SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended September 30, 1997.
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the transition period from______________ to________________ .
Commission file number: I-9418
CYBERAMERICA CORPORATION
(Exact Name of Small Business Issuer as Specified in its Charter)
Nevada 87-0509512
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
268 West 400 South, Salt Lake City, Utah 84101
(Address of Principal Executive Office)
(801) 575-8073
(Issuer's Telephone Number)
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
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes XX No
The number of outstanding shares of the issuer's common stock, $0.001
par value (the only class of voting stock), as of November 13, 1997 was
1,710,350.
<PAGE>
TABLE OF CONTENTS
PART I
ITEM 1. FINANCIAL STATEMENTS .............................................. 3
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS .............................. 3
PART II
ITEM 1. LEGAL PROCEEDINGS ................................................ 7
ITEM 5. OTHER INFORMATION ................................................ 8
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K ................................. 8
SIGNATURES ....................................................... 9
INDEX TO EXHIBITS ................................................ 10
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
PART I
ITEM 1. FINANCIAL STATEMENTS
As used herein, the term "Company" refers to CyberAmerica Corporation,
a Nevada corporation, and its subsidiaries and predecessors unless otherwise
indicated. Consolidated, unaudited, condensed interim financial statements
including a balance sheet for the Company as of the quarter ended September 30,
1997 and statements of operations, statements of shareholders equity and
statements of cash flows for the interim period up to the date of such balance
sheet and the comparable period of the preceding year are attached hereto as
Pages F-1 through F-6 and are incorporated herein by this reference.
<PAGE>
CYBERAMERICA CORPORATION
(FORMERLY KNOWN AS THE CANTON INDUSTRIAL CORPORATION)
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
September 30, 1997 (Unaudited)
ASSETS September 30
1997
CURRENT ASSETS
Cash ....................................................... $ 4,150
Accounts receivable - trade ................................ 476,527
(Net of allowance for bad debt of $89,097)
Accounts receivable - related parties ...................... 425,602
Accounts receivable - other ................................ 107,960
Receivable - brokerage account ............................. 590
Notes receivable - current portion ......................... 1,243,143
Prepaid expenses ........................................... 31,703
Securities available for sale .............................. 398,987
-----------
TOTAL CURRENT ASSETS ......................................... 2,688,662
PROPERTY AND EQUIPMENT ....................................... 8,050,641
OTHER ASSETS
Investment securities at cost ............................. 407,903
Notes receivable - net of current portion ................. 24,000
Investments - art ......................................... 183,100
Investments - other ....................................... 4,620
Refundable deposits ....................................... 87,092
Trade credits ............................................. 180,951
Prepaid interest - long term .............................. 156,800
Other assets .............................................. 54,679
-----------
TOTAL OTHER ASSETS ........................................... 1,099,145
TOTAL ASSETS ................................................. $11,838,448
===========
See notes to consolidated unaudited financial statements.
F-1
<PAGE>
CYBERAMERICA CORPORATION
(FORMERLY KNOWN AS THE CANTON INDUSTRIAL CORPORATION)
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Continued)
September 30, 1997 (Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
September 30
1997
CURRENT LIABILITIES
Accounts payable - trade .................................. $ 396,757
Accounts payable - related parties ........................ 105,821
Accrued liabilities
Interest ................................................ 63,071
Real estate taxes and assessments ....................... 384,493
Payroll and related taxes payable ....................... 276,311
EPA liabilities ......................................... 325,398
Refundable deposits ..................................... 19,395
Refund to investors ..................................... 75,069
Commission payable ...................................... 30,100
Other ................................................... 17,653
Debenture payable ......................................... 280,000
Current maturities of long-term debt ...................... 1,269,731
Current maturities of capitalized lease ................... 18,981
------------
TOTAL CURRENT LIABILITIES .................................... 3,262,780
LONG-TERM LIABILITIES
Long-term debt, less current portion ...................... 4,434,971
Long-term capitalized lease, less current portion ......... 345,004
TOTAL LONG-TERM LIABILITIES .................................. 4,779,975
CONTINGENCIES ................................................ --
MINORITY INTEREST ............................................ 387,868
SHAREHOLDERS' EQUITY
Preferred stock par value $.001; 20,000,000
shares authorized; No shares issued
Common stock par value $.001; 200,000,000
shares authorized; 11,320,813 shares issued ............. 11,321
Additional paid-in capital ................................ 14,271,267
Accumulated deficit ....................................... (10,525,678)
Unrealized loss from securities available for sale ........ (349,085)
------------
TOTAL SHAREHOLDERS' EQUITY ................................... 3,407,825
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY ................... $ 11,838,448
============
See notes to consolidated unaudited financial statements.
F-2
<PAGE>
<TABLE>
<CAPTION>
CYBERAMERICA CORPORATION
(FORMERLY KNOWN AS THE CANTON INDUSTRIAL CORPORATION)
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Three Months Ended Nine Months Ended
September 30, September 30,
(Unaudited) (Unaudited)
----------------------------------- --------------------------------
1997 1996 1997 1996
---------------------------------- --------------------------------
REVENUE
<S> <C> <C> <C> <C>
Sale of building ........................................ $ 950,000 $ -- $ 2,285,000 $ --
Consulting revenue ...................................... 88,608 501,855 214,382 2,059,295
Rental revenue .......................................... 110,428 116,301 372,298 339,390
Other revenue ........................................... -- -- 3,401 63,234
------------ ------------ ------------ ------------
TOTAL REVENUE .............................................. 1,149,036 618,156 2,875,081 2,461,919
COSTS OF REVENUE
Cost of sale of building ................................ 404,652 -- 1,071,222 --
Costs associated with consulting revenue ................ 39,410 481,330 145,031 1,242,798
Costs associated with rental revenue .................... 87,817 118,513 267,198 304,632
Interest expenses associated with rental revenue ........ 57,763 47,948 151,482 149,635
Cost associated with other revenue ...................... -- -- -- 44,168
------------ ------------ ------------ ------------
TOTAL COSTS OF REVENUE ..................................... 589,642 647,791 1,634,933 1,741,233
GROSS PROFIT (LOSS) ........................................ 559,394 (29,635) 1,240,148 720,686
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ............... 150,021 333,935 1,011,016 1,043,199
Environmental cleanup ................................... -- -- -- 20,000
Computer development costs .............................. -- 322,620 121,720 322,620
------------
TOTAL SELLING, GENERAL AND ................................. 150,021 656,555 1,132,736 1,385,819
ADMINISTRATIVE EXPENSES
OPERATING PROFIT (LOSS) .................................... 409,373 (686,190) 107,412 (665,133)
------------ ------------ ------------ ------------
OTHER INCOME (EXPENSE):
Interest income ......................................... 38,647 2,341 58,641 13,361
Interest expense ........................................ (64,718) (16,325) (239,582) (86,100)
Gain (loss) from sale of assets ......................... -- -- (11,540) --
Gain (loss) from investment securities .................. (143,183) (144,343) (478,442) (71,277)
Gain from recoveries of bad debts ....................... -- -- 151,200 --
Gain from disposal of subsidiary ........................ -- -- 90,681 --
Other income (loss) ..................................... -- (9,747) (14,483) 27,743
------------ ------------ ------------ ------------
TOTAL OTHER INCOME (EXPENSE) ............................... (169,254) (168,074) (443,525) (116,273)
INCOME (LOSS) BEFORE INCOME TAXES
EXTRAORDINARY AND MINORITY INTEREST ........................ 240,119 (854,264) (336,113) (781,406)
EXTRAORDINARY LOSS FROM FIRE ............................... (32,735) -- (32,735) --
INCOME (LOSS) BEFORE MINORITY INTEREST ..................... 207,384 (854,264) (368,848) (781,406)
MINORITY INTEREST IN LOSS (GAIN) ........................... 2,438 100,263 (43,670) 150,626
------------ ------------ ------------
Net income (Loss) .......................................... $ 209,822 $ (754,001) $ (412,518) $ (630,780)
============ ============ ============ ============
Income (Loss) per common share
Income (loss) before extraordinary item ................. $ 0.02 $ (0.10) $ (0.03) $(0.10)
Extraordinary item ...................................... (0.00) -- (0.00) --
------------ ------------ ------------
Income (loss) before minority interest .................. 0.02 (0.10) (0.03) (0.10)
Minority interest in loss (gain) ........................ 0.00 0.01 (0.01) 0.01
------------ ------------ ------------ ------------
Net income (loss) per weighted average
common share outstanding ............................. $ 0.02 $ (0.09) $ (0.04) $ (0.09)
============ ============ ============ ============
Weighted average number of common
shares outstanding ................................... 10,678,245 8,500,855 10,678,245 7,066,586
============ ============ ============ ============
See notes to consolidated unaudited financial statements.
F-3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CYBERAMERICA CORPORATION
(FORMERLY KNOWN AS THE CANTON INDUSTRIAL CORPORATION)
AND SUBSIDIARIES
CONSOLIDATED UNAUDITED STATEMENTS OF SHAREHOLDERS' EQUITY
For Nine Months Ended September 30, 1997 (Unaudited)
Net Unrealized
loss on securities Total
Common Stock Paid-in Accumulated available Shareholders'
Shares Amount Capital Deficit for sale Equity
<S> <C> <C> <C> <C> <C> <C>
BALANCES AT DECEMBER 31, 1996 .... 9,484,557 $ 9,485 $ 14,058,256 $(10,113,160) (606,234) 3,348,347
Common stock activity:
Issued for services ........... 130,162 130 35,136 -- -- 35,266
Issued for debts .............. 65,930 66 8,414 -- -- 8,480
Issued for assets ............. 100,000 100 14,900 -- -- 15,000
Realized loss on
securities available for sale -- -- -- -- 63,423 63,423
Net loss for the
period ended March 31, 1997 .. -- -- -- (650,983) -- (650,983)
------------ ---------- ---------- ------------ ----------- -----------
BALANCES AT MARCH 31, 1997 ....... 9,780,649 $ 9,781 $ 14,116,706 $(10,764,143) $ (542,811) $2,819,533
---------- ---------- ----------- ------------ ----------- -----------
Common stock activity:
Issued for services ........... 1,413,276 1,413 57,526 -- -- 58,939
Issued for debts owed
by related parties .......... 30,000 30 4,020 -- -- 4,050
Issued for assets ............. 30,000 30 4,020 -- -- 4,050
Realized loss on
securities available for sale -- -- -- -- 193,726 193,726
Net loss for the period
ended June 30, 1997 ......... -- -- -- 28,643 -- 28,643
------------ ---------- ---------- ---------- ----------- --------
BALANCES AT JUNE 30, 1997 ........ 11,253,925 $ 11,254 $ 14,182,272 $(10,735,500) $ (349,085) $ 3,108,941
--- ---- ---------- -------- ------------ ------------ ------------ -------------
Common stock activity:
Issued for services ........... 155,000 155 10,633 -- -- 10,788
Issued for debts .............. 1,124,388 1,124 113,526 -- -- 114,650
Cancellation of stock
issued for services ......... (1,212,500) (1,212) (35,164) -- -- (36,376)
Net income for the
period ended Sept 30, 1997 ... -- -- -- 209,822 -- 209,822
---------- -------- ---------- ---------- ----------- ---------
BALANCES AT SEPTEMBER 30, 1997 ... 11,320,813 $ 11,321 $ 14,271,267 $(10,525,678) $ (349,085) $ 3,407,825
=== ==== ========== ======== ============ ============ ============ ============
See notes to consolidated unaudited financial statements.
F-4
</TABLE>
<PAGE>
CYBERAMERICA CORPORATION FORMERLY KNOWN AS
THE CANTON INDUSTRIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Nine Months Ended
September 30,
Unaudited
1997 1996
------------ ----------
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) .............................. $ (412,518) $ (630,780)
Adjustments to reconcile net income (loss)
to net cash provided:
(Gain) loss from sale of investments ........ 478,442 71,277
(Gain) from sale of assets .................. 11,540 --
(Gain) from sale of subsidiary .............. (90,681) --
Minority interest ........................... 43,670 150,626
Depreciation and Amortization ............... 159,373 165,303
Services paid with common stock ............. 68,617 498,007
Common stock issued for assets and debt ..... 146,230 309,000
Decrease (increase) in assets:
Receivables ............................... (438,345) (893,581)
Receivables - related party ............... (194,669) (180,519)
Other current assets ...................... 23,946 (459,013)
Increase (decrease) in liabilities:
Accounts and notes payable ................. (101,870) (38,430)
Payables - related parties ................. (19,730) 97,502
Accrued liabilities ........................ 66,096 431,287
Current portion of long-term debt .......... 159,335 214,644
Deferred income ............................ -- 40,775
----------- -----------
NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES (100,564) (223,902)
CASH FLOWS FROM INVESTING ACTIVITIES
Cost of property sold ....................... 1,071,222 1,100,000
Minority interest in subsidiaries sold ...... -- (825,000)
Minority interest in subsidiary ............. -- 1,178,771
Purchase of assets .......................... (2,461,556) (3,511,795)
Debt on Subsidiaries sold ................... -- (275,000)
----------- -----------
NET CASH FLOWS (USED) IN INVESTING ACTIVITIES ... (1,390,334) (2,333,024)
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock for cash ............... -- 2,556,959
Proceeds from borrowing ..................... 2,004,000 1,300,008
Stock subscription .......................... -- (871,582)
Payment on debt ............................. (587,320) (197,473)
----------- -----------
NET CASH PROVIDED BY FINANCING ACTIVITIES ........ 1,416,680 2,787,912
INCREASE (DECREASE) IN CASH ..................... (74,218) 230,986
CASH AT BEGINNING OF YEAR ........................ 78,368 18,065
----------- -----------
CASH AT END OF PERIOD............................. $ 4,150 $ 249,051
=========== ===========
F-5
<PAGE>
CYBERAMERICA CORPORATION
(FORMERLY KNOWN AS CANTON INDUSTRIAL CORPORATION)
AND SUBSIDIARIES
NOTES TO CONSOLIDATED UNAUDITED CONDENSED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
1. Basis of Presentation
The accompanying consolidated unaudited condensed financial statements
have been prepared by management in accordance with the instructions in Form
10-QSB and, therefore, do not include all information and footnotes required by
generally accepted accounting principles and should, therefore, be read in
conjunction with the Company's Annual Report to Shareholders on Form 10-KSB for
the fiscal year ended December 31, 1996. These statements do include all normal
recurring adjustments which the Company believes necessary for a fair
presentation of the statements. The interim operations results are not
necessarily indicative of the results for the full year ended December 31, 1997.
2. Sale and Acquisition of Real Estate Holdings
On July 15, 1997, Canton Industrial Properties Management Corporation
of Salt Lake City ("CIPMC"), a consolidated subsidiary of the Company, closed on
the sale of its 18,000 square foot office building located at 202 West 400
South, Salt Lake City, Utah. The sale price of the property under the contract,
as amended, is $950,000 which was paid in cash on the closing date. Pursuant to
the contract, the purchaser loaned $150,000 to CIPMC, interest-free. The
principal on that loan was deducted from the proceeds of the closing.
On September 19, 1997, TAC, Inc., a consolidated subsidiary of the
Company, acquired all outstanding capital stock Vale Terrace Corporation, a
Delaware corporation. Vale Terrace's sole asset is a 24,378 square foot office
building in Vista, California.. TAC acquired the stock in Vale Terrace by
issuing 1,000,000 shares of its common stock valued at $140,000 as a down
payment on the purchase price. In addition, the Company assumed a first deed of
trust on the building in the amount of $400,000 and granted to the seller a
$560,000 second deed of trust . Therefore, TAC paid $1,100,000 for 100% of the
outstanding stock in Vale Terrace. TAC also prepaid the first four years of
interest on the second deed of trust by issuing 1,120,000 shares of its common
stock. TAC executed a Lease Agreement with the seller to lease the property back
for one year in exchange for the seller's payment of mortgages, taxes,
maintenance, utilities during that period. For more information on this
transaction, please see "Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operations."
On August 6, 1997, a fire engulfed a manufacturing and warehousing
facility located in Canton Illinois and owned by Thistle Holdings, a
wholly-owned subsidiary of the Company. Of 1,290,336 total square feet, the fire
destroyed 800,000 square feet. As a result, the Company recorded a loss from
fire in the amount of $32,475 during the quarter.
3. Changes in accounting presentation
During the first quarter of 1997, the Company significantly curtailed
the scope of its financial consulting services and decided to focus its
operations on acquisition, management, lease and sale of real estate properties.
As a result of this decision, the Company determined that sales proceeds from
202 Building should be included in operating revenues (Please see Note 2 for
more detail on this transaction.) Correspondingly, costs associated with the 202
Building were also included in costs of revenues.
4. Issuance of Common Stock to East West Trading Corporation
In December 95, a wholly-owned subsidiary of the Company sold its
investment securities in Oasis Hotel, Resort & Casino - I, Inc. ("Oasis I") and
Oasis Hotel, Resort & Casino - II, Inc. ("Oasis II") to East West Trading
Corporation, an unaffiliated offshore entity in exchange for $171,900. During
the first quarter of 1997, the Company reacquired some of the stock in Oasis I.,
leaving the total balance due as $114,650. On August 18, 1997, the Company
reacquired 57,350 shares of Oasis I and 85,950 shares of Oasis II in exchange
for 1,124,388 shares of the Company's Common Stock, restricted pursuant
Regulation S under the Securities Act of 1993 to settle the outstanding balance.
5. Subsequent Event
On October 31, 1997, the Company effected a 1-for-10 reverse split on
the Company's Class A common stock. The number of shares authorized and issued
has been reduced accordingly on the same day. None of the references to
quantities of common stock have been adjusted to reflect the reverse split as
the reverse split was not effective until the fourth quarter.
6. Additional footnotes included by reference
Except as indicated in Notes 1-5 above, there have been no other
material changes in the information disclosed in the notes to the financial
statements included in the Company's Annual Report on Form 10-KSB for the year
ended December 31, 1996. Therefore, those footnotes are included herein by
reference.
F-6
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The Company has two main divisions of operations. The Company's
operations primarily involve the acquisition, management, lease and sale of real
estate holdings. The Company also provides a variety of financial consulting
services to various clients including assisting clients in the preparation of
corporate documentation and advising clients with respect to mergers and
acquisitions.
Real Estate Holdings
The Company owns and manages properties in Utah, Nevada, California,
West Virginia, Virginia, Florida, Illinois, and Arizona. The Company's goal has
been to locate and acquire undervalued real estate with little or no cash
expenditure. The Company looks for property that can be purchased by assuming
the existing financing or by paying the purchase price with nominal cash
expenditures and/or the issuance of shares of the Company's Common Stock.1 The
amount the Company is willing to pay for a property is determined by management.
The criteria for purchasing properties are broad and management's determination
of value and the terms of financing are the main factors weighed by management
in making a decision to invest in a property.
The Company leases its properties to commercial tenants and applies the
rental income toward its fixed obligations on the properties. Currently, there
are insufficient rental revenues to cover the debt service and other expenses
related to the Company's real estate operations, and the Company therefore has
to use capital from other sources, including proceeds realized upon the sale of
real estate holdings, to fund this deficit. The deficit has been primarily
attributable to the Company's recent investments in raw land and vacancies in
the Company's commercial properties. The Company seeks to continue to decrease
vacancies in its commercial properties to eliminate losses from real estate
operations. However, the Company's primary objective is to acquire real estate
which will substantially appreciate in value and from which the Company can
realize a substantial gain upon disposition. Accordingly, the Company has
continued to invest in real estate holdings despite negative cash flows.
There is a risk that the Company will lose control over some of its
properties through foreclosure if enough funds are not raised to cover the
deficiency between rental revenues and the cost of debt service and maintenance
of the properties. During the next year, the Company has significant balloon
payments which come due and an option which will expire. On December 27, 1997, a
$300,000 promissory note secured by the Company's Oasis, Nevada property will
become due and payable. On March 25, 1998, the Company's option to purchase
approximately 47,000 acres of undeveloped land in Box Elder County, Utah for $41
per acre will expire if not exercised. On July 29, 1998, a $400,000 note on the
Company's Vale Terrace property (see below) will come due in full. Accordingly,
the Company will need to pay approximately $2,627,000 in less than a year in
order to avoid losing some or all of its beneficial interest in these
properties. The Company will have to seek outside financing to meet these
obligations and the Company is currently working with several entities who are
seeking conventional financing on the Company's behalf.
- --------
1 Any references to "Common Stock" herein, or in the accompanying financial
statements, refer to the Company's common stock, par value $0.001. Any
quantities of Common Stock referenced herein have not been adjusted to account
for the Company's 1-for-10 reverse stock split which was effected October 31,
1997 because the split occurred subsequent to the end of the third quarter.
<PAGE>
The Company recorded rental revenues of $110,428 from its real estate
operations for the third quarter as compared to $116,301 for the same period of
1996. This number remained largely unchanged from 1996 notwithstanding a
decrease in vacancies in the Company's commercial properties because of the
Company's disposition of the TAC Warehouse during the second quarter of 1997
(see the Company's Form 10-QSB for the quarter ended June 30, 1997) and the
Company's disposition of the 202 West Building during the third quarter of 1997
(see below). Together, these buildings previously generated a significant
portion of the Company's rental revenues.
On July 15, 1997, Canton Industrial Properties Management Corporation
of Salt Lake City ("CIPMC"), a consolidated subsidiary of the Company, closed on
the sale of its 18,000 square foot office building located at 202 West 400
South, Salt Lake City, Utah. The sale price of the property was $950,000 which
was paid in cash on the closing date. The sale of the 202 West Building was
primarily responsible for the income recognized by the Company during the
quarter. The Company sold the 202 West Building because the property had
appreciated significantly since it was acquired by the Company's subsidiary, and
the Company believed that the price offered represented the high end of the
market value for the property.
The Company intends to sell further real estate holdings on a case by
case basis provided that it believes that local market conditions make such
sales in the best interest of the Company and its subsidiaries. At the same
time, the Company is continually searching for additional properties which
management believes have appreciation potential.
During the third quarter, Taylor's Landing, Inc., a consolidated
subsidiary of the Company, purchased two properties located in Nephi, Utah. Both
properties are or have been used in the operation of restaurants. On July 2,
1997, Taylor's Landing closed on the purchase of an 8,000 square foot building
located at 390 South Main in Nephi (the "Tiara Cafe"). Included with the
building were all equipment, furniture and supplies used in the operation of a
cafe. The Tiara Cafe was purchased for $120,000, $20,000 of which was paid at
closing. The remaining $100,000 was financed through a 7% promissory note
secured by a deed of trust on the property. The promissory note requires
Taylor's Landing to make monthly payments of $898.83 until January 1, 1999, when
the remaining principal and accrued interest are due in full. The Tiara Cafe is
leased to an unaffiliated party who operates a restaurant on the premises.
On August 1, 1997, Taylor's Landing purchased a separate 4,000 square
foot building located at 65 South Main in Nephi (the "Celebrations Cafe") for a
total purchase price of $126,703. Included with the building were all equipment,
furniture and supplies used in the operation of a cafe. The Celebrations Cafe is
subject to a first mortgage of $56,000 bearing interest at a rate of 15% per
annum. The principal and interest on the first mortgage are payable in monthly
instalments of $700 until August 1, 2002, when the remaining principal and
interest are due in full. The Celebrations Cafe is also subject to a second
mortgage of $70,000 bearing an interest rate of 6% per annum. Principal and
interest on the second mortgage are payable in monthly instalments of $350 until
August 1, 1999, when the remaining principal and accrued interest are due in
full. The Celebrations Cafe is currently vacant and the Company is seeking to
lease the premises to a tenant for purposes of operating a restaurant.
On September 19, 1997, TAC, Inc., a consolidated subsidiary of the
Company, acquired all outstanding capital stock of a Delaware corporation known
as Vale Terrace Corporation, making Vale Terrace Corporation a wholly owned
subsidiary of TAC. Vale Terrace's sole asset is a 24,378 square foot office
building located at 956 Vale Terrace Drive in Vista, California. TAC acquired
the capital stock of Vale Terrace from a Delaware corporation known as Chelsea
Capital Corporation in exchange for the issuance of shares of TAC's common
stock, TAC's assumption of obligations on an existing first deed of trust and
TAC's grant to Chelsea of a second deed of trust. TAC also executed a Lease
Agreement pursuant to which TAC will lease the property back to Chelsea for a
period of one year in exchange for Chelsea's payment of debt service on the
first mortgage, taxes, maintenance, utilities and all other charges exclusive of
capital improvements during the leaseback period.
The first deed of trust on the Vale Terrace property has a principal
amount of $400,000 due in full in July of 1998. The debt subject to the first
deed of trust accrues interest at a rate of 10%, but interest will be paid by
Chelsea during the one year leaseback term. The debt subject to the second deed
of trust has a principal amount of $560,000 and bears interest at a rate of 7%
per annum. TAC prepaid the first four years of interest on the second deed of
trust through its issuance of 1,120,000 shares of TAC's common stock. The
remaining three years of interest is not payable until September 2003, when all
principal and accrued interest are due. The principal amount due under the
second deed of trust, but not the accrued interest, may be paid by TAC through
TAC's issuance of common stock at a discount of 30% of the average bid and ask
prices for TAC's common stock on the date when principal is paid. At the closing
of the transaction, TAC issued an additional 1,000,000 shares of common stock to
Chelsea to serve as a down payment under the lease. The shares issued to Chelsea
were valued at $0.14 per share, the closing price for TAC's common stock on the
date the shares were issued.
<PAGE>
Vale Terrace Corporation does not own the real property underlying the
building. The underlying real estate is subject to a ground lease from a third
party which expires December 23, 2037. This ground lease requires Vale Terrace
Corporation to make monthly payments of $3,300 which are periodically increased
to account for inflation. However, according to the terms of the leaseback with
Chelsea Capital, Chelsea will continue to make the payments on the ground lease
during the period it is leasing the building back from TAC.
During the third quarter, the Company also made substantial investments
in undeveloped land located in Box Elder County, Utah. This land was acquired
through several transactions. The Company, through several subsidiaries,
purchased a total of 1,420 acres of land during the second quarter for a total
price of $95,500, or an average price of $67.25 per acre. Subsidiaries of the
Company had previously purchased 5,440 acres of land in Box Elder County and one
of the subsidiaries has an option to purchase an additional 47,000 acres of land
in that area. The Company acquired raw land in Box Elder County with the
intention of either developing such property or reselling to a developer
interested in improving the land or extracting the land's natural resources.
On May 9, 1997, Oasis International Hotel & Casino, Inc. and Oasis
International Corporation, both wholly owned subsidiaries of the Company,
executed a real estate purchase agreement for the sale of 49.96 acres of real
property located in Oasis, Nevada. For more information on this agreement, see
the Company's Form 10-QSB for quarter ended March 31, 1997. The consummation of
the agreement was contingent upon the purchaser's ability to obtain financing
and the purchaser was given a 90 day period to complete due diligence on the
property. On August 7, 1997, the Company's subsidiaries received notice that the
purchaser would not be closing on the purchase, but the parties continued
negotiating toward another agreement for the sale of the property.
During the third quarter, the parties ceased negotiations toward the sale of the
property.
On August 6, 1997, a fire engulfed a 1,290,336 square foot
manufacturing and warehousing facility located at 200 East Elm Street in Canton,
Illinois and owned by Thistle Holdings, Inc., a wholly owned subsidiary of the
Company. The facility was previously used for tire recycling operations and has
been almost entirely vacant for the past year. The fire destroyed over 800,000
square feet of the buildings located at the facility. The Company has been
informed by authorities investigating the incident that the cause of the fire
was arson. Preliminary testing indicates that asbestos containing materials are
included in the debris of the fire and the Company has retained a qualified site
designer to test the site for asbestos contaminants and develop a plan for the
removal of asbestos containing materials. The Company has also retained a party
to dispose of the debris when the plan of removal is complete. The Company
believes that the buildings destroyed in the fire were worthless or of nominal
value prior to their destruction by the fire.
Financial Consulting
The Company's consulting subsidiaries generate revenues through
consulting fees payable in the client's equity, cash, other assets or some
combination of the three. The primary form of compensation received is the
equity securities of clients. When payment is made in the form of equity, the
number of shares to be paid is dependent upon the price of the client's common
stock (if such price is available) and the extent of consulting services to be
provided. The Company accepts equity with the expectation that its services will
assist in the stock's appreciation, thus allowing the Company to be compensated
and to make a return on the payments for its services.
Revenues from the Company's financial consulting operations decreased
during the quarter ended September 30, 1997. The Company recorded quarterly
revenues of $88,608 from its financial consulting operations as compared to
$501,855 for the same period of 1996. This substantial decline was largely
attributable to the Company's decision to focus its operations primarily on real
estate activities.
<PAGE>
Events Subsequent to End of Third Quarter
During the 1996 fiscal year, the Company issued a $300,000 Convertible
Debenture with an interest rate of 6% per annum. The Debenture was issued to a
foreign corporation pursuant to the exemption from registration under Regulation
S ("Regulation S") promulgated under the Securities Act of 1933, as amended (the
"Act"). The Debenture is convertible into shares of the Company's Common Stock
at a conversion price of 70% of the bid price for the Common Stock on the date
of conversion. The maturity date for the Debenture was September 16, 1997, at
which time the Debenture would have been convertible into approximately
7,000,000 shares of Common Stock, an amount equivalent to 50% of the Company's
shares then issued and outstanding. On October 16, 1997, the Company, executed
an Agreement to extend the maturity date of the Debenture to December 16, 1997.
On October 31, 1997, the Company effected a 1-for-10 reverse split of
both its authorized and outstanding shares of Common Stock. All fractional
shares of Common Stock were rounded up to the nearest whole share. The Company
effected the reverse split because it believed that the number of issued and
outstanding shares of Common Stock was disproportionately large compared to the
Company's revenue, net income and net worth.
Results of Operations
Gross revenues for the quarter ended September 30, 1997 were $1,149,036
compared to $618,156 for the same period in 1996, an increase of 86%. During the
third quarter of 1997, the Company sold a piece of real estate property located
in Salt Lake City, Utah and realized $950,000 in sale proceeds. Consulting
revenues decreased to $88,608 during the third quarter of 1997 from $501,855
during the same period in 1996. This substantial decline was largely due to the
Company's decision to curtail its consulting services operations and focus on
its real estate operations instead. Rental revenue decreased by 5% from $116,301
during the quarter ended September 30, 1996 to $110,428 for the comparable
period in 1997. The Company was able to maintain the rental revenue at
approximately the same level as last year despite the disposition of TAC
Warehouse during the second quarter of 1997, which generated approximately
$17,000 in monthly rental revenue.
Total revenues for the nine months ended September 30, 1997 were
$2,875,081 compared to $2,461,919 for the same period in 1996. The revenue from
sale of buildings during 1997 ($2,285,000) were offset by the decrease in
consulting revenue ($1,844,913) from 1996.
Costs of revenues were $589,642 for the third quarter of 1997 compared
to $647,791 for the quarter ended September 30, 1996. Gross profit was $559,394
during the third quarter of 1997 compared to a gross loss of $29,635 for the
quarter ended September 30, 1996. Gross profit as a percentage of revenues was
49% for the third quarter of 1997
During the nine months ended September 30, 1997, the costs of revenues
were $1,634,933 and the gross profit was $1,240,148. This represents a gross
profit margin of 43%. During the same period in 1996, the Company incurred costs
of revenues in the amount of $1,741,233 and realized a gross profit of $720,686.
The gross profit margin was only 29%. This improvement in profit margin is
attributable to the Company's continuous efforts to streamline business and cut
costs.
Selling, general, and administrative expenses were $150,021 for the
third quarter of 1997 and $656,555 for the quarter ending September 30, 1996.
The Company's internet division alone, whose business was terminated during the
first quarter of 1997, incurred $322,620 in computer development costs between
July 1 and September 30, 1996. Operating income was $409,373 during the third
quarter of 1997 compared to a net operating loss of $686,190 for the three
months ending September 30, 1996. This improvement was primarily due to the
company's focus on cost cutting. Year-to-date selling, general and
administrative expenses were $1,132,736 for 1997 and $1,385,819 for 1996, a drop
of 18% from last year.
During the quarter ended September 30, 1997, the Company incurred other
expenses in the amount of $169,254 compared to $168,074 during the same period
in 1996. Loss from investment securities was $143,183 for the third quarter of
1997 compared to $144,343 for the same period in 1996. The Company also recorded
substantially more interest income and interest expenses during 1997, both of
which are the result of real estate transactions. Year-to-date other expenses
was $443,525 during 1997 compared to $116,273 during 1996. The substantial loss
from investment securities during 1997 accounted for a vast majority of this
category. expenses. This loss was offset by gain from recovery of bad debts
($151,200) and gain from disposal of subsidiary ($90,681). During the second
quarter of 1997, the Company recovered a previously written-off accounts
receivable by means of a settlement agreement.
<PAGE>
Capital Resources and Liquidity
The Company had a net working capital deficit of $574,118 as of
September 30, 1997 compared to $61,166 at the end of September 30, 1996. The
main reason behind this decrease in liquidity is an increase in long term debts
due within a year. The current portion of notes payables was $1,269,731 as of
September 30, 1997 compared to $363,703 as of September 30, 1996. The Company
has four mortgages payable totaling $1,055,790 maturing within a year. The
Company is currently working on refinancing these mortgages with long-term
loans.
Net stockholders' equity in the Company was $5,232,418 at the end of
September 1996 compared to $3,407,825 at the end of September 1997. The major
factor behind the decrease is the net loss between October 1, 1996 and March 31,
1997 in the amount of $2,069,616. This loss was partially mitigated by the net
income from this quarter ($209,822) and increase in common stock and additional
paid in capital through the issuance of stock for debt, assets, services, and
cash during the same period. During the second quarter of 1997, the Company
issued 1,836,256 shares of its Common Stock valued at $214,847 for consulting
services rendered, debt settlement, and assets.
On August 18, 1997, the Company issued 1,124,388 (pre-reverse) shares
of its Common Stock to settle a $114,650 claim against the Company. The claim
stemmed from the Company's receipt of $114,650 from a foreign investor pursuant
to a transaction that was subsequently rescinded by the parties with the payment
still outstanding. The 1,124,388 shares of Common Stock were issued pursuant to
an exemption under Regulation S and the Company filed a form 8-K to disclose
this transaction on October 27, 1997.
PART II
ITEM 1. LEGAL PROCEEDINGS
CyberAmerica Corporation vs. MJMC, Inc., Lanco International, Inc. and
Mi-Jack Products, Inc. - In response to the suit filed on January 10, 1997 in
the Circuit Court of Cook County, Law Division as File Number 97L 000369 seeking
recovery of damages suffered by Canton Tire Recycling Corporation based upon the
company's belief that tire shredding equipment did not perform according to
warranties and representations made by defendants, defendants' motion to dismiss
the complaint was granted in part and the company has filed an Amended Complaint
in response to the court's action. It is expected that the court will consider
the Amended Complaint and any new motions by Defendants before the end of
January, 1998. The Company has stated that the total damages for which it seeks
recovery is in an amount of not less than $1 million.
Key L.C. Corporation vs. Paragon Capital Corporation, Allen Z. Wolfson,
CyberAmerica Corporation and Robert J. D'Aleo - Key L.C. filed suit in Federal
District Court of Utah, Central Division on December 18, 1996, Case Number 2:96
CV 1054B, alleging that each of the named defendants violated the Securities
Exchange Act of 1934 in the sale of CyberAmerica stock to Key. The Company filed
a motion to dismiss alleging that the complaint failed to meet the pleading
requirements imposed by the Private Securities Litigation Reform Act, but that
motion was denied by the Court in an Order filed on July 7, 1997. The company
has filed an answer denying any liability for the claims of the Plaintiff and a
cross-claim as to the other named defendants in the event that Plaintiff is
found to be entitled to any recovery. The court and the parties are proceeding
with discovery, working toward an expected trial date in late 1998.
Canton Financial Service Corporation ("CFSC") v. The Renno Group, Inc.
- - CFSC's claim is pending before the United States District Court for the Middle
District of Florida, Tampa Division, Case Number 96-2367-CIV-T-24-E. The
complaint seeks payment of consulting fees and the delivery of shares, an
obligation created in the merger of a third party with an existing corporation
and the services of CFSC in bringing that event to pass. Cash in the amount of
$15,000 is sought plus delivery of 355,029 shares of the common stock of Network
Systems International, Inc. Renno filed a motion for summary judgment seeking to
have the court rule that Renno is not liable for the delivery of shares of
Network to CFSC, but the Court denied this motion. The matter is currently set
on the trial court's December 1997 trial calendar.
<PAGE>
State of Illinois vs. The Canton Industrial Corporation - This action
has been pending in the Ninth Judicial Circuit, State of Illinois, County of
Fulton, Case Number 93MR45, since September 1993. The action seeks environmental
cleanup of the Canton Plant site located in Canton, Illinois. A final hearing of
this matter has been set for the 6th day of February, 1998, before the Honorable
Charles H. Wilhelm. Clean up and removal of the debris from the fire that
destroyed significant portions of the building include the removal of any
asbestos containing material on the site. For more information on the fire at
the Canton Plant, see "Management's Discussion and Analysis of Financial
Condition and Results of Operations." Compliance with state and federal
regulations is being sought by cooperation with the Illinois Environmental
Protection Agency and their attorneys.
Xeta Corporation vs. The Canton Industrial Corporation - Suit was filed
in the United States District Court, in the Central District of Utah, Case
Number 95CV218G on March 8, 1995. Xeta alleged that $116,500 was fraudulently
transferred to the company by ATC, II, Inc. a Delaware corporation. Richard
Surber and Gerald Curtis were also named as defendants in the cause of action.
Xeta received a Summary Judgment as to the Company only. An appeal of that
decision has been filed with the Tenth Circuit Court of Appeals and oral
argument has been set for November 17, 1997. Xeta has sought satisfaction of its
judgment through service of a writ of execution through which it seeks to compel
the sale of Rule 144 restricted shares of TAC, Inc. held by the company.
Efforts to conduct a sale of such restricted shares to satisfy the judgment are
ongoing.
ITEM 5. OTHER INFORMATION
Subsequent to the end of the third quarter, the Company issued shares
of its Common Stock pursuant to the exemption from registration provided by
Regulation S. All shares referenced in this Item have not been adjusted to
account for the Company's 1-for-10 reverse stock split effected October 31,
1997. On October 22, 1997, the Company agreed to issue 500,000 shares of Common
Stock to Pienne Chow, a resident of Hong Kong, pursuant to Regulation S. As
consideration for the 500,000 shares, the Company received $20,000. On October
30, 1997, the Company issued a total of 2,400,000 shares of its Common Stock to
four foreign persons pursuant to Regulation S. The Company issued 600,000 shares
to Cellini Investments, SA, 600,000 shares to Heathfield Investments Limited,
600,000 shares to Sheffield Holdings Limited, and an additional 600,000 shares
to Sevenoaks Holdings Limited. All four of these entities are organized and
authorized under the laws of the Bahama Islands. The Company issued these shares
to serve as collateral for a $100,000 loan the Company obtained from these
collective entities pursuant to separate Note Agreements the Company executed
with each of the four foreign entities. Each of the loans acquired by the
Company pursuant to these Note Agreements bears a floating interest rate of 5%
above the prime rate and each loan matures three years from the date the Note
Agreements were executed.
On September 30, 1997, the Company executed a one year consulting
agreement with A.R. Webber & Associates, Inc. Pursuant to the agreement, the
Company is receiving financial public relations services including advertising
services and assistance in disseminating corporate information to the public. As
consideration for these services, the Company agreed to issue 2,000,000 shares
of Common Stock to A.R. Webber and to grant A.R. Webber options to purchase an
additional 1,000,000 shares of Common Stock at an option price of $0.10 (which
will be adjusted to $1 to account for the reverse stock split). Subsequent to
the end of the third quarter, the Company executed a similar consulting
agreements with another financial public relations company. On November 1, 1997,
the Company executed a consulting agreement with A.R. Fortune, Inc. The Company
issued 650,000 shares of Common Stock as a retainer fee and pays an additional
monthly fee of $5,000 in cash or common stock. Pursuant to the agreement with
A.R. Fortune, the Company is obligated to issue an additional 650,000 shares of
Common Stock to Proctor Company, Inc., a contractor who will be performing
consulting services to the Company in coordination with A.R. Fortune. The
Company is also obligation to pay a separate monthly fee of $5,000 to Proctor.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits Exhibits required to be attached by Item 601 of Regulation S-B
are listed in the Index to Exhibits on page 10 of this Form 10-QSB, and
are incorporated herein by this reference.
(b) Reports on Form 8-K. The Company did not file any reports on Form 8-K
during the third quarter. However, on October 27, 1997 and subsequent
to the end of the third quarter, the Company filed a report on Form 8-K
disclosing the Company's October 31, 1997 1-for-10 reverse stock split,
the extension of the maturity date for a $300,000 convertible debenture
issued by the Company, and the Company's issuance of Common Stock
pursuant to Regulation S.
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized, this 14TH day of November 1997.
CYBERAMERICA CORPORATION
/s/Richard Surber November 14, 1997
Richard Surber
President, Chief Executive Officer and Director
/s/Wayne Newton November 14, 1997
Wayne Newton
Controller
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. PAGE NO. DESCRIPTION
3(i) * Articles of Incorporation of the Company
(Incorporated herein by reference from Exhibit No.
3(i) to the Company's Form 10-KSB for the year
ended December 31, 1993).
3(ii) * By-Laws of the Company, as amended. (Incorporated
herein by reference from Exhibit 3(ii) of the
Company's Form 10 KSB for the year ended December
31, 1995.)
MATERIAL CONTRACTS
10(i)(a) * Real Estate Purchase Agreement, dated February 7,
1997, between the Company and ANA Development, LC.
(incorporated herein by reference from Exhibit No.
10(i)(b) to the Company's Form 10-KSB for the year
ended December 31, 1996).
10(i)(c) 21 Real Estate Purchase Contract between the Company's
wholly owned subsidiary, Taylor's Landing, Inc.,
and Loa Jean Carter and Jeffrey Dee Carter
regarding the acquisition of the Tiara Cafe.
10(i)(c) 36 Real Estate Purchase Contract between the Company's
wholly owned subsidiary, Taylor's Landing, Inc.,
and B. Sydney Colley and Cassandra Colley regarding
the acquisition of the Celebrations Cafe
(incorporated herein by reference to Exhibit
10(i)(b) of the Company's Form 10-QSB for the
fiscal quarter ended June 30, 1997).
10(i)(d) 41 Stock Purchase Agreement between TAC, Inc., a
consolidated subsidiary of the Company, and Chelsea
Capital Corporation, dated September 19, 1997,
pursuant to which the Company acquired all
outstanding capital stock of Vale Terrace
Corporation.
10(i)(e) ?? Lease Agreement between TAC, Inc., a consolidated
subsidiary of the Company, and Chelsea Capital
Corporation, dated September 23, 1997, pursuant to
which TAC has leased back the Vale Terrace property
to Chelsea Capital Corporation.
REAL ESTATE PURCHASE CONTRACT
This is a legally binding contract. Utah law requires teal estate licensees to
use this form. Buyer and Seller, however, may agree to alter or delete its
provisions or to use a different form. If you desire legal or tax advice,
consult your attorney or tax advisor.
EARNEST MONEY RECEIPT
Buyer, David Michael Trust or assigns offers to purchase the Property described
below and hereby delivers to the Brokerage, as Earnest Money, the amount of
$_____ in the form of check # which, upon Acceptance of this offer by all
parties (as defined in Section 23), shall be deposited in accordance with state
law.
Received by: ___________________ on _______________(Date)
Brokerage: ___________________ Phone Number ______________________
OFFER TO PURCHASE
1. PROPERTY: 390 South Main also described as ___- City of Nephi, County
of Juab, State of Utah, (the "Property")
1.1 Included Items. Unless excluded herein, this sale includes the
following items if presently attached to the Property:
plumbing, heating air conditioning fixtures and equipment;,
ceiling fans; water heater, built-in appliances; light
fixtures and bulbs; bathroom fixtures; curtains, draperies and
rods; window and door screens; storm doors and windows; window
blinds; awnings; installed television antenna; satellite
dishes and system; permanently affixed carpets; automatic
garage door opener and accompanying transmitter(s)' fencing;
and trees and shrubs. The following items shall also be
included in this sale and conveyed under separate Bill of Sale
with warranties as to title: all equipment
1.2 Excluded Items. The following items are excluded from this
sale: N/A
1.3 Water Rights. The following water rights are included in this
sale: as per property profile.
1.4 Survey. A survey map of the Property certified by a licensed
surveyor [ ] WILL [ X ] WILL NOT be prepared. The Property
corners [ ] WILL [ X ] WILL NOT be marked by survey stakes set
by a licensed surveyor or engineering company. The costs of
the applicable items check above will be [ ] paid by Buyer [ ]
paid by Seller [ ] shared equally by Buyer and Seller [ ]
Other (Specify) ________ . For additional terms, see attached
Survey addendum if applicable.
2. PURCHASE PRICE. The Purchase Price for the Property is $ One Hundred
Thousand Dollars and 00/100.
2.1 Method of Payment. The Purchase Price will be paid as follows:
$500.00 (a) Earnest Money Deposit. Under certain conditions described
in this Contract THIS DEPOSIT MAY BECOME TOTALLY
NON-REFUNDABLE.
$______ (b) New Loan. Buyer agrees to apply for a new loan as provided
in Section 2.3. Buyer will apply for one or more of the
following loans:
[ ] CONVENTIONAL [ ] FHA [ ] VA [ ] OTHER (specify) _______.
If an FHA/VA loan applies, see attached FHA/VA Loan Addendum.
If the loan is to include any particular terms, then check
below and give details: [ ]SPECIFIC LOAN TERMS_____________
$______ (c) Loan Assumption (see attached assumption Addendum if
applicable) $89,500
(d) Seller Financing (see attached Seller Financing Addendum if
applicable)
$_____ (e) Other (specify)___________
$10,000 (f) Balance of Purchase Price in Cash at Settlement
$100,000 PURCHASE PRICE. Total of lines (a) through (f)
Page 1 or 6 pages Seller's Initials /s/ JLC and LC Buyer's Initials /s/ BJT
<PAGE>
2.2 Financing Condition. (Check applicable box)
(a) [ ] Buyer's obligation to purchase the property IS conditioned upon the
Buyer qualifying for the applicable loan(s) referenced in Section
2.1(b) or (c) (the "Loan"). This condition is referred to as the
"Financing Condition."
(b) [X] Buyer's obligation to purchase the Property IS NOT conditioned upon
Buyer qualifying for a loan. Section 2.3 does not apply.
2.3 Application for Loan.
(a) Buyer's duties. No later than the Application Deadline referenced in
Section 24(a), Buyer shall apply for the Loan. "Loan Application"
occurs only when Buyer has: (i) completed, signed, and delivered to the
lender (the "Lender") the initial loan application and documentation
required the Lender, and (ii) paid all loan application fees as
required by the Lender. Buyer agrees to diligently work to obtain the
Loan. Buyer will promptly provide the Lender with any additional
documentation as required by the Lender.
(b) Procedure if Loan Application is Denied. If Buyer receives written
notice from the Lender that the Lender does not approve the Loan (a
"Loan Denial"), Buyer shall, no later than three calendar days
thereafter, provide a copy to Seller. Buyer or Seller may, within three
calendar days after Seller's receipt of such notice, cancel this
Contract by providing written notice to the other party. In the event
of a cancellation under this Section 2.3(b); (i) if the Loan Denial was
received by Buyer on or before the Earnest Money Forfeiture Deadline
referenced in Section 24(d), the Earnest Money Deposit shall be
returned to Buyer; (ii) if the Loan Denial was received by Buyer after
the Earnest Money Forfeiture Deadline, Buyer agrees to forfeit, and
Seller agrees to accept as Seller's exclusive remedy, the Earnest Money
as liquidated damages. A failure to cancel as provided in this Section
2.3(b) shall have no effect on the Financing Condition set forth in
Section 2.2(a). Cancellation pursuant to the provisions of any other
section of this Contract shall be governed by such other provisions.
2.4 Appraisal of Property. Buyer's obligation to purchase the Property [ ]
IS [ X] IS NOT conditioned upon the Property appraising for not less
than the Purchase Price. If the appraisal condition applies and the
Property appraises for less than the Purchase Price, Buyer may cancel
this Contract by providing written notice to Seller no later than three
calendar days after Buyer's receipt of notice of the appraised value.
In the event of such cancellation, the Earnest Money Deposit shall be
released to Buyer, regardless of whether such cancellation is before or
after the Earnest Money Forfeiture Deadline. A failure to cancel as
provided in this Section 2.4 shall be deemed a waiver of the appraisal
condition by Buyer.
3. SETTLEMENT AND CLOSING. Settlement shall take place on or before the
Settlement Deadline referenced in Section 24(e). A Settlement shall
occur only when all of the following have been completed: (a) Buyer and
Seller have signed and delivered to each other or to the escrow
.closing office all documents required by this Contract, by the Lender,
by written escrow instructions or by applicable law; (b) any monies
required to be aid by Buyer under these documents (except for the
proceeds of a new loan) have been delivered by Buyer to Seller or to
the escrow/closing office in the form of collected or cleared funds.
Seller and Buyer shall each pay one-half (1/2) of the fee charged by
the escrow/closing office for its services in the settlement/closing
process. Taxes and assessments for the current year, rents, and
interest on assumed obligations shall be prorated at Settlement as set
forth in this Section. Tenant deposits (including, but not limited to,
security deposits, cleaning deposits and prepaid rents) shall be paid
or credited by Seller to Buyer at Settlement. Prorations set forth in
this Section shall be made as of the Settlement Deadline date
referenced on Section 24(e), unless otherwise agreed to in writing by
the parties. Such writing could include the settlement statement. The
transaction will be considered closed when Settlement has been
completed: (i) the proceeds of any new loan have been delivered by the
Lender to Seller or to the escrow/closing office: and (ii) the
applicable Closing documents have been recorded in the office of the
county recorder. The actions described in parts (i) and (ii) of the
preceding sentence shall be completed within four calendar days of
Settlement.
4. POSSESSION. Seller shall deliver physical possession to Buyer within: [
] __ hours [ ] ___ days after Closing; [ ]Other
(specify)__________________________-
5. CONFIRMATION OF AGENCY DISCLOSURE. At the signing of this Contract: /s/
JLC and LC Sellers initials /s/ BJT Buyer's initials
The Listing Agent, ______ represents, [ ] Seller [ ] Buyer [ ] both Buyer and
Seller as Limited Agent
The Selling Agent , Linda Welberg, Dawn Colbert, represents [ ] Seller [X] Buyer
[ ] both Buyer and Seller as Limited Agent
Page 2 of 6 Pages Seller's Initials /s/ JLC and LC Buyer's Initials /s/ BJT
<PAGE>
The Listing Broker, _____, represents [ ] Seller [ ] Buyer [ ] both Buyer and
Seller as a Limited Agent
The Selling Broker, ERA - Carlson Realtors, represents [ ] Seller [ X] Buyer [ ]
both Buyer and Seller as a Limited Agent
6. TITLE INSURANCE. At Settlement, Seller agrees to pay for a
standard-coverage owner's policy of title insurance insuring Buyer in
the amount of the Purchase Price.
7. SELLER DISCLOSURES. No later than the Seller Disclosure Deadline
referenced in section 24(b), Seller shall provide to Buyer the
following documents which are collectively referred to as the "Seller
Disclosures";
(a) a Seller property condition disclosure for the Property, signed and
dated by Seller;
(b) a commitment for the policy of title insurance;
(c) a copy of any leases affecting the Property not expiring prior to
Closing;
(d) written notice of any claims and/or conditions known to Seller
relating to environmental problems and building or zoning code
violations; and
(e) Other (specify) ________________________________
8. BUYER'S RIGHT TO CANCEL BASED ON EVALUATIONS AND INSPECTIONS. Buyer's
obligation to purchase under this Contract (check applicable boxes)
[ X] IS [ ] IS NOT conditioned upon Buyer's approval of the content of
all the Seller Disclosures referenced in Section 7;
[X] IS [ ] IS NOT conditioned upon Buyer's approval of a physical
condition inspection of the property
[ ] IS [X ] IS NOT conditioned upon Buyer's of the following tests and
evaluations of the Property:
(specify)________________________________________________
If any of the above items are checked in the affirmative, the Sections 8.1, 8.2,
8.3, and 8.4 apply; otherwise, they do not apply. Unless otherwise provided in
this Contract, the Evaluations & Inspections shall be paid for by Buyer and
shall be conducted by individuals or entities of Buyer's choice. Seller agrees
to cooperate with the Evaluations & Inspections and with the walk through
inspection under Section 11.
8.1 Period for Completion and Review of Evaluations and Inspections. No
later than the Buyer Cancellation Deadline referenced in Section 24(c)
Buyer shall: (a) complete all Evaluations & Inspections; and (b)
determine if the Evaluations & Inspections are acceptable to Buyer.
8.2 Right to Cancel or Object. If Buyer determines that the Evaluations and
Inspections are unacceptable, Buyer may, no later than the Buyer
Cancellation Deadline, either; (a) cancel this Contract by providing
written notice to Seller, whereupon the Earnest Money Deposit shall be
released to Buyer; or (b) provide Seller with written notice of
objections.
8.3 Failure to Respond. If by the expiration of the Buyer Cancellation
Deadline, Buyer does not: (a) cancel this Contract as provided in
Section 8.2; or (b) deliver a written objection to Seller regarding the
Evaluations & Inspections, the Evaluations & Inspections shall be
deemed approved by Buyer.
8.4 Response by Seller. If Buyer provides written objections to Seller,
Buyer and Seller shall have seven calendar days after Seller's receipt
of Buyer's objections (the "Response Period') in which to agree in
writing upon the manner of resolving Buyer's objections. Seller may,
but shall not be required to, resolve Buyer's objection. If Buyer and
Seller have not agreed in writing upon the manner of resolving Buyer's
objections, Buyer may cancel this Contract by providing written notice
to Seller no later than three calendar days after expiration of the
Response Period; whereupon the Earnest Money Deposit shall be released
to Buyer, regardless of whether such cancellation is before or after
the Earnest Money Forfeiture Deadline. If this Contract is not canceled
by Buyer under this Section 8.4, Buyer's objections shall be deemed
waived by Buyer. This waiver shall not affect those items warranted in
Section 10.
9 ADDITIONAL TERMS. There [X] ARE [ ] ARE NOT addenda to this Contract
containing additional terms. If there are, the terms of the following
addenda are incorporated into this Contract by this reference: [X]
Addendum No. 1 [ ] Survey Addendum [ X] Seller Financing Addendum [ ]
FHA/VA Loan Addendum [ ] Assumption Addendum [ ] Lead-Based Paint
Addendum (in some transactions this addendum is required by law) [ ]
Other (specify)_______________________
Page 3 of 6 pages Seller's Initials /s/ JLC and LC Buyer's Initials /s/ BJT
<PAGE>
10. SELLER WARRANTIES & REPRESENTATIONS.
10.1 Condition of Title. Seller represents that Seller has fee title to the
Property and will convey good and marketable title to Buyer at Closing
by general warranty deed; unless the sale is being made pursuant to a
real estate contact which provides for title to pass at a later date.
In that case, title will be conveyed in accordance with the provisions
of that contract. Buyer agrees, however, to accept title to the
Property subject to the following matters of record; easements, deed
restrictions, CC&R's (meaning covenants, conditions and restrictions),
and rights-of-way; and subject to the contents of the Commitment for
Title Insurance as agreed to by Buyer under Section 8. Buyer also
agrees to take the Property subject to existing leases affecting the
Property and expiring prior to Closing. Buyer agrees to be responsible
for taxes, assessments, homeowners association dues, utilities, and
other services provided to the Property after Closing. Except for any
loan(s) specifically assumed by Buyer under Section 2.1(c), Seller will
cause to be paid off by Closing all mortgages, trust deeds, judgements,
mechanic's liens, tax liens and warrants. Seller will cause to be paid
current by Closing all assessments and homeowners association dues.
10.2 Condition of Property. Seller warrants that the property will be
in the following condition ON THE DATE SELLER DELIVERS PHYSICAL
POSSESSION TO BUYER:
(a) the Property shall be broom-clean and free of debris and
personal belongings. Any Seller or tenant moving-related
damage to the Property shall be repaired at Seller's expense;
(b) the heating cooling, electrical plumbing and sprinkler systems
and fixtures, and the appliances and fireplaces will be in
working order and fit for their intended purposes;
(c) the roof and foundation shall be free of leaks known to
Seller;
(d) any private well or septic tank serving the Property shall
have applicable permits, and shall be in working order and fit
for its intended purpose; and
(e) the Property and improvements, including the landscaping, will
be in the same general condition as they were on the date of
Acceptance
11. WALK THROUGH INSPECTION. Before Settlement, Buyer may, upon reasonable
notice and at a reasonable time, conduct a "walk-through" inspection of
the Property to determine only that the Property is :as represented"
meaning that the items referenced in Sections 1.1, 8.4 and 10.2 ("the
items") are respectively present, repaired/changed as agreed, and in
the warranted condition. If the items are not as represented, Seller
will, prior to Settlement, replace, correct or repair the items or,
with the consent of Buyer (and Lender if applicable), escrow an amount
at Settlement to provide for the same. The failure to conduct a
walk-through inspection, or to claim that an item is not as
represented, shall not constitute a waiver by Buyer of the right to
receive, on the date of possession, the items as represented.
12. CHANGES DURING TRANSACTION. Seller agrees that from the date of
Acceptance until the date of Closing, none of the following shall occur
without the prior written consent of Buyer: (a) no changes in any
existing leases shall be made; (b) no new leases shall be entered into;
(c) no substantial alterations or improvements to the Property shall be
made or undertaken; and (d) no other financial encumbrances to the
Property shall be made.
13. AUTHORITY OF SIGNERS. If Buyer or Seller is a corporation, partnership,
trust, estate, limited liability company, or other entity, the person
executing this Contract on its behalf warrants his or her authority to
do so and to bind Buyer and Seller.
14. COMPLETE CONTRACT. This Contract together with its addenda, any
attached exhibits, and Seller Disclosures, constitutes the entire
Contract between the parties and supersedes and replaces any and all
prior negotiations, representations, warranties, understandings or
contracts between the parties. This Contract cannot be changed except
by written agreement of the parties.
15. DISPUTE RESOLUTION. The parties agree that any dispute, arising prior
to or after Closing, related to this Contract [X] SHALL [ ] MAY (upon
mutual agreement of the parties) first be submitted to mediation. If
the parties agree to mediation, the dispute shall be submitted to
mediation through a mediation provider mutually agreed upon by the
parties. Each party agrees to bear its own costs of mediation. If
mediation fails, the other procedures and remedies available under this
Contact shall apply. Nothing in this Section 15 shall prohibit any
party from seeking emergency equitable relief pending mediation.
16. DEFAULT. If Buyer defaults, Seller may elect either to retain the
Earnest Money Deposit as liquidated damages, or to return it and sue
Buyer to specifically enforce this Contract or pursue other remedies
available at Legal Assistant. If Seller defaults, in addition to return
of the Earnest Money Deposit, Buyer may elect either to accept from
Seller a sum equal to the Earnest Money Deposit as liquidated damages,
or may sue Seller to specifically enforce this Contract or pursue other
remedies available at law. If Buyer elects to accept liquidated
damages, Seller agrees to pay the liquidated damages to Buyer upon
demand. It is agreed that denial of a Loan Application made by Buyer is
not a default and is governed by Section 2.3(b)
Page 4 of 6 pages Seller's Initials /s/ JLC and LC Buyer's Initials /s/ BJT
<PAGE>
17. ATTORNEY FEES AND COSTS.
17.1 In Actions to Enforce this Contract. In the event of litigation or
binding arbitration to enforce this Contract the prevailing party shall
be entitled to costs and reasonable attorney's fees. Attorney fees
shall not be awarded for participation in mediation under Section 15.
17.2 In Interpleader Actions. If a principal broker holding the Earnest
Money Deposit is required by law to file an interpleader action in
court to resolve a dispute over that Deposit, Buyer and Seller
authorize that principal broker to draw from that Deposit an amount
necessary to advance the court costs needed to bring that interpleader
action. The amount of the Deposit remaining after advancing those costs
shall be interpleaded into court. Buyer and Seller further agree that
whichever of them is found to be in default may be ordered to pay any
reasonable attorney fees, or additional court costs, incurred by the
principal broker in bringing the action, unless the court finds that
there was fault on the part of the principal broker or his or her agent
that would make such an award of attorney fees and costs unjust.
18. NOTICES Except as provided in Section 23, all notices required under
this Contract must be: (a) in writing; (b) signed by the party giving
notice; and (c) received by the other party or the other arty's agent
no later than the applicable date referenced in this Contract.
19. ABROGATION. Except for the provisions of Sections 15 and 17.1 and
express warranties made in this Contract, the provisions of this
Contract shall not apply after Closing.
20. RISK OF LOSS. All risk of loss to the Property not caused by Seller or
Buyer, including physical damage or destruction to the Property or its
improvements due to any cause except ordinary wear and tear and loss
caused by a taking in eminent domain, shall be borne by Seller until
Seller delivers possession of the Property to Buyer.
21. TIME IS OF THE ESSENCE. Time is of the essence regarding the dates set
forth in this Contract. Extensions must be agreed to in writing by all
parties. Unless otherwise explicitly stated in this Contract: (a)
performance under each Section of this Contract which references a date
shall absolutely be required by 5:00 PM Mountain Time on the stated
date; and (b) the term "days" shall mean calendar days and shall be
counted beginning on the day following the event which triggers the
timing requirement (i.e., Acceptance, receipt of the Seller
Disclosures, etc.). Performance dates and times referenced herein shall
not be binding upon title companies, lenders, appraisers and others not
parties to this Contract, except as otherwise agreed to in writing by
such non-party.
22. FAX TRANSMISSION AND COUNTERPARTS. Facsimile (fax) transmission of a
signed copy of Contract, any addenda and counteroffers, and the
retransmission of any signed fax shall be the same as delivery of an
original. This Contract and any addenda and counteroffers may be
executed in counterparts.
23. ACCEPTANCE. "Acceptance" occurs when Seller or Buyer, responding to an
offer or counteroffer of the other: (a) signs the offer or counteroffer
where noted to indicate acceptance; and (b) communicates to the other
party or to the other party's agent that the offer or counteroffer has
been signed as required,
24. CONTRACT DEADLINES. Buyer and Seller agree that the following deadlines
shall apply to this Contract: (a) Application Deadline No later than
-0- calendar days after Acceptance. (b) Seller Disclosure Deadline No
later than 10 calendar days after Acceptance. (c) Buyer Cancellation
Deadline No later than 70 calendar days after Buyer's receipt of all of
the Seller's Disclosures. (d) Earnest Money Forfeiture Deadline 10
calendar days after Buyer Cancellation Deadline. (e) Settlement
Deadline June 30
25. OFFER AND TIME FOR ACCEPTANCE. Buyer offers to purchase the Property on
the above terms and conditions. If Seller does not accept this offer
by: ____[ ] AM [ ] PM Mountain Time upon presentation.
/s/BonnieJean C. Tippetts
(Buyer's Signature) (Offer Date)
BonnieJean C. Tippetts
Buyer's Names) (PLEASE PRINT) (Notice Address) (Phone)
Page 5 of 6 pages Seller's Initials /s/ JLC and LC Buyer's Initials BJT
<PAGE>
ACCEPTANCE/COUNTEROFFER/REJECTION
CHECK ONE:
[ ] ACCEPTANCE OF OFFER TO PURCHASE: Seller Accepts the foregoing offer
on the terms and conditions specified above.
[X] COUNTEROFFER; Seller presents for Buyer's Acceptance the terms of
Buyer's offer subject to the exceptions or modifications as specified
in the attached ADDENDUM No. 2.
/s/ Jack L. Carter
(Seller's Signature) (Date) (Time)
[ ] REJECTION: Seller Rejects the forgoing offer.
(Seller's Signature) (Date) (Time)
***********************************************************
DOCUMENT RECEIPT
State law requires Broker to furnish Buyer and Seller with coopies of this
Contract bearing all signatures. (Fill in applicable section below.)
A. I acknowledge receipt of a final copy of the foregoing Contract bearing
all signatures:
/s/ BonnieJean C. Tippetts
(Buyer's Signature) (Date)
/s/Jack L. Carter
(Seller's Signature) (Date)
B. I personally caused a final copy of the foregoing Contract bearing all
signatures to be [ ] faxed [ ] mailed [ ] hand delivered on ______ ,
19__, postage, prepaid, to the [ ] Seller [ ] Buyer
Sent/Delivered by (specify)____________________________________
THIS FORM APPROVED BY THE UTAH REAL ESTATE COMMISSION AND THE OFFICE OF THE
UTAH ATTORNEY GENERAL, EFFECTIVE JUNE 12, 1996. IT REPLACES AND
SUPERSEDES ALL PREVIOUSLY APPROVED VERSIONS OF THIS FORM.
Page 6 of 6 pages Seller's Initials /s/ JLC and LC Buyer's Initials BJT
<PAGE>
DISCLOSURE AND ACKNOWLEDGEMENT REGARDING
LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS
THIS IS A DISCLOSURE AND ACKNOWLEDGEMENT concerning Property (the "Property")
located at 390 South Main . This document contains certain provisions required
by federal law. If Buyer and Seller enter into a contract for the purchase of
the Property (a "REPC"), this document shall be attached to that contract and
made a part thereof.
1. LEAD WARNING STATEMENT. Every purchaser of any interest in residential real
property on which residential dwelling was built prior to 1978 is notified that
such property may present exposure to lead from lead-based paint that may place
young children at risk of developing lead poisoning. Lead poisoning in young
children may produce permanent neurological damage, including learning
disabilities, reduced intelligence quotient, behavioral problems, and impaired
memory. Lead poisoning also poses a particular risk to pregnant women. The
seller of any interest in residential real property is required to provide the
buyer with any information on lead=based paint hazards from risk assessments or
inspections in the seller's possession and notify the buyer of any known
lead-based paint hazards. A risk assessment or inspection or inspection for
possible lead-based paint hazards is recommended prior to purchase.
2. SELLER'S DISCLOSURE AND ACKNOWLEDGEMENT. ( Initial applicable boxes)
(a) Presence of lead-based paint and/or lead-based paint hazards
(initial one box only):
(i) ( - ) Known lead-based paint and/or lead-based paint hazards
are present in the Property (explain):____________________________
(ii) ( - ) Seller has no knowledge of lead-based paint and/or lead
based paint hazards in the Property.
(b) Records and reports available to Seller (initial one box only):
(i)( - ) Seller has provided Buyer with all available records and
reports pertaining to lead-based paint and/or lead-based hazards in
the Property (list documents):_____________________________
(ii) (BJT) Seller has no reports or records pertaining to
lead-based paint and/or lead-based paint hazards LC in the
property.
(c) Seller understands that under federal law, if Seller has not yet
made the disclosures in Sections 2(a) and 2 (b) of this document, or Buyer has
not yet been provided with an EPA approved lead hazard information pamphlet,
Seller may not accept an offer by Buyer to purchase the property until after
those steps have been completed and Buyer has been given an opportunity to
review that information and amend the offer.
(d) Seller understands that if Buyer initials the box in Section
3(d)(I) of this document, the REPC must include the Lead-Based Paint Addendum.
3. BUYERS ACKNOWLEDGMENT. (Initial)
(a) ( - ) Buyer has received copies of any
information listed in Sections 2(a) and 2(b)
above.
(b) (BJT) Buyer has received the pamphlet Protect Your
Family from Lead in You Home or an
Equivalent lead hazard information pamphlet
approved by the federal Environmental
Protection Agency.
(c) (BJT) Buyer has read the Lead Warning Statement in
Section 1 above and understands it contents.
(d) Buyer has (initial one box only):
(i) ( - ) a 10-day opportunity (or mutually agreed upon
period) to conduct a risk assessment or
inspection for the Presence of lead-based
paint and/or lead-based paint hazards. If
this box is initialed, the REPC must include
the Lead-Based Paint Addendum; OR
(ii)(BJT) By initialing this box, waived the
opportunity to conduct a risk assessment or
inspection for the presence of lead-based
paint and/or lead-based paint hazards.
4. AGENT'S ACKNOWLEDGEMENT. (Initial) ( - ) Agent has informed Seller of
Seller's obligations under 42 U.S.C. 4852d and is aware of his/her
responsibility to ensure compliance.
5. CERTIFICATION OF ACCURACY. Buyer, Seller and Agent (s) must sign The
following parties have reviewed the information above and certify, to the
best of their knowledge, that the information they have respectively
provided is true and accurate.
/S/JACK L. CARTER 4-24-97 /S/LOA CARTER 4-24-97
SELLERS SIGNATURE DATE SELLERS SIGNATURE DATE
/S/BONNIEJEAN C. TIPPETTS 4-24-97
BUYER SIGNATURE DATE BUYER SIGNATURE DATE
<PAGE>
SELLER FINANCING ADDENDUM TO
REAL ESTATE PURCHASE CONTRACT
This is a legally binding Contract, Utah State Law required that licensed real
estate agents use this form, but the Buyer and the Seller may legally agree in
writing to alter or delete provisions of this form. If you delete legal or tax
advice, consult your attorney or tax advisor.
- ------------------------------------------------------------------------------
THIS SELLER FINANCING ADDENDUM (the "Addendum") is made a part of that REAL
ESTATE PURCHASE CONTRACT (the "REPC") with an Offer Reference Date of 4/2 ,
1997, between David Michael Trust or assigns , as Buyer, and 390 S. Main , as
Seller. The terms of this Addendum shall control. All other terms of the REPC
not modified by this Addendum shall remain the same:
1. CREDIT DOCUMENTS. Seller's extension of credit to Buyer shall be evidenced
by:[X] Note and [] Deed of Trust Note and All-Inclusive Deed of Trust [] Other:
________________ .
2. CREDIT TERMS. The terms of the credit documents referred to in Section 1
above are as follows: $89,500 principal amount of the note (the "Note");
interest at 6% per annum; payable at approximately $533.92 per month. The entire
unpaid balance of principal plus accrued interest is due in 120 months from date
of the Note. First payment due 1 month after closing. Additional principal
payments, balloon payments or other terms as follows: 89,500 amortized over 30
years with a balloon in 10 yrs. No prepayment penalty. $533.92 plus ins. &
taxes. Taxes & ins. to be verified and added to 533.92. Title co. to verify all
payments. The credit documents referenced in Section 1 of this Addendum will
contain a due-on-sale clause in favor of Seller. Buyer [X] will [] will not
provide Seller at Closing with a lender's title policy insuring Seller in the
amount of the Note. Seller agrees to provide to Buyer at Closing: (i) an
amortization schedule based on the above terms; and (ii) a written disclosure of
the total interest Buyer will pay to maturity of the Note.
3. TAXES AND ASSESSMENTS. In addition to the payments referenced in Section 2
above, Buyer shall also be responsible for: (i) property taxes; (ii) homeowners
association dues; (iii) special assessments; and (iv) hazard insurance premiums
on the Property. These obligations will be paid: [] directly to Seller/Escrow
Agent on a monthly basis [X] directly to the applicable county treasurer;
association; and insurance company as required by those entities.
4. PAYMENT. Buyer's payments under Section 2 and 3 above will be made to: [X]
Seller [] an Escrow Agent,____________________ , will act as Escrow Agent and
will be responsible for disbursing payments on the underlying mortgage and to
the Seller. Cost of setting up and maintaining the escrow account shall be paid
by: [] Buyer [] Seller [] split evenly between the parties.
5. LATE PAYMENT/PREPAYMENT. Any payment not made with 5 days after it is due is
subject to a late charge of $___ Or 5% of the installment due. Amounts in
default shall bear interest at a rate ___of % per annum. All or part of the
principal balance on the Note may be paid prior to maturity without penalty.
6. DUE-ON-SALE. This transaction is subject to Buyer's approval of the terms of
any underlying loan as provided in Section 8 of the REPC. Buyer acknowledges
that any underlying loan on the Property may contain a due-on-sale clause which
requires the lender's consent to this transaction. If the lender does not
consent to this transaction and calls the loan immediately due, Buyer agrees to
discharge the underlying loan as required by the lender. In such event, Seller's
remaining equity shall be paid as provided in the credit documents.
7. BUYER'S DISCLOSURES. Buyer has provided to Seller, as a required part of this
Addendum, the attached "Buyer Financial Information Sheet - Part B." Buyer [X]
will [] will not provide Seller with copies or IRS returns for the two preceding
tax years. Buyer acknowledges that Seller may contact Buyer's current employer
for verification of employment as represented by Buyer in the Buyer Financial
Information Sheet.
8. SELLER APPROVAL. Within the time reference in Section 7 of the REPC, Buyer
shall provide to Seller, at Buyer's expense, a current credit report on Buyer
from a consumer credit reporting agency. Seller may use this information
contained in the credit report and the information referenced in Section 7 of
this Addendum (collectively referred to as the "Buyer Disclosures") to evaluate
the credit-worthiness of Buyer. Seller agrees to maintain confidential all
information contained in the Buyer Disclosures.
8.1 Seller Review. Within the time period allowed in Section 8.1 of the
REPC, Seller shall review the credit report and the Buyer Disclosures to
determine if, in Seller's sole discretion, the content of the credit report, and
the Buyer Disclosures, is acceptable. If the content of the credit report or the
Buyer Disclosures is not acceptable to Seller, Seller may elect to either: (i)
provide written objections to Buyer as provided in Section 8.2 of this Addendum;
or (ii) immediately void the REPC by providing written notice to Buyer within
the time referenced in Section 8.1 of the REPC. The Brokerage, upon receipt of a
copy of Seller's written notice of cancellation, shall return to Buyer the
Earnest Money Deposit without the requirement of any further written
authorization from Seller.
8.2 Seller Objections. If Seller does not immediately void the REPC as
provided above, Seller may within the time period allowed in Section 8.1 of the
REPC, provide Buyer with written objections. Buyer and Seller shall have seven
calendar days after Buyer's receipt of the objections to resolve Seller's
objections. Buyer may, but shall not be required to, resolve Seller's
objections. If Seller's objections are not resolved within the seven calendar
days, Seller may void the REPC by providing written notice to Buyer within the
same seven calendar days. The Brokerage, upon receipt of a copy of Seller's
written notice of cancellations, shall return to Buyer the Earnest Money Deposit
without the requirement of any further written authorization from Seller.
8.3 Failure to Object. If Seller does not deliver a written objection
to Buyer regarding the credit report or a Buyer Disclosure within the time
period allowed in Section 8.1 of the REPC, or if Seller does not void the REPC
as provided in Section 8.1 or 8.2 of this Addendum, any objections to the credit
report and Buyer Disclosures will be deemed approved or waived by Seller.
[] Seller [] Buyer shall have until______ [] A.M. [] P.M. Mountain Time upon
presentation, 19__, to accept these terms in accordance with Section 23 of the
REPC. Unless so accepted, this offer shall lapse.
/s/BonnieJean C. Tippetts
[X] Buyer [] Seller Signature Date
[] Buyer [] Seller Signature Date
- ------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[]ACCEPTANCE: []Seller []Buyer hereby accepts these terms.
[]Buyer []Seller Signature Date Time
[]Buyer []Seller Signature Date Time
[]REJECTION: []Seller []Buyer rejects these terms.
_______________________ (Initials) _________ (Date) _________ (Time)
COUNTER OFFER:[X]Seller[] Buyer presents as a counter offer the terms set forth
on the attached Counter Offer #2.
/s/JLC /s/LC (Sellers Initials)
<PAGE>
ADDENDUM # 1 / COUNTER OFFER #
TO
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT (the
"REPC") with an Offer Reference Date of 4/2 , 19 97 , including all addenda and
counter offers, between David Michael Trust or assigns , as Buyer, and Jack and
Loa Carter, as Seller. The following terms are hereby incorporated as part of
the REPC, and to the extent these terms modify or conflict with any provisions
of the REPC, these terms shall control. All other terms of the REPC not modified
shall remain the same:
1. Plat map to property
2. 3% commission to be paid to buyers agent Linda Wilberg & Dawn Colbert with
ERA Carlson Realtors.
3. Listing agent to negotiate with Seller on their percentage fee.
[ ] Seller [ ] Buyer shall have until [ ] A.M. [ ] P.M. Mountain Time, upon
presentation , 19 , to accept these terms in accordance with Section 23 of the
REPC. Unless so accepted, this offer shall lapse.
/s/BonnieJean C. Tippetts
[x] Buyer [ ] Seller Signature Date
[ ] Buyer [ ] Seller Signature Date
- ------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[x] Acceptance: [ ] Seller [ ] Buyer hereby accepts these terms.
/s/ Jack L. Carter
[ ] Buyer [x] Seller Signature Date Time
/s/ Loa Carter
[ ] Buyer [ ] Seller Signature Date Time
[ ] Rejection: [ ] Seller [ ] Buyer rejects these terms.
___________________ (Initials) ___________ (Date) _____ (Time).
[x] Counter Offer: [ ] Seller [ ] Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # .
<PAGE>
ADDENDUM/COUNTER OFFER
NO. 2
TO
REAL ESTATE PURCHASE CONTRACT
THIS IS AN [ ] ADDENDUM [x] COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT
(the "REPC") with an Offer Reference Date of 4/2 , 19 97 , between David Michael
Trust or assigns , as Buyer, and Jack & Loa Carter, as Seller. The following
terms are hereby incorporated as part of the REPC, and to the extent that they
modify or conflict with any provisions of the REPC, including all prior addenda
and counter offers, these terms shall control. All other terms of the REPC,
including all prior addenda and counter offers, not modified shall remain the
same:
Purchase price to be $150,000.00. Down payment to be increased to a total of
$80,000.00. Seller to finance $70,000.00 @ 10% interest amortized over 10 yrs.
Payment to be approx. $925.06 per month.
The Buyer and Seller agree that the Seller has the right to continue to offer
the property for sale and to accept offers subject to the rights of the Buyer.
If the Seller accepts such an offer, the Seller must notify the Buyer at:
The Buyer has 72 hrs. From receipt of Seller's notice to either
1. Remove applicable contingencies and increase earnest money to a total of
$10,000.00 (Ten Thousand) dollars which shall be non-refundable, or
2. Allow the agreement automatically to become null and void. In the latter
case, the earnest money will be returned to the buyer.
Payments to be set up with escrow specialists, box 3287, Ogden, Ut 84409. Set-up
fee and monthly fee to be paid 1/2by Buyer and1/2 by Seller.
[ ] Seller [x] Buyer shall have until upon presentation [ ] A.M. [ ] P.M.
Mountain Time, , 19 , to accept the terms of this ADDENDUM/COUNTER OFFER in
accordance with the provisions of Section 23 of the REPC. Unless so accepted,
the offer as set for in this ADDENDUM/COUNTER OFFER shall lapse.
/s/Jack L. Carter 4/3/97 /s/Loa Jean Carter 4/3/97
[] Buyer [] Seller Signature Date Time [] Buyer [] Seller Signature Date Time
z------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[ ] ACCEPTANCE of ADDENDUM/COUNTER OFFER: [ ] Seller [ ] Buyer hereby accepts
the terms of this ADDENDUM/COUNTER OFFER.
[ ] Buyer [ ] Seller Signature Date Time [ ] Buyer [ ] Seller Signature Date
Time [ ] REJECTION: [ ] Seller [ ] Buyer rejects the foregoing ADDENDUM/COUNTER
OFFER.
______________(Initials) ________________ (Date) ___________________ (Time).
[x] COUNTER OFFER: [ ] Seller [x] Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # . ---------
<PAGE>
ADDENDUM # / COUNTER OFFER # 3
TO
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT (the
"REPC") with an Offer Reference Date of 4-2 , 19 97 , including all addenda and
counter offers, between David Michael Trust or assigns , as Buyer, and 390 S.
Main, as Seller. The following terms are hereby incorporated as part of the
REPC, and to the extent these terms modify or conflict with any provisions of
the REPC, these terms shall control. All other terms of the REPC not modified
shall remain the same:
1. Purchase price to be $120,000
2. Sellers to finance $60,000 at 7% interest amortized over 30 years with a 10
yr. balloon
3. 72 hr. clause not acceptable. .
[x] Seller [ ] Buyer shall have until 5:00 [ ] A.M. [x] P.M. Mountain Time,
April 15 , 19 97 , to accept these terms in accordance with Section 23 of the
REPC. Unless so accepted, this offer shall lapse.
/s/BonnieJean C. Tippetts 4-4-97
[x] Buyer [ ] Seller Signature Date
[ ] Buyer [ ] Seller Signature Date
- --------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[x] Acceptance: [ ] Seller [ ] Buyer hereby accepts these terms.
/s/ Jack L. Carter
[ ] Buyer [ ] Seller Signature Date Time
/s/ Loa Carter
[ ] Buyer [ ] Seller Signature Date Time
[ ] Rejection: [ ] Seller [ ] Buyer rejects these terms.
______________________ (Initials) ________________ (Date)___________(Time).
[ ] Counter Offer: [ ] Seller [ ] Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # . ---------
<PAGE>
ADDENDUM/COUNTER OFFER
NO. 4
TO
REAL ESTATE PURCHASE CONTRACT
THIS IS AN [x] ADDENDUM [ ] COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT
(the "REPC") with an Offer Reference Date of 4-2 , 19 97 , including all addenda
and counter offers, between David Michael Trust or assigns , as Buyer, and Jack
and Loa Carter, as Seller. The following terms are hereby incorporated as part
of the REPC, and to the extent that they modify or conflict with any provisions
of the REPC, including all prior addenda and counter offers, these terms shall
control. All other terms of the REPC, including all prior addenda and counter
offers, not modified shall remain the same:
Payments to be set up with Escrow Specialists Set-up and monthly fee to be paid
1/2 to Buyer and 1/2 to seller.
Payments to be approx. $500.00 per mo. @ 7% annum with balloon in 10 yrs.
[ ] Seller [x] Buyer shall have until upon presentation [ ] A.M. [ ] P.M.
Mountain Time, , 19 , to accept the terms of this ADDENDUM/COUNTER OFFER in
accordance with the provisions of Section 23 of the REPC. Unless so accepted,
the offer as set for in this ADDENDUM/COUNTER OFFER shall lapse.
/s/Jack L. Carter 4/15/97 12:01 PM /s/Loa Jean Carter 4/15/97 12:02PM
- --------------------------------------------------- -------------------------
[]Buyer [] Seller Signature Date Time [] Buyer [] Seller Signature Date Time
- ------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE: subject to addendum #5
[x] ACCEPTANCE of ADDENDUM/COUNTER OFFER: [ ] Seller [ ] Buyer hereby accepts
the terms of this ADDENDUM/COUNTER OFFER.
/s/BonnieJean C. Tippetts
[x] Buyer [ ] Seller Signature Date Time [ ] Buyer [ ] Seller Signature Date
Time [ ] REJECTION: [ ] Seller [ ] Buyer rejects the foregoing ADDENDUM/COUNTER
OFFER.
____________________ (Initials)_____________________ (Date)__________ (Time).
[x] COUNTER OFFER: [ ] Seller [ ] Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # 5 to extension of time. ---------
<PAGE>
ADDENDUM # / COUNTER OFFER # 5
TO
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT (the
"REPC") with an Offer Reference Date of 4/2 , 19 97 , including all addenda and
counter offers, between David Michael Trust or assigns , as Buyer, and Jack &
Loa Carter, as Seller. The following terms are hereby incorporated as part of
the REPC, and to the extent these terms modify or conflict with any provisions
of the REPC, these terms shall control. All other terms of the REPC not modified
shall remain the same:
1. Because of length of time, due to out of town buyers/sellers, the buyer is
requesting 90 days from time of acceptance. Closing to take place July 30th.
Section 24 (b), (c) and (d) time frames shall start once this addendum has been
signed.
2. All other terms to remain the same.
Sellers Note: If at all possible sellers are requesting closing on or before
June 30, 1997, due to extreme medical condition.
[ ] Seller [ ] Buyer shall have until [ ] A.M. [ ] P.M. Mountain Time, upon
presentation , 19 , to accept these terms in accordance with Section 23 of the
REPC. Unless so accepted, this offer shall lapse.
/s/BonnieJean C. Tippetts
[x] Buyer [ ] Seller Signature Date
[ ] Buyer [ ] Seller Signature Date
- ------------------------------------------------------------------------------
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[ ] Acceptance: [ ] Seller [ ] Buyer hereby accepts these terms.
/s/ Jack L. Carter
[ ] Buyer [ ] Seller Signature Date Time
/s/ Loa Carter
[ ] Buyer [ ] Seller Signature Date Time
[ ] Rejection: [ ] Seller [ ] Buyer rejects these terms.
_____________________ (Initials) __________________ (Date)______(Time).
[ ] Counter Offer: [ ] Seller [ ] Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # .
<PAGE>
ADDENDUM NO. 6
TO
REAL ESTATE PURCHASE CONTRACT
Page of
THIS IS AN [ ] ADDENDUM [ ] COUNTEROFFER to that REAL ESTATE PURCHASE CONTRACT
(the "REPC") with an Offer Reference Date of , 19 , including all prior addenda
and counteroffers, between David Michael Trust , as Buyer, and Jack & Loa
Carter, as Seller, regarding the Property located at . The following terms are
hereby incorporated as part of the REPC:
Buyer will pay $20,000 down. Seller to carry $120,000 note at 7% interest
amortized over 15 years.
Payments are $898.83 per month. Pay off balloon will be t the end of 18 months.
Buyer will close by June 30, 1997.
To the extent the terms of this ADDENDUM modify or conflict with any provisions
of the REPC, including all prior addenda and counteroffers, these terms shall
control. All other terms of the REPC, including all prior addenda and
counteroffers, not modified by this ADDENDUM shall remain the same. [ ] Seller [
] Buyer shall have until [ ] A.M. [ ] P.M. Mountain Time, upon presentation , 19
, to accept the terms of this ADDENDUM in accordance with the provisions of
Section 23 of the REPC. Unless so accepted, the offer as set forth in this
ADDENDUM shall lapse.
/s/BonnieJean C. Tippetts
[x] Buyer [] Seller Signature Date Time [] Buyer [] Seller Signature Date Time
ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE:
[x] ACCEPTANCE: [X] Seller [ ] Buyer hereby accepts the terms of this ADDENDUM.
[ ] COUNTEROFFER: [ ] Seller [ ] Buyer presents as a counteroffer the terms of
attached ADDENDUM NO. .
/s/Jack L. Carter 5-27-97 /s/ Loa Carter 5-27-97
(Signature) (Date) (Time) (Signature (Date) (Time)
[ ] REJECTION: [ ] Seller [ ] Buyer rejects the foregoing ADDENDUM.
5-27-97 5-27-97
(Signature) (Date) (Time) (Signature) (Date) (Time)
THIS FORM APPROVED BY THE UTAH REAL ESTATE COMMISSION AND THE OFFICE OF THE UTAH
ATTORNEY GENERAL, EFFECTIVE JUNE 12, 1996. IT REPLACES AND SUPERCEDES ALL
PREVIOUSLY APPROVED VERSIONS OF THIS FORM.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made effective as of this 19TH day of
September, 1997, by and between Chelsea Capital Corporation ("Chelsea"), a
Delaware corporation whose address is c/o H. Leah Hansen, P.O. Box 1459, La
Jolla, CA 92038-1459 and TAC, Inc. ("TAC"), a Utah corporation whose address is
268 West 400 South, Salt Lake City, UT 84101, with respect to the following:
RECITALS
WHEREAS, in exchange for Chelsea delivering to TAC all of the issued
and outstanding stock of Vale Terrace Corporation ("Vale"), a Delaware
corporation whose address is c/o H. Leah Hansen, P.O. Box 1459, La Jolla, CA
92038-1459, and whose sole asset is an office building located at 956 Vale
Terrace Drive, Vista, San Diego County, California ("the Property"), TAC agrees
to deliver to Chelsea a certain number of shares of TAC Common Stock having a
value of approximately One Hundred Forty Thousand Dollars ($140,000.),
determined by dividing $140,000 by the bid price as of the Closing Date
hereunder.
AGREEMENT
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties have agreed as follows:
1. Representations and Warranties of Chelsea
Chelsea represents and warrants as follows:
(i) Chelsea is a corporation duly organized, and validly
existing under the laws of the state of Delaware.
(ii) Chelsea acknowledges that the receipt of Common Stock
as compensation involves a high degree of risk and
further acknowledges that it can bear the economic
risk of compensation in Common Stock;
(iii) Chelsea understands and acknowledges that the Common
Stock being issued pursuant to this Agreement will be
issued in reliance on specific exemptions from
registration requirements of federal and state
securities laws and that TAC is relying upon the
truth and accuracy of the representations,
warranties, agreements, acknowledgments and
understandings of Chelsea set forth herein in order
to determine the applicability of such exemptions and
the suitability of Chelsea to acquire the Common
Stock;
(iv) Chelsea is sufficiently experienced in financial and
business matters to be capable of evaluating the
merits and risks of receiving Common Stock, and to
make an informed decision relating thereto. Further,
it is an "accredited investor" as defined in the
Securities Act of 1933;
(v) Chelsea has consulted its own investment and/or legal
advisors in entering this Agreement;
(vi) Chelsea understands that in the view of the
Securities and Exchange Commission the statutory
basis for the exemption claimed for this transaction
would not be present if the offering of Common Stock
or option to purchase Common Stock is part of a
scheme or plan to evade the registration provisions
of the Securities Act of 1933. Chelsea confirms that
this transaction is not part of any such plan or
scheme.
(vii) Chelsea is not an underwriter of, or dealer in, the
Common Stock and it is not participating, pursuant to
a contractual agreement, in the distribution of the
Common Stock.
<PAGE>
(viii) Chelsea hereby acknowledges that it has been provided
with audited financial statements of TAC for the
years ending December 31, 1995 and 1996, as well as
such other documents as Chelsea considers necessary
in acquiring the shares of TAC pursuant to this
transaction. Chelsea further acknowledges that it has
been afforded the opportunity to inspect or request
such further documents as may be necessary to make an
informed decision concerning whether or not to accept
TAC shares pursuant to this Agreement.
2. Representations of TAC
TAC represents and warrants as follows:
(i) The Company is a corporation duly organized and
validly existing under the laws of the State of Utah.
(ii) TAC has all necessary corporate power and authority
under the laws of Utah and all other applicable
provisions of law to own its properties and other
assets now owned by it, to carry on business as now
being conducted, and to execute and deliver and carry
out the provisions of this Agreement.
(iii) All corporate action on the part of TAC required for
the lawful execution and delivery of this Agreement
and the issuance, execution and delivery of the
Shares will have been duly and effectively taken.
Upon execution and delivery, this agreement will
constitute a valid and binding obligation of TAC,
enforceable in accordance with its terms, except as
the enforceability may be limited by applicable
bankruptcy, insolvency or similar laws and judicial
decisions affecting creditors' rights generally.
3. Transfer of TAC Common Stock. The shares to be issued hereunder shall
be issued in compliance with the exemption from Federal registration
provided by Rule 504 of Regulation D promulgated under the Securities
Act of 1933 and exemptions from applicable state registration. Chelsea
hereby agrees to obtain an opinion of independent counsel, satisfactory
to the counsel of TAC, to the effect that the resale of such shares is
permitted under applicable state or federal law, before offering and
selling the Common Stock to be transferred to it under this Agreement.
4. Exemption; Reliance on Representations. Chelsea understands that the
TAC Common Stock has not been registered under the Securities Act of
1933 and that TAC is relying on the representations, warranties and
agreements of Chelsea made herein.
5. Transfer Agent Instructions. TAC's transfer agent will be instructed to
issue one or more stock certificates representing the Common Stock in
the name of Chelsea and bearing the following legend:
The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the"Act"), nor qualified under the
securities laws of any states, and have been issued in reliance upon
exemptions from such registration and qualification for non-public
offerings. Accordingly, the sale, transfer, pledge, hypothecation, and
or other disposition of any such securities or any interest therein may
not be accomplished except pursuant to an effective registration
statement or exemption under the Act and qualification under applicable
State securities laws, or pursuant to an opinion of counsel,
satisfactory in form and substance to the Issuer, to the effect that
such registration or exemption and qualification are not required.
TAC represents that these Shares shall be freely transferable on the
books and records of TAC subject to compliance with applicable
securities laws.
6. Survival of Representations, Warranties and Covenants. The
representations, warranties and covenants made respectively by TAC and
Chelsea in this Agreement shall survive the closing of the transaction
called for hereunder.
<PAGE>
7. Official Notices: All official communications or legal notices shall be
given in writing by registered or certified mail, addressed to the
respective party at the postal address or other address(es) as each
party may hereafter designate in writing, or when sent by facsimile
transmission, charges prepaid. The present addresses of the parties are
as follows:
TAC, Inc.
268 West 400 South
Salt Lake City, Utah 84101
(801) 575-8073
(801) 575-8092 fax
AND,
Chelsea Capital Corporation
c/o H. Leah Hansen
Post Office Box 1459
La Jolla, California 92038-1459
(619) 622-9105 Tel and fax
8. Miscellaneous. The following miscellaneous provisions, standard to agreements
of this nature, are made part hereof.
a. In the event any one or more of the provisions contained in
this Agreement are for any reason held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provisions of
this Agreement.
b. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, legal
representatives, successors and permitted assigns. The parties
may not transfer or assign all or any part of their rights or
obligations except to the extent expressly permitted by this
Agreement.
c. This Agreement constitutes the entire agreement and
understanding between the parties and supersedes any and all
agreements heretofore made between them. It may not be
modified or amended except in writing signed by both parties.
d. No term or condition of this Agreement shall be deemed to have
been waived nor shall there be any estoppel to enforce any
provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel.
e. This agreement shall be interpreted by the laws of the State
of California.
f. This agreement may be executed in one or more counterparts,
including electronic mail or facsimile, each of which may be
considered an original copy hereof.
9. Closing. The closing hereunder shall take place not later than
September 23, 1997 at such time and place as the parties mutually agree
to. At Closing, Chelsea shall deliver to TAC one or more certificates
(or other proof of ownership) evidencing the transfer of the Vale
stock, as well as any assignments, letters of instruction or other
instruments which may be necessary, desirable or appropriate in order
to transfer the Vale shares to TAC. At Closing, TAC shall issue and
deliver to Chelsea one or more certificates evidencing the TAC Common
Stock, as well as any assignments, letters of instruction or other
instruments which may be necessary, desirable or appropriate in order
to transfer the TAC shares to Chelsea.
a. Conditions precedent to Closing. TAC's obligations hereunder
are subject to the following conditions precedent being met:
<PAGE>
(i) TAC's agents have the opportunity to thoroughly
inspect the Property and make a reasonable
determination the Property is as was represented by
Chelsea.
(ii) Subject to Section 9.c. (vi) herein, at Closing
Chelsea shall satisfy the existing First Deed of
Trust and carry back as Beneficiary under a new First
Deed of Trust a loan amount of $400,000., bearing
interest at the annual rate of Ten (10) per cent,
with interest only payable monthly and the unpaid
principal balance due July 29, 1998.
(iii) Chelsea will provide to TAC secondary financing in
the sum of $560,000. for a term of seven (7) years,
with interest at the annual rate of Seven (7) per
cent, payable as follows: at Closing a number of
shares of TAC Common Stock at the bid price equal to
four (4) years of interest in advance. The TAC Common
Stock shall be as provided for in Sections 3, 4 and 5
herein. After completion of the fourth (4th) year,
interest only shall be payable by TAC monthly in
cash. The unpaid balance of principal and any
interest shall be convertible into Common Stock of
TAC at the bid price less a discount of Thirty (30)
per cent after Seven (7) years. The sole security for
this loan is the Property.
(iv) Prior written consent by Vozza Enterprises, Inc.,
landlord under the ground lease, accepting TAC as
ground lessee and as mortgagor under Section 9.c.
(ii), as required by the terms of the December 23,
1982 Ground Lease and any amendments thereto.
(v) Resolutions by the boards of directors of TAC and
Chelsea ratifying this transaction.
(vi) Chelsea will lease back the Property from TAC for a
period of one (1) year on a triple net basis,
including all payments due under the Ground Lease and
the First Deed of Trust. The purpose herein is to
guarantee break even cash flow.
(vii) Chelsea and TAC will become parties to a standard set
of Escrow Instructions prepared by Chicago Title
Insurance Company or , in the alternative, Chelsea
will represent and warrant that as of the Closing
Date hereunder there are no liens or encumbrances of
any kind whatsoever affecting the Property, beyond
those referred to in this agreement.
(viii) Further, Chelsea represents and warrants that there
will be no environmental or other violations
affecting the Property as of the Closing Date.
(ix) Agreement by Chelsea to subordinate its interest to
any future First Deed of Trust financing obtained by
TAC.
(x) Chelsea will deliver to TAC an Investment
Representation Letter in the form attached hereto.
(xi) Chelsea will deliver to TAC all of the corporate
books and records of Vale.
(xii) Chelsea will deliver to TAC the resignations of all
current officers and directors of Vale.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
TAC, Inc. Chelsea Capital Corporation
/s/ Richard Surber /s/
Richard Surber, President
STANDARD OFFICE LEASE - GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease, dated, September 23, 1997 is made by and
between Vale Terrace Corporation (herein called "Lessor")and Chelsea Capital
Corporation doing business under the name of Chelsea Capital Corporation.
(Herein called "Lessee").
1.2 Premises: Suite Number(s), all suites, floors consisting of
approximately 25,000 net square feet, more or less, as defined in paragraph 2
and as shown on Exhibit "A" hereto (the Premises").
1.3 Building: Commonly described as being located at 956 Vale Terrace
Drive. In the City of Vista County of San Diego State of California, as more
particularly described in Exhibit hereto, and as defined in paragraph 2.
1.4 Use: General office: Master lease with rights to sublease pursuant
to lesser's consent, subject to paragraph 6.
1.5 Term: 12 months, commencing October 1, 1997 ("Commencement Date")
and ending September 30, 1998, as defined in paragraph 3.
1.6 Base Rent: All triple net charges per month, payable on the first
day of each month per paragraph 4.1 including maintenance, utilities, taxes,
debt service (up to $960,000.00 of debt), land lease; exclusive of capital
improvements.
1.7 Base Rent Increase: On N/A the monthly Base Rent payable under
paragraph 1.6 above shall be adjusted as provided in paragraph 4.3 below.
1.8 Rent Paid Upon Execution: N/A
1.9 Security Deposit: N/A
1.10 Lessee's Share of Operating Expense Increase: N/A% as defined in
paragraph 4.2
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein
sometimes referred to as the "Building" identified in paragraph 1.3 of the Basic
Lease Provisions. "Building" shall include adjacent parking structures used in
connection therewith. The Premises, the Building, the Common Areas, the land
upon which the same are located, along with all the other buildings and
improvements thereon or thereunder, are herein collectively referred to as the
"Office Building Project." Lessor hereby leases to Lessee and Lessee leases from
Lessor for the term, at the rental, and upon all of the conditions set forth
herein the real property referred to in the Basic Lease Provisions, paragraph
1.2, as the "Premises", including rights to the Common Areas as hereinafter
specified.
<PAGE>
2.2 Vehicle Parking: So long as Lessee is not in default, and subject
to the rules and regulations attached hereto, and as established by Lessor from
time to time, Lessee shall be entitled to rent and use N/A parking spaces in the
Office Building Project at the monthly rate applicable from time to time for
monthly parking as set by Lessor and/or its licensee.
2.2.1 If Lessee commits, or allows any of the prohibited
activities described in the Lease or the rules then in effect, then the Lessor
shall have the right, without notice, in addition to such other rights and
remedies that it may have, to remove or tow away the vehicle involved and charge
the cost to Lessee, which cost shall be immediately payable upon demand by
Lessor.
2.2.2 The monthly parking rate per parking space will be $N/A
per month at the commencement of the term of this Lease, and is subject to
change upon five (5) days prior written notice to Lessee. Monthly parking fees
shall be payable one month in advance prior to the first day of each calendar
month.
2.3 Common Areas - Definition. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior boundary
line of the Office Building Project that are provided and designated by the
Lessor from time to time for the general non-exclusive use of Lessor, Lessee and
of other lessees of the Office Building Project and their respective employees,
suppliers, shippers, customers and invitees, including but not limited to common
entrances, lobbies, corridors, stairwells, public restrooms, elevators,
escalators, parking areas to the extent not otherwise prohibited by this Lease,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, ramps, driveways, landscaped areas and decorative walls.
2.4 Common Areas - Rules and Regulations. Lessee agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit B with respect
to the Office Building Project and Common Areas, and cause its employees,
suppliers, shippers, customers, and invitees to so abide and conform. Lessor or
such other person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time, to
modify, amend and enforce said rules and regulations. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees, their agents, employees and invitees of the Office Building
Project.
2.5 Common Areas - Changes. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Building interior and exterior and
Common Areas, including, without limitation, changes in the location, size,
shape, number, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, escalators, restrooms, driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and walkways;
provided, however, Lessor shall at all times provide the parking facilities
required by applicable law.
<PAGE>
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available.
(c) To designate other land improvements outside the
boundaries of the Office Building Project to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Office Building Project.
(d) To add additional buildings and improvements to the Common
Areas.
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof.
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Office Building Project
as Lessor may, in the exercise of sound business judgement deem to be
appropriate.
3. Term.
3.1 Term. The term and Commencement Date of this Lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Notwithstanding said Commencement Date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date and subject to paragraph 3.2.2, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Lessee hereunder or extend the term hereof; but, in such
case, Lessee shall not be obligated to pay rent or perform any other obligation
of Lessee under the terms of this Lease, except as may be otherwise provided in
this Lease, until possession of the Premises is tendered to Lessee, as
hereinafter defined; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days following said Commencement
Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided, however,
that, as to Lessee's obligations, Lessee first reimburses Lessor for all costs
incurred for Non-Standard Improvements and, as to Lessor's obligations, Lessor
shall return any money previously deposited by Lessee (less any offsets due
Lessor for Non-Standard Improvements); and provided further, that if such
written notice by Lessee is not received by Lessor within said ten (10) day
period, Lessee's right to cancel this Lease hereunder shall terminate and be of
no further force or effect.
3.2.1 Possession Tendered- Defined. Possession of the Premises
shall be deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed, (2) the Building utilities are ready for use in the Premises, (3)
Lessee has reasonable access to the Premises, and (4) ten (10) days shall have
expired following advance written notice to Lessee of the occurrence of the
matters described in (1), (2), and (3), above of this paragraph 3.2.1.
<PAGE>
3.2.2 Delays Caused by Lessee. There shall be no abatement of
rent, and the sixty (60) day period following the Commencement Date before which
Lessee's right to cancel this Lease accrues under paragraph 3.2, shall be deemed
to the extent of any delays caused by acts or omissions of Lessee, Lessee's
agents, employees and contractors.
3.3 Early Possession. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date, and Lessee shall
pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of this Lease
term is defined as the completion of the Improvements, Lessee and Lessor shall
execute an amendment to this Lease establishing the date of Tender of Possession
(as defined in paragraph 3.2.1) or the actual taking of possession by Lessee,
whichever first occurs, as the Commencement Date.
4. Rent.
4.1 Base Rent. Subject to adjustment as hereinafter provided in this
Lease, Lessee shall pay to Lessor the Base Rent for the Premises set forth in
paragraph 1.6 of the Basic Lease Provisions, without offset or deduction. Lessee
shall pay Lessor upon execution hereof the advance Base Rent described in
paragraph 1.8 of the Basic Lease Provisions. Rent for any period during the term
hereof which is for less than one month shall be prorated based upon the actual
number of days of the calendar month involved. Rent shall be payable in lawful
money of the United States to Lessor at the address stated herein or to such
other persons or at such other places as Lessor may designate in writing.
4.2 Operating Expense Increase. Lessee shall pay to Lessor during the
term hereof, in addition to the Base Rent, Lessee's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter defined,
for each Comparison Year exceeds the amount of all Operating Expenses for the
Base Year, such excess being hereinafter referred to as the "Operating Expense
Increase", in accordance with the following provisions:
(a) "Lessee's Share" is defined, for purpose of this Lease, as
the percentage set forth in paragraph 1.10 of the Basic Lease Provisions, which
percentage has been determined by dividing the approximate square footage of the
Premises by the total approximate square footage of the rentable space contained
in the Office Building Project. It is understood and agreed that the square
footage figures set forth in the Basic Lease Provisions are approximations which
Lessor and Lessee agree are reasonable and shall not be subject to revision
except in connection with an actual change in the size of the Premises or a
change in the space available for lease in the Office Building Project.
(b) "Base Year" is defined as the calendar year in which the
Lease term commences.
(c) "Comparison Year" is defined as each calendar year during
the term of this Lease subsequent to the Base Year; provided, however, Lessee
shall have no obligation to pay a share of the Operating Expense increase
applicable to the first twelve (12) months of the Lease Term (other than such as
are mandated by a governmental authority, as to which government mandated
expenses Lessee shall pay Lessee's Share, notwithstanding they occur during the
first twelve (12) months). Lessee's Share of the Operating Expense Increase for
the first and last Comparison Years of the Lease Term shall be prorated
according to that portion of such Comparison Year as to which Lessee is
responsible for a share of such increase.
<PAGE>
(d) "Operating Expenses" is defined, for purpose of this Lease, to
include all costs, if any, incurred by Lessor in the exercise of its reasonable
discretion, for:
(i) The operation, repair, maintenance, and
replacement, in neat, clean, safe, good order and condition, of the Office
Building roject, including but not limited to, the following:
(aa) The Common Areas, including their surfaces,
coverings, decorative items, carpets, drapes and window coverings, and including
parking areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, stairways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, Common Area lighting facilities, building exteriors and
roofs, fences and gates;
(bb) All heating, air conditioning, plumbing,
electrical systems, life safety equipment, telecommunication and other equipment
used in common by, or for the benefit of, lessees or occupants of the Office
Building Project, including elevators and escalators, tenant directories, fire
detection systems including sprinkler system maintenance and repair.
(ii) Trash disposal, janitorial and security
services;
(iii) Any other services to be provided by Lessor
that is elsewhere in this Lease states to be an "Operating Expense";
(iv) The cost of the premiums for the liability and
property insurance policies to be maintained by Lessor under paragraph 8 hereof;
(v) The amount of the real property taxes to be
paid by Lessor under paragraph 10.1 hereof;
(vi) The cost of water, sewer, gas, electricity,
and other publicity mandated services to the Office Building Project;
(vii) Labor, salaries and applicable fringe
benefits and costs, materials, supplies and tools, used in maintaining and/or
cleaning the Office Building Project and accounting and a management fee
attributable to the operation of the Office Building Project;
(viii) Replacing and/or adding improvements
mandated by any government agency and any repairs or removals necessitated
thereby amortized over its useful life according to Federal income tax
regulations or guidelines for depreciation thereof (including interest on the
unamortized balance as is then reasonable in the judgement of Lessor's
accountants):
(ix) Replacements of equipment or improvements that
have a useful life for depreciation purposes according to Federal Income tax
guidelines of five (5) years or less, as amortized over such life.
<PAGE>
(e) Operating Expenses shall not include the costs of
replacements of equipment or improvements that have a useful life for Federal
Income tax purposes in excess of five (5) years unless it is of the type
described in paragraph 4.2(d)(viii), in which case their cost shall be included
as above provided.
(f) Operating Expenses shall not include any expenses paid by
any lessee directly to third parties, or as to which Lessor is otherwise
reimbursed by any third party, other tenant, or by insurance proceeds.
(g) Lessee's Share of Operating Expense Increase shall be
payable by Lessee within ten (10) days after a reasonably detailed statement of
actual expenses is presented to Lessee by Lessor. At Lessor's option, however,
an amount may be estimated by Lessor from time to time in advance of Lessee's
Share of the Operating Expense Increase for any Comparison Year, and the same
shall be payable monthly or quarterly, as Lessor shall designate, during each
Comparison Year of the Lease term, on the same day as the Base Rent is due
hereunder. In the event that Lessee pays Lessor's estimate of Lessee's Share of
Operating Expense Increase as aforesaid, Lessor shall deliver to Lessee within
sixty (60) days after the expiration of each Comparison Year a reasonably
detailed statement showing Lessee's Share of the actual Operating Expense
Increase incurred during such year. If Lessee's payments under this paragraph
4.2(g) during said Comparison Year exceed Lessee's Share as indicated on said
statement, Lessee shall be entitled to credit the amount of such overpayment
against Lessee's Share of Operating Expense Increase next falling due. If
Lessee's payments under this paragraph during said Comparison Year were less
than Lessee's Share as indicated on said statement, Lessee shall pay to Lessor
the amount of the deficiency within ten (10) days after delivery by Lessor to
Lessee of said statement. Lessor and Lessee shall forthwith adjust between them
by cash payment any balance determined to exist with respect to that portion of
the last Comparison Year for which Lessee is responsible as to Operating Expense
Increases, notwithstanding that the Lease term may have terminated before the
end of such Comparison Year.
4.3 Rent Increase
4.3.1 At the times set forth in paragraph 1.7 of the Basic
Lease Provisions, the monthly Base Rent payable under paragraph 4.1 of this
Lease shall be adjusted by the increase, if any, in the Consumer Price Index of
the Bureau of Labor Statistics of the Department of Labor for All Urban
Consumers, (1967=100), "All Items," for the city nearest the location of the
Building, herein referred to as "C.P.I.," since the date of this Lease.
4.3.2 The monthly Base Rent payable pursuant to paragraph
4.3......1 shall be calculated as follows: the Base Rent payable for the first
month of the term of this Lease, as set forth in paragraph 4.1 of this Lease,
shall be multiplied by a fraction the numerator of which shall be the C.P.I. for
the calendar month in which the original Lease term commences. The sum so
calculated shall constitute the new monthly Base Rent hereunder, but, in no
event, shall such new monthly Base Rent be less than the Base Rent payable for
the month immediately preceding the date for the rent adjustment.
<PAGE>
4.3.3 In the event the compilation and/or publication of the
C.P.I. shall be transferred to any other governmental department or bureau or
agency or shall be discontinued, then the index most nearly the same as the
C.P.I. shall be used to make such calculations. In the event that Lessor and
Lessee cannot agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration Association in the county in
which the Premises are located, in accordance with the then rules of said
association and the decision of the arbitrators shall be binding upon the
parties, notwithstanding one party failing to appear after due notice of the
proceeding. The cost of said Arbitrators shall be paid equally by Lessor and
Lessee.
4.3.4 Lessee shall continue to pay the rent at the rate
previously in effect until the increase, if any, is determined. Within five (5)
days following the date on which the increase is determined, Lessee shall make
such payment to Lessor as will bring the increased rental current, commencing
with the effective date of such increase through the date of any rental
installments then due. Thereafter the rental shall be paid at the increased
rate.
4.3.5 At such time as the amount of any change in rental
required by this Lease in known or determined, Lessor and Lessee shall execute
an amendment to this Lease setting forth such change.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof the
security deposit set forth in paragraph 1.9 of the Basic Lease Provisions as
security for Lessee's faithful performance of Lessee's obligations hereunder. If
Lessee fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provision of this Lease, Lessor may use, apply or retain all
or any portion of said deposit for the payment of any rent or other charge in
default for the payment of any other sum to which Lessor may become obligated by
reason of Lessee's default, or to compensate Lessor for any loss or damage which
Lessor may suffer thereby. If Lessor so uses or applies all or any portion of
said deposit, Lessee shall within ten (10) days after written demand therefore
deposit cash with Lessor in an amount sufficient to restore said deposit to the
full amount then required of Lessee. If the monthly base rent shall, from time
to time, increase during the term of this Lease, Lessee shall, at the time of
such increase, deposit with Lessor additional money as a security deposit so
that the total amount of the security deposit held by Lessor shall at all times
bear the same proportion to the then current base rent as the initial security
deposit bears to the initial base rent set forth in paragraph 1.6 of the Basic
Lease Provisions. Lessor shall not be required to keep said security deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Lessor, shall be returned, without payment of interest or other
increment for its use, to Lessee (or, at Lessor's option to the last assignee,
if any, of Lessee's interest hereunder) at the expiration of the term hereof,
and after Lessee has vacated the Premises. No trust relationship is created
herein between Lessor and Lessee with respect to said Security Deposit.
6.Use.
6.1 Use. The Premises shall be used and occupied only for the purpose
set forth in paragraph 1.4 of the Basic Lease Provisions or any other use which
is reasonably comparable to that use and for no other purpose.
<PAGE>
6.2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, does not violate any covenants or restrictions of record,
or any applicable building code, regulation or ordinance in effect on such Lease
term Commencement Date. In the event it is determined that this warranty has
been violated, then it shall be the obligation of the Lessor, after written
notice from Lessee, to promptly, at Lessor's sole cost and expense, rectify any
such violation.
(b) Except as provided in paragraph 6.2 (a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements of any fire insurance under writers or rating bureaus, now in
effect or which may hereafter come into effect, whether or not they reflect a
change in policy from that now existing, during the term or any part of the term
manner and shall not use or permit the use of the Premises or the Common Areas
in any manner that will tend to create waste or a nuisance or shall tend to
disturb other occupants of the Office Building Project.
6.3 Conditions of Premises.
(a) Lessor shall deliver the Premises to Lessee in a clean
condition on the Lease Commencement Date (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, and heating system in the Premises shall be in good operating
condition. In the event that it is determined that this warranty has been
violated, then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the violation,
to promptly, at Lessor's sole cost, rectify such violation.
(b) Except as provided in this Lease, Lessee hereby accepts the
Premises and the Office Building Project in their condition existing as of the
Lease Commencement Date or the date that Lessee takes possession of the
Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises and any easements, covenants or restrictions of record, and
accepts this lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Lessee acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor's agent or agents has made any
representation or warranty as to the present or future suitability of the
Premises, Common Areas or Office Building Project for the conduct of Lessee's
business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Lessor's Obligations. Lessor shall keep the Office Building
Project, including the Premises, interior and exterior walls, roof and common
areas, and the equipment whether used exclusively for the Premises or in common
with other premises in good condition and repair provided, however, Lessor shall
not be obligated to paint, repair or replace wall coverings or to repair or
replace any improvements that are not ordinarily a part of the building or are
above then Building standards. Except as provided in paragraph 9.5, there shall
be no abatement of rent or liability of Lessee on account of any injury or
interference with Lessee's business with respect to any improvements,
alterations or repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any statute now or hereafter in
effect which would otherwise afford Lessee the right to make repairs at Lessor's
expense or to terminate this Lease because of Lessor's failure to keep the
Premises in good order, condition and repair.
<PAGE>
7.2 Lessee's Obligations.
(a) Notwithstanding Lessor's obligation to keep the Premises in
good condition and repair, Lessee shall be responsible for payment of the cost
thereof to Lessor as additional rent for that portion of the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Lessee or the Premises to the extent such cost is attributable to
causes beyond normal wear and tear. Lessee shall be responsible for the cost of
painting, repairing or replacing wall coverings and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above then building standards. Lessor may at its option, upon reasonable notice,
elect to have Lessee perform any particular such maintenance or repairs the cost
of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as received, ordinary wear and tear excepted, clean and free of debris. Any
damage or deterioration of the Premises shall not be deemed ordinary wear and
tear if the same could have been prevented by good Maintenance practices by
Lessee. Lessee shall repair any damage to the Premises occasioned by the
installation or removal of Lessee's trade fixtures, alterations, furnishings,
and equipment. Except as otherwise stated in the Lease, Lessee shall leave the
air lines, power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings, wall coverings, carpets, wall paneling, ceilings
and plumbing on the Premises and in good operation condition.
7.3 Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written consent make
any alterations, improvements, additions, utility installations or repairs in,
on or about the Premises of the Office Building Project. As used in this
paragraph 7.3 the term "Utility Installation" shall mean carpeting, window and
wall coverings, power panels, electrical distribution systems, lighting
fixtures, air conditioning, plumbing, telephone and telecommunication wiring and
equipment. At the expiration of the term, Lessor may require the removal of any
or all of said alterations, improvements, additions or utility installations and
the restoration of the Premises and the Office Building Project to their prior
condition, at Lessee's expense. Should Lessor permit Lessee to make its own
alterations, improvements, additions or utility installations, Lessee shall use
only such contractor as has been expressly approved by Lessor and Lessor may
require Lessee to provide Lessor at Lessee's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make any
alterations, improvements, additions or Utility installations without the prior
approval of lessor, or use a contractor not expressly approved by Lessor, Lessor
may, at any time during the term of this Lease, require that Lessee remove any
part or all of the same.
<PAGE>
(b) Any alterations, improvements, additions or Utility
installations in or about the Premises of the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent to Lessee's making
such alteration, improvement, addition or Utility installation, the consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from the
applicable governmental agencies, furnishing a copy thereof to Lessor prior to
the commencement of the work, and compliance by Lessee with all conditions of
said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(d) Lessee shall give Lessor not less than ten (10) days' notice
prior to the commencement of any work in the Premises by Lessee, and Lessor
shall have the right to post notices of non-responsibility in or on the Premises
of the Building as provided by law. If Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and satisfy any
such adverse judgement that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises, the Building or the Office Building
Project upon the condition that it Lessor shall require, Lessee shall furnish to
Lessor a surety bond satisfactory to Lessor in an amount equal to such contested
lien claim or demand indemnifying Lessor against liability for the same and
holding the Premises, the Building and the Office Building Project free from the
effect of such lien or claim. In addition, Lessor may require Lessee to pay
Lessor's reasonable attorney's fees and costs in participating in such action if
Lessor shall decide it is to Lessor's best interest so to do.
(e) All alterations, improvements, additions and utility installations
(whether or not such Utility Installations constitute trade fixtures or Lessee)
which ,my be made to the Premises by Lessee including but not limited to floor
coverings, panelings, doors, drapes, built-ins, moldings, sound attenuation, and
lighting and telephone or communications systems,. conduit, wiring and outlets,
shall be made and done in a good and workmanlike manner and of good and
sufficient quality and materials and shall be the property of Lessor and remain
upon and be surrendered with the Premises at the expiration of the Lease term,
unless Lessor requires their removal pursuant to paragraph 7.3(a). Provided
Lessee is not in default, notwithstanding the provisions of this paragraph
7.3(e), Lessee's personal property and equipment, other than that which is
affixed to the Premises so that it cannot be removed without material damage tot
he Premises or the Building, and other that Utility installations, shall remain
the property of Lessee and may be removed by Lessee subject to the provisions of
paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and specifications
for any alterations, improvements, additions or Utility Installations.
<PAGE>
7.4 Utility Additions. Lessor reserves the right to install new or
additional utility facilities throughout the Office Building Project for the
benefit of Lessor or Lessee, or any other lessee of the office Building Project,
including but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Lessee's use of
the Premises.
8. Insurance: Indemnity
8.1 Liability Insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of
Comprehensive General Liability insurance utilizing an Insurance
Services Office standard form with Broad Form General Liability
Endorsement (GL0404), or equivalent, in an amount of not less than
$1,000,000 per occurrence of bodily injury and property damage combined
or in a greater amount as reasonably determined by Lessor and shall
insure Lessee with Lessor as an additional insured against liability
arising out of the use, occupancy or maintenance of the Premises.
Compliance with the above requirement shall not, however, limit the
liability of Lessee hereunder.
8.2 Liability Insurance - Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Broad Form Property Damage Insurance, plus coverage against
such other risks Lessor deems advisable from time to time, insuring
Lessor, but not Lessee, against liability arising out of the ownership
use, occupancy or maintenance of the Office Building Project in an
amount not less than $5,000,000.00 per occurrence
8.3 Property Insurance - Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease for the benefit
of Lessee, replacement cost fire and extended coverage insurance, with
vandalism and malicious mischief, sprinkler leakage and earthquake
sprinkler leakage endorsements, in an amount sufficient to cover not
less than 100% of the full replacement cost, as the same may exist from
time to time, of all of Lessee's personal property, fixtures, equipment
and tenant improvements.
8.4 Property Insurance - Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies of Insurance
covering loss or damage to the Office Building Project improvements,
but not Lessee's personal property, fixtures, equipment or tenant
improvements, in the amount of the full replacement cost thereof, as
the same may exist from time to time, utilizing insurance Services
Office standard form, or equivalent, providing protection against all
perils included within the classification of fire, extended coverage,
vandalism malicious mischief, plate glass, and such other perils as
Lessor deems advisable or may be required by a lender having a lien on
the Office Building Project. In addition, Lessor shall contain and keep
in force, during the term of this Lease, a policy of rental value
insurance covering a period of one year, with loss payable to Lessor,
which insurance shall also cover all Operating Expenses for said
period. Lessee will not be named in any such policies carried by Lessor
and shall have no right to any proceeds therefrom. The policies
required by these paragraphs 8.2 and 8.4 shall contain such deductibles
as Lessor of the aforesaid lender may determine. In the event that the
Premises shall suffer an insured loss s defined in paragraph 9.1(l)
hereof, the deductible amounts under the applicable insurance policies
shall be deemed an Operating Expense. Lessee shall not do or permit to
be done anything which shall invalidate the insurance policies carried
by Lessor. Lessee shall pay the entirety of any increase in the
property insurance premium for the Office Building Project over what it
was immediately prior to the commencement of the term of this Lease if
the increase is specified by Lessor's insurance carrier as being caused
by the nature of Lessee's occupancy or any act or omission of Lessee.
<PAGE>
8.5 Insurance Policies lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.1 or
certificates evidencing the existence and amounts of such insurance
within seven (7) days after the Commencement Date of this Lease. No
such policy shall be cancellable or subject to reduction of coverage or
other modification except after thirty (30) days prior written notice
to Lessor, Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with renewals thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the
other fir direct or consequential loss or damage arising out of or
incident to the perils covered by property insurance carried by such
party, whether due to the negligence of Lessor or Lessee or their
agents, employees, contractors and/or invitees. If necessary all
property insurance policies required under this Lease shall be endorsed
to so provide.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor and its
agents, Lessor's master or ground lessor, partners and lenders, from
and against any and all claims for damage to the person or property of
anyone or any entity arising from Lessee's use of the Office Building
Project or from the conduct of Lessee's business or from any activity,
work or things done, permitted or suffered by Lessee in or about the
Premises or elsewhere and shall further indemnify and hold harmless
Lessor from and against any and all claims, costs, and expenses arising
from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising
from any act or omission of by Lessee, or any of Lessee's agents,
contractors, employees, or invitees, and from and against all costs
attorney's fees, expenses and liabilities incurred reasonably
therewith, including but not limited to the defense or pursuit of any
claim or any action or proceeding involved therein; and in case any
action or proceeding be brought against Lessor by reason of any such
matter, Lessee upon notice from Lessor shall defend the same at
Lessee's expense by counsel reasonably satisfactory to Lessor and
Lessor shall cooperate with Lessee in such defense. Lessor need not
have first paid any such claim in order to be so indemnified. Lessee,
as a material part of the consideration to Lessor, hereby assumes all
risk of damage to property of Lessee or injury to persons, in, upon or
about the Office Building Project arising from any cause and Lessee
hereby waives all claims in respect thereof against Lessor.
8.8 Exemption of Lessor from Liability, Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss
of income therefrom or for loss of or damage to the goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees,
customers or any other person in or about the Premises or the Office
Building Project, nor shall Lessor be liable for injury to the person
of Lessee, Lessee's employees, agents or contractors whether such
damage or injury is caused by or results from theft, fire, steam,
electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other
cause, sources or places, or from new construction or the repair,
alteration or improvement of any part of the Office Building Project,
or from other fixtures appurtenances applicable thereto, and regardless
of whether the cause of such damage or injury or the means of repairing
the same is inaccessible, Lessor shall not be liable for any damages
arising from any act or neglect of any other lessee, occupant or user
of the Office Building Project, nor from the failure of Lessor to
enforce the provisions of any other lease of any other lessee of the
Office Building Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance
specified in this paragraph 8 are adequate to cover Lessee's property
or obligations under this Lease.
<PAGE>
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
(b) "Premises Building Partial Damage: shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is fifty percent (50%) of the then Replacement
Cost of the building. (c) "Premises Building Total Destruction" shall
mean if the Building of which the Premises are a part is damaged or
destroyed to the extent that the cost to repair is fifty percent (50%)
or more of the then Replacement Cost of te Building. (d) "Office
Building Project Buildings" shall mean all of the buildings on the
Office Building Project site. (e) "Office Building Project Buildings
Total Destruction" shall mean if the Office Building Project Buildings
are damaged or destroyed to the extent that the cost of repair is fifty
percent (50%) or more of the then Replacement Cost of the Office
Building Project Buildings. (f) "Insured Loss" shall mean damage or
destruction which was caused by an event requited to be covered by the
insurance described in paragraph 8. The fact that an Insured Loss has a
deductible amount shall not make the loss an uninsured loss. (g)
"Replacement Cost" shall mean the amount of money necessary to be spent
in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring, excluding all
improvements made by lessees, other than those installed by Lessor at
Lessee's expense.
9.2 Premises Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4 and 9.5,
if at any time during the term of this Lease there is damage which is
an Insured Loss and which falls into the classification of either
Premises Damage or Premises Building Partial Damage, then Lessor shall,
as soon as reasonably possible and to the extent the required materials
and labor are readily available through usual commercial channels, at
Lessor's expense, repair such damage (but not Lessee's fixtures,
equipment or tenant improvements originally paid for by Lessee) to its
condition existing at the time of the damage, and this Lease shall
continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the terms of this Lease there is damage
which is not an Insured Loss and which falls within the classification
of Premises Damage or Premises Building Partial Damage, unless caused
by a negligent or willful act of Lessee (in which event Lessee shall
make the repairs at Lessee's expense), which damage prevents Lessee
from making any substantial use of the Premises, Lessor may at Lessor's
option either (in) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full
force and effect, or (ii) give written notice to Lessee within thirty
(30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the
occurrence of such damage, in which event this Lease shall terminate as
of the date of the occurrence of such damage.
<PAGE>
9.3 Premises Building Total Destruction: Office Building Project Total
Destruction: Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not
it is an Insured Loss, which falls into the classifications of either
(in) Premises Building Total Destruction, or (ii) Office Building
Project Total Destruction, then Lessor may at Lessor's option either
(in) repair such damage or destruction as soon as reasonably possible
at Lessor's expense (to the extent the required materials are readily
available through ususal commercial channels) to its condition existing
at the time of the damage, but not Lessee's fixtures, equipment or
tenant improvements, and this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee within thirty (30) days
after the date of occurrence of such damage of Lessor's intention to
cancel and terminate this Lease, in which case this Lease shall
terminate as of the date of the occurrence of such damage.
9.4 Damage Near End Term.
(a) Subject to paragraph 9.4(b), if at any time during the last twelve
(12) months of the term of this Lease there is substantial damage to
the Premises, Lessor may at Lessor's option cancel and terminated this
lease as of the date of occurrence of such damage by giving written
notice to Lessee of Lessor's election to do so within 30 days after the
date of occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee has an
option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shale exercise such
option, if it is to be exercised at all, no later than twenty (20) days
after the occurrence of an Insured Loss falling within the
classification of Premises Damage during the last twelve (12) months of
the term of this Lease. If Lessee duly exercises such option during
said twenty (20) day period, Lessor shall, at Lessor's expense repair
such damage, but not Lessee's fixtures, equipment or tenant
improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such
option during said twenty (20) day period, then Lessor may at Lessor's
option terminate and cancel this Lease as of the expiration of said
twenty (20) day period by giving written notice to Lessee of Lessor's
election to do so within ten (10) days after the expiration of said
twenty (20) day period notwithstanding any term or provision in the
grant of option to the contrary.
9.5 Abatement of Rent: Lessee's Remedies.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part
of the Premises are not usable (including loss of use due to loss of
access or essential services), the rent payable hereunder (including
Lessee's Share of Operating Expense Increase) for the period during
which such damage, repair or restoration continues shall be abated,
provided (1) the damage wan not the result of the negligence of lessee,
and (2) such abatement shall only be to the extent the operation and
profitability of Lessee's business as operated from the Premises is
adversely affected. Except for said abatement of rent, if any, Lessee
shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises or the Building under the provisions of this Paragraph 9 and
shall not commence such repair or restoration within ninety (90) days
after such occurrence, or if Lessor shall not complete the restoration
and repair within six (6) months after such occurrence, Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor
written notice of Lessee's election to do so at any time prior to the
commencement or completion, respectively, of such repair or
restoration. In such event this Lease shall terminate as of the date of
such notice.
<PAGE>
(c) Lessee agrees to cooperation with Lessor in connection with
any such restoration and repair, including but not limited to the
approval and/or execution of plans and specifications required.
9.6 Termination - Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to
Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
security deposit as has not theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the real property tax, as
defined in paragraph 10.3., applicable to the Office Building Project
subject to reimbursement by Lessee's Share of such taxes in accordance
with the provisions of paragraph 4.2, except as otherwise provided in
paragraph 10.2.
10.2 Additional Improvements. Lessee shall not be responsible for
paying any increase in real property tax specified in the tax
assessor's records and work sheets as being caused by additional
improvements placed upon the Office Building Project by other lessees
or by Lessor for the exclusive enjoyment of any other lessee. Lessee
shall, however, pay to Lessor at the time that Operating Expenses are
payable under paragraph 4.2(c) the entirety of any increase in real
property tax if assessed solely by reason of additional improvements
placed upon the Premises by Lessee or at Lessee's request.
10.3 Definition of "Real Property Tax". As used herein, the term
"real property tax" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any
license fee, commercial rental tax, improvement bond or bonds, levy or
tax (other than inheritance, personal income or estate taxes) imposed
on the Office Building Project or any portion thereof by any authority
having the direct or indirect power to tax, including any city, county,
state or federal government, or any school, agricultural, sanitary,
fire street, drainage or other improvement district thereof, as against
any legal or equitable interest of Lessor in the Office Building
Project. The term "real property tax" shall also include any tax, fee,
levy, assessment or charge (in) in substitution of, partially or
totally, any tax, fee, levy, assessment or charge hereinabove included
within the definition of "real property tax;" or (ii) the nature of
which was hereinbefore included within the definition of "real property
tax"; or (iii) which is imposed for a service or right not charged
prior to June 1, 1978, or, if previously charged, has been increased
since June 1, 1978, or (iv) which is imposed as a result of a change in
ownership, as defined by applicable local statutes for property tax
purposes, of the Office Building Project or which is added to a tax or
charge hereinbefore included within the definition of real property tax
by reason of such change of ownership, or (v) which is imposed by
reason of this transaction, any modifications or changes hereto, or any
transfers hereof.
10.4 Joint Assessment. If the improvements or property, the taxes
for which are to be paid separately by Lessee under paragraph 10.2 or
10.5 are not separately assessed, Lessee's portion of that tax shall be
equitably determined by Lessor from the respective valuations assigned
in the assessor's work sheets or such other information (which may
include the cost of construction) as may be reasonably available.
lessor's reasonable determination thereof, in good faith, shall be
conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Lessee contained in the Premises or
elsewhere.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real property, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
<PAGE>
11. Utilities.
11.1 Services Provided by Lessor. Lessor shall provide heating,
ventilation, air conditioning and janitorial service as reasonably
required, reasonable amounts of electricity for normal lighting and
office machines, water for reasonable and normal drinking and lavatory
use, and replacement light bulbs and/or fluorescent tubes and ballasts
for standard overhead fixtures.
11.2 Services Exclusive to Lessee. Lessee shall pay for all
water, gas, heat, light, power, telephone and other utilities and
services specially or exclusively supplied and/or metered exclusively
to the Premises or to Lessee, together with any taxes thereon, If any
such services are not separately metered to the Premises, Lessee shall
pay at Lessor's option, either Lessee's Share or a reasonable
proportion to be determined by Lessor of all charges jointly metered
with other premises in the Building.
11.3 Hours of Service. Said services and utilities shall be
provided during generally accepted business days and hours or such
other days or hours as may hereafter be set forth. Utilities and
services required at other times shall be subject to advance request
and reimbursement by Lessee to Lessor of the cost thereof.
11.4 Excess Usage by Lessee. Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including but not limited to security services, over
standard office usage for the Office Building Project. Lessor shall require
Lessee to reimburse Lessor for any excess expenses or costs that may arise out
of a breach of this subparagraph by Lessee. Lessor shall require Lessee to
reimburse Lessor for any excess expenses or costs that may arise out of a breach
of this subparagraph by Lessee. Lessor may, in its sole discretion, install at
Lessee's expense supplemental equipment and/or separate metering applicable to
Lessee's excess usage or loading.
11.5 Interruptions. There shall be no abatement of rent and Lessor
shall not be liable in any respect whatsoever for the inadequacy stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Lessor's
reasonable control or in cooperation with governmental request or directions.
12. Assignment and Subletting.
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a material
default and breach of this Lease without the need for notice to Lessee under
paragraph 13.1. "Transfer" within the meaning of this paragraph 12 shall include
the transfer or transfers aggregating: (a) If Lessee is a corporation, more than
twenty-five percent (25%) of the voting stock of such corporation, or (b) if
Lessee is a partnership, more than twenty-five percent (25%) of the profit and
loss participation in such partnership.
<PAGE>
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of lessee as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Lessee Affiliate";
provided that before such assignment shall be effective, (a) said assignee shall
assume, in full, the obligations of Lessee under this Lease and (b) Lessor shall
be given written notice of such assignment and assumption. Any such assignment
shall not, in any way, affect or limit the liability of Lessee under the terms
of this Lease even if after such assignment or subletting the terms of this
lease are materially changed or altered without the consent of Lessee, the
consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, no assignment or subletting
shall release Lessee of Lessee's obligations hereunder or alter the primary
liability of Lessee to pay the rent and other sums due Lessor hereunder
including Lessee's Share of Operating Expense Increase, and to perform all other
obligations to be performed by lessee hereunder.
(b) Lessor may accept rent from any person other than Lessee
pending approval or disapproval of such assignment.
(c) Neither a delay in the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a waiver
or estoppel of Lessor's right to exercise its remedies for the breach of any of
the terms or conditions of this paragraph 12 or this Lease.
(d) If Lessee's obligation under this Lease have been guaranteed
by third parties, then an assignment or sublease, and Lessor's consent thereto
shall not be effective unless said guarantors give their written consent to such
sublease and the terms thereof.
(e) The consent by Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by Lessee or
to any subsequent or successive assignment or subletting by the sublessee.
However, Lessor may consent to subsequent sublettings and assignments of the
sublease or any amendments or modifications thereto without notifying Lessee or
anyone else liable on the lease or sublease and without obtaining their consent
and such action shall not relieve such persons from liability under this Lease
or said sublease; however, such persons shall not be responsible to the extent
any such amendment or modification enlarges or increase the obligations of the
Lessee or sublessee under this Lease or such sublease.
<PAGE>
(f) In the event of any default under this Lease, Lessor may
proceed directly against Lessee, any guarantors or any one else responsible for
the performance of this Lease, including the sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible therefor to
Lessor, or any security held by Lessor or Lessee.
(g) Lessor's written consent to any assignment or subletting of
the Premises by Lessee shall not constitute an acknowledgment that no default
then exists under this Lease of the obligations to be performed by lessee nor
shall such consent be deemed a waiver of any then existing default, except as
may be otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement relied
upon by lessor in giving its consent to an assignment or subletting was
materially false shall, at Lessor's election, render Lessor's said consent null
and void.
12.4 Additional Terms and conditions Applicable to Subletting.
Regardless of Lessor's consent, the following terms and conditions shall apply
to any subletting by Lessee of all or any part of the Premises and shall be
deemed included in all subleases under this Lease whether or not expressly
incorporate therein:
(a) Lessee hereby assigns and transfers to Lessor all of lessee's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Lessee, and Lessor may collect such rent and income and apply
same toward Lessee's obligations under this Lease; provided, however, that until
a default shall occur in the performance of Lessee's obligations under this
Lease, Lessee may receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of this or any other assignment of such
sublease to Lessor nor by reason of the collection of the rents from a
sublessee, be deemed liable to the sublessee for any failure of Lessee to
perform and comply with any of Lessee's obligations to such sublessee under such
sublease. Lessee hereby irrevocably authorizes and directs any such sublessee,
upon receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to Lessor the
rents due and to become due under the sublease. Lessee agrees that such
sublessee shall have the right to rely upon any such statement and request from
Lessor, and that such sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against said sublessee or Lessor for any such rents
so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless
and until it has been approved in writing by Lessor. In entering into any
sublease, Lessee shall use only such form of sublessee as is satisfactory to
Lessor, and once approved by Lessor, such sublease shall not be changed or
modified without Lessor's prior written consent.. Any sublease shall by reason
of entering into a sublease under this Lease, be deemed, for the benefit of
Lessor, to have assumed and agreed to conform and comply with each and every
obligation herein to be performed by Lessee other than such obligations as are
contrary to or inconsistent with provisions contained in a sublease to which
Lessor have expressly consented in writing.
<PAGE>
(c) In the event Lessee shall default in the performance of its
obligations under this Lease, Lessor at its option and without any obligation to
do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of lessee under such sublease from the time of
the exercise of said option to the termination of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to Lessee or for any other prior defaults of Lessee under
such sublease.
(d) No sublessee shall further assign or sublet all or any part
of the Premises without Lessor's prior written consent.
(e) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within three (3) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset from
and against Lessee for any such defaults cured by the sublessee.
12.5 Lessor's Expenses. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable costs and expenses incurred in
connection therewith, including attorneys', architects', engineers or other
consultants' fees.
12.6 Conditions to Consent. Lessor reserves the right to condition any
approval to assign or sublet upon Lessor's determination that (a) the proposed
assignee or sublessee shall conduct a business on the Premises of a quality
substantially equal to that of Lessee and consistent with the general character
of the other occupants of the Office Building Project and nor on violation of
any exclusives or rights then held by other tenants, and (b) the proposed
assignee or sublessee be at least as financially responsible as Lessee was
expected to be at the time of the execution of this Lease or of such assignment
of subletting, whichever is greater.
13. Default; Remedies.
13.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises by Lessee.
Vacation of the Premises shall include the failure to occupy the Premises for a
continuous period of sixty (60) days or more, whether or not the rent is paid.
(b) The breach by Lessee of any of the covenants, conditions or
provisions of paragraphs 7.3 (a), (b), or (d) (alterations), 12.1 (assignment or
subletting), 13.1 (a) (vacation or abandonment), 13.1 (e) (insolvency), 13.1 (f)
(false statement), 16 (a) (estoppel certificate), 30 (b) (subordination), 33
(auctions), or 41.1 (easements), all of which are hereby deemed to be material,
non-curable defaults without the necessity of any notice by Lessor to Lessee
thereof.
<PAGE>
(c) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
(d) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this lease to be observed or performed by
Lessee other than those referenced in subparagraphs (b) and (c), above, where
such failure shall continue for a period of thirty days (30) after written
notice thereof from Lessor to Lessee; provided, however, that if the nature of
Lessee's noncompliance is such that more than thirty (30) days are reasonably
required for its cure, then Lessee shall not be deemed to be in default if
Lessee commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion; to the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given to Lessee under applicable Unlawful Detainer statutes.
(e) (i) The making by Lessee of any general arrangement or
general assignment for the benefit of creditors; (ii) Lessor becoming a "debtor"
as defined in 11 U.S.C.~101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within sixty (60)
days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of the Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 13.1 (e) is contrary to
any applicable law, such provision shall be of no force or effect.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or its successor in interest or by any guarantor of Lessee's
obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this
Lease by Lessee, Lessor may at any time thereafter with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default.
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term thereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees
and any real estate commission actually paid: the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to paragraph 16
applicable to the unexpired term of this Lease.
<PAGE>
(b) Maintain Lessee's right to possession in which case this
Lease shall continue in effect whether or not Lessee shall have vacated or
abandoned the Premises. In such event Lessor shall be entitled to enforce all of
Lessor's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws of judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date due by
law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that is the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
pursues the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expense Increase or
other sums due hereunder will cause Lessor to incur costs not contemplated by
the Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any installment
of Base Rent, Operating Expense increase, or any other sum due from Lessee shall
not be received by Lessor or Lessee shall not be received by Lessor or Lessor's
designee within then (10) days after such amount shall be due, then, without any
requirement for notice to Lessee, Lessee shall pay to Lessor a late charge equal
to 6% of such overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Lessor will incur by
reason of late payment by Lessee. Acceptance of such late charge by Lessor shall
in no event constitute a waiver of Lessee's default with respect to such overdue
amount, nor prevent Lessor from exercising any of the other rights and remedies
granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the Office Building
Project are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs; provided that if so
much of the Premises or the Office Building Project are taken by such
condemnation as would substantially and adversely affect the operation and
profitability of Lessee's business conducted from the Premises. Lessee shall
have the option, to be exercised only in writing within thirty (30) days after
Lessor shall have given Lessee written notice of such taking (or in absence of
such notice, within thirty (30) days after the condemning authority shall have
taken possession), to terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent and Lessee's
Share of Operating Expense increase shall be reduced in the proportion that the
floor area of the Premises taken bears to the total floor area of the Premises.
Common Areas taken shall be excluded from the Common Areas usable by Lessee and
no reduction of rent shall occur with respect thereto or by reason thereof.
Lessor shall have the option in its sole discretion to terminate this Lease as
of the taking of possession by the condemning authority by giving written notice
to Lessee of such election within thirty (30) days after receipt of notice of a
taking by condemnation of any part of the Premises of the Office Building
Project. Any award for the taking of all or any part of the Premises or the
Office Building Project under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Lessor,
whether such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any separate award for loss of or
damage to Lessee's trade fixtures, removable personal property and unamortized
tenant improvements that have been paid for by Lessee. For that purpose the cost
of such improvements shall be amortized over the original term of this lease
excluding any options. In the event that this Lease is not terminated by reason
of such condemnation, Lessor shall to the extent of severance damage received by
Lessor in connection with such condemnation, repair any damage to the Premises
caused by such condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority. Lessee shall pay any amount of such
severance damages required to complete such repair.
<PAGE>
15. Broker's Fee.
(a) The brokers involved in this transaction are N/A as "listing
broker" and N/A As "cooperative broker", licensed real estate broker (s). A
"cooperating broker" is defined as any broker other than the listing broker
entitled to a share of any commission arising under the Lease. Upon execution of
this Lease by both parties, Lessor shall pay to said brokers jointly, or in such
separate shares as they may mutually designate in writing, a fee as set forth in
a separate agreement between Lessor and said broker(s), or in event there is no
separate agreement between Lessor and said broker(s), the sum of $ N/A , for
brokerage services rendered by said broker(s) to Lessor in this transaction.
(b) Lessor further agrees that (I)if Lessee exercises any Option as
defined in paragraph 39.1 of this Lease which is granted to Lessee under this
lease, or any subsequently granted option which is substantially similar to an
Option granted to Lessee under this Lease, or (ii) if Lessee acquires any rights
to the Premises or other premises described in this Lease which are
substantially similar to what Lessee would have acquired had an Option herein
granted to Lessee been exercised, or (iii) if Lessee remains in possession of
the Premises after the expiration of the term of this Lease after having failed
to exercise an Option, or (iv) if said broker(se) are the procuring cause of any
other lease or sale entered into between the parties pertaining to the Premisses
and/or any adjacent property in which Lessor has an interest, or (v) if the Base
Rent is increased, whether by agreement or operation of an escalation clause
contained herein, then as to any of said transactions or rent increases, Lessor
shall pay said broker(s) a fee in accordance with the schedule of said broker(s)
in effect at the time of execution of this Lease. Said fee shall be paid at the
time such increased rental is determined.
<PAGE>
(c) Lessor agrees to pay said fee not only on behalf of Lessor but also
on behalf of any person, corporation, association, or other entity having an
ownership interest in said real property or any part thereof, when such fee is
due hereunder. Any transferee of Lessor's interest in this Lease. Whether such
transfer is by agreement or by operation of law, shall be deemed to have assumed
Lessor's obligation under this paragraph 15. Each listing and cooperating broker
shall be a third party beneficiary of the provisions of this paragraph 15 to the
extent of their interest in any commission arising under this Lease and may
enforce that right directly against Lessor; provided however, that all brokers
having a right to any part of such total commission shall be a necessary party
to any suit with respect thereto.
(d) Lessee and Lessor each represent and warrant to the other that
neither has had any dealings with any person, firm, broker or finder (other than
the person(s), if any, whose names are set forth in paragraph 15 (a), above) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and no other broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with said
transaction and Lessee and Lessor do each hereby indemnity and hold the other
harmless from and against any costs expenses, attorney's fees or liability for
compensation or charges which may be claimed by any such unnamed broker, finder
or other similar party by reason of any dealings or actions of the indemnifying
party.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not less
than then (10) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Office Building Project or
of the business of Lessee.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (I) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor desires to finance, refinance, or sell the Office
Building Project, or any part thereof, Lessee hereby agrees to deliver to any
lender or purchaser designated by Lessor such financial statements of Lessee as
may be reasonably required by such lender or purchaser. Such statements shall
include the past three (3) years' financial statements of Lessee. All such
financial statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
<PAGE>
17. Lessor's Liability. The term "Lessor" as used herein shall mean only the
owner or owners, at the time in questions, of the fee title or a lessee's
interest in a ground lease of the Office Building Project, and except as
expressly provided in paragraph 15, in the event of any transfer of such title
or interest, Lessor herein named (and in case of any subsequent transfers then
the grantor) shall be relieved from and after the date of such transfer of all
liability as respects lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall, subject
as aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership.
18. Severability. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law or judgments from the date due. Payment of such interest
shall not s\excuse or cure any default by Lessee under this Lease; provided,
however, that interest shall not be payable on late charges incurred by Lessee
nor on any amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the obligations to
be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including but not limited to Lessee's Share of Operating
Expense Increase and any other expenses payable by Lessee hereunder shall be
deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest as the time of the modification. Except as otherwise stated
in this Lease. Lessee hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agent of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of the Premises or the Office Building Project of Lessee acknowledges
that Lessee assumes all responsibility regarding the Occupational Safety Health
Act, the legal use and adaptability of the Premises and the compliance thereof
with all applicable laws and regulations in effect during the term of this
Lease.
23. Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered
mail, and shall be deemed sufficiently given if delivered or addressed to Lessee
or to Lessor at the address noted below or adjacent to the signature of the
respective parties, as the case may be. Mailed notices shall be deemed given
upon actual receipt at the address required, or forty-eight hours following
deposit in the mail, postage prepaid, whichever first occurs. Either party may
by notice to the other specify a different address for notice purposes except
that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for notice purposes. A copy of all notices required
or permitted to be given to Lessor hereinafter shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
<PAGE>
24. Waivers. No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptances of such rent.
25. Recording. Either lessor or lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. Holding Over. If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, except that the rent payable
shall be two hundred percent (200%) of the rent payable immediately preceding
the termination date of this Lease, and all Options, if any, granted under the
terms of this Lease shall be deemed terminated and be of no further effect
during said month to month tenancy.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof restricting
assignment or subletting by lessee and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. Subordination.
(a) This Lease, and any Option or right of first refusal granted
hereby, at Lessor's option, shall be subordinate to any ground lease, mortgage,
deed of trust, or any other hypothecation or security now or hereafter placed
upon the Office Building Project and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Premises shall not be disturbed if
Lessee is not in default and so long as Lessee shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground lessor
shall elect to have this Lease and any Option granted hereby prior to the lien
of its mortgage, deed of trust or ground lease, and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
mortgage, deed of trust or ground lease or the date of recording thereof.
<PAGE>
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Lessee's failure to execute such documents within then (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option, Lessor shall execute such
documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and
in Lessee's name, place and stead, to execute such documents in accordance with
this paragraph 30(b).
31. Attorneys' Fees.
31.1 If either party or the broker(s) named herein bring an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, trial or appeal thereon, shall be entitled to his reasonable
attorneys' fees to be paid by the losing party as fixed by the court in the same
or a separate suit, and whether or not such action is pursued to decision or
judgment. The provisions of this paragraph shall inure to the benefit of the
broker name herein who seeks to enforce a right hereunder.
31.2 The attorneys' fee award shall not be computed in accordance with
any court fee schedule, but shall be such as to fully reimburse all attorneys'
fees reasonably incurred in good faith.
31.3 Lessor shall be entitled to reasonable attorneys' fees and all
other costs and expenses incurred in the preparation and service of notice of
default and consultations in connection therewith, whether or not a legal
transaction is subsequently commenced in connection with such default.
32. Lessor's Access.
32.1 Lessor and Lessor's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, performing
any services required of Lessor, showing the same to prospective purchasers,
lenders, or lessees, taking such safety measures, erecting such scaffolding or
other necessary structures, making such alterations, repairs, improvements or
additions to the Premises or to the Office Building Project as Lessor may
reasonably deem necessary or desirable and the erecting, using and maintaining
of utilities, services, pipes and conduits through the Premises and/or other
premises as long as there is no material adverse effect to Lessee's use of the
Premises. Lessor may at any time place on or about the Premises of the Building
any ordinary "For Sale" signs and Lessor may at any time during the last 120
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs.
<PAGE>
32.2 All activities of Lessor pursuant to this paragraph shall be
without abatement of rent, nor shall Lessor have any liability to Lessee for the
same.
32.3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes,
and in the case of emergency to enter the Premises by any reasonably appropriate
means, and any such entry shall not be deemed a forceable or unlawful entry or
detainer of the Premises or an eviction. Lessee waives any charges for damages
or injuries or interference with Lessee's property or business in connection
therewith.
33. Actions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction, upon the Premises or the Common Areas
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent. The holding of any auction on the Premises of Common Areas in violation
of this paragraph shall constitute a material default of this Lease.
34. Signs. Lessee shall not place any sign upon the Premises or the Office
Building Project without Lessor's prior written consent. Under no circumstances
shall Lessee place a sign on any roof of the Office Building Project.
35. Merger. The voluntary or other surrender of this Lese by Lessee, or a mutual
cancellation thereof, or a termination by Lessor, shall not work a merger, and
shall, at the option of Lessor, terminate all or any existing subtenancies or
may, at the option of Lessor, operate as an assignment to Lessor of any or all
of such subtenancies.
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs) hereof,
wherever in this Lease the consent of one party is required to an act of the
other party such consent shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. Quiet Possession. Upon Lessee paying the rent for the Premises and observing
and performing al of the covenants, conditions and provisions on Lessee's part
to be observed and performed hereunder, Lessee shall have quiet possession of
the Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Office Building Project.
39. Options.
39.1 Definition. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (2) the option of right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space withing the Office Building Project or other
property of Lessor or the right of first offer to lease other space withing the
Office Building Project or other property of Lessor; (3) the right or option to
purchase the Premises or the Office Building Project, or the right of first
refusal to purchase the Premises or the Office Building Project or the right of
first offer to purchase the Premises or the Office Building Project, or the
right or option to purchase other property of Lessor, or the right of first
refusal to purchase other property of Lessor or the right of first offer to
purchase other property of Lessor.
<PAGE>
39.2 Options Personal. Each Option granted to Lessee in this Lease is
personal to the original Lessee an may be exercised only by the original Lessee
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than Lessee; provided, however, that an Option may be
exercised by or assigned to any Lessee Affiliate as defined in paragraph 12.2 of
this Lease. The Options, in any herein granted to Lessee are not assignable
separate and apart from this Lease, nor may any Option be separated from this
lease in any manner, either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised unless
the prior option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary, (i) during the time
commencing from the date Lessor gives to Lessee a notice of default pursuant to
paragraph 13.1(c) or 13.1(d) and continuing until the noncompliance alleged in
said notice of default is cured, or (ii) during the period of time commencing on
the day after a monetary obligation to Lessor is due from Lessee and unpaid
(without any necessity for notice thereof to Lessee) and continuing until the
obligation is paid, or (iii) in the event that Lessor has given to Lessee three
or more notices of default under paragraph 13.1(c), or paragraph 13.1(d),
whether or not the defaults are cured, during the 12 month period of time
immediately prior to the time that Lessee attempts to exercise the subject
Option, (iv) if Lessee has committed any non-curable breach, including without
limitation those described in paragraph 13.1(b), or is otherwise in default of
any of the terms, covenants and conditions of this Lease.
(b) The period of time withing which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise an during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(d) withing thirty (30)
days after the date that Lessor gives notice to Lessee of such default and/or
Lessee fails thereafter to diligently prosecute said cure to completion, or
(iii) Lessor gives to Lessee three or more notices of default under paragraph
13.1(c), or paragraph 13.1(d), whether or not the defaults are cured, or (iv) if
Lessee has committed any non-curable breach, including without limitation those
described in paragraph 13.1(b), or is otherwise in default of any of the terms,
covenants and conditions of this Lease.
<PAGE>
40. Security Measures - Lessor's Reservations.
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole option,
from providing security protection for the Office Building Project or any part
thereof, in which event the cost hereof shall be included within the definition
of Operating Expenses, as set forth in paragraph 4.2(b).
40.2 Lessor shall have the following rights:
(a) To change the name, address, or title of the Office Building
Project or building in which the Premises are located upon not less than 90 days
prior written notice;
(b) To, at Lessee's expense, provide and install Building
standard graphics on the door of the Premises and such portions of the Common
Areas as Lessor shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any
business as long as such exclusive does not conflict with any rights expressly
given herein;
(d) To place such signs, notices or displays as Lessor reasonably
deems necessary or advisable upon the roof, exterior of the buildings or the
Office Building Project or on pole signs in the Common Areas;
40.3 Lessee shall not:
(a) Use a representation (photographic or otherwise) of the
Building or the Office Building Project or their name(s) in connection with
Lessee's business;
(b) Suffer or permit anyone, except in emergency, to go upon the
roof of the Building.
41. Easements.
41.1 Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or desirable,
and to cause the recordation of Parcel Maps and restrictions, so long as such
easements, right dedications. Maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material default of this Lease by Lessee without the need for
further notice to Lessee.
<PAGE>
41.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third parties,
shall in no way affect this Lease or impose any liability upon Lessor.
42. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
43. Authority. If lessee is a corporation, trust, or general or limited
partnership, Lessee, and each individual executing this lease on behalf of such
entity represent and warrant that such individual is duly authorized to execute
and deliver this Lease on behalf of said entity. If lessee is a corporation,
trust or partnership. Lessee shall, within (30) days after execution of this
lease, deliver to Lessor evidence of such authority satisfactory to Lessor.
44. Conflict. Any conflict between the printed provisions, Exhibits or addenda
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
45. No Offer. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to Lessee to lease.
This lease shall become binding upon Lessor and lessee only when fully executed
by both parties.
46. Lender Modification. Lessee agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
47. Multiple Parties. If more than one person or entity is names as either
Lessor or Lessee herein, except as otherwise expressly provided herein, the
obligations of the Lessor or Lessee herein shall be in the joint and several
responsibility of all persons or entities named herein as such Lessor of Lessee,
respectively.
48. Work Letter. This lease is supplemented by that certain Work Letter of even
date executed by Lessor and Lessee, attached hereto as Exhibit C, and
incorporated herein by this reference.
49. Attachments. Attached hereto are the following documents which constitute a
part of this letter.
<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO, THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTIVE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS
AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO; THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND
TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
VALE TERRACE CORPORATION CHELSEA CAPITAL CORPORATION
by/s/ RICHARD SURBER, PRESIDENT by/s/ H LEAH HANSEN
Its Its PRESIDENT
By By
Its Its
Executed at Executed at SAN DIEGO, CALIF.
on on SEPTEMBER 23, 1997
Address Address 9310 TOWNE CENTRE DR.#78
SAN DIEGO, CA 92122
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
UNAUDITED CONDENSED FINANCIAL STATEMENTS FILED WITH THE COMPANY'S SEPTEMBER 30,
1997, QUARTERLY REPORT ON FORM 10-QSB AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<CURRENCY> U. S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 4,150
<SECURITIES> 398,987
<RECEIVABLES> 565,624
<ALLOWANCES> 89,097
<INVENTORY> 0
<CURRENT-ASSETS> 2,688,622
<PP&E> 8,974,148
<DEPRECIATION> (923,507)
<TOTAL-ASSETS> 11,838,448
<CURRENT-LIABILITIES> 3,262,780
<BONDS> 0
0
0
<COMMON> 11,321
<OTHER-SE> 3,396,504
<TOTAL-LIABILITY-AND-EQUITY> 11,838,448
<SALES> 0
<TOTAL-REVENUES> 2,875,081
<CGS> 1,634,933
<TOTAL-COSTS> 1,132,736
<OTHER-EXPENSES> 203,943
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (239,582)
<INCOME-PRETAX> (336,113)
<INCOME-TAX> 0
<INCOME-CONTINUING> (336,113)
<DISCONTINUED> 0
<EXTRAORDINARY> (32,735)
<CHANGES> 0
<NET-INCOME> (412,518)
<EPS-PRIMARY> (0.04)
<EPS-DILUTED> (0.04)
</TABLE>
