adding at the end thereof the
---------
following: "Sublessee agrees to surrender the Premises to the Prime Landlord at
the end of the Term in the same condition as it existed as of the occupancy
thereof by Sublessee."
7. Section 12 of the Sublease is amended by adding the following address
----------
for Tenant:
Compass Marketing, Inc.
251 First Avenue North
Minneapolis, MN 55401
Attn. Keith Harrison and Jeff Arundel
8. Liability. Sublessee hereby agrees that Sublessor and Landlord, their
---------
officers and employees, shall not be liable to Sublessee for any damage to or
loss of personal property and business in the Subleased Premises except as
otherwise provided in the Prime Lease. Sublessee shall neither do nor permit
anything to be done which would cause the Prime Lease to be terminated or
forfeited by reason of any right of termination or forfeiture reserved or vested
in the Landlord under the Prime Lease.
9. Waiver of Subrogation. Each of Sublessor and Sublessee hereby releases
---------------------
the other from any and all liability or responsibility (to the other or anyone
claiming through or under them by way of subrogation or otherwise) for any loss
or damage to property caused by any insured peril, even if such casualty shall
have been caused by the fault or negligence of the other party or anyone for
whom such party may be responsible.
10. Sublessor's Right to Terminate. Notwithstanding anything contained
------------------------------
herein to the contrary, Sublessor shall have the right to terminate this
Sublease for any reason, and without any liability therefor to Sublessee (which
such liability, if any, is hereby waived by Sublessee), at any time prior to
March 16, 1998 upon written notice to Sublessee. In the event of such
termination, this Sublease Agreement, this Addendum and all other agreements
associated herewith, shall be null and void and neither party shall have any
further rights or obligations hereunder. In such event, Sublessor shall
reimburse Sublessee the deposit and first month's rent deposited with Sublessor.
11. Possession. Sublessee agrees that it is taking the Subleased Premises
----------
"As Is" and "Where Is", with no obligation on the part of Sublessor to make any
repairs, improvements or other changes whatsoever to the Subleased Premises as a
condition to Sublessee's occupancy and rent payments. Sublessor makes no
representations or warranties whatsoever regarding the condition of
<PAGE>
the Subleased Premises, including its suitability for Sublessee's business
purposes, and Sublessee acknowledges that it has had full opportunity to make
its own determinations in this regard. Sublessor's failure to tender posession
of the Subleased Premises to Sublessee on July 1, 1998, shall not subject
Sublessor to any liability or claims or affect the validity of this Sublease and
Sublessee's obligations hereunder and under the Lease. Notwithstanding the
foregoing, for the period of any delayed delivery after July 15, 1998,
Sublessee's obligation to pay rent hereunder shall be abated, and Sublessor
agrees to pay any holdover penalty (but not the rent) charged by Sublessee's
current Landlord to which it is entitled under Sublessee's existing Lease.
Sublessor shall not be liable for any other charges, costs, losses or
liabilities due to such delayed delivery, including but not limited to any
consequential damages.
12. Section 9 of the Sublease is amended by deleting the date September 1, 1998
and inserting the date July 15, 1998.
IN WITNESS WHEREOF, the respective parties have hereunto executed this
Addendum to Sublease Agreement as of March 3, 1998.
SUBLESSEE:
GLOBAL MAINTECH, INC.
By /s/ James Geiser
----------------------------
Its CFO
------------------------
SUBLESSOR:
COMPASS MARKETING, INC.
By /s/ Keith A. Harrison
----------------------------
Its Vice President
------------------------
<PAGE>
logo global, inc.
January 20, 1998
Mr. James DePietro, V.P.
Grubb & Ellis
7701 France Ave. S. Ste. 200
Edina, MN 55435
and
Mr. Scott T. Frederiksen,
Executive Associate
Welsh Companies
8200 Normandale Blv., Ste 200
Minneapolis, MN 55437-1600
Dear Jim and Scott,
This letter is intended to clarify an agreement between the Parties as part of
Section 11 of that certain Sublease Agreement dated January 20, 1998 between
Compass Marketing, Inc. and Global Maintech, Inc. (the "Parties").
Global MAINTECH, Inc. accepts the Sublease Agreement dated January 20, 1998 with
Compass Marketing, Inc. and the attachments subject to the following additions:
1. Compass Marketing, Inc. hereby issues a hazardous waste
indemnification covering its activities as a tenant in the property subject to
the Sublease Agreement to Global MAINTECH, Inc., sublessee.
2. Global MAINTECH, Inc. shall not be responsible for any restoration
work required by Landlord for Tenants Work performed by or for another tenant.
SUBLESSEE: SUBLESSOR:
Global MAINTECH, Inc. Compass Marketing, Inc.
/s/ James Geiser By: /s/ Keith A. Harrison
- ------------------------ ------------------------
James Geiser Its: Vice President
Secretary -----------------------
Global MAINTECH, Inc. 6468 City West Parkway Eden Prairie,
MN 55344 USA 612-944-0400 612-944-3311 fax
<PAGE>
logo global, inc.
February 24, 1998
Gentlemen:
The Addendum to Sublease Agreement between Compass Marketing, Inc. ("Sublessor")
and Global Maintech, Inc. refers to a holdover penalty liability of Sublessor in
section 11 of this Addendum. Sublessor has asked if Global Maintech, Inc. is
aware of any holdover penalty as a condition prior to Sublessor signing the
documents.
After a brief review of the leases in question, Global Maintech, Inc.
represents there are no holdover penalties of which James Geiser, Secretary of
Global Maintech, Inc. is aware. However, this statement is not intended to
relieve Compass of the liability in section 11 of the Addendum. It may be of
some comfort only that it was not obvious to James Geiser in his brief review.
In addition to the above request made by Sublessor, Global Maintech, Inc. would
like to clarify certain other provisions of the Addendum and Sublease Agreement.
1. Section 10 of the Addendum refers to Sublessor's right to terminate any time
prior to March 16, 1998. Global Maintech, Inc. accepts that such termination
will take the form either (i) of a notice from Sublessor regarding
Sublessor's decision to terminate, or (ii) Sublessor and Lessor and any other
parties to the documentation related to the Addendum have not properly
executed such documents and Global Maintech, Inc. is not in receipt of such
executed documents any time prior to March 16, 1998.
2. Sections 1 and 4 of the Sublease Agreements of which the Addendum is a part
refer to rent abatement for the period July 1 through and including 31, 1998.
The Addendum allows the Sublessor to deliver possession after July 1, 1998.
Sections 1 and 4 are therefor clarified to read that Global Maintech, Inc.
will not be liable for any rent as defined in Sections 1 and 4 of the
Sublease Agreement for a period of 31 days following possession as defined in
the Sublease Agreement or the Addendum. Pro-rata payments of rent will be
paid by Global Maintech, Inc. for any portion of a month after the expiration
of the 31 day period.
Sublessee: Sublessor:
/s/ James Geiser By /s/ Keith A. Harrison
- -------------------------------- --------------------------
Secretary, Global Maintech, Inc. Its Vice President
-------------------------
Global MAINTECH, Inc. 6468 City West Parkway Eden Prairie,
MN 55344 USA 612-944-0400 612-944-3311 fax
