SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to Section 13 or 15 (d) of the Securities Exchange
Act of 1934,
For the quarterly period ended January 31, 1999 or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Commission file number 0-15995
MICROAGE, INC.
(Exact name of registrant as specified in its charter)
Delaware 86-0321346
(State of incorporation) (I. R. S. Employer
Identification No.)
2400 South MicroAge Way
Tempe, AZ 85282
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (602) 366-2000
The registrant (1) has filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the preceding 12 months and
(2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares of the registrant's Common Stock (par value $.01 per share)
outstanding at February 28, 1999 was 20,448,165.
<PAGE>
INDEX
MICROAGE, INC.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Consolidated balance sheets -- January 31, 1999 and
November 1, 1998.
Consolidated statements of operations -- Quarters ended
January 31, 1999 and February 1, 1998.
Consolidated statements of cash flows -- Quarters ended
January 31, 1999 and February 1, 1998.
Notes to consolidated financial statements.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
MICROAGE, INC.
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(in thousands, except share data)
ASSETS
January 31, November 1,
1999 1998
----------- -----------
Current assets:
Cash and cash equivalents $ 41,837 $ 41,894
Accounts and notes receivable, net 296,295 529,877
Inventory, net 505,278 486,150
Other 23,485 24,432
----------- -----------
Total current assets 866,895 1,082,353
Property and equipment, net 101,934 92,147
Intangible assets, net 123,988 126,105
Other 27,057 14,538
----------- -----------
Total assets $ 1,119,874 $ 1,315,143
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 767,709 $ 967,501
Accrued liabilities 25,877 24,279
Current portion of long-term obligations 3,014 3,095
Other 9,685 8,868
----------- -----------
Total current liabilities 806,285 1,003,743
Long-term obligations 5,070 5,553
Other long-term liabilities 15,426 15,361
Stockholders' equity:
Preferred stock, par value $1.00 per share;
Shares authorized: 5,000,000
Issued and outstanding: none -- --
Common stock, par value $.01 per share;
Shares authorized: 40,000,000
Issued: January 31, 1999 - 20,463,743
November 1, 1998 - 20,284,789 205 203
Additional paid-in capital 207,295 206,720
Retained earnings 85,759 83,729
Treasury stock, at cost;
Shares: January 31, 1999 - 16,378
November 1, 1998 - 16,378 (166) (166)
----------- -----------
Total stockholders' equity 293,093 290,486
----------- -----------
Total liabilities and stockholders' equity $ 1,119,874 $ 1,315,143
=========== ===========
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
MICROAGE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(in thousands, except per share data)
Quarter ended
--------------------------
January 31, February 1,
1999 1998
----------- -----------
Revenue $1,444,841 $ 1,179,011
Cost of sales 1,343,071 1,105,186
---------- -----------
Gross profit 101,770 73,825
Operating expenses 89,287 73,061
---------- -----------
Operating income 12,483 764
Other expenses - net 7,248 10,941
---------- -----------
Income (loss) before income taxes 5,235 (10,177)
Income tax provision (benefit) 3,169 (4,061)
---------- -----------
Net income (loss) $ 2,066 $ (6,116)
========== ===========
Net income (loss) per common and common
equivalent share:
Basic $ 0.10 $ (0.31)
========== ===========
Diluted $ 0.10 $ (0.31)
========== ===========
Weighted average common and common equivalent
shares outstanding:
Basic 20,344 19,456
========== ===========
Diluted 21,034 19,456
========== ===========
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
MICROAGE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
Increase (Decrease) in Cash and Cash Equivalents
(in thousands)
Quarter ended
---------------------------
January 31, February 1,
1999 1998
----------- -----------
Cash flows from operating activities:
Net income (loss) $ 2,066 $ (6,116)
Adjustments to reconcile net income
(loss) to net cash provided by (used in)
operating activities:
Depreciation and amortization 11,396 8,744
Provision for losses on accounts and
notes receivable 3,028 2,300
Changes in assets and liabilities,
net of business acquisitions:
Accounts and notes receivable 230,554 81,295
Inventory (19,128) (112,240)
Other current assets 947 661
Other assets (12,769) (5,953)
Accounts payable (199,829) 21,193
Accrued liabilities 1,598 (5,806)
Other liabilities 883 6,580
--------- ---------
Net cash provided by (used in) operating
activities 18,746 (9,342)
Cash flows from investing activities:
Purchases of property and equipment (18,134) (15,401)
--------- ---------
Net cash used in investing activities (18,134) (15,401)
Cash flows from financing activities:
Proceeds from issuance of stock - stock option
and employee stock purchase plans 577 1,802
Net borrowings under line of credit -- 39,000
Shareholder distributions - pooled companies -- (128)
Net change in long-term obligations (1,246) (771)
--------- ---------
Net cash provided by (used in) financing
activities (669) 39,903
--------- ---------
Net increase (decrease) in cash and cash equivalents (57) 15,160
Cash and cash equivalents at beginning of period 41,894 22,279
--------- ---------
Cash and cash equivalents at end of period $ 41,837 $ 37,439
========= =========
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
MICROAGE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE A - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of MicroAge, Inc.
(the "Company") do not include all of the information and footnotes required by
generally accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair statement of results for the periods
have been included. Certain prior year amounts have been reclassified to conform
with current year financial statement presentation. Operating results for the 13
weeks ended January 31, 1999 are not necessarily indicative of the results that
may be expected for the year ending October 31, 1999. For further information,
refer to the consolidated financial statements and footnotes thereto included in
the Company's Annual Report on Form 10-K for the year ended November 1, 1998.
NOTE B - OTHER EXPENSES - NET
Other expenses - net consists of the following (in thousands):
Quarters ended
-------------------
Jan. 31, Feb. 1,
1999 1998
------- -------
Interest expense $ 823 $ 2,346
Expenses from sales of
accounts receivable 2,683 5,577
Amortization expense 2,367 2,117
Other 1,375 901
------- -------
$ 7,248 $10,941
======= =======
6
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
Certain statements contained in this Item may be "forward-looking statements"
within the meaning of The Private Securities Litigation Reform Act of 1995.
Words such as "estimates," "expects," "anticipates," "plans," "believes,"
"projects," and similar expressions identify forward-looking statements. These
forward-looking statements may include projections of revenue and net income and
issues that may affect revenue or net income; projections of capital
expenditures; plans for future operations; financing needs or plans; plans
relating to the Company's products and services; and assumptions relating to the
foregoing. Forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified. Future events
and actual results could differ materially from those set forth in, contemplated
by, or underlying the forward-looking information. Some of the important factors
that could cause the Company's actual results to differ materially from those
projected in forward-looking statements made by the Company include, but are not
limited to, the following: intense competition; narrow margins; dependence on
supplier incentive funds; product supply and dependence on key vendors;
potential fluctuations in quarterly results; risks of declines in inventory
values; no assurance of successful acquisitions or investments; the capital
intensive nature of the Company's business; dependence on information systems;
year 2000 issues; dependence on independent shipping companies; rapid
technological change; and possible volatility of stock price. Reference is made
to Exhibit 99.1 of the Company's Report on Form 10-K for the year ended November
1, 1998 for additional discussion of the foregoing factors. The Company
undertakes no obligations to publicly update or revise any forward-looking
statements, whether as a result of new information, future events, or otherwise.
The Company operates two independent businesses - a distribution business
operated through a wholly-owned subsidiary, Pinacor, Inc. ("Pinacor") and an
integration business ("MicroAge IT Services"). These businesses have separate
management teams, operate autonomously in their respective marketplaces, and
contract with headquarters for a limited number of services, such as payroll
processing, employee benefits and information services.
RESULTS OF OPERATIONS
The following table sets forth, for the indicated periods, data as percentages
of total revenue:
<TABLE>
<CAPTION>
Quarter ended
---------------------------------------------------------------
Jan. 31, Nov. 1, Aug. 2, May 3, Feb. 1,
1999 1998 1998 1998 1998
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Revenue (in thousands) $1,444,841 $1,572,824 $1,441,246 $1,326,950 $1,179,011
Cost of sales 93.0% 93.1% 94.0% 93.6% 93.7%
---------- ---------- ---------- ---------- ----------
Gross profit 7.0 6.9 6.0 6.4 6.3
Operating and other expenses
Operating expenses 6.2 5.8 5.4 6.0 6.2
Restructuring and other one-
time charges 0.0 0.0 0.0 0.4 0.0
---------- ---------- ---------- ---------- ----------
Operating income 0.9 1.1 0.6 0.0 0.1
Other expenses - net 0.5 0.4 0.5 0.7 0.9
---------- ---------- ---------- ---------- ----------
Income (loss) before income
taxes 0.4 0.7 0.1 (0.7) (0.9)
Income tax provision (benefit) 0.2 0.5 0.1 (0.3) (0.3)
---------- ---------- ---------- ---------- ----------
Net income (loss) 0.1% 0.2% 0.0% (0.4)% (0.5)%
========== ========== ========== ========== ==========
</TABLE>
7
<PAGE>
TOTAL REVENUE. Total revenue of $1.4 billion increased $266 million, or 23%, for
the quarter ended January 31, 1999 as compared to the quarter ended February 1,
1998. This revenue increase included a $255 million, or 24%, increase in Pinacor
(distribution business) revenue and a $12 million, or 3%, increase in MicroAge
IT Services revenue, partially offset by an increase in the elimination of
intercompany revenue. The increase in revenue was attributable to sales to
resellers added since February 1, 1998, increased demand for the Company's major
suppliers' products, the Company's addition of new product offerings, service
revenue growth and the growth of the microcomputer products industry.
GROSS PROFIT PERCENTAGE. The Company's gross profit percentage was 7.0% for the
quarter ended January 31, 1999 and 6.3% for the quarter ended February 1, 1998.
The increase in the Company's gross profit percentage was due to higher margins
in both Pinacor and MicroAge IT Services. Pinacor margins increased primarily as
a result of increased supplier incentive funds. The increase in supplier
incentive funds more than offset decreases in product trading margins, increased
freight expense and expenses from changes in suppliers' terms and conditions on
price protection and returns. The product trading margins decreased due to
increased competitive pressures. The freight expense increase as a percentage of
revenue was primarily due to a decrease in the average selling price per pound
of product shipped as well as an increase in the cost per pound shipped. Future
Pinacor margins will continue to be impacted by competitive pressures and by
changes in suppliers' terms and conditions.
MicroAge IT Services margins increased due to an increase in service revenue,
which has higher gross margins than product revenue margins. This increase was
partially offset by lower margins on product sales to end-user customers due to
competitive pricing pressures.
Future gross profit percentages may be affected by market pressures, the
introduction of new Company initiatives, changes in revenue mix, future
acquisitions, changes in supplier incentive funds, changes in suppliers' terms
and conditions, the Company's utilization of early payment discount
opportunities, supplier pricing actions, and other competitive and economic
pressures. See "Potential Fluctuations in Operating Results" below for
information regarding industry trends that may affect future gross profit
percentages.
OPERATING EXPENSES. As a percentage of revenue, operating expenses were 6.2% for
the quarters ended January 31, 1999 and February 1, 1998. Operating expenses
increased $16 million to $89 million for the quarter ended January 31, 1999, as
compared to the quarter ended February 1, 1998 primarily as a result of
increased business volume.
OTHER EXPENSES - NET. Other expenses - net decreased to $7.2 million for the
quarter ended January 31, 1999 from $10.9 million for the quarter ended February
1, 1998 primarily due to lower average daily borrowings resulting from lower
inventory balances combined with higher accounts payable balances during the
quarter.
INCOME TAX PROVISION. As a percentage of income (loss) before tax, income taxes
were 60.5% for the quarter ended January 31, 1999 compared to 39.9% for the
quarter ended February 1, 1998. The increase in the effective tax rate is due to
higher permanent differences between book income and taxable income, primarily
as a result of higher amounts of non-deductible goodwill amortization.
8
<PAGE>
CHANGES IN SUPPLIER TERMS AND CONDITIONS
The key suppliers of the Company provide various incentives for promoting and
marketing their product offerings. A large portion of the incentives are passed
on to the Company's customers. However, a portion of the incentives positively
impact the Company's income.
Beginning in May 1998, the major manufactures announced and/or instituted
changes in their sales incentive programs and inventory management programs.
Pursuant to these changes, the major manufactures have (i) reduced the amount of
product that the Company is allowed to return, (ii) reduced the amount of price
protection coverage offered to the Company and (iii) changed incentives to
programs based on sales of the manufacturers' products, rather than on purchases
of the products from the manufacturers.
In addition, several of the Company's major suppliers have changed the terms of
their credit arrangements with the Company. These changes include a decrease in
the number of days the Company has to pay for product purchases and a decrease
in the amount of reseller purchases from the Company that the suppliers are
willing to subsidize. These changes will increase the Company's working capital
requirements and financing costs. Further changes in incentives or other terms
and conditions could have a material adverse effect on the Company's operating
results.
POTENTIAL FLUCTUATIONS IN QUARTERLY RESULTS
The Company's operating results may vary significantly from quarter to quarter
depending on certain factors, including, but not limited to, demand for the
Company's information technology products and services, the amount of supplier
incentive funds received by the Company, the results of acquired businesses,
product availability, competitive conditions, new product introductions, changes
in customer order patterns, changes in supplier terms and conditions and general
economic conditions. In particular, the Company's operating results are
sensitive to changes in the mix of product and service revenues, product
margins, inventory adjustments and interest rates. Although the Company attempts
to control its expense levels, these levels are based, in part, on anticipated
revenues. Therefore, the Company may not be able to control spending in a timely
manner to compensate for any unexpected revenue shortfall. As a result,
quarterly period-to-period comparisons of the Company's financial results are
not necessarily meaningful and should not be relied upon as an indication of
future performance. In addition, although the Company's financial performance
has not exhibited significant seasonality in the past, the Company and the
computer industry in general tend to follow a sales pattern with peaks occurring
near the end of the calendar year, due primarily to special supplier promotions
and year-end business purchases.
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed its growth and cash needs to date primarily through
working capital financing facilities, bank credit lines, common stock offerings
and cash generated from operations. The primary uses of cash have been to fund
increases in inventory and accounts receivable resulting from increased sales.
If the Company is successful in achieving continued revenue growth, its working
capital requirements are likely to increase. In addition, as discussed above,
changes in supplier payment terms will increase the Company's working capital
requirements.
9
<PAGE>
The Company has acquired or invested in, and intends to acquire or invest in,
resellers to increase core service competencies, expand the Company's geographic
coverage in key market areas, and strengthen the Company's direct relationships
with end-user customers. Acquisitions or investments may be made utilizing cash,
stock, or a combination of cash and stock.
Cash provided by operating activities was $19 million for the quarter ended
January 31, 1999 as compared to cash used of $9 million for the quarter ended
February 1, 1998. During the quarter ended January 31, 1999, $231 million was
provided by changes in accounts receivable. This was due to an increase in
receivables sold to a finance company during the quarter. The cash provided by
receivables was offset by a $200 million decrease in accounts payable during the
quarter.
Cash used in investing activities increased from $15 million during the quarter
ended February 1, 1998 to $18 million during the quarter ended January 31, 1999
due to increased purchases of property and equipment as a result of increased
spending for electronic commerce initiatives and capacity expansion in systems
and facilities.
Cash used in financing activities was $1 million during the quarter ended
January 31, 1999 compared to cash provided of $40 million during the quarter
ended February 1, 1998. Cash provided for the quarter ended February 1, 1998 was
due to borrowings under the Company's line of credit.
The Company maintains three financing agreements (the "Agreements") with
financing facilities totaling $800 million. The Agreements include an accounts
receivable facility (the "A/R Facility") and inventory financing facilities (the
"Inventory Facilities").
Under the A/R Facility, the Company has the right to sell certain accounts
receivable from time to time, on a limited recourse basis, up to an aggregate
amount of $350 million sold at any given time. At January 31, 1999, the net
amount of sold accounts receivable was $232 million.
The Inventory Facilities provide for borrowings up to $450 million. Within the
Inventory Facilities, the Company has lines of credit for the purchase of
inventory from selected product suppliers ("Inventory Lines of Credit") and a
line of credit for general working capital requirements ("Supplemental Line of
Credit"). Payments for products purchased under the Inventory Lines of Credit
vary depending upon the product supplier, but generally are due between 45 and
60 days from the date of the advance. Amounts borrowed under the Supplemental
Line of Credit may remain outstanding until the expiration date of the
Agreements (August 2000). No interest or finance charges are payable on the
Inventory Lines of Credit if payments are made when due. At January 31, 1999,
the Company had $291 million outstanding under the Inventory Lines of Credit
(included in accounts payable in the accompanying Balance Sheets), and nothing
outstanding under the Supplemental Line of Credit.
Of the $800 million of financing capacity represented by the Agreements, $277
million was unused as of January 31, 1999. Utilization of the unused portion is
dependent upon the Company's collateral availability at the time the funds would
be needed. There can be no assurance that the Company will be able to borrow
adequate amounts on terms acceptable to the Company.
Borrowings under the Agreements are secured by substantially all of the
Company's assets, and the Agreements contain certain restrictive covenants,
including tangible net worth requirements and ratios of debt to tangible net
worth and current assets to current liabilities. At January 31, 1999, the
Company was in compliance with these covenants.
10
<PAGE>
In addition to the financing facilities discussed above, the Company maintains
an accounts receivable purchase agreement (the "Purchase Agreement") with a
commercial credit corporation (the "Buyer") whereby the Buyer agrees to
purchase, from time to time at its option, on a limited recourse basis, certain
accounts receivable of the Company. Under the terms of the Purchase Agreement,
no finance charges are assessed if the accounts are settled within forty days.
At January 31, 1999, the net amount of sold accounts receivable under the
Purchase Agreement was $29 million.
The Company also maintains trade credit arrangements with its suppliers and
other creditors to finance product purchases. A few major suppliers maintain
security interests in their products sold to the Company.
As discussed above, several of the Company's major suppliers have changed the
terms of their credit arrangements with the Company. These changes include a
decrease in the number of days the Company has to pay for product purchases and
a decrease in the amount of reseller purchases from the Company that the
suppliers are willing to subsidize. These changes will increase the Company's
working capital requirements and financing costs. The additional borrowings that
will be required to pay these suppliers on shorter terms could exceed the
borrowings available under the Agreements due to collateral constraints. The
Company has requested modifications to the Agreements to address this issue.
Although the Company expects to obtain the requested modifications, there can be
no assurance that the modifications will be granted. Failure to obtain the
requested modifications may limit the company's ability to purchase product from
its suppliers, which could have a material adverse effect on the Company's
operating results.
The unavailability of a significant portion of, or the loss of, the Agreements
or trade credit from suppliers would have a material adverse effect on the
Company.
Although the Company has no material capital commitments, the Company expects to
make capital expenditures of approximately $50 to $60 million during the
remainder of fiscal 1999.
INFLATION
The Company believes that inflation has generally not had a material impact on
its operations.
11
<PAGE>
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(a) On January 28, 1999, the Company's Board of Directors approved an
extension of the Company's Amended and Restated Rights Agreement from February
23, 1999 through the end of the current fiscal year, October 31, 1999.
(b) None
(c) None
(d) None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Assignment and Assumption of Lease between Pinacor Inc. and
Electronic Data Systems Corporation ("EDS"), dated December
18, 1998, assigning Lease Agreement by and between KREG-SW
and EDS.
10.2 MicroAge, Inc. Compensation Trust, dated February 23, 1999,
by and between MicroAge, Inc. and Northern Trust Bank of
Arizona, N.A. (1)
11 EPS Detail Calculation (Statement re: Computation of Per
Share Earnings)
27 Financial Data Schedule
----------
(1) Management contract for compensatory plan or arrangement.
(b) During the quarter ended January 31, 1999, the Company filed one
report on Form 8-K, dated January 13, 1999 and filed January 19,
1999, pursuant to Items 5 and 7, to file a copy of the Company's
press release entitled, "MicroAge, Inc. Announces Fourth Quarter
and Fiscal Year End 1998 Financial Results and Status of
Pinacor."
12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
MICROAGE, INC.
(Registrant)
Date: March 16, 1999 By: /s/ Jeffrey D. McKeever
-----------------------------------------
Jeffrey D. McKeever
Chairman of the Board and
Chief Executive Officer
Date: March 16, 1999 By: /s/ James R. Daniel
-----------------------------------------
James R. Daniel
Executive Vice President
Chief Financial Officer and Treasurer
13
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.1 Assignment and Assumption of Lease between Pinacor Inc. and Electronic
Data Systems Corporation ("EDS"), dated December 18, 1998, assigning
Lease Agreement by and between KREG-SW and EDS.
10.2 MicroAge, Inc. Compensation Trust, dated February 23, 1999, by and
between MicroAge, Inc. and Northern Trust Bank of Arizona, N.A. (1)
11 EPS Detail Calculation (Statement re: Computation of Per Share Earnings)
27 Financial Data Schedule
- ----------
(1) Management contract for compensatory plan or arrangement.
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and
entered into this 18th day of December 1998 (the "Effective Date'), between
PINACOR INC., a Delaware corporation ("Assignee"), having an office at 3001
South Priest Drive, Tempe, Arizona 85282-3492, Attention: Robert G. O'Malley,
and, ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation ("Assignor"),
having an office at 5400 Legacy Drive, H3-2F-53, Plano, Texas 75024-3105,
Attention: Real Estate Leasing.
RECITALS
WHEREAS, Assignor, as tenant, and KREG-SW, L.P., a California limited
partnership, as Landlord, entered into a lease (the "Original Lease"), dated
October 29, 1996, as amended by a (a) First Amendment to Lease (the "First
Amendment"), dated April 24, 1997 and (b) Second Amendment to Lease (the "Second
Amendment"), dated September 18, 1997 (the Original Lease as amended by the
First Amendment and Second Amendment is herein called, the "Lease"), covering
the building and property (collectively the "Leased Property") located at 105
Bethany Road, Allen, Texas, as more particularly described in the Lease, which
is attached hereto as Exhibit "A".
WHEREAS, the Lease and the Leased Property were conveyed by KREG-SW, L.P.
to TriNet Corporate Partners 11, L.P. ("TriNet") and TriNet is presently the
Landlord under the Lease.
WHEREAS, the parties desire to provide herein for the assignment of all
rights, titles and interests of Assignor to Assignee, in and to the Lease as
herein contained.
NOW, THEREFORE, Assignor and Assignee, in consideration of the sum of
$10.00, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged and confessed, effective as of December 31, 1998
(the "Effective Date"), agree as follows:
1. Assignor hereby grants, sells, conveys, assigns, transfers, sets over
and delivers to Assignee all rights, titles and interests of Assignor
in and to the Lease and any security deposits delivered to Landlord,
together with all its rights, privileges and benefits in the Lease for
the remainder of the Lease term, subject to the terms and conditions
set forth in the Lease.
2. As of the Effective Date, Assignee assumes any and all rights and
obligations of Assignor under the Lease which are to be performed
after the Effective Date and shall comply with all of the covenants,
terms, conditions and obligations under the Lease so assumed.
3. Pursuant to the terms and conditions of the Lease, Assignor shall
remain liable under the Lease notwithstanding the assignment and
assumption stated herein.
A. Assignee hereby agrees to fully indemnify and hold Assignor
harmless from and against any and all costs, claims, liabilities,
actions or causes of action incurred by Assignor, resulting from and
related to the obligations under the Lease so assumed, including, but
not limited to, claims arising from negligence, willful actions or
breach of the Lease by Assignee.
B. Assignee hereby agrees to deliver to Assignor copies of all
notices requiring remedial actions by Assignee and all notices of
default delivered to Assignee under the Lease. Assignor will have,
among any other remedies available to Assignor, the right to cure any
1
<PAGE>
defaults by Assignee under the Lease and to receive full reimbursement
from Assignee for all costs incurred by Assignor in making any such
cure.
4. Assignor hereby agrees to fully indemnify and hold Assignee harmless
from and against any and all costs, claims, liabilities, actions or
causes of action incurred by Assignee resulting from or related to the
negligence, willful actions or breach of the Lease by Assignor prior
to the Effective Date.
5. Pursuant to the Lease, this Assignment is not be valid until
Landlord's written consent is obtained and delivered to each party.
6. This Assignment may not be changed, modified, discharged or terminated
orally or in any other manner than by an agreement in writing signed
by the parties hereto or their respective successors and assigns.
7. This Assignment has been executed and delivered pursuant to that
certain Asset Purchase Agreement (the "Asset Purchase Agreement"),
dated December 18, 1998, by and between Assignor, Assignee and EDS
Technical Products Corporation, a Delaware corporation. All
warranties, representations and covenants set forth in the Asset
Purchase Agreement concerning the Premises, the Lease and this
Assignment shall survive the execution and delivery of this Assignment
and shall not be affected hereby.
INTENTIONALLY BLANK
2
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set their hands on the day
and year below their respective signatures.
ASSIGNOR: ASSIGNEE:
ELECTRONIC DATA SYSTEMS CORPORATION PINACOR INC.
By: /s/ Daniel F. Busch By /s/ F. G. Mantori
------------------------------ ---------------------------
Name: Daniel F. Busch Name: F. G. Mantori
------------------------
Title: Real Estate - Division Manager Title: President
------------------------
<PAGE>
LEASE AGREEMENT
BY AND BETWEEN
KREG-SW, L.P., a California limited partnership
(Landlord)
AND
ELECTRONIC DATA SYSTEMS CORPORATION, a
Delaware corporation
(Tenant)
FOR PREMISES LOCATED AT
THE SOUTHEAST CORNER OF BETHANY DRIVE AND
ENTERPRISE BOULEVARD
ALLEN, TEXAS
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND BASIC PROVISIONS .....................................1
2. GRANTING CLAUSE ......................................................2
3. USE ..................................................................2
4. PARKING ..............................................................2
5. RENT .................................................................3
6. REAL ESTATE TAXES ....................................................3
7. PERSONAL PROPERTY TAXES ..............................................4
8. DELIVERY OF PREMISES .................................................4
9. BUILDING SHELL AND TENANT IMPROVEMENTS ...............................4
10. COMMENCEMENT DATE ....................................................6
11. BUILDING SERVICES ....................................................6
12. LANDLORD'S REPAIR AND MAINTENANCE RESPONSIBILITIES ...................7
13. TENANT'S REPAIR AND MAINTENANCE RESPONSIBILITIES .....................7
14. ALTERATIONS ..........................................................7
15. ENTRY BY LANDLORD ....................................................8
16. LOCKED DOCUMENTATION ROOMS ...........................................8
17. INSURANCE - REQUIREMENTS .............................................8
18. WAIVER OF SUBROGATION ................................................9
19. FIRE OR OTHER CASUALTY ...............................................9
20. INDEMNIFICATION .....................................................10
21. CONDEMNATION ........................................................10
22. ASSIGNMENT AND SUBLETTING ...........................................11
23. DEFAULT AND REMEDIES ................................................11
24. LANDLORD WAIVERS ....................................................13
25. TENANT'S SECURITY REQUIREMENTS ......................................13
26. SUBORDINATION AND ATTORNMENT ........................................13
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27. ESTOPPEL CERTIFICATE ................................................13
28. SURRENDER OF POSSESSION .............................................14
29. NON-WAIVER ..........................................................14
30. BUILDING COMPLIANCE .................................................14
31. HAZARDOUS MATERIALS .................................................14
32. TRANSFER OF PROPERTY BY LANDLORD ....................................Is
33. CIPHER LOCKS AND SECURITY SYSTEM ....................................15
34. CONFIDENTIALITY/MEDIA RELEASES ......................................15
35. COMMUNICATIONS EQUIPMENT ............................................15
36. LANDLORD REPRESENTATIONS AND WARRANTIES .............................16
37. DISADVANTAGED OR WOMEN-OWNED BUSINESSES .............................16
38. FORCE MAJEURE .......................................................17
39. BROKERS .............................................................17
40. SIGNAGE .............................................................17
41. HOLDING OVER ........................................................17
42. ATTORNEYS' FEES .....................................................17
43. QUIET ENJOYMENT .....................................................17
44. NOTICES .............................................................17
45. ENTIRE AGREEMENT ....................................................17
46. AMENDMENTS ..........................................................17
47. LEGAL INTERPRETATION ................................................17
48. OPTION TO RENEW .....................................................18
49. AUTHORITY TO ENTER INTO LEASE .......................................18
50. PARTIES BOUND .......................................................18
51. TRANSFER OF LANDLORD'S INTEREST .....................................18
52. RIGHT TO PERFORM ....................................................18
53. LIMITATION ON LIABILITY .............................................19
54. GENERAL PROVISIONS ..................................................19
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EXHIBITS:
"A" Legal Description
"B" Building Shell Outline Specifications
"C" Site Plan
"D" Tenant Improvements Outline Specifications
"E" Change Order
"F" Estoppel Certificate
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LEASE AGREEMENT
This Lease Agreement (this "Lease") is entered into as of the 29th day
of October, 1996, by and between Landlord and Tenant. This Lease is not binding
between the parties stated herein until Landlord and Tenant have executed and
delivered an original of this Lease. Upon the terms and conditions hereinafter
set forth, Landlord and Tenant agree as follows:
1. DEFINITIONS AND BASIC PROVISIONS. The following definitions and basic
provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this Lease:
A. "Landlord": KREG-SW, L.P., a California
limited partnership, or its
successors and/or assigns
B. Landlord Notice Address: c/o Koll Real Estate Group
8411 Preston Road, Suite 700
Dallas, Texas 75225
C. Landlord Payment Address: 8411 Preston Road, Suite 700
Dallas, Texas 75225
D. Landlord Federal Tax ID: 33-0580212
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E. "Tenant": ELECTRONIC DATA SYSTEMS
CORPORATION, a Delaware
corporation
F. Tenant Notice Address: 5400 Legacy Drive (H3-2F-53)
Plano, Texas 75024-3105
Attention: Real Estate Leasing
G. "Property": That certain tract or parcel of land located in Collin
County, Texas consisting of approximately 13.67 acres, more
particularly described and shown on Exhibit "A", attached hereto and
incorporated herein by reference.
H. "Building Shell": The building to be constructed by Landlord at
Landlord's expense, in consideration of the Base Rent (hereafter
defined), consisting of approximately 261,700 rentable square feet as
more particularly described in the outline specifications in Exhibit
"B" ("Building Shell Outline Specifications), attached hereto and
incorporated herein by reference.
I. "Site Work": The earth work, parking lot, sidewalks and landscaping to
be constructed by Landlord at Landlord's expense, in consideration of
the Base Rent, as more fully described in the Site Plan (hereafter
defined), attached hereto as Exhibit "C", and incorporated herein by
reference.
J. "Tenant Improvements": The interior improvements to the Building Shell
to be constructed by Landlord at Landlord's expense, in consideration
of the Base Rent and in accordance with the "Tenant Improvements
Outline Specifications" (herein so called) described on Exhibit "D",
attached hereto and incorporated herein by reference. The Building
Shell Outline Specifications and the Tenant Improvements Outline
Specifications are sometimes referred to herein collectively as the
"Outline Specifications".
K. "Building": The completed Building Shell and the Tenant Improvements.
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L. "Premises": The Property, the Site Work, the Building Shell, the
Tenant Improvements and the Building.
M. "Completion Date": The date upon which Landlord substantially
completes the Tenant Improvements, the Site Work and any other work
required of Landlord in accordance with the Working Drawings and
Specifications.
N. "Outside Completion Date": October 13, 1997.
0. "Scheduled Completion Date": June 13, 1997.
P. "Term": A period of 7 years, commencing on the 13th day of June, 1997
(the "Commencement Date"), subject to the provisions of Paragraph 10
of this Lease, and expiring on June 12, 2004 (the "Expiration Date").
Q. "Base Rent": Base Rent shall be $1,112,225.00 per year payable in the
amount of $92,685.42 per month for years 1 through 7 of the Term.
R. "Landlord's Taxes": Landlord's Taxes shall include only income, excess
profits, capital stock, estate, inheritance, succession, gift, gross
receipts, personal property and franchise taxes.
S. "Tenant's Representatives": Tenant's agents, representatives and
employees.
T. "Landlord's Representatives": Landlord's agents, representatives and
employees.
U. "Building Architect": Good, Fulton and Farrell Architects.
V. "Land Closing Date": November 30, 1996.
2. GRANTING CLAUSE. Landlord, in consideration of the covenants and agreements
to be performed by Tenant, and upon the terms and conditions contained in
this Lease, does hereby lease, demise and let unto Tenant, and Tenant in
consideration of the covenants and agreements to be performed by Landlord
and upon the terms and conditions contained in this Lease, does hereby
lease from Landlord, the Premises, to have and to hold for the Term (except
as sooner terminated as provided herein).
3. USE. The Premises are to be used only for general office and computer data
processing purposes ("Permitted Uses") and for no other business or purpose
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. No act shall be done in or about the
Premises that is unlawful. In the event such use is determined to be
unlawful, causing a breach of this covenant, Tenant shall immediately cease
the performance of such unlawful act. Tenant shall not commit or allow to
be committed any waste upon the Premises, or any public or private
nuisance. Tenant shall not, without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed, install any
equipment, machine, device, tank or vessel which is subject to any federal,
state or local permitting requirement, nor shall Tenant overload the floors
or surpass the Utility Specifications (as hereinafter defined) for the
Building. Tenant, at its sole expense, shall comply with all laws,
statutes, ordinances and governmental rules, regulations or requirements
governing the installation, operation, maintenance and removal of any such
equipment, machine, device, tank or vessel. Tenant, at its sole expense,
shall comply with all laws, statutes, ordinances, governmental rules,
regulations or requirements, and the provisions of any recorded documents
now existing or hereafter in effect relating to its use, operation or
occupancy of the Premises.
4. PARKING. Landlord also hereby grants to Tenant during the Term and any
renewals or extensions, at no additional cost or pass through to Tenant,
the right to use parking spaces in the surface parking area, as depicted on
the Site Plan attached as Exhibit "C".
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5. RENT.
A. BASE RENT. In consideration of this Lease, and as a covenant
independent from the other terms and covenants contained herein,
Tenant agrees and promises to pay to Landlord equal monthly
installments of Base Rent. Such monthly installments shall be due and
payable in advance on or before the 1st day of each calendar month
(without demand, notice, deduction or offset except as otherwise
provided in this Lease), commencing as of the Commencement Date and
continuing through the Term. Base Rent for any fractional month at the
beginning or end of the Term shall be prorated on a per them basis.
B. OPERATING EXPENSES. Except as otherwise provided in this Lease, it is
intended that the Rent shall be a net return to Landlord (exclusive of
any debt service and Landlord's Taxes) for the Term and for any
renewals or extensions thereof, free of any expenses or charges
whatsoever with respect to the Premises, including, without
limitation, insurance premiums, utility charges, real estate taxes,
assessments and except as otherwise provided herein, all maintenance,
repairs or replacements to all elements of the Building, including,
without limitation, HVAC, plumbing and electrical systems. Tenant
shall coordinate directly with the applicable supplying utility
companies to obtain service and directly make payments for water, gas,
heat, light, power, telephone and other utilities used and consumed by
Tenant.
C. INSURANCE PREMIUMS. Landlord shall maintain loss of rental income
insurance on the Premises, and Tenant shall reimburse Landlord for the
premiums to maintain such insurance, within thirty (30) days of
presentation of an invoice to Tenant for Landlord. Tenant's
reimbursement obligations hereunder shall be designated as additional
rent.
6. REAL ESTATE TAXES.
A. PAYMENT OF TAXES. Tenant shall directly pay all Real Estate Taxes
assessed and payable against the Premises during the Term prior to
delinquency. "Real Estate Taxes" shall mean any form of assessment,
license, fee, rent, tax, excise imposition, charge, levy, penalty (if
a result of Tenant's delinquency), or tax (other than Landlord's
Taxes) including, without limitation, all ad valorem, sales and use,
value added, single business, gross receipts, transactions, sewer,
privilege or similar taxes, imposed by any authority having the direct
or indirect power to tax, or by any city, county, state or federal
government or any improvement or other district or division thereof.
Notwithstanding anything to the contrary contained in this Lease,
Tenant acknowledges that the Premises will be periodically reassessed
by governmental authorities, and any increased ad valorem taxes as a
result of said reassessment shall be paid by Tenant. Notwithstanding
anything to the contrary contained herein, Tenant shall not be liable
for any "rollback" or similar taxes affecting the Premises. Tenant
shall be responsible for making annual application for tax exemption
to the City of Allen and Landlord shall fully cooperate with Tenant's
application therefor.
B. CONTEST OF REAL ESTATE TAXES. Tenant shall have the right, before
delinquency occurs, of protesting, contesting, objecting to or
opposing the legality or amount of any such taxes or assessments in
coordination with Landlord. If Tenant deems, in good faith, that the
Real Estate Taxes are illegal or excessive, and in the event of any
such contest, Tenant shall to the extent provided by Law, defer the
payment of any such Real Estate Taxes. Landlord will fully cooperate
with Tenant and shall make available to Tenant, and to any taxing
authority, any records, information, documentation, or other
reasonable assistance (at minimal cost and expense to Landlord),
relevant in connection with any audit or other examination by any
authority or any judicial or administrative proceeding relating to
Tenant's liability for the Real Estate Taxes. Landlord and Tenant
shall each promptly notify the other of any claims or assessments for
Real Estate Taxes that may be asserted by applicable taxing
authorities that could result in a potential liability or expense for
the other, and coordinate with the other the response to and
settlement of such claims or assessments for Real Estate Taxes. Tenant
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shall be entitled to any refunds or rebates of Real Estate Taxes (and
any interest thereon) to the extent such refunds or rebates relate to
Real Estate Taxes that were paid by Tenant.
7. PERSONAL PROPERTY TAXES. Tenant shall be liable for all personal property
taxes for personal property of Tenant placed in the Premises (and any
personalty installed by Landlord as part of the Tenant Improvements) and
shall pay them directly, prior to delinquency.
8. DELIVERY OF PREMISES.
A. REMEDIES OF TENANT. If Landlord is unable to deliver possession of the
Premises to Tenant on the Scheduled Completion Date this Lease shall
not be void or voidable (except as expressly stated hereinafter) nor
shall Landlord be liable to Tenant for any loss or damage resulting
therefrom, but the Commencement Date and the Expiration Date of the
Term shall be extended, as provided below, and in such event Tenant
shall not be liable for any Base Rent or other charges due under this
Lease until such time as Landlord tenders delivery of possession of
the Premises to Tenant. Tenant shall, upon failure of Landlord to
deliver the Premises on the Scheduled Completion Date, immediately
deliver written notice to Landlord, with a copy to any mortgagee of
Landlord, (provided Tenant has been given notice of the identity of
the mortgagee and its address) advising Landlord (and mortgagee) of
the failure to deliver, and granting Landlord (and/or its mortgagee)
until the Outside Completion Date to substantially complete and
deliver the Premises to Tenant. Beginning on July 13, 1997 (subject to
Force Majeure and Tenant Delays), damages for failure to deliver the
Premises shall accrue against Landlord, and Landlord shall pay (or
credit against Base Rent at Tenant's option) to Tenant a sum of money
equivalent to two (2) days pro rated Base Rent for each one (1) day
beyond July 13, 1997 that the Premises are not delivered ('Delay
Sums"). Notwithstanding anything to the contrary contained herein, if
the Landlord has not delivered the Premises to Tenant on or before the
Outside Completion Date (subject to Tenant Delays and Force Majeure)
either Landlord or Tenant may, in their sole discretion, terminate
this Lease without further obligations hereunder, except Landlord's
obligation to pay the Delay Sums. The Delay Sums shall in no event
accrue after the Outside Completion Date, unless Tenant and Landlord
mutually elect not to terminate and grant Landlord additional time to
complete the Tenant Improvements for a time period to be mutually
agreed upon by Landlord (and/or its mortgagee) and Tenant. Should
Landlord tender possession of the Premises to Tenant prior to the date
specified as the Scheduled Completion Date, and Tenant elects to
accept such prior tender, such prior occupancy shall be subject to all
terms, covenants and conditions of this Lease, including the payment
of Rent.
B. DELIVERY AFTER SCHEDULED COMPLETION DATE. In the event that Landlord
delivers possession of the Premises to Tenant after the Scheduled
Completion Date, the Commencement Date and the Expiration Date shall
be adjusted accordingly such that the term of this Lease shall
commence upon the delivery of possession to Tenant and expire seven
(7) years from such date. Tenant and Landlord shall acknowledge in
writing the Commencement Date and the Expiration Date.
C. LAND CLOSING. Landlord must close on its acquisition of the Property
on or before the Land Closing Date. If Landlord does not acquire the
Property on or before the Land Closing Date, either Tenant or Landlord
may elect to terminate the Lease.
9. BUILDING SHELL AND TENANT IMPROVEMENTS.
A. CONSTRUCTION. Landlord shall construct or cause to be constructed at
Landlord's expense the Building Shell and Site Work substantially in
accordance with the Working Drawings and Specifications (as
hereinafter defined).
B. WORKING DRAWINGS. Based upon the Tenant Improvements Outline
Specifications contained in Exhibit "D" attached hereto for the
requested improvements, the working drawings and specifications (the
'Working Drawings and Specifications") shall be completed or caused to
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be completed by Landlord and submitted to Tenant for approval, which
approval shall not be unreasonably withheld or delayed. Tenant shall
respond within ten (10) business days following Tenant's receipt of
the Working Drawings and Specifications of such consent or
disapproval. If Tenant does not disapprove the Working Drawings and
Specifications within ten (10) business days, the Working Drawings and
Specifications shall be deemed approved and final. If Tenant
disapproves the Working Drawings and Specifications, Tenant shall
specify in detail the reasons for such disapproval. Landlord shall not
unreasonably refuse to remedy Tenant's objections provided such
objections are substantially in accordance with the Tenant
Improvements Outline Specifications, and will not result in an
increase of the cost of construction of the Premises. After receipt of
Tenant's approval, Landlord shall obtain the approval for the Working
Drawings and Specifications from the applicable governmental
authority, if necessary, and will obtain all necessary building
permits (the "Tenant Permits") from the appropriate governmental
authorities.
C. CONSTRUCTION OF THE BUILDING SHELL, THE SITE WORK AND THE TENANT
IMPROVEMENTS. Upon receipt of the Tenant Permits and any and all other
permits required (collectively, the "Permits"), Landlord will commence
construction of the Building Shell, the Site. Work and the Tenant
Improvements in accordance with the Working Drawings and
Specifications. Tenant shall at all times have the right to inspect
the Premises during the construction of the Site Work, the Building
Shell and the Tenant Improvements, subject to Landlord's Right of
Non-interference (hereafter defined). In the event of a discrepancy
between the Working Drawings and Specifications and the Outline
Specifications attached hereto as Exhibit "B" and "D", the Working
Drawings and Specifications shall take precedence. In the event of a
discrepancy between the Working Drawings and the Working
Specifications, the Working Specifications shall take precedence. Upon
Substantial Completion (as hereafter defined) of the Building Shell,
the Site Work and the Tenant Improvements, the Premises shall be
delivered to Tenant not later than the Outside Completion Date,
subject to Tenant Delays (hereafter defined) and Force Majeure
(hereafter defined), and Tenant shall take possession and commence the
payment of Base Rent, and all other sums required to be paid
hereunder.
D. CHANGE ORDERS. If Tenant requires any changes or additional
construction (whether substantial or minor changes or additions)
beyond those detailed in the Working Drawings and Specifications or
the Outline Specifications, such work shall be accomplished through
normal change order procedures at Tenant's sole expense; provided,
however, no additional work shall commence, and no additional Building
Shell, Site Work or Tenant Improvement expenses shall be accrued until
Landlord has submitted a detailed change order (the *Change Order") to
Tenant in substantially the form set forth in Exhibit "E", attached
hereto and incorporated herein by reference, setting forth the work to
be done and the estimate for the materials and other construction
costs for such work, and the same shall have been approved in writing
by the Director of Real Estate or other authorized representative of
Tenant. Landlord shall have no obligation to commence installation of
such excess improvements until Tenant shall have furnished plans to
Landlord. If at Substantial Completion (as hereinafter defined) of the
Premises, the total amount of Change Orders increases Landlord's
budgeted Tenant Improvement costs for the Premises, then Tenant shall
reimburse Landlord the actual costs incurred above the budget
according to the Working Drawings and the Work Specifications, within
thirty (30) days of receipt of such invoice and backup documents as
reasonably requested by Tenant from Landlord.
E. SUBSTANTIAL COMPLETION AND OCCUPANCY. As used in this Lease, the term
"Substantial Completion" shall mean that the Building Shell, the Site
Work and the Tenant Improvements have been substantially completed in
accordance with the Working Drawings and Specifications, as evidenced
by a certificate of substantial completion from the Building Architect
and/or a temporary or permanent Certificate of Occupancy obtained from
the applicable governmental authority, and the only remaining
construction and work to be performed is of minor or insubstantial
detail, the completion of which does not materially interfere with
Tenant's use or occupancy of the Premises. Notwithstanding anything to
the contrary within this Lease, Tenant shall take possession of the
Premises upon Substantial Completion. Tenant shall, within thirty (30)
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days after taking possession of the Premises, give Landlord notice of
any "Punch List" defects in the Premises. "Punch List" shall mean work
that remains to be completed or, if completed, is not substantially in
accordance with Working Drawings and -Specifications, and is work that
does not affect obtaining a temporary or permanent Certificate of
Occupancy. Additionally, Tenant shall immediately notify Landlord of
any latent defects discovered. Any such Punch List shall be timely
repaired in a good and workmanlike manner by Landlord at Landlord's
sole expense, without pass through to Tenant, and shall not
unreasonably disturb or interfere with Tenant's use and occupancy of
the Premises. Any latent defect discovered within thirty (30) months
of Tenant's taking possession of the Premises shall be timely repaired
by Landlord in a good and workmanlike fashion, at Landlord's sole cost
and expense. Tenant's occupancy of the Premises shall constitute
conclusive evidence that the Premises have been substantially
completed and the date of Substantial Completion shall be deemed the
Commencement Date; and Base Rent shall begin to accrue. Landlord shall
have no liability to Tenant, nor shall Tenant's obligations and
covenants under this Lease be reduced or abated by reason of
inconvenience, annoyance, interruption or injury to business arising
from the performance of Punch List work, unless such interruption,
inconvenience, annoyance or injury is unreasonable.
F. TENANT WORK. If requested, Landlord shall make the Premises available
to Tenant prior to the Scheduled Completion Date for the purpose of
commencing the installation of communications cabling and computers
while the Tenant Improvements are being constructed; provided,
however, the use of the Premises for such work shall not create a
landlord-tenant relationship between the parties nor constitute
occupancy of the Premises. Tenant shall not interfere with nor delay
Landlord's work in the Premises and any right of entry or occupancy by
Tenant prior to the Completion Date shall be subject to Landlord's
right of non-interference ('Landlord's Right of Non-Interference").
Any delays of Landlord's Work as a result of an act or omission of
Tenant shall constitute a Tenant Delay (hereinafter defined). Except
for Landlord's negligence or misconduct, Landlord shall have no
responsibility or liability for any loss or damage to any of Tenant's
personal improvements, fixtures, equipment or merchandise installed or
left in the Premises prior to the Completion Date, and Tenant shall
defend, indemnify and hold harmless Landlord from any and all loss
related to Tenant's early entry onto the Premises. Notwithstanding the
above, in the event Tenant, with the consent of Landlord, shall enter
into occupancy of the Premises to do business in the Premises prior to
the Commencement Date, this Lease shall be deemed to have commenced as
of that date.
G. DELAY OF POSSESSION RELATED TO LANDLORD'S CONSTRUCTION. In the event
Substantial Completion has not occurred by the Outside Completion Date
for any reason other than delay in the installation of Tenant
Improvements due to any change in or addition to the work called for
by the Plans and Specifications ordered by Tenant or interference by
Tenant which causes a delay in the completion ("Tenant Delays") or
Force Majeure (hereafter defined), Tenant may elect to terminate this
Lease, without prejudice to any other remedy. Notwithstanding any
provision of this subparagraph to the contrary, Tenant Delays shall
only be deemed to be that portion of the delays that were incremental
and additional to any delays resulting from causes other than those
for which Tenant is responsible. Landlord shall notify Tenant of
events which constitute Tenant Delays (and shall provide backup
documentation as reasonably requested by Tenant) at the time of their
occurrence.
10. COMMENCEMENT DATE. The "Commencement Date" shall occur on the earlier of
(i) the date Tenant occupies the Premises for business operations, or (ii)
Substantial Completion, so that Tenant could occupy the Premises and
conduct business operations.
11. BUILDING SERVICES. Tenant, as the sole occupant of the Premises, shall be
responsible for all management and payment of costs to operate, maintain,
repair (except for Landlord's obligations as set forth in this Lease) and
replace items on the Premises (except those items which shall be replaced
by Landlord in accordance with paragraph 12 below), at Tenant's sole cost
and expense, including without limitation, janitorial services to the
Building, landscaping, trash removal, general maintenance and cleaning of
the parking lot (including lighting and restriping of the parking lot),
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replacement of light bulbs in the interior and exterior fighting fixtures,
and other costs associated with the general operation and management of the
Premises. Landlord shall provide electrical facilities to the Premises in
accordance with express utility and HVAC specifications ("Utility
Specifications") provided to Landlord by Tenant as part of the Plans and
Specifications. Landlord will covenant, warrant and agree that upon the
installation of the heating, ventilating and air conditioning system
("HVAC") the HVAC system shall comply with the Utility Specifications.
Tenant shall be responsible for directly obtaining services from the
supplying utility companies for electricity, water, sewer, telephone and
any other utility requirements and directly making payments to the
respective supplying companies. If any essential service to be provided is
interrupted or curtailed for a period of 24 hours and is caused by Landlord
or Landlord's Representatives or lies within Landlord's control pursuant to
Landlord's repair obligations, in addition to other remedies available to
Tenant, the Base Rent for the Premises shall completely abate from the end
of such 24 hour period and continue until such services are fully restored.
Landlord shall provide a minimum of 72 hours' prior written notice of any
planned interruption of services in connection with the repair and
maintenance of the Premises by Landlord. Copies of any significant written
reports concerning the management or operation of the Premises internally
generated by Tenant shall be provided to Landlord at least quarterly.
12. LANDLORD'S REPAIR AND MAINTENANCE RESPONSIBILITIES. Landlord shall, at
Landlord's sole expense and without pass through to Tenant, keep the
structure of the Premises in good repair and free from nuisance of any
kind, including, but not limited to, repairing and maintaining or replacing
the roof (including the roof membrane), foundation, basic structure,
exterior walls (including painting, if applicable), and parking surface or
garage area resurfacing, resealing, or structural work, as well as plumbing
and electrical lines from the edge of the Property to the Building.
Landlord shall not be responsible for any repair or maintenance
necessitated by acts, omissions or negligence of the Tenant. Landlord shall
be responsible for damage to doors and windows only to the extent caused by
defects in the structure of the Building. Landlord shall be responsible, at
Landlord's sole cost and expense, without pass through to Tenant, for
repairing damage to the Premises caused by structural defects in the roof
leading to leaks, bursting pipes on the exterior of the Building (but only
if Landlord has been notified by Tenant of the need for repairs and has not
timely made such repairs), and negligence or misconduct of Landlord or
Landlord's representatives in consequence thereof, unless caused by Tenant
or Tenant's representatives. Landlord shall perform all repairs promptly
and in a good and workmanlike manner, and shall not unreasonably interfere
with Tenant's conduct of its business or its use of or access to the
Premises during such repairs. Landlord shall repair any and all damages
caused by Landlord's repairs or maintenance of the Premises, at Landlord's
cost, without pass-through to Tenant.
13. TENANT'S REPAIR AND MAINTENANCE RESPONSIBILITIES. Tenant shall maintain and
repair, at its sole cost and expense, the Premises (subject only to
Landlord's obligations as contained in Paragraph 12 above), including,
without limitation, the plumbing and electrical systems (within the
Building and not the lines feeding into the Building), HVAC and sprinklers.
Tenant shall additionally maintain and repair, at Tenant's expense, the
interior and exterior of the all doors and windows, except as provided in
Paragraph 12 above. Tenant shall also repair, or cause to be repaired, any
damage or injury done to the Premises or any part thereof by reason of the
negligence or misconduct or omissions of Tenant or Tenant's
Representatives. At the Expiration Date or earlier termination of this
Lease, or any renewal period, Tenant shall deliver up the Premises with all
Tenant Improvements located thereon (except as agreed in writing by and
between Tenant and Landlord at the time of Landlord's consent to such
alterations, and as otherwise provided herein) in good repair and
condition, reasonable wear and tear, damage from fire or other casualty and
repairs which are Landlord's obligations excepted. Unless otherwise agreed
by Tenant and Landlord, all personal property, furniture, and trade
fixtures installed by Tenant shall be removed by Tenant at the expiration
of this Lease. Tenant shall deliver all keys to the Premises to Landlord.
Tenant shall maintain the Premises in good repair and condition and shall
(i) keep the Premises free from waste at all times (ii) keep the Premises
neat and free from dirt, rubbish, and trash at all times. It is intended by
the parties hereto, and covenanted by the Tenant, that the Premises shall
be maintained as a first-class office building.
14. ALTERATIONS. Tenant shall have the right to make any alterations upon first
obtaining the written consent of Landlord, which shall not be unreasonably
withheld or delayed. Tenant shall provide complete plans and specifications
to Landlord for its review, and Tenant shall reimburse Landlord for any and
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all reasonable costs, fees and expenses (including, without limitation,
third party consulting fees) arising out of Landlord's review. Landlord
shall, at the time of its consent to any such alteration, indicate in
writing whether the alteration shall become Landlord's property upon
expiration or earlier termination of the Lease, or shall be removed
(without damage to the Premises) by Tenant. All furniture and movable trade
fixtures installed by Tenant may be removed by Tenant at the expiration or
earlier termination of this Lease in a good and workmanlike MANNER so as
not to damage the Premises, and Tenant agrees to repair any damage caused
to the Premises by such removal at its sole cost and expense. All
alterations shall: (i) be at Tenant's sole risk and cost; (ii) shall comply
with all applicable laws; and (iii) shall not increase Landlord's
obligations or costs hereunder.
15. ENTRY BY LANDLORD. Subject to Paragraph 25, except in emergency
situations, Landlord or Landlord's Representatives shall have the right to
enter the Premises during normal business hours to (a) inspect, clean or
make repairs, alterations or additions as may be necessary, or (b) show the
Premises to prospective purchasers, lenders or, during the last 180 days of
the Term or any renewal or extension term thereof, to prospective tenants;
and Tenant shall not be entitled to any abatement or reduction of Rent by
reason thereof, nor shall such be deemed to be an actual or constructive
eviction.
16. LOCKED DOCUMENTATION ROOMS. Notwithstanding any other provision contained
herein to the contrary, Tenant shall be permitted to designate certain
portions of the Premises as safe or confidential areas, to be known as
'Locked Documentation Rooms", to which Landlord or Landlord's
Representatives shall have no access unless accompanied by Tenant's
authorized representatives, or except in an emergency. Landlord, when so
accompanied, shall have the right to inspect any Locked Documentation Room
during Tenant's normal business hours after giving Tenant reasonable prior
notice. Landlord shall not receive copies of keys, pass cards or cipher
lock combinations to any Locked Documentation Room.
17. INSURANCE - REQUIREMENTS.
A. TENANT. Tenant shall, at Tenant's sole expense, obtain and keep in
force during the Term of this Lease (a) a policy of comprehensive
general liability insurance, including personal injury liability,
contractual liability, automobile liability, and completed operations
liability (if applicable), insuring Tenant against any liability
arising out of the use, occupancy or maintenance of the Premises and
naming Landlord as an additional insured as its interests may appear.
Such insurance shall have a combined single limit of not less than Two
Million and no/100ths Dollars ($2,000,000.00) for bodily injury and
property damage per occurrence, (b) "all risk" property insurance for
the Premises, on a full replacement cost basis of the Premises, and
(c) statutory worker's compensation and employer's liability coverage,
with limits of not less than $250,000, or qualified self-insurance.
The limit of any of such insurance shall not limit the liability of
Tenant hereunder, subject to paragraph 53 of this Lease. If Tenant
fails to procure and maintain such insurance Landlord may, but shall
not be required to, procure and maintain the same (after a fifteen
(15) day cure period is provided to Tenant), at Tenant's expense to be
reimbursed by Tenant as additional rent within thirty (30) days of
written demand. All insurance required to be obtained by Tenant
hereunder shall be issued by companies duly qualified to do business
in Texas. Tenant shall deliver to Landlord certificates of insurance
showing Landlord as additional insured under general liability
coverages and as loss payee under "all risk* insurance, as its
interest may appear under the policies. No policy shall be cancelable,
allowed to lapse and/or expire and/or be subject to reduction of
coverage except upon thirty (30) days' prior written notice to
Landlord. All such policies shall be written as primary policies
(subject to subsection B hereunder) not contributing with and not in
excess of coverage which Landlord may carry. The policy limits set
forth herein shall be subject to periodic review, and Landlord
reserves the right to require that Tenant increase the liability
coverage limits if, in the reasonable opinion of Landlord, the
coverage becomes inadequate and is less than commonly maintained by
tenants making similar uses in the area of similar buildings. Tenant
shall obtain any revised or increased coverage required by Landlord
within thirty (30) days of any such notification from Landlord.
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B. LANDLORD. Landlord shall obtain and maintain for the term of this
Lease, general liability insurance, including blanket contractual
liability coverage, with limits of not less than 52,000,000.00
combined single limit for personal injury and property damage upon the
Premises. Landlord shall deliver' upon written request, certificates
evidencing such coverage. It is agreed and understood by Tenant that
such policy of insurance maintained by Landlord shall be secondary to
any and all polices required to be carried by Tenant hereunder, unless
Landlord is liable (in accordance with this Lease or by law) for the
loss or damage, in which case, Landlord's insurance shall be primary.
C. LANDLORD'S CONTRACTORS. Landlord shall require any contractor
performing work at the Premises on behalf of Landlord to maintain
general liability insurance policies of no less than $500,000.00 for
damage to property and personal injury. Copies of such certificates of
insurance shall be provided to Tenant upon request, if same are
reasonably available to Landlord.
D. NOTICE OF LOSS. Tenant shall provide notice of loss, damage or
casualty to Landlord within three (3) business days of the occurrence.
18. WAIVER OF SUBROGATION.
Tenant and Landlord hereby each release the other and its agents and
employees from responsibility for and each waive their entire claim of
recovery for (i) any loss or damage to the personal property of Tenant
or Landlord located in the Building, including the Building itself,
arising out of any of the perils which are (or could have been)
covered by Tenant's property insurance policy, with extended coverage
endorsements, or (ii) loss resulting from business interruption or
loss of rental income, at the Premises. Landlord and Tenant shall each
cause their insurance carrier(s) to consent to such waiver of all
rights of subrogation against the other.
19. FIRE OR OTHER CASUALTY.
If the Building or Premises is damaged by fire or other perils covered
by extended coverage insurance the following provisions shall apply:
A. DESTRUCTION. In the event of total or partial destruction of the
Building, Tenant shall make available to Landlord all proceeds
(excluding Tenant's personal property proceeds) of any insurance
policies covering the Premises that have been received by Tenant.
Landlord shall promptly commence repair and restoration of the
Building to the same condition it was in prior to the casualty, and
prosecute the same diligently to completion, in which event this Lease
shall remain in full force and effect. Landlord shall have no
obligation to undertake reconstruction unless and until it receives
assurances, reasonably satisfactory to Landlord, that the insurance
proceeds will be made available to it (subject, however, to the one
hundred eighty (180) day completion deadline contained in Section 19E
herein). Tenant shall also pay to Landlord a sum of money equal to the
deductible under the applicable policy, if for a covered event.
Landlord shall have no obligation to expend any sums above and beyond
the insurance proceeds (including the deductible payment). In the
event of a casualty, Tenant shall reasonably cooperate with Landlord
in all matters relating to the casualty.
B. RENT ABATEMENT. In the event that such destruction renders the
Premises unsuitable for Tenant's use for a period of fifteen (15) or
more days, the amount of Base Rent shall abate proportionately
thereafter for so long as the Premises or a portion thereof are
unsuitable. Tenant shall not be entitled to any compensation or
damages for loss of use of the whole or any part of said Premises
and/or any inconvenience or annoyance occasioned by such damage,
repair or restoration.
C. END OF TERM. Notwithstanding anything to the contrary contained in
this Paragraph 19, either Tenant or Landlord may elect to terminate
this Lease in the event of any damage to the Building or the Premises
occurring during the last (12) months of the Term of the Lease or the
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last twelve (12) months of any extension thereof: and Landlord shall
not have any obligation to repair or restore the Premises in the event
Tenant or Landlord elects to terminate in accordance with this
subparagraph, during the last twelve ( 12) months of the Term of this
Lease or the last twelve (12) months of any extension hereof. In the
event Tenant or Landlord elects to terminate in accordance with this
subparagraph, all proceeds of any insurance policies covering the
Premises shall be paid to Landlord, and Tenant shall have no claim
thereto, except as to Tenant's personal property.
D. UNINSURED Loss. Tenant shall be liable to Landlord for any and all
casualty, loss or damage to the Premises that is not covered by
insurance carried by Tenant when such insurance is required to be
carried by this Lease.
E. RECONSTRUCTION AND REPAIR. If reconstruction or repair to the Premises
after a loss is substantial (in the reasonable judgment of Landlord),
or cannot be repaired or reconstructed within one hundred and eighty
(180) days (subject to Force Majeure and Tenant Delays) from the date
of the loss, Landlord shall notify Tenant within thirty (30) days from
the date of loss, and Tenant shall have the right to terminate this
Lease. If reconstruction or repair is not deemed to be substantial by
Landlord, and does not unreasonably interfere with Tenant's use and
occupancy of the Premises, all such repairs or reconstruction shall be
completed within one hundred and twenty (120) days (subject to Force
Majeure and Tenant Delays) from the date of loss. If reconstruction or
repair is not completed within said one hundred and twenty (120) day
period (for insubstantial casualty), or one hundred eighty (180) day
period (for substantial casualty), Tenant shall have the option to
terminate this Lease.
20. INDEMNIFICATION. Tenant shall defend, indemnify and hold harmless Landlord,
its agents, employees, officers, directors, partners and shareholders from
and against any and all liabilities, judgments, demands, causes of action,
claims, losses, damages, costs and expenses, including reasonable
attorneys' fees and costs, arising out of the use, occupancy, conduct,
operation, or management of the Premises or the Building by, or the willful
misconduct or negligence of, Tenant, its officers, contractors, licensees,
agents, servants, employees, guests, invitees, or visitors in or about the
Building or Premises or arising from any breach or default under this Lease
by Tenant, or arising from any accident, injury, or damage, howsoever and
by whomsoever caused, to any person or property, occurring in or about the
Building or Premises. This indemnification shall survive the expiration or
earlier termination of this Lease, and shall inure to the benefit of
Landlord and Landlord's successors and assigns. This provision shall not be
construed to make Tenant responsible for and Landlord hereby agrees to
defend, indemnify and hold Tenant harmless for loss, damage, liability or
expense resulting from injuries to Tenant, Tenant's representatives or
third parties caused by the negligence or willful misconduct of Landlord,
or its officers, contractors, licensees, agents, employees, or invitees, or
arising as a result of Landlord's fee simple interest in the Premises or
Landlord's obligations under this Lease. Additionally, the above-described
indemnity of Tenant shall not apply to damages caused as a direct result of
a breach of Landlord's obligations under this Lease.
21. CONDEMNATION. If twenty percent (20%) or more of the Premises are taken by
eminent domain or sale under threat of condemnation by eminent domain, this
Lease shall automatically terminate as of the date title vests in the
condemning authority, and all Base Rent and other payments shall be paid to
that date. Landlord reserves all rights to damages to the Premises for any
partial or entire taking by eminent domain, and Tenant hereby assigns to
Landlord any right Tenant may have to such damages or award (subject to the
following sentence), and Tenant shall make no claim against Landlord or the
condemning authority for damages for termination of the leasehold interest
or interference with Tenant's business. Tenant shall have the right to
claim and recover from the condemning authority compensation for any loss
which Tenant may incur for Tenant's moving expenses, business interruption
or taking of Tenant's personal property (not including Tenant's leasehold
interest) ("Tenant's Share"). In the event of a lump sum payment to
Landlord from the condemning authority, Landlord shall pay Tenant's Share
directly to Tenant, if applicable. If less than twenty percent (20%) of the
Premises, or such other portions of the Building, are taken by eminent
domain or sale under threat of condemnation by eminent domain, this Lease
shall continue in full force and effect unless Landlord, within thirty (30)
days following the date title vests in the condemning authority, elects, at
its option, to terminate this Lease, which termination shall be effective
as of the date of notification from Landlord to Tenant, and if Landlord
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does not terminate, Base Rent shall be reduced proportionately on a per
square foot basis. If Tenant reasonably determines that the portion of the
Premises (if less than 20%) taken by condemnation renders the Premises
unsuitable for Tenant's use, Tenant may, within thirty (30) days following
the date title vests in the condemning authority, elect to terminate the
Lease by providing written notice of its election to Landlord.
22. ASSIGNMENT AND SUBLETTING.
A. AFFILIATED ENTITY. Tenant may, without obtaining the consent of
Landlord, assign, sublet or transfer this Lease or any interest
therein, to any parent, subsidiary or affiliated corporation of`
Tenant; provided, however, that in the event of such assignment,
subletting or transfer, Tenant shall remain liable for its obligations
under this Lease. Tenant shall provide a notice of any such assignment
to Landlord within thirty (30) days after to the effective date of the
assignment, sublease or transfer. An "affiliated corporation" shall
mean any corporation which, directly or indirectly, controls or is
controlled by, or is under common control with, Tenant. For this
purpose, "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction or the management and
policies of such corporation, whether through the ownership of voting
securities, or by contract or otherwise. For purposes of this
Agreement, the following transactions relating to Tenant shall not be
deemed an assignment of this Lease and shall not give rise to any
requirement of approval or consent by any party to this Lease, nor
result in any right to terminate or alter this Lease: any merger
(including, without limitation a reincorporation merger),
consolidation, reorganization, stock exchange, sale of stock or
substantially all of the assets or other similar or related
transaction in which Tenant is the surviving entity or, if Tenant is
not the surviving entity, the surviving entity continues to conduct
the business conducted by Tenant prior to consummation of the
transaction.
B. UNAFFILIATED ENTITY. Tenant shall not, without Landlord's prior
written consent, which consent shall not be withheld unreasonably or
delayed, sublet, assign or transfer this Lease to any nonaffiliated
corporation or person. It shall not be unreasonable for Landlord to
withhold consent if it reasonably determines that the character or
identity of the proposed transferee is unsuitable for the Premises, or
if the transferee lacks the financial ability to fulfill its
obligations hereunder. In the event Landlord's consent is granted to
any proposed sublease, assignment or other transfer to any such
nonaffiliated corporation or person, Tenant shall remain liable under
this Lease until the Expiration Date or earlier termination of this
Lease. In the event of a sublease, which is approved by Landlord,
Landlord will not be obligated to obtain a non-disturbance agreement
with any Mortgagee (hereafter defined) of Landlord nor shall Landlord
be required to grant subtenant a non-disturbance agreement.
23. DEFAULT AND REMEDIES.
A. TENANT'S DEFAULT. A default under this Lease by Tenant shall exist if
any of the following occurs:
(i) If Tenant fails to pay Base Rent or any other sum required to be
paid hereunder when due and fails to cure said failure within ten
(10) days from receipt of verbal or written notice from Landlord
or is late three (3) or more times during any consecutive twelve
(12) month period; or
(ii) If Tenant fails to perform any term, covenant or condition of this
Lease except those requiring the payment of money, and Tenant
fails to cure such breach within thirty (30) days after written
notice from Landlord where such breach could reasonably be cured
within such thirty (30) day period, provided, however, that where
such failure could not reasonably be cured within the thirty (30)
day period, that Tenant shall not be in default if it commences
such performance within the thirty (30) day period and diligently
and continuously thereafter prosecutes the same to completion (but
in no event longer than one hundred twenty (120) days subject to
Force Majeure or unless out of the reasonable control of Tenant),
or if Tenant shall fail to perform or observe
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any of the provisions required to be performed or observed by
Tenant under any other agreement relating to the Premises, subject
to the above cure periods; or
(iii) If, to the extent permitted by applicable law, Tenant shall file
or there shall be filed against Tenant, in any court pursuant to
any statute either of the United States or any state, a petition
or declaration of insolvency or for the reorganization of or for
the appointment of a receiver, trustee or liquidator for all or
any portion of the assets of Tenant, and, within thirty (30) days
thereafter, Tenant fails to secure a discharge thereof, or if the
Tenant makes an assignment for the benefit of creditors, or if
Tenant is insolvent.
B. REMEDIES. Upon a default as set forth in Subparagraph A above,
Landlord shall have the following remedies, in addition to all other
rights and remedies provided by law, equity or otherwise provided in
this Lease, to which Landlord may resort cumulatively or in the
alternative:
(i) Landlord may continue this Lease in full force and effect, and
this Lease shall continue in full force and effect as long as
Landlord does not terminate this Lease, and Landlord shall have
the right to collect Base Rent and other charges when due.
(ii) Landlord may terminate Tenant's right to possession of the
Premises at any time by giving written notice to that effect, and
relet, the Premises or any part thereof. On the giving of the
notice, all of Tenant's rights in the Premises shall terminate.
Upon such termination, Tenant shall surrender and vacate the
Premises in good condition, and Landlord may re-enter and take
possession of the Premises in accordance with applicable law. Any
termination under this Paragraph 23 shall not release Tenant from
the payment of any sum then due Landlord or from any claim for
damages or Base Rent or other sum previously accrued or then
accruing against Tenant. Upon such termination Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in
reletting the Premises or any part thereof, including, without
limitation, broker's commissions, expenses of cleaning and
reasonable costs and expenses for redecorating the Premises
required by the reletting, reasonable attorneys' fees actually
incurred and like costs. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Landlord
other than giving express written notice of termination to Tenant
shall terminate this Lease. Acts of maintenance, efforts to relet
the Premises or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall
not constitute a termination of Tenant's right to possession. On
termination, Landlord has the right, at Tenant's cost and without
liability for the loss thereof or damage thereto, if Tenant has
left any personal property on the Premises, to remove all Tenant's
personal property, which shall be deemed to have been abandoned by
Tenant, and either store same or otherwise dispose of same in
Landlord's sole and absolute discretion. Landlord and Tenant
hereby acknowledge that in the event of such a termination, actual
damages to Landlord may be difficult to ascertain and,
accordingly, hereby agree that in such event, the net present
value of the Base Rent due from the date of such termination to
the Expiration Date, discounted at five percent (5%) per annum,
less the fair rental value of the Premises as reasonably
determined by Landlord, which determination shall be deemed
conclusive, from the date of such termination until the Expiration
Date, discounted at five percent (5%) per annum, shall thereupon
be immediately due and payable to Landlord to compensate Landlord
for Tenant's default and such termination. Tenant waives
redemption or relief from forfeiture under any other present or
future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant
hereunder.
(iii) Landlord's rights pursuant to this Paragraph 23, including without
limitation, Landlord's rights to collect Base Rent and other
charges due under this Lease, shall survive any termination of the
Lease, whether such termination is effected pursuant to this
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Paragraph 23 or otherwise. Notwithstanding anything to the
contrary contained herein, Landlord and Tenant hereby agree that
Landlord shall use commercially reasonable efforts to mitigate or
attempt to offset any damages which are or may be suffered by
Landlord as a result of any default of Tenant under the Lease. Any
payment by Tenant of a sum of money less than the entire amount
due Landlord at the time of such payment shall be applied to the
obligations of Tenant then furthest in arrears. No endorsement or
statement on any check or accompanying any payment shall be deemed
an accord and satisfaction and any payment accepted by Landlord
shall be without prejudice to Landlord's right to obtain the
balance due or pursue any other remedy available to Landlord both
in law and in equity.
C. LANDLORD'S DEFAULT. If Landlord shall default under any covenant of
this Lease, and such default is not cured by Landlord within thirty
(30) days after delivery of written notice of default to Landlord
(subject to Force Majeure and Tenant Delays), Tenant shall have
available to it all remedies at law and equity. If the default cannot
reasonably be cured within the thirty (30) day period, Landlord shall
not be in default if it commences such performance within the thirty
(30) day period and diligently and continuously thereafter prosecutes
the same to completion.
24. LANDLORD WAIVERS. Landlord hereby waives, releases and relinquishes any and
all claims, rights, interests, liens upon and rights of distraint, levy,
attachment or recourse (whether arising by virtue of statute, common law or
otherwise) to equipment or trade fixtures which Tenant may lease, and
equipment, trade fixtures and other personal property owned by Tenant (the
"Owned Property"). Owned Property shall include, without limitation,
specialized equipment unique to the nature of Tenant's business, including,
without limitation, computer software, computer tapes, computer program
tapes, computer program disks, computer program documentation and manuals,
computer program codes, customer lists or other such inventory or
proprietary information which may belong to Tenant or be in the possession
of Tenant, which is located upon the Premises during the Term, or any
renewal or extension thereof. The foregoing waiver, release and
relinquishment is self-operative and does not require the necessity for any
further instrument or document. Notwithstanding the foregoing, Landlord
hereby agrees to furnish, upon written request, waivers of Landlord's
rights and liens as described herein and shall exempt the same from
distraint, levy, attachment or recourse.
25. TENANT'S SECURITY REQUIREMENTS. "Tenant's Security Requirements" shall mean
that Tenant requires advance notification of Landlord's intent to enter the
Premises to show the Premises, or conduct inspections or repairs (except in
emergency situations) at which time Landlord's employees shall be prepared
to provide proper identification. Non-Landlord employees, including, but
not limited to, potential buyers, mortgagees, invitees, guests or potential
tenants, shall be accompanied by an employee of Tenant at all times while
within the Premises. If Landlord intends to show the Premises to
prospective tenants, Landlord shall additionally provide Tenant the name of
the proposed tenant, and, if the prospective tenant is determined to be a
competitor of Tenant, Tenant shall, at Tenant's option, have at least 72
hours to make any arrangements to further secure the Premises prior to such
prospective tenant touring the Premises.
26. SUBORDINATION AND ATTORNMENT. This Lease and Tenant's rights in and to the
Premises and the Building, pursuant to the terms of this Lease, are and
shall be subject and subordinate to the lien of any mortgage, deed of
trust, security deed, ground lease or underlying lease now or hereafter in
force against the Premises or the Building. Upon request of Landlord,
Tenant will, in writing, confirm the subordination of its rights hereunder
to the lien of any mortgage, deed of trust, security deed, ground lease or
underlying lease now or hereafter in force against the Premises or the
Building, and to all advances made or hereafter to be made upon the
security thereof. Tenant shall execute and return to Landlord any such
subordination documents within ten (10) business days of Landlord's written
request. In the event any proceedings are brought for foreclosure, or in
the event of the exercise of the power of sale (or deed in lieu of
foreclosure) under any mortgage, security deed or deed of trust made by the
Landlord covering the Premises, Tenant shall attorn to the purchaser at any
such foreclosure, or to the grantee of a deed in lieu of foreclosure, and
recognize such purchaser or grantee as the Landlord under this Lease as
long as such purchaser or grantee agrees to recognize Tenant and Tenant's
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rights under this Lease and agrees not to disturb Tenant so long as Tenant
is not in default hereunder, and assumes all rights and obligations of
Landlord under this Lease.
27. ESTOPPEL CERTIFICATE. Upon written request, Tenant shall execute and
deliver to Landlord (within twenty (20) days from the delivery of the
request) and/or any mortgagee or assignee of Landlord an estoppel
certificate substantially in the form attached hereto as Exhibit "E".
Failure to timely deliver the estoppel certificate shall constitute a
default hereunder.
28. SURRENDER OF POSSESSION. Upon expiration of the Term of this Lease or as
otherwise provided hereunder, Tenant shall promptly and peacefully
surrender the Premises to Landlord in as good condition as when received by
Tenant from Landlord or as thereafter improved, reasonable use and wear and
tear and damage by storm, fire, lightning, earthquake or other casualty and
repairs required to be performed by Landlord excepted, all to the
reasonable satisfaction of Landlord. If the Premises are not surrendered in
accordance with the terms of this Lease, Tenant shall (subject to paragraph
53 contained herein) indemnify Landlord and its agents, employees,
independent contractors, officers, directors, partners, and shareholders
against any loss or liability including reasonable attorneys' fees and
costs, and including liability to succeeding tenants, resulting from delay
by Tenant in so surrendering the Premises. This indemnification shall
survive the expiration or earlier termination of this Lease.
29. NON-WAIVER. Waiver by Landlord or Tenant of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver
of such term, covenant, or condition(s); or any subsequent breach of the
same or any other term, covenant or condition of this Lease, other than the
failure of either party to pay any financial obligations regardless of
Landlord's or Tenant's knowledge of such preceding breach at the time of
acceptance of such monies. No provision of this Lease shall be deemed to
have been waived or modified by Landlord or Tenant unless such waiver or
modification shall be in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
30. BUILDING COMPLIANCE. After the Commencement Date, and except as otherwise
specified herein with regard to repairs and alterations, Tenant will be
solely responsible for the compliance of the Premises with all applicable
federal, state and local law with respect to Tenant's use and occupancy of
the Premises, including, without limitation, any structural changes to the
Building mandated by federal, state or local law, if such structural
changes are necessitated by Tenant's use and occupancy of the Premises.
31. HAZARDOUS MATERIALS.
A. DEFINITION. As used herein, the term "Hazardous Material(s)" shall
mean any substance or material which has been determined by any state,
federal or local governmental authority to be capable of posing a risk
of injury to health, safety or property, including, without
limitation, all of those materials and substances designated as
hazardous or toxic by the city in which the Premises are located, the
U.S. Environmental Protection Agency (the "EPA"), or any federal
agencies that have overlapping jurisdiction with such state agencies,
or any other governmental agency now or hereafter authorized to
regulate materials and substances in the environment.
B. TENANT'S COVENANT. Tenant hereby covenants not to cause or permit any
Hazardous Material to be placed, held, located or disposed of in, on
or at the Premises or any part thereof and hereby covenants that
neither the Premises nor any part thereof shall ever be used as a dump
site or storage site (whether permanent or temporary) for any
Hazardous Material during the Term of this Lease (including any
extensions of the Term). Tenant hereby agrees to indemnify and defend
Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, costs of any
settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted against, Landlord by any
person or entity or governmental agency for, with respect to, or as a
direct or indirect result of, the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or
release from, the Premises of any Hazardous Material (including,
without limitation, any losses, liabilities, including strict
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liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called federal, state or local
"Superfund" or "Superlien" laws, statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing
liability, including strict liability, substances or standards of
conduct concerning any Hazardous Material), provided, however, that
the foregoing indemnity is limited to matters arising solely from
Tenant's violation of the covenant contained in the first sentence of
this Paragraph 31.B. Tenant hereby agrees fully to cooperate with
Landlord and provide such documents, affidavits and information as may
be requested by Landlord (i) to comply with any environmental law,
(ii) to comply with the request of any lender, purchaser or tenant,
and/or (iii) for any other reason deemed necessary by Landlord in its
sole discretion. Landlord shall have the right but not the obligation
(after having given notice and a reasonable opportunity to cure to the
Tenant), and without limitation of Landlord's rights under this Lease,
to enter onto the Premises or to take such other actions as it deems
necessary or advisable to cleanup, remove, resolve or minimize the
impact of, or otherwise deal with, any Hazardous Material following
receipt of any notice from any person or entity (including without
limitation the EPA) asserting the existence of any Hazardous Material
in, on or at the Premises or any pan thereof which, if true, could
result in an order, suit or other action against Tenant or Landlord or
both. All reasonable costs and expenses incurred by Landlord in the
exercise of any such rights, which costs and expenses result from
Tenant's violation of the covenant contained in the first sentence of
this Subparagraph B, shall be deemed additional rent under this Lease
and shall be payable by Tenant upon Landlord's demand therefor. The
provisions of this Paragraph 31 shall survive the cancellation,
termination or expiration of this Lease.
C. LANDLORD'S COVENANT. Landlord agrees that prior to and during the Term
of this Lease it shall not introduce Hazardous Materials onto the
Property or any portion thereof, and shall indemnify and hold harmless
Tenant from and against any and all losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable
legal fees, costs of any settlement or judgment and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted
against Tenant as a direct or indirect result of the introduction of
Hazardous Materials onto the Property by Landlord.
32. TRANSFER OF PROPERTY BY LANDLORD. If Landlord should convey, transfer,
assign or grant any or all rights of Landlord in and to the Premises, to
any transferee, assignee or grantee, such conveyance, transfer or
assignment document shall provide that such transferee, assignee, or
grantee shall succeed to and assume the rights and obligations of Landlord
under this Lease during the remaining Term, including any renewal or
extension thereof.
33. CIPHER LOCKS AND SECURITY SYSTEM. Tenant shall be permitted to install, or
use in substitution, combination or cipher locks on interior and/or
exterior Premises doors. Tenant shall also be permitted to install
electronic security systems, including, but not limited to, pass card door
lock systems and camera surveillance systems, subject to compliance with
the Law. Landlord shall be provided with means of access to the Premises,
subject, however, to the provisions of Paragraph 25. All such equipment and
devices shall remain the personal property of Tenant and may be removed by
Tenant at the expiration or other termination of this Lease, and Tenant
shall repair any damage caused by such installation, maintenance and
removal.
34. CONFIDENTIALITY/MEDIA RELEASES. All information communicated to Landlord
shall be held by Landlord in strict confidence, shall be used only for
purposes of this Lease, and no such information shall be disclosed by
Landlord, its agents or employees without the express prior written consent
of Tenant, except as by reason of legal, accounting or regulatory
requirements beyond the reasonable control of Landlord. Nothing contained
herein shall prohibit Landlord from issuing its standard media release
concerning the execution of Lease and the construction of the Premises, a
copy of which will be submitted to Tenant within thirty (30) days of the
execution of this Lease. Tenant or Tenant's representatives shall have the
right to review and approve any such press release as to statements made
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<PAGE>
about Tenant only, which such approval shall not be unreasonably withheld
or delayed. The press release shall be deemed approved if Tenant has not
expressed its reasonable objections to the press release in writing to
Landlord within seven (7) business days from its delivery to Tenant.
35. COMMUNICATIONS EQUIPMENT. Tenant may install and operate (without voiding
or violating any roof warranty in place), at Tenant's sole cost and
expense, communications equipment on the Premises, including the roof of
the Building; provided, however, that such installations shall comply with
the Law, as to roof installations, Landlord shall approve the location and
size of such installation. Tenant agrees to repair any damage arising out
of the installation, operation or removal of such communications equipment.
36. LANDLORD REPRESENTATIONS AND WARRANTIES. Landlord warrants and represents
to Tenant the following matters as of the date of this Lease, which such
matters shall also be true as of the Commencement Date:
A. There is no pending and to the best of Landlord's knowledge, there is
no threatened condemnation or similar proceeding affecting the
Property or any portion thereof, nor has Landlord knowledge that any
such action is presently contemplated.
B. There are no parties in possession of any portion of the Property as
lessees, tenants at sufferance or trespassers.
C. The Property is zoned under a zoning classification which permits the
use of the Premises as contemplated under this Lease.
D. There are no restrictive covenants affecting any portion of the
Property which will be violated by the Building or other improvements
or by Tenant's proposed use of the portions of the Property affected
by the restrictions.
E. There are no judgments of any court against Landlord which in any way
may presently constitute a lien or at some future time be perfected
into a lien upon any portion of the Property which would materially
impair Tenant's occupancy of the Premises, and there is no litigation
or proceeding pending or to the best of Landlord's knowledge,
threatened against or relating to any portion of the Property which
arises out of the conduct of Landlord upon the Property.
F. There are no unpaid bills for labor or materials furnished to the
Property or any portion thereof at the instance of Landlord which
would materially impair Tenant's occupancy of the Premises.
G. To the best of Landlord's current, actual knowledge, no Hazardous
Materials are present on or under the Property. Landlord shall deliver
to Tenant copies of any and all environmental reports affecting the
Property in its possession.
H. The Premises complies and at substantial completion will comply with
all applicable federal, state and local laws.
"Current, actual knowledge" shall mean the conscious awareness of facts or other
information of Landlord's Representatives.
37. DISADVANTAGED OR WOMEN-OWNED BUSINESSES. Tenant, in cooperating with
governmental requirements to ensure opportunities for disadvantaged and
women-owned businesses, requests that Landlord use its commercially
reasonable efforts to include, as part of Landlord's bidding process in
connection with the construction, repair or maintenance of the Premises,
bidders who qualify as disadvantaged or women-owned businesses. Pursuant to
applicable law, bidders who qualify as disadvantaged or women-owned
businesses must be able to certify as to their qualification. Additionally,
if chosen, such bidder must continually be able to certify such status
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<PAGE>
throughout the term of any agreement and Tenant and Landlord shall be
entitled to rely upon such certification. As used in this request,
disadvantaged and women-owned businesses are defined by applicable United
States or local governmental regulations. Landlord shall not be deemed to
be in default under this Lease for failure to comply with this Paragraph
37, provided, however, Tenant shall not be considered to have granted
consent or approval for such failure if, in fact, Landlord is required to
perform in accordance with the Law.
38. FORCE MAJEURE. A party to this Lease shall be excused from the performance
of its duties and obligations under this Lease, except obligations for the
payment of money, for the period of delay, caused by labor disputes,
governmental regulations, riots, war, insurrection, acts of God or other
causes beyond the control of the parry whose performance is being excused
(but such causes shall not include insufficiency of funds).
39. BROKERS. Tenant and Landlord acknowledge that Jones Lang Wooton USA is the
sole real estate broker responsible for bringing about or negotiating this
Lease and is the sole broker with whom either has dealt with regard to this
Lease. Landlord shall pay a commission to said broker in accordance with a
separate agreement. Tenant and Landlord agree to defend, indemnify and hold
harmless the other from any expense or liability arising out of a claim
for compensation by any other broker.
40. SIGNAGE. Tenant shall have the right to install and maintain a sign on the
Building and the Premises; provided, however, that all such installations
shall be in compliance with applicable statutes, regulations and
ordinances, shall be placed in such a location and shall be of such size as
shall be reasonably approved by Landlord. Tenant agrees to repair any
damage caused by the installation, maintenance or removal of such sign.
41. HOLDING OVER. Should Tenant holdover in the Premises or any part thereof,
such holding over shall constitute a month to month tenancy at a rental
equal to 150% of the Base Rent payable for the last month of the Term, or
then current renewal or extension term. Tenant shall be subject to all
other terms and conditions of this Lease.
42. ATTORNEYS' FEES. In case it should be necessary for Landlord or Tenant to
bring any action under this Lease, the nonprevailing party agrees to pay
reasonable attorneys' fees, including, without limitation, legal assistant
or paralegal fees, secretarial overtime, special mailing and courier
services, telecopies/faxes, filing fees, and reasonable travel expenses
(including, without limitation, airfare, hotel accommodations,
on-the-ground transportation, meals) incurred by the prevailing party.
43. QUIET ENJOYMENT. For so long as Tenant is not in default hereunder, Tenant
shall peaceably and quietly hold and enjoy the Premises for the Term, and
any renewals and extensions thereof, without hindrance from Landlord or
anyone claiming by, through or under Landlord.
44. NOTICES. Any notice required to be delivered shall be deemed to be
delivered when actually received or date attempted to deliver and refused,
after (i) being sent by a recognized, bonded, national, overnight courier
service; (ii) deposited in the United States mail, postage prepaid,
certified mail, return receipt requested; or (iii) sent by
telecommunication ("Fax") during normal business hours in which case it
shall be deemed delivered on the day sent, provided an original is received
by the addressee after being sent by a nationally recognized overnight
courier within one (1) business day of the Fax, addressed to Landlord or
Tenant at their addresses specified herein, respectively, or at such other
address as specified by written notice by either parry.
45. ENTIRE AGREEMENT. This Lease represents the entire agreement and
understanding between Landlord and Tenant, and there are no
representations, understandings, stipulations, agreements or promises not
incorporated in writing herein.
46. AMENDMENTS. No amendments or modifications shall be effective unless such
agreement is in writing and signed by Tenant and Landlord, nor shall any
custom, practice or course of dealing between the parties be construed to
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<PAGE>
waive the right to require specific performance by the other party in
compliance with this Lease.
47. LEGAL INTERPRETATION. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Texas. If any clause or provision
of this Lease is illegal, invalid or unenforceable under present or future
laws, then it is the intention of the parties that the remainder of this
Lease shall not be affected, and that, in lieu of each affected clause or
provision, there be added a clause or provision as similar as may be
possible to the affected clause or provision which is legal, valid and
enforceable. Words of any gender shall be construed to include any other
gender, and words in the singular number shall be construed to include the
plural, unless the context otherwise requires. The headings of the
paragraphs have been inserted for convenience only and are not to be
considered in any way in the construction or interpretation of this Lease.
Except as otherwise herein expressly provided, the terms of this Lease
shall apply to, inure to the benefit of, and be binding upon, the parties
and their respective assigns, successors and legal representatives. Any
suit or venue for any cause of action arising from or relating to this
Lease shall be brought in Collin County, Texas.
48. OPTION TO RENEW. Provided Tenant is not in default of any of the terms
hereunder, upon 180 days' prior written notice, Tenant shall have the sole
option to extend and renew the Term for up to two (2) additional periods of
five (5) years each, upon the same terms and conditions as in this Lease,
except Base Rent shall be at the fair market rate to be mutually agreed by
both parties but in no event lower than the Base Rent for the last month of
the Term prior to the extension. Fair market rate shall mean rental rates
for premises of similar size and quality as the Premises located in the
vicinity of the Premises. If Landlord and Tenant are unable to agree on the
fair market rate, (unless either party elects not to proceed) each shall
appoint (and pay the fees and expenses of) an MAI qualified appraiser with
at least ten (10) years experience in similar properties, who shall
promptly meet and set the fair market rate. If they are unable to set the
fair market rate, the appraisers shall select a third MAI qualified
appraiser (with at least ten (10) years relevant experience) whose fees and
expenses shall be paid for on an equal basis by Landlord and Tenant and the
third appraiser shall select either one or the other fair market rate as
set by the first two appraisers and that rate shall be deemed the fair
market rate. After the fair market rate has thus been set, either Landlord
or Tenant may elect not to proceed with renewal of the Lease, and thus
allow the Term to expire. In order for the renewal term and the Base Rent
to be effective, an amendment to Lease shall be executed and delivered by
and between Landlord and Tenant.
49. AUTHORITY TO ENTER INTO LEASE. Each individual executing this Lease on
behalf of the Tenant or Landlord represents and warrants that he/she is
duly authorized to execute and deliver this Lease on behalf of the Tenant
or Landlord, in accordance with a duly adopted resolution of the board of
directors of said corporation or the managing partner of the limited
partnership or in accordance with the bylaws of said corporation or
partnership agreement, and that this Lease is binding on the corporation
and/or limited partnership in accordance with its terms.
50. PARTIES BOUND. The preparation and submission of a draft of this Lease by
either party to the other parry shall not constitute an offer, nor shall
either party be bound to any terms of this Lease or the entirety of this
Lease, until both parties have fully executed a final document and an
original signature document has been received by both parties. Until such
time as described in the previous sentence, either parry is free to
terminate negotiations without any obligation to the other party.
51. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer(s) of
Landlord's interest in the Premises, other than a transfer for security
purposes only, the transferor shall be automatically relieved of any and
all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer, and Tenant agrees to attorn to the
transferee so long as transferee assumes all of Landlord's obligations
under this lease.
52. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, required to
be paid by it hereunder, or if Tenant shall fail to perform any other act
on its part to be performed hereunder which such failure shall continue
beyond the applicable cure periods, then, in addition to an event of
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<PAGE>
default, Landlord may, but shall not be obligated so to do, and without
waiving or releasing Tenant from any obligations of Tenant, make any such
payment or perform any such other act on Tenant's part to be made or
performed as provided in this Lease. Notwithstanding the foregoing, in the
event of an emergency, if Tenant shall fail to pay any sum of money,
required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, immediately make any such payment or perform any
such other act on Tenant's part to be made or performed as provided in this
Lease. Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment of
sums due under this Paragraph is in the case of default by Tenant in the
payment of Base Rent. All sums paid by Landlord and all penalties, interest
and costs in connection therewith, shall be due and payable by Tenant as
additional rent on the next day after such payment by Landlord, together
with interest thereon at the maximum rate of interest permitted by law from
such date to the date of payment.
53. LIMITATION ON LIABILITY. Neither Landlord nor Tenant shall be liable for
any consequential, speculative, indirect or punitive damages of any parry,
including third parties, arising out of a breach of any covenant of this
Lease, unless expressly stated elsewhere in this Lease.
54. GENERAL PROVISIONS.
A. MARGINAL HEADINGS, ETC. The marginal headings, Table of Contents, and
titles to the paragraphs and subparagraphs of this Lease are not a
part of the Lease and shall have no effect upon the construction or
interpretation of any part hereof.
B. RECORDATION. Neither Landlord nor Tenant shall record this Lease, but
a short-form memorandum hereof may be recorded at the request of
Landlord.
C. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity, except as set forth to the contrary
herein.
D. TIME IS OF THE ESSENCE. Time is of the essence of this Lease. Unless
specifically provided otherwise, all references to terms of days or
months shall be construed as references to calendar days or calendar
months, respectively.
E. EXECUTION. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original and any of which shall be
deemed to be complete in itself and may be introduced into evidence or
used for any purpose without the production of the other counterparts.
F. NO JOINT VENTURE. This Lease does not and shall not be construed to
create a partnership, joint venture or any other relationship other
than that of landlord and tenant.
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<PAGE>
WITNESS THE SIGNATURES of the parties hereto this day and year
aforesaid.
LANDLORD: TENANT:
KREG-SW, L.P., ELECTRONIC DATA SYSTEMS CORPORATION
a California limited partnership
By: /s/ John M. Yeaman
-------------------------------
By: KREG Operating Company, John M. Yeaman
a Delaware corporation Director of Real Estate
Its General Partner
By: /s/ Steven W. Vaughn
---------------------------
Name: Steven W. Vaughn
---------------------------
Title: President
---------------------------
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<PAGE>
FIRST AMENDMENT TO LEASE
Reference is made to that certain Lease Agreement (the "Lease"), dated
October 29, 1996, by and between KREG-SW, L.P.. a California limited partnership
("Landlord") and ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation
("Tenant"). This First Amendment shall be incorporated into, and made a part of,
the Lease and may be hereinafter referred to collectively as the "Lease".
RECITALS
WHEREAS, pursuant to the Lease, Tenant leases from Landlord approximately
261,700 net rentable square feet of space (the "Premises"), located at 105
Bethany Road, Allen, Texas (the "Building"), more particularly described in the
Lease; and
WHEREAS, Tenant desires to change and extend the Scheduled Completion Date
(as defined in the Lease) and extend the dates before Landlord is responsible
for any penalties, and Landlord is agreeable to such changes and extension.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, for $10.00 and other good
and valuable consideration, the receipt and sufficiency which is hereby
acknowledged, Landlord and Tenant mutually covenant and agree as follows:
1. In the event of a conflict between the terms and conditions of this
First Amendment and the Lease, the terms and conditions of this First
Amendment shall prevail.
2. All capitalized terms used in this First Amendment not otherwise
defined herein shall have the same meaning ascribed to such terms in
the Lease.
3. Subparagraph 1.0. of the Lease, shall be amended by changing the
"Scheduled Completion Date" to July 18. 1997. The "Term" of the Lease
set forth in Subparagraph 1.P., shall remain 7 years, however, the
"Expiration Date" shall change to be July 17, 2004.
4. Subparagraph 1.N. of the Lease, shall be amended by changing the
"Outside Completion Date" to November 17,1997.
5. Due to the extension of the Scheduled Completion Date, Subparagraph
8A., REMEDIES OF TENANT, shall be amended by extending the date when
Landlord's penalties commence due to Landlord not substantially
completing the Building Shell, the Site Work and the Tenant
Improvements (collectively, the "Work") on the Scheduled Completion
Date. The date "July 13, 1997" shall be deleted and the date "August
17, 1997" shall be inserted. The date for Tenant to elect to terminate
the Lease related to Landlord's failure to substantially complete the
Work after the Outside Completion Date, is extended as provided under
Paragraph 4 of this Amendment.
<PAGE>
6. Except for the matters specifically addressed herein, the Premises
shall be governed by the terms and conditions of the Lease. The Lease
is hereby amended, ratified and affirmed and all other terms,
covenants and conditions of the Lease not modified herein shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant hereby execute this First Amendment
as of 4/24/1997.
LANDLORD: TENANT:
KREG-SW, L.P. ELECTRONIC DATA SYSTEMS
CORPORATION
By: /s/ Tobin C. Grove By: /s/ John M. Yeaman
-------------------------------- ----------------------------------
Printed Name: Tobin C. Grove John M. Yeaman
----------------------
Title: Vice President Title Director of Real Estate
-----------------------------
Date: 4/24/97 Date: 4-14-97
------------------------------- --------------------------------
<PAGE>
SECOND AMENDMENT TO LEASE
Reference is made to that certain Lease Agreement (the "Original Lease"),
dated October 29, 1996, by and between KREG-SW, L.P., a California limited
partnership ("Landlord") and ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware
corporation ("Tenant"), as amended by First Amendment to Lease (the "First
Amendment"), dated April 24, 1997. This Second Amendment shall be incorporated
into, and made a part of, the Lease and may be hereinafter referred to
collectively as the "Lease".
RECITALS
WHEREAS, pursuant to the Lease, Tenant leases from Landlord approximately
261,700 net rentable square feet of space (the "Premises"), located at 105
Bethany Road, Allen, Texas (the "Building"), more particularly described in the
Lease; and
WHEREAS, Tenant desires to change and extend the Scheduled Completion Date
(as defined in the Lease) and extend the dates before Landlord or Tenant is
responsible for any penalties, and Landlord is agreeable to such changes and
extension.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, for $10.00 and other good
and valuable consideration, the receipt and sufficiency which is hereby
acknowledged, Landlord and Tenant mutually covenant and agree as follows:
1. In the event of a conflict between the terms and conditions of this
Second Amendment and the Lease, the terms and conditions of this
Second Amendment shall prevail.
2. All capitalized terms used in this Second Amendment not otherwise
defined herein shall have the same meaning ascribed to such terms in
the Lease.
3. Subparagraph 1.0. of the Lease, shall be amended by changing the
"Scheduled Completion Date" to August 1, 1997. The "Term" of the Lease
set forth in Subparagraph 1.P., shall remain 7 years, however, the
"Expiration Date" shall change to be July 31, 2004.
4. Subparagraph 1.N. of the Lease, shall be amended by changing the
"Outside Completion Date" to December 31, 1997.
5. Due to the extension of the Scheduled Completion Date, Subparagraph
8.A., REMEDIES OF TENANT, shall be amended by extending the date when
Landlord's penalties commence due to Landlord not substantially
completing the Building Shell, the Site Work and the Tenant
Improvements (collectively, the "Work") on the Scheduled Completion
Date. The date "August 17, 1997" shall be deleted and the date "August
31, 1997" shall be inserted. The date for Tenant to elect to terminate
the Lease related to Landlord's failure to substantially complete the
Work after the Outside Completion Date, is extended as provided under
Paragraph 4 of this Amendment.
<PAGE>
6. Except for the matters specifically addressed herein, the Premises
shall be governed by the terms and conditions of the Lease. The Lease
is hereby amended, ratified and affirmed and all other terms,
covenants and conditions of the Lease not modified herein shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF Landlord and Tenant hereby execute this Second
Amendment as of July 11, 1997.
LANDLORD TENANT:
KREG-SW, L.P. ELECTRONIC DATA SYSTEMS
CORPORATION
By: /s/ Tobin C. Grove By: /s/ John M. Yeaman
------------------------------ ------------------------------
Printed Name: Tobin C. Grove John M. Yeaman
-------------------
Title: V.P. Title: Director of Real Estate
--------------------------
Date: 7/11/97 Date: 7/1/97
---------------------------- -----------------------------
MICROAGE, INC. COMPENSATION TRUST
FOR ALAN P. HALD
<PAGE>
MICROAGE, INC. COMPENSATION TRUST
FOR ALAN P. HALD
THIS TRUST AGREEMENT is made and entered into by and between MICROAGE,
INC., a Delaware corporation (the "Company") and NORTHERN TRUST BANK OF ARIZONA,
N.A. (the "Trustee").
WHEREAS, the Company has adopted certain plans or agreements for ALAN P.
HALD (hereinafter collectively referred to as the "Plan") attached as Appendix A
and incorporated herein by this reference;
WHEREAS, the Company has incurred or expects to incur liability under the
terms of the Plan with respect to individuals participating in the Plan;
WHEREAS, the Company wishes to establish a trust (hereinafter called the
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of the Company to make contributions to the
Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee in trust all of the
Company's right, title and interest in and to certain insurance policies
insuring the life of Alan P. Hald which are being assigned to the Trustee
simultaneously with the execution of this Trust Agreement, which shall become
the principal of the Trust to be held, administered and disposed of by the
Trustee as provided in this Trust Agreement.
1.2 The Trust hereby established shall be irrevocable.
<PAGE>
1.3 The Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
1.4 The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against the
Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3.1 herein.
1.5 The Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of by the
Trustee as provided in this Trust Agreement. Neither the Trustee nor any Plan
participant or beneficiary shall have any right to compel such additional
deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS
AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment Schedule.
The Company shall have the sole responsibility for all tax withholding filings
and reports. The Trustee shall withhold such amounts from distributions as the
Company directs and shall follow the instructions of the Company with respect to
remission of such withheld amounts to appropriate governmental authorities.
2.2 The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by the Company or such party as it
shall designate under the Plan, and any claim for such benefit shall be
considered and reviewed under the procedures set out in the Plan.
2.3 The Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan. The
Company shall notify the Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
2
<PAGE>
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan, the Company shall make the balance of each such payment as it
falls due. The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is Insolvent. The Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) the Company is unable to
pay its debts as they become due, or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided in
Section 1.4 hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal and state law as set
forth below.
(a) The Board of Directors and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing of the Company's
Insolvency. If a person claiming to be a creditor of the Company alleges in
writing to the Trustee that the Company has become Insolvent, the Trustee shall
determine whether the Company is Insolvent and, pending such determination, the
Trustee shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(b) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person claiming to be a
creditor alleging that the Company is Insolvent, the Trustee shall have no duty
to inquire whether the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
(c) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of the
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits due under
the Plan or otherwise.
(d) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that the Company is not
Insolvent (or is no longer Insolvent).
3
<PAGE>
3.3 Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3.2 hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4
PAYMENTS TO THE COMPANY
4.1 Except as provided in Section 3 hereof, the Company shall have no right
or power to direct the Trustee to return to the Company or to divert to others
any of the Trust assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
5.1 In no event may the Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by the Company, other than a de
minimis amount held in common investment vehicles in which the Trustee invests.
All rights associated with assets of the Trust shall be exercised by the Trustee
or the person designated by the Trustee, and shall in no event be exercisable by
or rest with Plan participants.
5.2 The Company shall have the right at anytime, and from time to time, in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by the Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
SECTION 6
DISPOSITION OF INCOME
6.1 During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
4
<PAGE>
SECTION 7
ACCOUNTING BY THE TRUSTEE
7.1 The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within 60 days following the close of each calendar
year and within 60 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF THE TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is given in
writing by the Company. In the event of a dispute between the Company and a
party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute. The Trustee shall not be liable, to the extent permitted by law, for
compliance with the investment directions as communicated to the Trustee by the
Company.
8.2 The Trustee may consult with legal counsel (who may also be counsel for
the Company generally) with respect to any of its duties or obligations
hereunder.
8.3 The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
8.4 The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy or collateral assignment interest
therein is held as an asset of the Trust, the Trustee shall have no power to
name a beneficiary of the policy other than the Trust, to assign the policy or
collateral assignment interest therein (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of any borrowing against such policy or collateral
assignment interest therein.
8.5 However, notwithstanding the provisions of Section 8.4 above, the
Trustee may loan to the Company the proceeds of any borrowing against an
5
<PAGE>
insurance policy or collateral assignment interest therein held as an asset of
the Trust, provided the Plan participant or policy owner authorizes such loan in
writing.
8.6 Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, the Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
8.7 Any cost or expense incurred in connection with the performance of the
Trustee's responsibilities under this Section 8 (including the hiring of agents,
attorneys, accountants, etc.) shall be a proper expense of this Trust and the
Trustee shall not be liable for the payment of such costs or expenses. The
Company shall reimburse the Trustee for any such cost or expense incurred by the
Trustee in connection with the performance of its duties and responsibilities
under this Section 8.
8.8 The Company (which has the authority to do so under the laws of its
state of incorporation) shall indemnify the Trustee, and defend it and hold it
harmless from and against any and all liabilities, losses, claims, suits or
expenses (including attorneys' fees) of whatsoever kind and nature which may be
imposed upon, asserted against or incurred by the Trustee at any time by reason
of its provision of services under this Trust Agreement, its status as Trustee,
or by reason of any act or failure to act under the Trust Agreement, except to
the extent that any such liability, loss claim, suit or expense arises directly
from the Trustee's negligence or willful misconduct in the performance of
responsibilities specifically allocated to it under the Trust Agreement. This
paragraph shall survive the termination of this Trust Agreement.
SECTION 9
COMPENSATION AND EXPENSES OF THE TRUSTEE
9.1 The Company shall pay all expenses associated with the administration
of the Trust including the Trustee's fees and expenses. If not so paid, the fees
and expenses shall be paid from the Trust.
SECTION 10
RESIGNATION AND REMOVAL OF THE TRUSTEE
10.1 The Trustee may resign at any time by written notice to the Company,
which shall be effective 30 days after receipt of such notice unless the Company
and the Trustee agree otherwise.
10.2 The Trustee may be removed by the Company on 30 days notice or upon
shorter notice accepted by the Trustee.
6
<PAGE>
10.3 Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under Section 10.1 or 10.2. If no such appointment has been made, the
Trustee may apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of the Trustee in connection with
the proceeding shall be allowed as administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with Section 10.1
or 10.2 hereof, the Company may appoint only a corporate trustee as a successor
to replace the Trustee upon resignation or removal. The appointment shall be
effective when accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes the successor
Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument executed
by the Trustee and the Company. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of a Plan or shall make the Trust revocable.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan. Upon termination of the Trust any assets remaining in
the Trust shall be returned to the Company.
12.3 Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, the Company may terminate
7
<PAGE>
this Trust prior to the time all benefit payments under the Plan have been made.
All assets in the Trust at termination shall be returned to the Company.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
13.2 Benefits payable to the Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
13.3 This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona.
SECTION 14
EFFECTIVE DATE
14.1 The effective date of this Trust Agreement shall be as of
February 23, 1999.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Agreement to be executed by their duly authorized representatives on the 23rd
day of February, 1999.
MICROAGE, INC.
By: /s/ James R. Daniel
--------------------------------
Its: Exec VP & CFO
----------------------------
NORTHERN TRUST BANK OF ARIZONA, N.A.
By: /s/ Cynthia Hazeltina
--------------------------------
Its: Vice President
----------------------------
8
EXHIBIT 11 - CALCULATION OF NET INCOME (LOSS) PER COMMON SHARE
MICROAGE, INC.
NET INCOME (LOSS) PER COMMON SHARE CALCULATION
(in thousands)
Quarter ended
---------------------------
January 31, February 1,
1999 1998
----------- -----------
BASIC
Weighted average common shares 20,344 19,456
------- --------
DILUTED
Weighted average shares from basic
calculation 20,344 19,456
Dilutive effect of stock options and warrants 690 --
------- --------
Weighted average common and common
equivalent shares outstanding - diluted 21,034 19,456
------- --------
NET INCOME (LOSS) $ 2,066 $ (6,116)
Net income (loss) per common and common
equivalent share:
Basic $ 0.10 $ (0.31)
======= ========
Diluted $ 0.10 $ (0.31)
======= ========
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS (UNAUDITED) AS OF JANUARY 31, 1999 AND NOVEMBER 1,
1998 AND THE CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED) FOR THE QUARTERS
ENDED JANUARY 31, 1999 AND FEBRUARY 1, 1998.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> OCT-31-1999
<PERIOD-START> NOV-02-1998
<PERIOD-END> JAN-31-1999
<EXCHANGE-RATE> 1
<CASH> 41,837
<SECURITIES> 0
<RECEIVABLES> 318,269
<ALLOWANCES> 21,974
<INVENTORY> 505,278
<CURRENT-ASSETS> 866,895
<PP&E> 213,038
<DEPRECIATION> 111,104
<TOTAL-ASSETS> 1,119,874
<CURRENT-LIABILITIES> 806,285
<BONDS> 0
0
0
<COMMON> 205
<OTHER-SE> 292,888
<TOTAL-LIABILITY-AND-EQUITY> 1,119,874
<SALES> 1,444,841
<TOTAL-REVENUES> 1,444,841
<CGS> 1,343,071
<TOTAL-COSTS> 1,343,071
<OTHER-EXPENSES> 7,248
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 823
<INCOME-PRETAX> 5,235
<INCOME-TAX> 3,169
<INCOME-CONTINUING> 2,066
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,066
<EPS-PRIMARY> 0.10
<EPS-DILUTED> 0.10
</TABLE>
