<PAGE>
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
------------------------
COMMISSION FILE NUMBER: 0-18108
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FINET.COM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or jurisdiction of incorporation or organization)
R2527 CAMINO RAMON, SUITE 200
SAN RAMON, CA 94583
(Address of Principal Executive Office)
94-3115180
(IRS Employer Identification Number)
(925) 242-6550
(Registrant's telephone number, including area code)
------------------------
Indicate by check mark whether the registrant has (1) filed all reports
required to be filed by Section 13 or 15(d) of the Securities Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to filing requirements
within the past 90 days.
Yes /X/ No / /
As of May 8, 2000, 94,585,405 shares of the Registrant's Common Stock, $.01
par value were issued and outstanding.
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<PAGE>
INDEX
PART I--FINANCIAL INFORMATION
<TABLE>
<CAPTION>
ITEM DESCRIPTION PAGE
- ---- ----------- --------
<C> <S> <C>
1. Unaudited Condensed Consolidated Financial Statements:
Condensed Consolidated Balance Sheets
March 31, 2000 and December 31, 1999...................... 3
Condensed Consolidated Statements of Operations
Three Months Ended March 31, 2000 and March 31 1999....... 4
Condensed Consolidated Statements of Cash Flows
Three Months Ended March 31, 2000 and March 31, 1999...... 5
Notes to Condensed Consolidated Financial Statements........ 6
2. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 12
3. Quantitative and Qualitative Analysis of Market Risk........ 16
PART II--OTHER INFORMATION
1. Legal Proceedings........................................... 17
6. Exhibits and Reports on Form 8-K............................ 17
Signatures.................................................. 18
</TABLE>
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
FINET.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
----------- -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Cash and cash equivalents................................... $ 17,703 $ 18,626
Restricted cash............................................. 400 10,403
Available for sale marketable equity securities, cost basis
of $0 and $0, respectively................................ 2,030 2,674
Accounts and notes receivable, net of allowances of $1,388
and $1,793................................................ 1,195 2,363
Mortgages held for sale, net................................ 38,397 78,691
Furniture, fixtures & equipment, net........................ 3,465 4,471
Goodwill, net of accumulated amortization of $430 and
$240...................................................... 1,567 1,757
Other assets................................................ 1,308 823
-------- --------
Total assets.............................................. $ 66,065 $119,808
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Warehouse and other lines of credit......................... $ 36,158 $ 80,453
Accounts payable............................................ 495 2,379
Notes payable and capitalized leases........................ 110 141
Accrued expenses and other liabilities...................... 5,027 6,462
-------- --------
Total liabilities......................................... $ 41,790 $ 89,435
Commitments and contingencies
Stockholders' equity:
Common stock, par value $.01 per share (150,000 shares
authorized, 94,168 and 93,441 shares issued and
outstanding at March 31, 2000 and December 31, 1999,
respectively)............................................. $ 941 $ 934
Additional paid-in capital.............................. 101,973 100,943
Accumulated deficit..................................... (79,748) (73,208)
Other comprehensive income.............................. 1,109 1,704
-------- --------
Total stockholders' equity.............................. 24,275 30,373
-------- --------
Total liabilities and stockholders' equity............ $ 66,065 $119,808
======== ========
</TABLE>
See accompanying notes.
3
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------
MARCH 31 MARCH 31
2000 1999
-------- --------
(UNAUDITED)
<S> <C> <C>
Revenues.................................................... $ 2,871 $ 2,430
Cost of revenues............................................ 1,713 8,702
------- --------
Gross profit (loss)......................................... 1,158 (6,272)
Operating expenses
General and administrative................................ 5,019 5,277
Marketing and advertising................................. 864 735
Depreciation and amortization............................. 494 239
Special charges........................................... 1,299 4,110
------- --------
Total expenses.......................................... 7,676 10,361
------- --------
Loss from operations........................................ (6,518) (16,633)
------- --------
In-substance preferred dividend............................. -- 353
------- --------
Loss before income taxes.................................... (6,518) (16,986)
Income tax expense.......................................... 22 --
------- --------
Net loss.................................................... $(6,540) $(16,986)
======= ========
Basic and diluted net loss per common share................. $ (0.07) $ (0.24)
======= ========
Weighted average common shares used in computing basic and
diluted net loss per common share......................... 93,764 70,381
======= ========
</TABLE>
See accompanying notes.
4
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------
MARCH 31 MARCH 31
2000 1999
-------- --------
(UNAUDITED)
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss.................................................... $ (6,540) $(16,986)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization............................. 495 571
Compensation attributable to warrant issuance............. 106 --
Asset valuation adjustments............................... 1,299 5,143
Changes in operating assets and liabilities:
Decrease in restricted cash............................. 10,003 --
Decrease in mortgage loans held for sale................ 40,294 38,721
Decrease in receivables from sales of mortgage loans,
servicing rights and other receivables................ 932 2,604
Decrease in other assets................................ 50 556
Decrease in warehouse borrowings........................ (44,295) (39,404)
Decrease in accounts payable and accrued expenses....... (3,319) (1,838)
-------- --------
Net cash used in operating activities....................... (975) (10,633)
INVESTING ACTIVITIES:
Purchase of furniture, fixtures and equipment............... (598) (429)
Proceeds from sale of mortgage servicing rights............. 285 --
-------- --------
Net cash used in investing activities....................... (313) (429)
FINANCING ACTIVITIES:
Proceeds from issuance of common stock, net of expenses..... (160) 13,980
Proceeds from the exercise of common stock warrants and
options................................................... 556 6
Redemption of preferred stock............................... -- (2,500)
Repayment of 3% Convertible Debenture....................... -- (1,500)
Repayment of note payable, capitalized leases and line of
credit.................................................... (31) (941)
Other equity................................................ -- 21
-------- --------
Net cash provided by financing activities................... 365 9,066
-------- --------
Net decrease in cash........................................ (923) (1,996)
Cash at beginning of period................................. 18,626 7,418
-------- --------
Cash at end of period....................................... $ 17,703 $ 5,422
======== ========
</TABLE>
See accompanying notes.
5
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. THE COMPANY
ORGANIZATION
FiNet.com ("FiNet" or "the Company") is a provider of mortgage services to
mortgage broker businesses and consumers, including online mortgage services.
The Company primarily markets its business to business services to mortgage
brokers, and to consumers through marketing agreements with general interest
websites and co-branding arrangements with financial services websites. FiNet
operates its consumer-direct and business-to-business segments through Monument
Mortgage, Inc. ("Monument"), which is licensed to originate and fund mortgage
loans in 49 states and the District of Columbia. The majority of Monument's
business activity is carried out in California.
NOTE 2. BASIS OF PRESENTATION
INTERIM FINANCIAL INFORMATION
The accompanying financial statements as of March 31, 2000 are unaudited.
The unaudited interim financial statements have been prepared on the same basis
as the annual financial statements and, in the opinion of management, reflect
all adjustments, which include only normal recurring adjustments, necessary to
present fairly the Company's financial position, results of operations and cash
flows for the period ended and as of March 31, 2000. The results for the three
month period ended March 31, 2000 are not necessarily indicative of the expected
results for the year ending December 31, 2000.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
The balance sheet at December 31, 1999 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
For further information, refer to the consolidated financials statements and
notes thereto included in the Company's Annual Report on Form 10-K for the
period ended December 31, 1999.
RECLASSIFICATION
Certain amounts in the prior quarter period financial statements have been
reclassified consistent with the current quarter presentation.
REVENUE RECOGNITION
Lending transaction fees are deferred until the related loan is sold. Upon
sale of the loan, deferred transaction fee income and deferred transaction
expenses are recognized and included in gain on sale of mortgage loans.
Loan servicing fees represent fees earned for servicing loans for various
investors. The fees are either based on a contractual percentage of the
outstanding principal balance or a fixed dollar amount per loan. Fees are
credited to income when the related payments are received.
6
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 2. BASIS OF PRESENTATION (CONTINUED)
Loan brokerage fees represent fees earned by the Company's consumer-direct
segment for the processing of mortgage loan applications for third party
lenders. The fees for providing these services are recognized at such time as
the lender funds the loan.
Realized gains on sales of available-for-sale marketable equity securities
relate to sales of securities obtained from a joint venture partner for
providing technology services to the venture.
The Company's revenue components for the period ended March 31 are:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------
MARCH 31 MARCH 31
2000 1999
(Unaudited) -------- --------
(IN THOUSANDS)
<S> <C> <C>
Revenues:
Warehouse interest income................................ $1,087 $ 723
Gain on sale of servicing rights and mortgage loans...... 157 506
Loan servicing fees...................................... -- 333
Loan brokerage fees...................................... 127 798
Realized gains on sales of available for sale marketable
equity securities...................................... 1,321 --
Other.................................................... 179 70
------ ------
Total revenues........................................... $2,871 $2,430
====== ======
</TABLE>
COST OF REVENUE
Certain loan origination costs and other production costs attributable to
inventory are included in "Cost of revenues" in the Company's Consolidated
Statement of Operations. The Company includes costs of personnel attributable to
loan production, expense recorded for loan and receivables losses directly
related to loans and servicing assets held for sale, interest expense and other
costs of production. Direct loan origination costs are deferred until the
related loan is sold. Certain of these direct costs are included in gain on sale
of mortgage loans and other costs are included in cost of revenues.
NOTE 3. MORTGAGE SERVICING RIGHTS
Mortgage servicing rights and the related valuation allowance activity were
as follows:
<TABLE>
<CAPTION>
MARCH 31 MARCH 31
2000 1999
(Unaudited) -------- --------
(IN THOUSANDS)
<S> <C> <C>
Balance at beginning of year............................. $3,978
Adjustment to basis...................................... -- (319)
Scheduled amortization................................... -- (164)
Impairment additions charged to operations............... -- (1,675)
----- ------
Ending balance........................................... $ -- $1,820
===== ======
</TABLE>
In 1999, the Company determined that servicing loans would not be a part of
on-going operations and sold the servicing rights portfolio in July of 1999.
7
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 4. BORROWING ARRANGEMENTS
Borrowing arrangements consist of the following:
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
-------- -----------
(IN THOUSANDS)
<S> <C> <C>
WAREHOUSE AND OTHER LINES OF CREDIT
Warehouse lines of credit:
$75 million committed, bearing interest at LIBOR +
variable spread, expires May 31, 2000............. $36,158 $73,125
Purchase/Repurchase agreements:
$10 million, bearing interest at prime.............. 12
$15 million, bearing interest at Fed Funds + 0.70%,
no expiration date................................ -- 7,316
------- -------
$36,158 $80,453
======= =======
NOTES PAYABLE AND CAPITALIZED LEASES:
Notes and capital leases (various rates)............ $ 110 $ 141
------- -------
$ 110 141
======= =======
</TABLE>
WAREHOUSE LINES OF CREDIT
The Company's primary warehouse borrowing facility provides the Company with
a committed $75 million warehouse borrowing facility and carries an interest
rate of LIBOR plus 1.75%. The agreement expires on May 31, 2000. The Company
expects to renew its lending relationship with its primary warehouse lender;
however, no assurances can be made that the agreement will be renewed. For the
three month periods ended March 31, 2000 and 1999, the Company recorded
warehouse interest expense of $509,000 and $1,206,000, respectively. Warehouse
interest expense is included in the Condensed Consolidated Statement of
Operations in "Cost of revenues". Borrowings under this warehouse facility are
secured by the mortgages held for sale thereby financed. At March 31, 2000 and
December 31, 1999, LIBOR was 6.13% and 6.49%, respectively.
The Company's available credit lines also include a $15 million
purchase/repurchase agreement with Fannie Mae's "As Soon as Pooled/Early
Purchase Option" (the "ASAP Plus" program). Under the ASAP Plus program, Fannie
Mae funds the Company on the loans delivered to them upon receipt of appropriate
mortgage collateral. Fannie Mae subsequently purchases the mortgage loans for
cash upon receipt of complete and accurate mortgage pool and other
documentation.
WAREHOUSE FACILITY COVENANTS
The agreement for the warehouse line of credit contains various financial
covenants including minimum net worth, current ratio, tangible net worth, and
leverage ratio requirements. Should an event of default occur, as defined in the
agreement, outstanding principal and interest are due on demand. At
December 31, 1999, the Company was in default of its primary warehouse lending
agreement, as a liability growth rate covenant was violated. During the first
quarter of 2000, the lender waived the default. The Company is in compliance
with its lending agreement covenants at March 31, 2000.
8
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 5. COMMITMENTS AND CONTINGENCIES
LITIGATION
On January 14, 1998, prior to the Company's acquisition of Mical, a lawsuit
was filed against Mical in the United States District Court for the Middle
District of Georgia. The complaint alleges, among other things, that in
connection with residential mortgage loan closings, Mical made certain payments
to mortgage brokers in violation of the Real Estate Settlement Procedures Act
and induced mortgage brokers to breach their alleged fiduciary duties to their
customers. The plaintiffs seek unspecified compensatory and punitive damages as
to certain claims. Management believes that its compensation programs for
mortgage brokers comply with applicable laws and with long standing industry
practices. The Company intends to defend vigorously against this action and
believes that the ultimate resolution will not have a material adverse effect on
its business, results of operations and financial condition.
On April 16, 1999, a lawsuit was filed in the Superior Court of the State of
California, County of San Francisco by a former director and officer of
FiNet.com against FiNet.com and one of its then current and now former
directors. The complaint alleges, among other things, that the plaintiff and the
Company's then current director entered into an oral contract, wherein they
agreed to share all profits from bonus shares that were issued to either party
under certain specific circumstances. It is further alleged that the Company
issued to the then current director 1,800,000 shares of stock and that the
Company's then current director failed to provide the plaintiff one-half of the
stock, or 900,000 shares. The plaintiff seeks to recover 900,000 shares of the
Company's common stock and punitive damages as to certain of the claims.
FiNet.com and the Company's then current director have each filed a general
denial of all claims. The Company intends to defend vigorously against the
action and believes that the ultimate resolution will not have a material
adverse effect on its business, results of operations or financial condition.
On December 16, 1999, a lawsuit was filed in the Judicial District Court of
Dallas County, Texas, by FC Capital Corp. d/b/a FirstCity Capital Corporation
("First City"). The complaint alleges breach of contract by Coastal Federal
Mortgage ("Coastal") for failure to repurchase loans in accordance with the
terms and conditions of a purchase agreement entered into by Coastal and First
City in March 1998. The plaintiff has named Finet as a defendant alleging that
Finet assumed all of Coastal's debts and obligations when Finet acquired Coastal
in April 1998. The plaintiff seeks to recover actual damages in the amount of
$1.7 million and premium rebates in the approximate amount of $26,000. The
action was removed to the United States District Court, Northern District of
Texas, Dallas Division on January 18, 2000 and the Company has since filed
procedural motions. Management intends to defend vigorously against the action
and believe that the ultimate resolution will not have a material adverse effect
on the Company's business, results of operations or financial condition.
The Company and certain subsidiaries are defendants in various other legal
proceedings. Although it is difficult to predict the outcome of such cases,
after reviewing with counsel all such proceedings, management does not expect
the aggregate liability, if any, resulting therefrom, will have a material
adverse effect on the consolidated financial position or results of operations
of the Company and its subsidiaries.
NOTE 6. EMPLOYEE STOCK PURCHASE PLAN
During the first quarter of 2000, the Company implemented the Company's 1999
Employee Stock Purchase Plan ("the Plan") under which all employees, including
executive officers, may purchase stock at a discount to the market price.
Employees pay for their stock purchases through payroll deductions at a
9
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 6. EMPLOYEE STOCK PURCHASE PLAN (CONTINUED)
rate equal to two to ten percent of earnings. Shares issued under the plan are
immediately vested. There are 500,000 shares reserved for issuance under the
Plan. As of March 31, 2000, there are no shares issued under the Plan.
NOTE 7. SPECIAL CHARGES
During the quarter ended March 31, 2000, the Company replaced certain loan
origination and tracking software and systems. As a result, during the quarter
ended March 31, 2000, the Company expensed $1,299,000 of unamortized software
and systems costs related to the former system.
Special charges recorded during the quarter ended March 31, 1999 relate to
the Coastal Federal Mortgage and Mical Mortgage business unit closures and to
the write-off of capitalized costs of software that would no longer be used in
the Company's continuing business strategy. In connection with Mical's closure,
the Company assessed the remaining goodwill balance relating to the acquisition
of that unit and determined that the amount was not recoverable from future cash
flows. Therefore, the remaining unamortized goodwill of $2,898,000 was expensed.
In addition, Mical recorded $642,000 of expense to recognize exit costs
primarily for occupancy lease costs and severance relating to employee
terminations in connection with the closure. The Company expensed $570,000
representing the unamortized balance of its Real Estate Office Software (REOS)
technology, upon determination that it would no longer employ this technology in
its future strategic direction.
NOTE 8. SEGMENT INFORMATION
The Company has adopted SFAS No. 131 "Disclosures about Segments of an
Enterprise and Related Information" which requires certain disclosures about
operating segments in a manner that is consistent with how management evaluates
the performance of the segment. The Company has identified two
10
<PAGE>
FINET.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 8. SEGMENT INFORMATION (CONTINUED)
reportable business segments: business to business and consumer direct.
Information related to the Company's reportable operating segments is shown
below.
<TABLE>
<CAPTION>
MARCH 31 MARCH 31
2000 1999
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Revenue
Business-to-business.................................. $ 1,328 $ 1,641
Consumer-direct....................................... 1,543 789
------- --------
Segment Revenue............................................. 2,871 2,430
Corporate............................................. -- --
------- --------
$ 2,871 $ 2,430
======= ========
Operating income
Business-to-business.................................. (4,183) (11,394)
Consumer-direct....................................... (730) (583)
------- --------
Segment operating income.................................... (4,913) (11,977)
Corporate............................................. (1,605) (4,656)
------- --------
$(6,518) $(16,633)
======= ========
Capital expenditures
Business-to-business.................................. 508 366
Consumer-direct....................................... 30 21
------- --------
Segment Capital expenditures................................ 538 387
Corporate............................................. 60 42
------- --------
$ 598 $ 429
======= ========
</TABLE>
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
-------- -----------
<S> <C> <C>
Identifiable assets
Business-to-business.................................. $56,155 $101,837
Consumer-direct....................................... 3,304 5,990
------- --------
Segment Identifiable assets................................. 59,459 107,827
Corporate............................................. 6,606 11,981
------- --------
$66,065 $119,808
======= ========
Long-lived assets
Business-to-business.................................. 2,945 3,800
Consumer-direct....................................... 173 223
------- --------
Segment long-lived assets................................... 3,118 4,023
Corporate............................................. 347 448
------- --------
$ 3,465 $ 4,471
======= ========
</TABLE>
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
WE HAVE MADE FORWARD-LOOKING STATEMENTS IN THIS QUARTERLY REPORT ON
FORM 10-Q THAT ARE SUBJECT TO RISKS AND UNCERTAINTIES. FORWARD-LOOKING
STATEMENTS INCLUDE INFORMATION CONCERNING OUR POSSIBLE OR ASSUMED FUTURE RESULTS
OF OPERATIONS. ALSO, WHEN WE USE SUCH WORDS AS "BELIEVE", "EXPECT",
"ANTICIPATE", "PLAN", "COULD", "INTEND", OR SIMILAR EXPRESSIONS, WE ARE MAKING
FORWARD-LOOKING STATEMENTS. YOU SHOULD NOTE THAN AN INVESTMENT IN OUR SECURITIES
INVOLVES CERTAIN RISKS AND UNCERTAINTIES THAT COULD AFFECT OUR FUTURE FINANCIAL
RESULTS. OUR ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN
THESE FORWARD-LOOKING STATEMENTS A RESULT OF CERTAIN FACTORS, INCLUDING THOSE
SET FORTH IN "FACTORS THAT MAY AFFECT FUTURE PERFORMANCE" AND ELSEWHERE IN OUR
ANNUAL REPORT ON FORM 10-K DATED DECEMBER 31, 1999.
THE FOLLOWING DISCUSSION AND ANALYSIS OF OUR FINANCIAL CONDITION AND RESULTS
OF OPERATIONS SHOULD BE READ IN CONJUNCTION WITH OUR CONSOLIDATED FINANCIAL
STATEMENTS INCLUDED HEREIN, AND OUR ANNUAL REPORT ON FORM 10-K DATED
DECEMBER 31, 1999.
OVERVIEW
FiNet.com is a full service, on-line mortgage banker that offers an
easy-to-use, one stop mortgage source for consumers and mortgage brokers. We
operate one of the first sites on the Internet that enables the consumer to
apply for and receive credit approval on-line, and to electronically search,
analyze and select from a wide variety of mortgage loan products and rates
offered by us and other lenders. We make the mortgage process easier and more
understandable, while maintaining quality service by controlling the consumer's
entire mortgage lending experience. We also provide on-line and e-commerce
technologies and loan process management tools to mortgage broker businesses to
enable them to compete more effectively with on-line and other national lenders
and brokers and to help their customers make better informed borrowing
decisions.
We earn revenues through both the origination and sale of mortgage loans. As
a retail originator of loans, we generate loan origination income and
loan-related fees through loans funded and brokered by us. Our loan origination
income consists of origination points paid to us by borrowers or discount points
paid to us by wholesale lenders. Our loan-related fees consist of application,
documentation and processing fees paid by borrowers.
On the loans that we sell, we generate revenues from net premium income and
interest income. Net premium income consists of the net gain on the sale of
mortgage loans and mortgage servicing rights. This net gain is recognized based
upon the difference between the combined selling price of the loans and their
related servicing rights, and the carrying value of the mortgage loans and
servicing rights sold. Interest income consists of the interest we receive on
our mortgage loans held for sale.
Our costs and expenses related to revenues consist largely of:
- interest paid under our warehouse credit facilities;
- loan-related expenses, consisting of fees paid to third parties for
appraisal and credit report services and reserves for potential loan
repurchase and premium recapture obligations;
- salaries, commissions and benefits paid to employees;
- general and administrative expenses such as occupancy costs, office
expenses and professional services; and
- depreciation and amortization expense related principally to our
facilities, computers and goodwill associated with our acquisitions.
12
<PAGE>
IMPACT OF OUR DISCONTINUED UNITS-MICAL, COASTAL AND OUR SERVICING BUSINESS
We incurred significant losses at both our Mical and Coastal subsidiaries in
1999. Management elected to discontinue these business units during the first
half of 1999. In addition, management determined that servicing loans would not
be a part of on-going operations and began preparing the servicing portfolios
for sale. The following table summarizes the impact these discontinued business
units had on our consolidated operating results for the three month periods
ended March 31, 2000 and 1999:
<TABLE>
<CAPTION>
MARCH 31 MARCH 31
2000 1999
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Revenues................................................. $ 31 $ 692
Cost of revenues......................................... 209 7,407
----- --------
Gross profit............................................. (178) (6,715)
Other expenses
General and administrative......................... 345 2,007
Marketing and advertising.......................... -- 33
Special charges.................................... -- 3,540
Depreciation and amortization...................... -- 110
----- --------
Total expenses........................................... 345 5,690
----- --------
Loss from operations..................................... (523) (12,405)
Other interest expense................................... 36
----- --------
Net loss................................................. $(523) $(12,441)
===== ========
</TABLE>
We may incur additional losses from these discontinued business units, which
would be included in our consolidated results.
RESULTS OF OPERATIONS
QUARTER ENDED MARCH 31, 2000 COMPARED TO QUARTER ENDED MARCH 31, 1999
REVENUES AND VOLUMES
Total loan volume for FiNet's production units for the three months ended
March 31 is summarized below.
<TABLE>
<CAPTION>
MARCH 31 MARCH 31
2000 1999
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Business to Business.................................... $130,134 $128,714
Consumer-direct......................................... 24,370 83,040
-------- --------
Total Loan Volume................................. $154,504 $211,754
======== ========
</TABLE>
Loan volume decreased $57.3 million, or 27%, to $154.5 million for the
quarter ended March 31, 2000 from $211.8 million for the quarter ended
March 31, 1999. Revenues increased $441,000, or 18%, to $2.9 million for the
quarter ended March 31, 2000 from $2.4 million for the quarter ended March 31,
1999. During the first quarter of 2000, we recorded $1.3 million of realized
gains from the sale of available for sale marketable equity securities, the only
asset held by a 100%-owned subsidiary of the Company. We expect this revenue to
recur for several quarters; however, the amount could increase or decrease
significantly. Excluding this gain, revenues decreased $880,000, or 36%, to
$1.6 million, due to decreases in volume associated with the units that closed
their operations.
13
<PAGE>
While volumes increased in our continuing unit's business-to-business
segment, significant volume decreases in our consumer-direct segment,
attributable to the increase in lending rates and a change in business focus,
more than offset the business to business increase. We expect to increase
revenues through the planned expansion of our sales force and increased emphasis
on the business to business segment through strategic relationships. However,
there can be no assurance that increased revenues will be achieved. In addition,
our quarterly revenues and operating results are likely to continue to vary
significantly.
COST OF REVENUES AND GROSS PROFIT
Cost of revenues decreased $7.0 million, or 80% for the quarter ended
March 31, 2000 to $1.7 million from $8.7 million for the quarter ended
March 31, 1999. The decrease is due primarily to a significant decrease in loan
loss expenses recorded by the discontinued units during the first quarter of
1999 as well as a decrease at the continuing units, and a decrease in interest
expense.
Warehouse interest expense decreased $697,000 or 58% to $509,000 for the
quarter ended March 31, 2000 from $1.2 million for the quarter ended March 31,
1999 primarily due to warehouse interest expense associated with the
discontinued units that was not incurred in 2000. Although volumes of the
discontinued units were insignificant during the first quarter of 1999, they
incurred interest expense on loans in inventory as those loans were being sold.
In addition, in 1999, we incurred significantly higher interest rates associated
with our warehouse lending default which were not incurred in the first quarter
of 2000.
GENERAL AND ADMINISTRATIVE
Personnel costs and other general and administrative costs of our continuing
businesses decreased $277,000, or 5%, to $5.0 million for the quarter ended
March 31, 2000 from $5.3 million for the quarter ended March 31, 1999, due to
the terminated operations of the Coastal and Mical units in the March 1999
quarter, partially offset by increased professional services costs.
MARKETING AND ADVERTISING
Marketing and advertising increased $129,000 or 17% to $864,000 from
$735,000 for the same quarter of the prior year. During the March 1999 quarter,
we had not launched our consumer-direct marketing campaign. This campaign was
launched in the second quarter of 1999 and continued throughout 1999. In the
quarter ended December 31, 1999, we significantly scaled back our
consumer-direct marketing campaign and wound down those programs in the first
quarter of 2000. Although marketing spending increased during the first quarter
of 2000 compared to the quarter ended March 31, 1999, when compared to the
quarter ended December 31, 1999, marketing and advertising costs have decreased
significantly. The Company expects to stabilize its marketing spending for the
remainder of 2000.
SPECIAL CHARGES
During the first quarter of 2000, we replaced certain systems and software
and therefore expensed the remaining book value of the replaced systems and
software of $1,299,000.
During the first quarter of 1999, we incurred charges of $2,898,000 to write
off the unamortized balance of the goodwill associated with the Mical
acquisition and charges relating to the write-off of our Real Estate Office
Software (REOS) of $570,000 when we determined that the REOS technology would no
longer be employed in our future strategy. In addition, Mical recorded $642,000
of charges primarily for severance relating to employee terminations and
occupancy lease costs in connection with its closure.
14
<PAGE>
FINANCIAL CONDITION
FiNet's stockholders' equity decreased $6.1 million to $24.3 million at
March 31, 2000 from $30.3 million at December 31, 1999 due to the Company's
losses and due to a decrease in Other Comprehensive Income due to the
recognition of gains on the sale of available-for-sale marketable equity
securities, offset by increases from issuance of common shares in connection
with stock option exercises.
Our cash decreased by $923,000 to $17.7 million at March 31, 2000 from
$18.6 million at December 31, 1999, as the result of the use of cash for
operations and capital expenditures, offset by the collection of receivables,
sales of marketable equity securities and a reduction in amounts used to fund
mortgages held for sale.
Warehouse borrowings decreased $44.3 million, or 55%, from $80.5 million at
December 31, 1999 to $36.2 million at March 31, 2000 corresponding to the
decrease in related mortgages held for sale inventory from volume decreases
during 2000, and the reduction of unusually high inventory balances existing at
December 31, 1999.
Our ability to improve our financial condition through improved results of
operations is dependent on our ability to significantly increase loan
origination volumes, to achieve highly efficient operations, and to manage
warehouse and operating expenses given the level of volumes. Our financial
condition is further dependent on economic conditions such as the general health
of the economy and demand for mortgage loans. There can be no assurance that we
will be able to improve our financial condition through profitable operations.
LIQUIDITY AND CAPITAL RESOURCES
The nature of the mortgage lending business requires us to advance cash on a
daily basis to fund newly originated loans. These funds are provided either
through conventional mortgage warehouse lines of credit, through "purchase
repurchase" arrangements, or through the use of our cash balances. Additional
cash resources, obtained primarily through the private placement of our common
stock are used to satisfy its obligations to lenders, to fund ongoing expenses
such as administration and marketing, to invest in product development and to
expand our business geographically. Currently operations are not generating
sufficient cash to meet our operating requirements.
Operating activities including daily operating expenditures, repayment of
warehouse borrowings and funding new originations, used $1.0 million of cash
during the three months ended March 31, 2000. Our use of cash slowed as we
liquidated cash employed in our inventory of mortgages held for sale, collected
receivables and sold marketable equity securities.
Our investing activities included investments of $598,000 in furniture,
fixtures and equipment and collections on our portfolio of servicing rights sold
in a prior period. We do not expect our capital spending to increase
significantly in the coming quarters.
If we continue to maintain at least our current level of working capital
borrowing resources, we believe that our cash resources will be sufficient to
finance our minimum working capital requirements for the coming twelve months.
We do, however, expect that in the future we may need to arrange for additional
sources of capital through additional warehouse facilities or through the
issuance of debt or equity securities. We have no commitments for any additional
financings, and we cannot be sure that we will be able to obtain any such
additional financing at the times required and on terms and conditions
acceptable to us. In such event, our growth could slow and operations could be
adversely affected.
POTENTIAL FOR NASDAQ DELISTING
There are several requirements for continued listing on the Nasdaq SmallCap
Market ("Nasdaq"), including a minimum stock price of $1.00 per share. If our
common share price closes below $1.00 per share for 30 consecutive days, we may
receive notification from Nasdaq that our common stock will be
15
<PAGE>
delisted from the Nasdaq unless the stock closes at or above $1.00 per share for
at least 10 consecutive days during the 90 day period following such
notification.
Delisting from the Nasdaq and inclusion of our common stock on the OTC
Bulletin Board or similar quotation system could adversely affect the liquidity
and price of our common stock and make it more difficult for investors to obtain
quotations or trade this stock.
ITEM 3. QUANTITATIVE AND QUALITATIVE ANALYSIS OF MARKET RISK
FiNet's primary market risk of loss is interest rate risk. From the time we
extend an interest rate commitment to the borrower until the loan is priced for
sale to an investor, we are subject to interest rate risk. If interest rates
rise during that period, the price at which the loan can be sold to an investor
declines, resulting in a loss on the sale of the loan. We attempt to mitigate
such losses and manage our interest rate risk exposure through hedging
transactions using a combination of forward sales of mortgage-backed securities
and forward whole-loan sales to fix the sales price of loans we expect to fund.
Before entering into hedging transactions, we analyze our loans with committed
interest rates. We consider factors such as the estimated portion of loans that
will ultimately be funded, note rates, interest rates, inventory of loans and
applications and other factors to determine the type and amount of forward
commitment and hedging transactions.
FiNet attempts to make forward commitments to hedge substantially all of its
estimated interest rate risk on the loans. We had mandatory and optional forward
commitments at March 31, 2000 and December 31, 1999 aggregating $56,543,000 and
$110,233,000, respectively. At March 31, 2000 and December 31, 1999, these
commitments covered the market risk associated with mortgages held for sale to
investors of $38,397,000 and $78,691,000, respectively, and loans for which
interest rates were committed at March 31, 2000 and December 31, 1999 of
$46,282,000 and $36,458,000, respectively. We attempt to limit our credit
exposure on forward sales arrangements by entering into these arrangements with
institutions that we believe are sound credit risks and by limiting exposure to
any single institution.
16
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Information required by this Item is incorporated by reference from Part I,
Item I, Notes to Consolidated Condensed Financial Statements, Note 5 Commitments
and Contingencies.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
<TABLE>
<C> <S>
10.25 Employment Agreement between the Registrant and Robert Snow,
dated January 31, 2000.
10.26 Second Amendment to First Amended and Restated Warehousing
Credit and Security Agreement between Monument
Mortgage, Inc. and Residential Funding Corporation dated as
of March 29, 2000.
10.27 Sublease agreement between The Scotts Company, successor in
interest to Monsanto Company and the Registrant and Monument
Mortgage, Inc., dated May 21, 1999.
10.28 Agreement and Release between the Registrant and Mark Korell
dated December 14, 1999.
27.1 Financial Data Schedule
</TABLE>
Reports on Form 8-K:
<TABLE>
<CAPTION>
DATE ITEM DESCRIPTION
- ---- -------- -----------
<C> <C> <S>
01-12-00 Announcement to name Rick Cossano as President and Chief
5 Executive Officer
03-20-00 Announcement of earnings for the fiscal year ended
5 December 31, 1999
05-03-00 Announcement of earnings for the quarter ended March 31,
5 2000
</TABLE>
17
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities and Exchange Act, the
Registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
<TABLE>
<CAPTION>
<S> <C>
FINET.COM, INC.
Date: May 12, 2000 /s/ GARY A. PALMER
--------------------------------------------
Gary A. Palmer
(PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
Date: May 12, 2000 /s/ RICK COSSANO
--------------------------------------------
Rick Cossano
(PRESIDENT & CHIEF EXECUTIVE OFFICER)
</TABLE>
18
<PAGE>
EMPLOYMENT AND COMPENSATION AGREEMENT
This Employment and Compensation Agreement (the "Agreement") is entered
into in Contra Costa County, California, as of January 31, 2000 by and between,
FiNet.com, Inc., a Delaware corporation ("FiNet" or "Employer") and Robert Snow,
an individual ("Employee"), who agree as follows:
This Agreement is made with reference to the following facts:
FiNet, is a provider of both traditional and e-commerce home financing
services.
Employee desires to perform services for Employer and Employer desires
to engage Employee to perform services in accordance with the terms and
conditions set forth in this Agreement.
Now therefore, in consideration of the foregoing and of the covenants,
representations and promises set forth in this Agreement, the parties hereto,
agree as follows:
1. EMPLOYMENT.
a. Employer hereby offers Employee employment with Employer, and
Employee hereby accepts employment, commencing on January 31, 2000, on the terms
and conditions contained in this Agreement.
b. Employee shall serve as the Executive Vice President of Business to
Business for FiNet, reporting directly to FiNet's Chief Executive Officer or his
designee. In that capacity, Employee shall faithfully and diligently carry out
such duties and have such responsibilities as are customary among persons
employed in substantially similar capacities for similar companies, provided
that Employee shall at all times be subject to the direction of the Chief
Executive Officer of FiNet. Employee agrees to the best of his ability and
experience to perform loyally and conscientiously all of the duties and
responsibilities required of him, either expressly or implicitly, by the terms
of this Agreement.
c. Location of Employee's employment shall be as determined by
Employer.
2. TERM OF EMPLOYMENT. Employee's Term of Employment in accordance with
the terms of this Agreement, shall commence as of January 31, 2000 and shall
terminate upon the earlier of January 30, 2003 or as is otherwise specified
in this Agreement (the "Term of Employment").
3. COMMITMENT. Except as is otherwise provided herein, during the Term
of Employment Employee shall devote one hundred (100%) percent of his entire
productive time, ability, and attention to the business of the Employer.
Except as is otherwise provided herein, Employee shall not render any
services of a commercial or professional nature to any other person or
organization, whether for compensation or otherwise. However, the expenditure
of reasonable
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<PAGE>
amounts of time for educational, charitable, or professional activities shall
not be deemed a breach of this Agreement if those activities do not materially
interfere with the services required under this Agreement and shall not require
the prior written consent. Notwithstanding the foregoing, this Agreement shall
not be interpreted to prohibit Employee from making passive personal investments
or conducting private business affairs if those activities do not materially
interfere with the services required under this Agreement.
4. COMPETITIVE ACTIVITIES.
a. During the Term of Employment, Employee shall not, directly or
indirectly, own an interest in, operate, join, control, or participate in, or be
connected as an officer, employee, agent, independent contractor, partner,
shareholder or principal of any corporation, partnership, proprietorship, firm,
association, person, or other entity producing, designing, providing, soliciting
orders for, selling, distributing, or marketing products, goods, equipment, or
services that compete directly or indirectly with Employer's products and
services or Employer's business, without first obtaining the written approval of
Employer. Such approval may be rescinded by Employer if and when, in the opinion
of Employer, such activities materially inhibit Employee's performance under
this Agreement or place Employer at risk.
b. For one year following his termination as an Employee of, or
consultant to, Employer, whichever occurs later ("Posttermination Period"),
Employee shall not be prohibited from employment in the mortgage industry
involving activities similar to those engaged in prior to becoming an Employee
of or consultant to Employer, except, however, Employee shall not undertake any
employment or activity competitive with Employer's business in which the loyal
and complete fulfillment of the duties of the competitive employment or activity
would call on Employee to reveal or otherwise to use any confidential business
information or trade secrets of Employer's business to which Employee had access
by reason of his prior engagement by Employer.
c. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly, either for himself or for any other
person, firm, or corporation, divert or take away or attempt to divert or take
away (and during the Posttermination Period, call on or solicit or attempt to
call on or solicit) any of Employer's customers or patrons, including but not
limited to those on whom Employee called or whom he solicited or to whom he
catered or with whom Employee became acquainted during his engagement by
Employer. Nothing herein shall limit Employee's right during the Posttermination
Period, to call on or solicit or attempt to call on or solicit any of Employee's
customers or patrons on whom Employee called or whom he solicited or to whom he
catered or with whom he became acquainted during the period prior to Employee's
engagement by Employer.
d. During the Term of Employment, Employee shall not undertake planning
for or organization of any business activity competitive with Employer's
business or combine or join with other employees or representatives of
Employer's business for the purpose of organizing any such competitive business
activity.
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<PAGE>
e. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly or by action in concert with others,
induce or influence (or seek to induce or influence) any person who is engaged
(as an employee, agent, independent contractor, or otherwise) by Employer to
terminate his or her employment or engagement.
5. COMPENSATION. As compensation for the services to be rendered by
Employee hereunder during the Term of Employment, Employer shall pay Employee
a Base Salary and additional compensation based upon performance of the
Employee ("Adjusted Base Salary"), as is more specifically set forth in
Addendum A to this Agreement. In addition, Employee shall be granted those
equity incentives as are more specifically set forth in Addendum A.
6. BENEFITS. In addition to the compensation described herein above,
during the Term of Employment, Employee shall be eligible to receive the
following benefits:
a. Such health insurance and other benefits that Employer may, from
time to time, make available to Employer's employees.
b. Three (3) weeks vacation time, sick leave, holidays and personal
time in accordance with Employer's vacation and absence policies, which Employer
may, from time to time, maintain for employees at Employee's level of
employment.
c. Reimbursement of allowed business expenses, upon submission of
documentation in accordance with Employer's regular expense reimbursement
policies, for reasonable business expenses incurred on behalf of Employer by
Employee.
d. Participation in any savings plan, 401(k) plan, profit sharing plan
or pension plan, which Employer may, from time to time, maintain for employees
at Employee's level of employment, subject to plan eligibility.
7. CONFIDENTIAL INFORMATION.
a. Employee recognizes that, during the course of his employment with
Employer, he will be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to Employer.
Such confidential information includes but is not limited to Employer's
investment plans or strategies, trade secrets, sources of supply, customer
lists, lists of potential customers, customer or consultant contracts and the
details thereof, pricing policies, operational methods, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, unannounced products and services, research and development
activities, processes, formulas, methods, techniques, technical data, know-how,
inventions, designs, financial or accounting data, inventory reports, production
schedules, cost and sales data, strategies, forecasts, and all other information
that is not publicly available pertaining to the business of Employer or any of
its affiliates. Such confidential information is hereinafter referred to as
"Confidential Information".
3
<PAGE>
b. Confidential Information shall not include (i) any information which
is or becomes publicly available other than through breach of this Agreement, or
(ii) any information which is or becomes known or available to Employee on a
non-confidential basis and not in contravention of applicable law from a source
which is entitled to disclose such information to Employee.
c. Employee agrees that he will not, while employed by Employer,
divulge Confidential Information to any person, directly or indirectly, except
to Employer or its officers and agents, or as reasonably required in connection
with Employee's duties on behalf of the Employer, except as is required by law
or court order. Employee further agrees not to use, except on behalf of the
Employer, any Confidential Information acquired by Employee during the Term of
Employment. Employee agrees that he will not at any time after his employment
with Employer has ended, divulge to any person, directly or indirectly, any
Confidential Information, except as is required by law or court order. Employee
further agrees that, if his relationship with the Employer is terminated for any
reason, Employee shall not take with him but will leave with Employer all
records, papers, and computer software and data, and any copies thereof relating
to the Confidential Information (or if such papers, records, computer software
and data, or copies are not on the premises of Employer, Employee agrees to
return such papers, records, and computer software and data immediately upon his
termination). Employee acknowledges that all such papers, records, computer
software and data, or copies thereof are and remain the property of Employer.
8. VOICE MAIL AND ELECTRONIC MAIL. All voice mail and electronic mail
on Employer's telephone or computer systems are the property of Employer and
shall be non-personal, non-private and non-privileged to Employee, and
Employee shall disclose to Employer all codes or passwords necessary for
Employer to access such voice mail or electronic mail.
9. COOPERATION. As a condition of his employment with Employer,
Employee agrees that he will not disrupt, damage, impair, or interfere with
the business of the Employer, such as by interfering with the duties of the
Employer's employees, disrupting relationships with Employer's customers,
agents, representatives, or vendors, or otherwise.
10. TERMINATION.
a. Employee may terminate this Agreement for any reason or for no
reason upon providing Employer with sixty- (60) days prior written notice of his
intention to terminate.
b. Employer may terminate this Agreement upon written notice to
Employee prior to its expiration date for just cause or due to the Employee's
death or substantial physical impairment which prevents Employee from performing
his duties and responsibilities as set forth herein. For purposes of this
Section, "just cause" is defined as the failure of Employee to perform his
duties and responsibilities as set forth herein to the satisfaction of Employer;
a violation of Section(s) 3, 4, 7, 8, or 9 of this Agreement; fraud;
misappropriation of funds; breach
4
<PAGE>
of fiduciary duty; embezzlement; theft; physical assault or threatened assault
on another person; drunkenness on the job; possession or use of narcotics on
Employer's property; willful and material damage to Employer's property;
conviction of a felony; violation of any state or federal law applicable to
Employer's business or premises; or repeated or material violations of
Employer's policies, including but not limited to those policies prohibiting
unlawful employment discrimination and harassment.
c. In the event Employee's employment is terminated, whether by
Employer for "just cause", as is defined herein or due to the Employee's death
or substantial physical or mental impairment preventing Employee from performing
the essential functions of his job, or by Employee as provided herein, Employer
shall have no further obligation to pay any compensation to or benefits on
behalf of Employee, however all compensation accrued as of the date of
termination shall be paid to Employee upon termination.
d. Upon termination of his employment, Employee agrees to deliver
promptly to Employer all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all copies
thereof, and any and all materials relating to Employer's Confidential
Information that is in Employee's possession or control. At the time of
termination, Employee will have an exit interview with Employer wherein Employee
will certify that Employee has returned to Employer all tangible Confidential
Information disclosed to him and disclose Inventions conceived or developed by
him during the Term of Employment.
e. Sections 4, 7, 8, 10, 11, 12, 13, 14, 15, and 16, hereof, shall
survive termination of this Agreement.
11. ASSIGNMENT. The rights and liabilities of the parties hereto shall
bind and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Employer has
specifically contracted for Employee's services, Employee may not assign or
delegate his duties and responsibilities under this Agreement either in whole
or part without the prior written consent of Employer. Employer may assign
its rights and obligations to a successor in interest to Employer, provided
such successor assumes all obligations and liabilities thereunder.
12. SEVERABILITY OF PROVISIONS. In the event any provision of this
Agreement is held to be illegal, invalid, or unenforceable under any present
or future law, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected
by the illegal, invalid, or unenforceable provision or by its severance
herefrom, and (d) in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
5
<PAGE>
13. MEDIATION AND ARBITRATION. Initially all claims and controversies of
any kind relating to this Agreement shall be submitted to mediation pursuant
to the services of JAMS/Endispute Mediation Service ("JAMS") with the venue
of the mediation being San Francisco, CA. In the event the matter cannot be
disposed of by mediation, all claims and controversies of any kind relating
to this Agreement shall be finally settled by binding arbitration before a
single JAMS arbitrator in San Francisco, CA, in accordance with the
JAMS/Endispute Rules and Procedures for Mediation/Arbitration of Employment
Disputes. The parties to this Agreement shall be bound by the decisions in
any such arbitration, and judgment upon such arbitration may be entered by
any court of proper jurisdiction. Notwithstanding the applicable rules of
JAMS, in accordance with California Code of Civil Procedure Section 1283.1
(b), the parties agree that depositions may be taken and discovery obtained
in any arbitration proceeding relating to this Agreement in accordance with
California Code of Civil Procedure Section 1283.05. Attorney's fees and costs
shall be allocated by agreement in mediation or by the arbitrator in
arbitration.
14. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, or mailed by certified mail
(postage prepaid and return receipt requested), or sent by reputable
overnight courier service, to the recipient at the address below indicated:
To Employee: Robert Snow
3520 Bunker Hill Drive
Algonquin, IL 60102
To Employer: Chief Executive Officer
FiNet.Com, Inc.
2527 Camino Ramon, Suite 200
San Ramon, CA 94583
, or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given when so
delivered or if mailed, five (5) days after deposit in a U.S. Postal facility.
15. ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement contains
the sole, complete, final, exclusive and entire agreement between the parties
pertaining to the employment of Employee by Employer and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission
or waiver of this Agreement shall be binding unless executed in writing by
the parties. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a continuing waiver unless otherwise expressly
provided. The parties expressly acknowledge that they have not relied upon
any prior agreements, understandings, negotiations or discussions, whether
oral or written.
6
<PAGE>
16. CHOICE OF LAW. The rights and duties of the parties will be governed
by the law of the State of California, excluding any choice-of-law rules that
would require the application of laws of any other jurisdiction.
17. INSURANCE. Employee shall cooperate with Employer, at no cost to
Employee, should Employer wish to purchase key-man insurance on Employee's
life.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
<TABLE>
<CAPTION>
EMPLOYER EMPLOYEE
-------- --------
<S> <C>
By: By:
------------------------- ------------------------
Rick Cossano Robert Snow
Chief Executive Officer
</TABLE>
7
<PAGE>
8
<PAGE>
ADDENDUM A
TO
EMPLOYMENT AND COMPENSATION AGREEMENT
ROBERT SNOW
This Addendum by and between Finet.com, Inc. ("FiNet" or
"Employer") and Robert Snow ("Employee") shall define terms of Compensation.
1. SALARY. Employee shall receive a Base Salary of $182,000.00 per annum.
2. BONUS. In addition to Base Salary, Employee shall be granted a monthly
performance incentive on Business to Business production volumes in excess of
$50,000,000.00 ("Bonus"). For purposes of this Addendum, Business to Business
shall be defined as wholesale and affinity business, with the Bonus calculated
as follows:
a. One basis point (.0001) on production volumes in excess of
$50,000,000.00 on loans brokered within the geographic area of Northern
California to Fresno.
b. Three basis points (.0003) on production volumes in excess of
$50,000,000.00 on loans brokered within the geographic area covering Southern
California and the remaining licensed jurisdictions.
c. On additional basis point (.0001) added to the provisions of
Paragraphs 2(a) and/or 2(b) on production volumes in excess of $50,000,000.00
when the average loan amount is $175,000.00 or greater in any given month. The
average loan amount shall be calculated and reviewed on a monthly basis.
d. Regardless of production volume, Employee shall be guaranteed a
minimum monthly bonus in the amount of $15,000.00 during the first four months
of employment.
3. ANNUAL BONUS. Employee shall be eligible to earn a one time bonus in
the amount of $50,000.00, if Employee maintains an efficiency level within
the Business to Business division of 10 loans per day per full time
equivalents AND production volume on closed loans reached $150,000,000.00 in
any single month prior to December 31, 2000.
4. EQUITY INCENTIVES. Employee shall be granted options to purchase
500,000 shares of FiNet common stock, at a price of $1.281 per share
("Options"), vesting 100,000 shares on January 31, 2000, 133,333 shares on
December 31, 2000, 133,333 shares on December 31, 2001 and the remaining
133,334 shares on December 31, 2002, conditioned upon Employee's continued
employment by Employer ("Vested Options"). For the purpose of this provision,
Employee may only exercise Options that are Vested. The terms and conditions
of the Options shall remain subject to and interpreted in conformity with the
Finet Holdings Corporation 1998 Stock Option Plan, as may be amended from
time to time.
1
<PAGE>
5. RELOCATION EXPENSES. Employee shall be reimbursed for actual
expenses incurred in the relocation of his family to California in an amount
not to exceed $40,000 ("Relocation Expenses"). Relocation Expenses shall be
limited to those expenses reasonably incurred by Employee in the moving of
his family and furnishings from his current residence in Chicago, Illinois to
a residence in Northern California. For purposes of this Addendum Relocation
Expenses shall be limited to:
a. Packing and unpacking of furnishings;
b. Transportation costs charged by a household goods carrier for
shipment of household goods from Chicago, Illinois to Northern
California;
c. Coach airfare and lodging for Employee and his spouse to visit
Northern California to look for a residence;
d. Payment of industry standard real estate commission on the sale of
Employee's residence in Illinois; and
e. Coach airfare and lodging for family.
If Employee terminates his employment prior to January 30, 2001,
Employee shall be required to repay Employer upon termination the Relocation
Expenses paid in accordance with this provision.
6. CHANGE OF CONTROL. In the event a person or entity gains ownership
of over 35% of the outstanding shares of FiNet ("Change of Control"), all of
the Employee's Options shall fully vest. In conjunction with the Change of
Control or thereafter during the Term of Employment, should Employee's
employment by FiNet be terminated by Employer without "just cause", Employer
will continue to pay Base Salary compensation through the remaining Term of
Employment. All of Employee's vested Options must be exercised within 90 days
of the date of termination.
Agreed to:
<TABLE>
<CAPTION>
EMPLOYER EMPLOYEE
-------- --------
<S> <C>
By: By:
------------------------- ------------------------
Rick Cossano Robert Snow
Chief Executive Officer
</TABLE>
2
<PAGE>
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (this "Amendment") is entered into as of this 29th day of
March 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
(the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
WHEREAS, the Company and the Lender have entered into a single family
revolving warehouse facility with a present Commitment Amount of $75,000,000, to
finance the origination and acquisition of Mortgage Loans as evidenced by a
Promissory Note in the principal sum of $75,000,000, dated August 9, 1999 (the
"Note"), and by a First Amended and Restated Warehousing Credit and Security
Agreement dated August 9, 1999, as the same may have been amended or
supplemented (the "Agreement");
WHEREAS, the Company has requested that the Lender amend certain terms
of the Agreement and the Lender has agreed to such amendment of the Agreement
subject to the terms and conditions of this Amendment;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment is_________.
3. Section 1.1 of the Agreement is amended to delete the following
definitions in their entirety, replacing them with the following definitions:
"COLLATERAL DOCUMENTS" means, with respect to each Mortgage
Loan: (a) the Mortgage Note, the Mortgage, and all other documents
executed in connection with or otherwise relating to the Mortgage Loan,
(b) as applicable, the original lender's ALTA Policy of Title Insurance
or its equivalent, documents evidencing the FHA Commitment to Insure or
the VA Guaranty, the appraisal, Private Mortgage Insurance, the
Regulation Z Statement, certificates of casualty or hazard insurance,
credit information on the
-1-
<PAGE>
maker(s) of the Mortgage Note, the HUD-1 or corresponding purchase
advice, and (c) any other documents that are customarily desired for
inspection or transfer incidental to the purchase of any Mortgage Note
by an Investor or which are customarily executed by the seller of a
Mortgage Note to an Investor.
"FAIR MARKET VALUE" means at any time for an Eligible Loan or
the related Agency Security (if the Eligible Loan is to be used to back
an Agency Security), (a) if the Eligible Loan is covered by a Purchase
Commitment from Fannie Mae or Freddie Mac, or the Eligible Loan is to
be exchanged for an Agency Security and such Agency Security is covered
by a Purchase Commitment, the Committed Purchase Price, or (b)
otherwise, the market price for such Eligible Loan or Agency Security,
determined by the Lender based on market data for similar Mortgage
Loans or Agency Securities and such other criteria as the Lender deems
appropriate.
4. Article 6 of the Agreement is hereby amended to add the following
Section 6.14 at the end thereof:
6.14 FANNIE MAE TRI-PARTY AGREEMENT. Prior to the origination
by the Company of any Mortgage Loans for sale to Fannie Mae, enter into
an agreement among the Company, the Lender and Fannie Mae, pursuant to
which Fannie Mae agrees to send all cash proceeds of Mortgage Loans
sold by the Company to Fannie Mae to the Cash Collateral Account.
5. Sections 8.1(c) and 8.1(n) of the Agreement are deleted in their
entirety and the following are substituted in lieu thereof:
8.1(c) Failure of the Company to perform or comply
with any term or condition applicable to it contained in
Sections 6.3, 6.12, 6.13 and 6.14 or in any Section of Article
7 of this Agreement; or
8.1(n) Rick Cossano shall cease to be the chief
executive officer of the Guarantor; or
6. Section 8.3 of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
8.3 APPLICATION OF PROCEEDS. The proceeds of any sale,
disposition or other enforcement of the Lender's security interest in
all or any part of the Collateral shall be applied by the Lender to the
Obligations in such order as the Lender, in its sole and absolute
discretion, will determine.
-2-
<PAGE>
If the proceeds of any sale, disposition or other enforcement
are insufficient to cover the costs and expenses of the sale, and the
payment in full of all Obligations, the Company will remain liable for
any deficiency.
7. The Company is in default under Sections 7.9 and 8.1(u) of the
Agreement for the Fiscal Quarter ending December 31, 1999. The liabilities of
the Company for the Fiscal Quarter ending October 31, 1999 were $39,810,000 as
compared to the liabilities of the Company for the Fiscal Quarter ending
December 31, 1999 of $85,664,000, exceeding the 150% growth permitted in Section
7.9 of the Agreement. The liabilities of the Guarantor for the Fiscal Quarter
ending October 31, 1999 were $44,139,000 as compared to the liabilities of the
Guarantor for the Fiscal Quarter ending December 31, 1999 of $89,435,000,
exceeding the 150% growth permitted in Section 8.1(u) of the Agreement. The
Company has requested, and the Lender hereby agrees, to waive its default rights
with respect to the failure of the Company and the Guarantor to comply with the
Liability Growth requirements set forth in Sections 7.9 and 8.1(u) of the
Agreement as of December 31, 1999. The foregoing waiver applies only to the
specific instances described herein. It is not a waiver of any subsequent breach
of the same provision of the Agreement, or of any breach of any other provisions
of the Agreement.
8. Notwithstanding the preceding paragraph, the Lender reserves all of
the rights, powers and remedies presently available to the Lender under the
Agreement, the Note and the Guaranty, including the right to cease making
Advances to the Company and the right to accelerate any of the indebtedness
owing under the Agreement, if any other Default or Event of Default occurs under
the Agreement.
9. EXHIBIT M to the Agreement is deleted in its entirety and replaced
with the new EXHIBIT M attached to this Amendment. All references in this
Amendment and the Agreement to EXHIBIT M shall be deemed to refer to the new
EXHIBIT M.
10. The Company must deliver to the Lender (a) an executed original of
this Amendment; and (b) a $350 document production fee.
11. The Company represents, warrants and agrees that (a) there exists
no Default or Event of Default under the Loan Documents other than as described
in Paragraph 7 above, (b) the Loan Documents continue to be the legal, valid and
binding agreements and obligations of the Company enforceable in accordance with
their terms, as modified herein, (c) the Lender is not in default under any of
the Loan Documents and the Company has no offset or defense to its performance
or obligations under any of the Loan Documents, (d) the
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<PAGE>
representations contained in the Loan Documents remain true and accurate in all
respects, and (e) there has been no material adverse change in the financial
condition of the Company from the date of the Agreement to the date of this
Amendment.
12. Except as hereby expressly modified, the Agreement is otherwise
unchanged and remains in full force and effect, and the Company ratifies and
reaffirms all of its obligations thereunder.
13. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this
Amendment to be duly executed on their behalf by their duly authorized officers
as of the day and year above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
Its:
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
--------------------------------
Its:
-------------------------------
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the ______________________ of
MONUMENT MORTGAGE, INC., a California corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
-4-
<PAGE>
------------------------------------
Notary Public
(SEAL) My Commission Expires:
-------------
-5-
<PAGE>
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the Director of RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public
(SEAL) My Commission Expires:
--------------
-6-
<PAGE>
CONSENT OF GUARANTOR
The undersigned, being the Guarantor under the Guaranty dated as of
August 9, 1999, hereby consents to the foregoing Amendment and the transactions
contemplated thereby and hereby modifies and reaffirms his obligations under his
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of the Company under this Amendment. The Guarantor
hereby reaffirms that his obligations under his Guaranty are separate and
distinct from the Company's obligations to Lender, and that his obligations
under the Guaranty are in full force and effect, and hereby waives and agrees
not to assert any anti-deficiency protections or other rights as a defense to
his obligations under the Guaranty, all as more fully set forth in the Guaranty,
the terms of which are incorporated herein as if fully set forth herein.
The Guarantor further agrees, upon Lender's request, to execute for the
benefit of Lender an additional guaranty in form and content acceptable to
Lender and conforming to the Guaranty in connection with the foregoing
Amendment.
GUARANTOR:
FiNET.COM, INC.,
a Delaware corporation
By:
Its:
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the ______________________ of
FiNET.COM.INC., a Delaware corporation, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public
(SEAL) My Commission Expires:
--------------
-7-
<PAGE>
SUBLEASE AGREEMENT
This Sublease dated May 21, 1999 is made and entered into by and between THE
SCOTTS COMPANY successor in interest to MONSANTO COMPANY, dba THE SOLARIS GROUP,
a division of The Agricultural Group of Monsanto Company, a Delaware
corporation, hereinafter called "Tenant" and FiNet.Com, Inc., a Delaware
Corporation and its wholly owned subsidiary company MONUMENT MORTGAGE INC., a
California Corporation jointly and severally, hereinafter called "Subtenant".
WHEREAS, SDC 7, a California partnership, as "Landlord" and MONSANTO COMPANY,
dba THE SOLARIS GROUP, a division of The Agricultural Group of Monsanto Company,
a Delaware corporation, as Tenant, executed a lease dated September 8, 1993 as
modified by an addendum(s) dated July 13, 1998, hereinafter called the "Main
Lease" and a copy of which is attached hereto as Exhibit A; and a Second Lease
Addendum dated April 30, 1999,
WHEREAS, Tenant desires to sublease to Subtenant the premises described as 2527
Camino Ramon Suite 200, measuring approximately 39,335 rentable square feet
located in San Ramon, CA being leased by Tenant under the terms of the Main
Lease, and Subtenant desires to lease such space from Tenant and,
WHEREAS Tenant desires to sublease to Subtenant the promises being leased by
Tenant under conditions herein contained, the parties hereto mutually covenant
and agree as follows:
1. MAIN LEASE. Subtenant hereby expressly assumes and agrees to perform
all obligations and covenants of the Main Lease ("Exhibit A"). This
Sublease and Subtenant's rights under this Sublease shall at all times
be subject and subordinate to the underlying Main Lease, Subtenant
shall perform all the obligations of Tenant under said lease with
respect to the subleased premises and Subtenant subject receive and
have all rights and benefits granted to Tenant under the terms of the
Main Lease, as modified herein. Subtenant acknowledges that any
termination of the Main lease shall extinguish the Sublease at the
Landlord's discretion. Provided Subtenant is not in default of the
terms of this agreement and provided Subtenant has not given its
consent, Tenant shall have no right to agree to a voluntary termination
of this sublease prior to its natural expiration.
2. TERM. The Term at the Sublease shall be from July 15, 1999 through
April 30, 2004, a period of fifty-seven and one-half (57.5) months.
3. OCCUPANCY: Occupancy shall occur in phases as follows:
Phase 1 - 18,500 +/- square feet commencing July 15,1999;
Phase 2 - 20,835 +/- square feet (balance of premises) commencing as
follows:
The West Side of the B wing - Tenant shall use reasonable effort to
vacate this area by September 6, 1999,
The East Side of the B wing - Tenant shall use reasonable effort to
vacate this area by September 15, 1999;
The balance of the promises - Tenant shall use reasonable effort to
vacate all remaining space by September 30, 1999;
1
<PAGE>
In the event Tenant can not deliver Phase 2 of the premises by September 30,
1999 for causes due to Tenant's inability to vacate the promises, Subtenant
shall receive rental abatement equal to 2 days of rent for each day of delay.
The rental abatement shall be applied to the actual date of Subtenant's
occupancy of the premises.
See attached floor plan ("Exhibit B") for referenced areas.
4. EARLY OCCUPANCY: Upon mutual execution of this Sublease, consent
thereto by the Landlord and Subtenant providing Tenant evidence of
insurance coverage as described in Articles 12.1, 12.2 and 12.3 of the
Main Lease, Subtenant shall be allowed to occupy approximately 11,493
square feet to accommodate Subtenant's immediate occupancy
requirements. See attached floor plan ("Exhibit C") for referenced
area. The rental rate for the early occupancy period shall be free of
charge. During this period Subtenant shall have shared access to the
Phase 1 area of the Premises for the purposes of installation of its
tenant improvements, telephone systems, and related furniture fixtures
and equipment.
For the period of time that the promises shall be operated as a shared
environment between Tenant and Subtenant, (the period of early
occupancy through September 30, 1999) Subtenant shall apprise Tenant of
and coordinate with Tenant all moving of equipment, furniture and
personnel through Tenant's representative and shall obtain Tenant's
representative's prior approval.
5. RENT. Subtenant shall pay to Tenant as basic rent for the premises in
advance on the first day of own calendar month of the term of this
Sublease without deduction, offset, prior notice or demand, in lawful
money of the United States as follows:
EARLY OCCUPANCY PERIOD:
Date of Possession through 7/14/1999 - $0.00 per month;
PHASE 1:
7/15/1999 through 9/30/99 - $0.00 per month:
PHASE 2-.
10/01 /1999 through 4/30/2004 - $75,392.08 per month.
In addition Subtenant shall pay any additional rent as set forth in Article 5 of
the Main Lease above and beyond an Expense Stop of $7.25 per square foot per
annum as of the date of possession. Upon execution of this Sublease, Subtenant
shall issue a check for the initial month's (OCTOBER, 1999) prepaid rent in an
amount equal to Seventy five thousand three hundred ninety two and 08/100
dollars ($75,392.08).
6. SECURITY DEPOSIT. Subtenant shall deposit with Tenant upon execution
hereof the sum seventy five thousand three hundred ninety two and
08/100 dollars ($75,392.08) as Security for Subtenant's obligations
hereunder. If Subtenant fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this
Sublease, Tenant may use, apply or retain all or any portion of said
deposit for the payment of any other sum to which Tenant may become
obligated by reason of Subtenant's default, or to compensate Tenant for
any loss or damage which Tenant may suffer thereby. If Tenant so uses
or applies all or any portion of said deposit, Subtenant shall within
ten (10) days after written demand therefore deposit cash with Tenant
in an amount sufficient to restore said deposit to the full amount
hereinabove
2
<PAGE>
stated and Subtenant's failure to do so shall be a breach of this
Sublease, and Tenant may at his option terminate this Sublease. Tenant
shall not be required to keep said deposit separate from its general
accounts. If Subtenant performs all of Subtenant's obligations
hereunder and under the Main Lease, said deposit or so much thereof as
had not theretofore been applied by Tenant shall be returned without
payment of interest for its use, to Subtenant within fourteen (14) days
after the expiration of the term hereof, or after Subtenant has vacated
the sublease premises, whichever is later.
7. LETTER OF CREDIT. Subtenant, upon its execution of this agreement.
shall present Tenant with a non-negotiable, irrevocable Letter of
Credit in the amount of $400,000.00 from an acceptable banking
institution in a form acceptable to Tenant. The Letter of Credit terms
shall provide that if at any time Subtenant should default under the
terms of this sublease or the Main Lease, Tenant shall be able to
immediately draw upon the Letter of Credit to assist in mitigating its
damages.
In addition, the Loner of Credit shall state the following:
(a) Provided Subtenant is not in default of its obligation under
this sublease the amount of the Letter of Credit shall be
decreased by $100,000.00 at the and of the twelfth (12),
twenty-fourth (24th), thirty-sixth(36th) and forty-eighth (48th)
month(s) of the term of this sublease.
(b) Provided Subtenant is not in default of its obligations under
this sublease or the Main Lease and Subtenant maintains a
minimum net worth of $40,000,000.00 based on Quarterly financial
statements filed with the SEC for a period of three consecutive
quarters, the Low of Credit shall be decreased to $200,000.00.
(c) Provided Subtenant is not in default of its obligations under
this sublease and Subtenant maintains a minimum not worth of
$80,000,000.00 based on Quarterly financial statements filed
with the SEC for a period of two consecutive quarters, the Loner
of Credit shall be terminated.
8. DEFAULT. In the event of default by Subtenant under any of the terms or
conditions of this Sublease or the Main Lease, then Tenant shall have
all the rights and remedies provided by law and equity and as set forth
in the Main Lease.
9. ADDITIONAL SERVICES. Subtenant shall be responsible for the cost of any
after hours HVAC usage or lighting usage associated with the subleased
promises.
10. USE. Subtenant shall use the promises for general office use and for no
other purpose.
11. AMENDMENT. Tenant and Subtenant shall not amend this Sublease in any
respect without the prior written approval of the Landlord.
12. TENANT'S ALLOWANCE. Subtenant shall accept the promises from Tenant in
its existing "As-is" condition. Upon mutual execution of the sublease
by Tenant and Subtenant and consent by Landlord, Tenant shall provide
Subtenant with an allowance in the amount of $80,000.00 to be used by
Subtenant to make tenant improvement alterations to the premises.
Subtenant shall coordinate the installation of its tenant improvements
with Tenant and through the Landlord, using Landlords
13. EXISTING INFRASTRUCTURE: (A) All existing infrastructure
listed on the attached document
(Exhibit D) identified as items
one
3
<PAGE>
through five shall be included
with the premises free of
charge and ownership shall
transfer from Tenant to
Subtenant upon mutual execution
of the sublease agreement by
the parties and consent by
Landlord.
(B) Subtenant shall pay Tenant
$175,000.00 for all existing
furniture, fixtures, and file
cabinets in the premises: and
in a warehouse located at 1065
Montague Expressway, Milpitas,
California 95035 (the
Warehouse") belonging to Tenant
including but not limited to
all office furniture, cubicles
and artwork. Tenant shall
provide Subtenant with a Bill
of Sale for the items. See
attached inventory list known
as Exhibit E). Subtenant, shall
relocate the furniture to a
warehouse controlled by
Subtenant or shall assume
financial responsibility for
the cost of storing the
furniture in the Warehouse
("Exhibit F") after the date,
which is one week after the
date of mutual execution of
this agreement.
(C) Tenant agrees to sell the
existing phone system and all
related equipment to Subtenant
for the price of $100,000.00.
Tenant shall provide Subtenant
with a Bill of Sale for the
phone system. See attached
inventory list known as
("Exhibit G").
(D) Tenant shall provide Subtenant
with an inventory list of
existing Tenant owned personal
computers and other equipment
prior to Subtenant's occupancy.
Subtenant shall make a bid to
purchase these items as soon as
it receives the Inventory list.
14. INSURANCE. Subtenant shall abide by the insurance requirements as
outlined in Article 12 of the Main Lease and shall list Landlord and
Tenant as additional insured. Proof of Subtenant's insurance coverage
shall be provided to Tenant prior to the Subtenants occupancy of the
promises.
15. AGENCY DISCLOSURE & CONSENT. Cushman & Wakefield of California, Inc.
represents both the Tenant and the Subtenant in this Transaction. Both
Tenant and Subtenant acknowledge and agree with the above disclosure
and consent to the agency relationship specified.
16. BROKERAGE COMMISSION. Upon the execution of this agreement by Tenant
and Subtenant and consent thereto by Landlord, brokerage commissions
shall be paid to Cushman & Wakefield of California, Inc. per the terms
of separate agreements.
17. RIGHT TO SUBLEASE. Subtenant shall have no right to assign or sublease
the promises without first obtaining Landlord and Tenant's prior
written consent, which shall not be unreasonably withhold or delayed.
4
<PAGE>
18 SIGNAGE. Tenant shall grant Subtenant the right to place its name on
the Building monument sign in lieu of Tenant's name, subject to
Landlord's approval. Subtenant shall pay the cost for Subtenant's
signage.
19. LANDLORD'S CONSENT. The effect of this sublease is subject to the
written approval and consent of the Landlord.
20. OTHER TERMS. It is expressly understood between Tenant and Subtenant
that Tenant's right to self-insure under Paragraph 12.4 of the Main
Lease shall not apply to Subtenant.
21. INDEMNITY. Subtenant agrees to hold Tenant harmless from its use or
occupancy of the subleased promises, and for any occurrences or losses
related thereto.
IN WITNESS WHEREOF, Tenant and Subtenant have executed this Sublease
Agreement as of the date first written above.
TENANT:
THE SCOTTS COMPANY
By: Date:
------------------------- --------------------
SUBTENANT:
FiNet.Com, Inc., a Delaware Corporation and its wholly owned subsidiary company
MONUMENT MORTGAGE INC., a California Corporation jointly and severally
By: , Date:
-------------------------- --------------------
5
<PAGE>
SDC 7
ONE ANNABEL POST OFFICE BOX SAN RAMON CALIFORNIA TEL 925/866-0100
FAX 925/866-1330
June 4, 1999
Mr. Jim Neal
VP and General Manager
The Scotts Company
2527 Camino Ramon, Suite 200
San Ramon, CA 94593
Re: Sublease by and between The Scotts Company, Sublessor
and FiNet.Com, Inc., and its wholly owned subsidiary
Company Monument Mortgage Inc., Sublessee
Bishop Ranch 7, Building R
2527 Camino Ramon, Suite 200
San Ramon, CA
Dear Todd:
Pursuant to Section 15 ASSIGNMENT and SUBLETTING, and Subsection 15.2 Reasonable
Consent of that certain Lease by and between SDC 7, a California partnership, as
Landlord, and The Scotts Company (Assignee) , successor in interest to Monsanto
Company, dba The Solaris Group, a division of the Agricultural Group of Monsanto
Company, a Delaware corporation (Assignor). as Tenant, dated September 8, 1993,
and as amended by the First Lease Addendum dated July 13, 1998 and Second Lease
Addendum dated April 30, 1999, Landlord hereby consents to the above referenced
Sublease.
It is specifically understood that pursuant to subsection 15.4 NO RELEASE OF
TENANT of the Lease, Tenant shall not be released nor relieved of any obligation
to be performed by Tenant under the Lease. The Lease shall remain in full force
and affect, and the Master Lease is the governing document.
It is also expressly understood and agreed that the Subtenant, FiNet.Com Inc.,
shall have no rights to undertake any alterations, additions, or work in the
subleased premises without the prior written consent of Sublessor and Landlord,
and that all of the stipulations pertaining to service and utilities,
maintenance and repairs, and alterations and additions as defined in the Master
Lease apply to the Subtenant.
Please provide us with a fully executed and complete copy of the Sublease and
its Exhibits.
Sincerely,
Edward Hagopian
Senior Vice President
EH:pm/b/f
cc: Todd White, The Scotts Company
Merit Herman, The Scotts Company
John Fennell, Cushman & Wakefield, fax, 279-0344
<PAGE>
EXHIBIT A
MAIN LEASE
<PAGE>
SECOND LEASE ADDENDUM
THIS SECOND LEASE ADDENDUM IS MADE AND ENTERED INTO THIS 30th DAY OF JUNE, 1999,
BY AND BETWEEN SDC 7, A CALIFORNIA PARTNERSHIP (HEREINAFTER REFERRED TO AS
"LANDLORD") AND THE SCOTTS COMPANY (ASSIGNEE), pka MONSANTO COMPANY, dba THE
SOLARIS GROUP, a division of The Agricultural Group of Monsanto Company. a
Delaware corporation (ASSIGNOR) (HEREINAFTER REFERRED TO AS TENANT") .
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED SEPTEMBER 8,
1993, AND FIRST LEASE ADDENDUM DATED JULY 13, 1998 (HEREINAFTER COLLECTIVELY
REFERRED TO AS "LEASE") IN THE FOLLOWING MANNER:
Section 1. PREMISES
The following Subsection is hereby amended as follows:
Subsection 1.2 REFURBISHMENT ALLOWANCE. Effective upon execution of
this Second Lease Addendum, the refurbishment allowance as stated in the first
Lease Addendum is hereby reduced from ONE HUNDRED TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS ($125,000.00) to EIGHTY-ONE THOUSAND TWO HUNDRED FIFTY AND NO/100
DOLLARS ($81,250.00).
With the exception of the modifications set out above, all other terms,
covenants and agreements of the lease shall remain in fall force and effect.
LANDLORD TENANT
SDC 7, THE SCOTTS COMPANY (ASSIGNEE),
a California partnership pka MONSANTO COMPANY
dba THE SOLARIS GROUP,
a division of The Agricultural Group
of Monsanto Company,
a Delaware corporation (ASSIGNOR)
By: By:
---------------------------- --------------------------
Title Title:
-------------------------- ------------------------
Date Date
--------------------------- -------------------------
Regarding:
Bishop Ranch 7, Building R
2527 Camino Ramon, Suite 200
San Ramon, CA 94583
<PAGE>
FIRST LEASE ADDENDUM
THIS FIRST LEASE ADDENDUM IS MADE AND ENTERED INTO THIS ____ DAY OF
____________ 1998, BY AND BETWEEN SDC 7, A CALIFORNIA PARTNERSHIP (HEREINAFTER
REFERRED TO AS "LANDLORD") AND MONSANTO COMPANY, dba THE SOLARIS GROUP, a
division of The Agricultural Group of Monsanto Company, a Delaware corporation
(HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED
SUMMER 8, 1993, (HEREINAFTER REFERRED TO AS "LEASE") IN THE FOLLOWING MANNER:
Section 1. PREMISES
The following Subsection is hereby added to the Lease:
Subsection 1.2 REFURBISHMENT ALLOWANCE. Effective upon execution of
this First Lease Addendum, Landlord shall provide Tenant with an allowance to
refurbish the Premises in an amount equal to ONE HUNDRED TWENTY-FIVE THOUSAND
AND NO/100 DOLLARS ($125,000.00). Said allowance shall be a capital account
established by Landlord which may be used by Tenant at any time after the date
hereof for any alterations at improvements to the Premises.
Section 2. TERM
Subsection 2.1 TERM. The expiration date of the term of this Lease
hereby extended TERM April 30, 1999 to April 30, 2004.
Section 3. RENT
Subsection 3.1 RENT. The Base Rent shall hereby increase from
FIFTY-NINE THOUSAND EIGHT HUNDRED TWENTY-ONE AND 98/100 DOLLARS ($59,821.98) per
month to SEVENTY-FIVE THOUSAND THREE HUNDRED NINETY-TWO AND 08/100 DOLLARS
($75,392.08) per month ($23.00 per rentable square foot per annum) effective May
1, 1999 (hereinafter referred to as the "Effective Date").
Section 5. TAX AND BUILDING OPERATING COST INCREASES
Subsection S. 2 TENANT'S SHARE. On the Effective Date the Expense Stop
shall be increased from $6.60 to $7.25 per rentable square fact per annum.
Section 15. ASSIGNMENT AND SUBLETTING.
The following is hereby added to Subsection 15.9:
Subsection 15.9. PERMITTED ASSIGNMENT. Notwithstanding anything to the
contrary set forth in the Lease, Tenant may assign the Lease or may sublet any
portion of the Premises to any
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parent company ("Parent'), subsidiary group ("Subsidiary") or other company
controlled by or under common control with Tenant, its parent, or any
subsidiary, or to any entity resulting from a merger, reorganization or
consolidation including Tenant (each of the aforesaid entities are herein
referred to as an "Affiliated Company"); provided, however, that Tenant shall
give Landlord not less than thirty (30) days' notice of such assignment or
subletting and the use of the Premises by such Affiliated Company remains the
same as that by Tenant.
With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
SDC 7, MONSANTO COMPANY,
a California Partnership dba THE SOLARIS GROUP,
a division of The Agricultural Group
of Monsanto Company,
A Delaware corporation
By: By:
---------------------- -----------------------------
Title: Title:
--------------------- -----------------------------
Date: Date:
--------------------- ----------------------------
Regarding:
Bishop Ranch 7, Building R
2527 Camino Ramon, Suite 200
San Ramon, CA 94583
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BISHOP RANCH BUSINESS PARR
BUILDING LEASE
This Lease is made and entered into this 8th day of September, 1993, by
and between SDC 7, a California partnership, (hereinafter "Landlord") and
MONSANTO COMPANY dba THE SOLARIS GROUP, a division of The Agricultural Group of
Monsanto Company, a Delaware corporation (hereinafter "Tenant"). For and in
consideration of the rental and of the covenants and agreements hereinafter set
forth to be kept and performed by Tenant,, Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the promises herein described for the terms,
at the rental and subject to and upon all of the term, covenants and agreements
hereinafter set forth.
1. PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the promises (the "Promises") crosshatched on Exhibit A containing
39,335 rentable square feet known as suite 200, located an the second floor, of
the Building known as Bishop Ranch 7 (including all tenant improvements thereto
the "Building"), located 2527 Camino Ramon, at San Ramon, California 94583. The
Building, which contains 240,935 rentable square feet, the land on which the
Building is situated (the "Land"), any other improvements on the Land and the
personal property used by Landlord in the operation of the Building (the
"Personal Property") are herein collectively called the "Project". Landlord
shall pay the cost of "Suite Improvements" (as such term is defined in the Work
Letter attached hereto as Exhibit B, "the "Work Letter") to the premises up to a
maximum amount equal to SEVEN HUNDRED TWENTY-ONE THOUSAND SEVEN HUNDRED FORTY
AND no/100 DOLLARS ($721,740.00 or $20.00 per usable square foot of the
Premises), with any cost in excess of this amount to be paid by Tenant promptly
as incurred. Tenant shall have access and the non-exclusive right to use
electrical and telephone rooms on the second (2nd) floor for the installation
maintenance and repair of telephone panels, switches, cabling, wiring and
related installations. In the event Substantial Completion occurs prior to the
Scheduled Commencement Date, Tenant shall be permitted to have access to the
Premises upon Substantial Completion of the Premises for the installation of
furniture, fixtures and equipment.
2. TERM
2.1 TERM. The term of this Lease shall commence on the date
(the "Commencement Date") that Landlord receives its final permit and Landlord
delivers the Promises to Tenant or is deemed to have delivered the second floor
Promises to Tenant under the terms of the Work Letter, and shall end five (5)
years and six (6) months thereafter (the "Expiration Date"), unless sooner
terminated pursuant to this Lease.
2.2 DELAY IN COMMENCEMENT. The Commencement Date is scheduled
to occur on November 1, 1993 (the "Scheduled Commencement Date"). If for any
reason the Commencement Date does not occur by the Scheduled Commencement Date,
Landlord shall not be liable for any damage thereby nor shall such inability
affect the validity of this Lease or the obligations of Tenant hereunder.
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If the Commencement Date has not occurred by April 30, 1994,
Tenant at its option, to be exercised by giving Landlord written notice within
thirty (30) days thereafter, may terminate this Lease and, upon Landlord's
return of any monies previously deposited by Tenant, the parties shall have no
further rights or liabilities toward each other. Notwithstanding the foregoing
and pursuant to Section 1.4 of the attached Exhibit B, the Scheduled
Commencement Date shall be extended by two (2) days for every one (1) day after
August 31, 1993, that Tenant's space planner has not delivered signed and
approved construction Documents to Landlord. should Landlord be unable to
deliver the Premises to Tenant Within one (1) month from the Scheduled
Commencement Date, excluding Tenant delays or Force Majeure, Landlord shall
grant Tenant two (2) days of free rent for each day late that Landlord has not
delivered Substantial Completion. Said free rent shall be used as a rent credit
against the first rentals due hereunder.
2.3 ACKNOWLEDGMENT OF COMMENCEMENT DATE. Upon determination of
the Commencement Date, Landlord and Tenant shall execute a written
acknowledgment of the Commencement Date and Expiration Date in the form attached
hereto as Exhibit G.
3. RENT
3.1 BASE RENT. Tenant shall pay to Landlord monthly as base
rent ("Base Rent") for the Premises in advance on the Commencement Date and on
the first day of each calendar month thereafter during the term of this Lease
without deduction, offset, prior notice or demand, in lawful money of the United
States of America, the sum of FIFTY-NINE THOUSAND EIGHT HUNDRED TWENTY-ONE AND
98/100 DOLLARS ($59,821.98). If the Commencement Date is not the first day of a
month or if the Lease terminates on other than the last day of a month, the Base
Rent payable f or such partial month shall be equal to the number of days that
the term was in effect during such partial month times the "daily Base Rent,"
which shall be calculated by dividing the Base Rent then in effect by thirty
(30).
3.2 RENTAL CREDIT. Landlord hereby grants Tenant a rental
credit equal to ONE HUNDRED FIFTY-THREE THOUSAND FOUR HUNDRED SIX AND 50/100
DOLLARS ($153 406.50) or ($3. 90 per rentable square foot of space leased).
Tenant may apply said rental credit to the cost of its Suite Improvements which
exceed Landlord's allowance as described in the Work Letter attached hereto as
Exhibit B, or Tenant may apply said rental credit to Tenant's rental payments
for the initial months of the Lease term.
3.3 RENTAL FORGIVENESS. Tenant. shall nor. be required to pay
rent or expenses during the 37th, 38th, 49th and 50th full calendar months of
this Lease term.
3.4 AMOUNTS CONSTITUTING RENT. All amounts payable or
reimbursable by Tenant under this Lease, including late charges and interest,
"Operating Cost Payments" (as defined in Paragraph 5), and amounts payable or
reimbursable under the Work Letter and the other Exhibits hereto, shall
constitute "Rent" and be payable and recoverable as such. Base Rent is due and
payable as provided in Paragraph 3.1 - "Base Rent", Operating Cost Payments are
due and payable as provided in Paragraph 5.3 - "Notice and Payment", and all
other Rent payable to Landlord on demand under the terms of this Lease shall be
payable within thirty (30) days after written notice from Landlord of the
amounts due. All Rent shall be paid to Landlord without
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deduction or offset in lawful money of the United States of America at the
address for notices or at such other place as Landlord may from time to time
designate in writing.
4. SECURITY DEPOSIT
(Intentionally Deleted)
5. TAX AND BUILDING OPERATING COST INCREASES
5.1 DEFINITIONS. For purposes of this paragraph, the following
terms are herein defined:
(a) BASE YEAR: The calendar year 1994.
(B) OPERATING COST:
Operating Costs shall include all costs and expenses
of ownership, operation, repair and maintenance of the Project (excluding
depreciation of the improvements in the Project and all amounts paid an loans of
Landlord) computed in accordance with tax basis accounting principles
consistently applied, including by way or illustration but not limited to: real
property taxes, taxes assessed an the Personal Property, any other governmental
impositions imposed on or by reason of the ownership, operation or use of the
Project, and any tax in addition to or in lieu thereof other than taxes covered
by Paragraph 5.4, whether assessed against Landlord or Tenant or collected by
Landlord or both; parts; equipment; supplies; insurance premiums; license,
permit and inspection fees; cost of services and materials (including property
management fees and costs); cost of compensation (including employment taxes and
fringe benefits) of all persons who perform duties connected with the operation,
maintenance and repair of the Project; costs of providing utilities and
services, including water, gas,, electricity, & sewage disposal, rubbish
removal, janitorial, gardening, security, parking, window washing, supplies and
materials, and signing (but excluding services not uniformly available to
substantially all of the Project tenants) ; costs of capital improvements
required to meet changed governmental regulations or which reduce Operating
Costs after the Commencement Date, such costs, together with interest an the
unamortized balance at the Bank of America Reference Rate plus two percent (2%)
per annual to be amortized over such reasonable periods as determined by the
applicable rules of Tax Basis Accounting; costs of maintenance and replacement
of landscaping; legal, accounting and other professional services incurred in
connection with the operation of the Project and the calculation of Operating
Costs; and rental expense or a reasonable allowance for depreciation of personal
property used in the maintenance, operation and repair of the Project.
If the Project is not fully occupied for any calendar
year during the term of this Lease, operating Costs shall be adjusted to the
amount which would have been incurred if the Project had been fully occupied for
the year.
Tax basis accounting is defined to be the Internal Revenue
Code and related rules, regulations, rulings, and applicable case law applied by
Landlord on a consistent basis in reporting income and expense, INCLUDING THE
capitalization of costs and related depreciation, by the Internal Revenue
Service.
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Notwithstanding the foregoing, Building Operating
Expenses shall not include the following:
a) The cost of correcting original defects in or
inadequacy in the original design or construction of the Building or common
areas, the building equipment, major systems,. or the improvements in any area
of the Building or common areas (excluding any defects or inadequacy resulting
from improvements made by the Tenant to the Premises)
b) Cost of leasehold/construction improvements for
Tenant or any other tenant including changes, additions,, replacements,
alterations, painting, decorating, or other costs to the Premises,. the premises
of other tenants or in preparation or Tenant's new or continued occupancy.
C) Salaries and benefits of officers, directors,
executive personnel, leasing agents and/or any other employees above the rank of
building manager.
d) Legal fees (other than those relating to the
general operation of the Building or common areas), space planning fees,
architectural fees, engineering fees (other than those relating to the general
operation of the Building or common areas), real estate commissions, marketing,
advertising or any expenses incurred in connection with the development or
entering into a lease for the Building or common areas.
e) Any cost included in Operating Costs including
management toes, representing an amount paid to a person, firm, corporation, or
other entity related to Landlord which is in excess of the amount that would
have been paid in the absence of such relationship.
f) Costs associated with the operation of the
business of the legal entity which constitutes Landlord as the same is separate
and apart from the costs and operation of the Building or Project including
legal entity formation, internal entity accounting and legal matters, related to
the internal operation of the entity.
g) Costs of disputes between Landlord and any third
party regarding matters not related to the Building or Project.
h) The cost of any disputes between Landlord and
employee or agent of Landlord.
i) Cost of defending any lawsuits with mortgagees or
ground lessors.
j) Any late fees, penalties, interest charges or
similar fees incurred by Landlord, except to the extent attributable to Tenant's
late payment or non-payment of rent or additional rent.
k) Interest, principal payments, and other costs of
any indebtedness and rental under any ground lease or other underlying lease.
l) Any debt losses, rent losses or reserves for bad
debt.
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m) Any expenses incurred for use of any public
portions of the Building or Project including, but not limited to, shows and
promotions.
n) The cost of long-term leases of equipment, if the
purchase of such equipment would constitute a capital expenditure except for
rentals of equipment used to maintain the project such as lawn mowers, hoists,
lifts or hand tools.
o) Any Building or Project system maintenance
contracts, Earthquake or any other type of insurance, unless such maintenance
costs and/or insurance coverage was carried during the Base Year or, in the
alternative, the Base Year operating Expenses have been "grossed-up" to include
what such maintenance and/or coverage would have cost had it been carried during
the Base Year.
p) Capital expenditures required by Landlord's
failure to comply with any existing laws or regulations as of the commencement
date.
q) Except as otherwise included in this Section 5,
cost of a capital nature, including without limitation, capital improvements and
replacements, capital repairs, capital equipment, and capital tools.
r) The cost of installing, operating and maintaining
any specialty service for which the benefit is not made available to Tenant,
such as an observatory, broadcasting facilities, luncheon club, athletic or
recreational club.
s) The cost of any repair, to the extent covered by
insurance proceeds or condemnation in accordance with the sections on fire,,
casualty and condemnation of this Lease. Tenant's liability under this
sub-section s) shall be limited to Landlord's insurance deductible not to exceed
$10,000 per occurrence for fire, casualty and condemnation, or Landlord's
deductible, not to exceed 5% for earthquake insurance.
t) Income, excess profits or franchise taxes or other
taxes imposed on or measured by the Income of Landlord from the operation of the
Building or Project except as included in Section 5.5.
u) Cost incurred due to violation by Landlord or any
tenant of the Building or Project of the terms of any lease or any laws, rules,
regulation or ordinances applicable to the Building or Project.
v) The cost of any work performed or service provided
(such as electricity) for any facility (such as garage) for which fees are
charged and for which Landlord is fully compensated.
w) The cost of any items to the extent Landlord is
actually reimbursed by insurance proceeds, condemnation awards, a tenant or
otherwise.
x) Any costs incurred after the calendar year in
which the term of this Lease expires or the expiration of any renewals thereof.
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y) Unrecovered expenses resulting from the negligence
or willful misconduct of the Landlord, or its agents or employees.
z) Cost of any after-hours utility charges to other
tenants.
aa) Capital improvements or expenditures incurred to
reduce Operating Costs shall be included in operating costs at the annual
amortized amount of said improvements or expenditures over the useful life of
the improvement or item.
cc) The cost of removal, treatment or abatement of
asbestos or any other hazardous substances or gas in the Building, common areas
or Premises required as the result of the buildings failure to comply with
regulations as of the commencement Date of the Lease.
5.2 TENANT'S SHARE. If Operating Costs during any calendar
year following the Base Year exceed the rentable square footage of the Building
multiplied by the Expense Stop (which is defined to be the actual Operating
Costs for 1994 divided by the rentable square footage of the building and
rounded to two decimal places, but in no event shall the Expense Stop be greater
than $6.90), Tenant shall pay to Landlord "Tenant's Share" multiplied by such
excess ("Operating cost Payments"). "Tenant's Share" means 16.33%, which is
calculated by dividing the rentable square footage of the Premises by the
rentable square footage of the Building as such rentable square footages are set
forth in Paragraph 1, and multiplying such number by 100.
5.3 OPERATING COSTS LIMITATION. Landlord agrees that for the
purposes of calculating Tenant's share of any increases in Building Operating
costs, the "Controllable Operating Cost" portion of Building Operating Costs
(i.e. expenses other than expenses for water, gas, electricity, telephone,
scavenger, real and personal property taxes and assessments, license and permit
fees, and or expenses to comply with governmental regulations after the
commencement date) for any year after the Base Year shall be limited to the
Controllable Operating Costs used in determining the Expense Stop plus a
cumulative six percent (6%) annually compounded increase. Except as otherwise
provided for in this Lease, there shall be no limit on the increases in
Non-Controllable Operating Costs. In the event of a sale, transfer of ownership,
or refinancing of the Building during the term of this Lease, Landlord
guarantees that no resultant tax increase will be passed through to Tenant.
5.4 NOTICE AND PAYMENT. As soon as reasonably practical after
the end of each calendar year following the Base Year, Landlord shall furnish
Tenant a written statement showing in reasonable detail the operating Costs for
the preceding calendar year, and the amount of any payment due from Tenant to
Landlord or from Landlord to Tenant, taking into account prior operating Cost
Payments made by Tenant for such preceding calendar year. Tenant shall have one
hundred eighty (180) days after receipt of Landlord's statement to notify
Landlord of any objections they have to such statement, or of their intention to
review supporting documentation for such statement. If Tenant does not so notify
Landlord, such statement shall conclusively be deemed correct and Tenant shall
have no right thereafter to dispute or review support for such statement any
item therein, or the computation of Operating costs. If Tenant does so notify
the Landlord within the one hundred eighty (180) day period, Tenant shall have
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one (1) year from the date of receipt of Landlord's statement to complete their
review of the supporting documentation and notify landlord of all objections, if
any, to such statement. After this one (1) year period, it will be assumed that
Landlord has been notified of all objections by Tenant to Landlord's statement
and that no further review of supporting documentation is necessary. If there
are no objections, Tenant shall have no further rights thereafter to dispute
such statement any item therein, or the computation of Operating Costs. Any
notifications to Landlord will be done in accordance with Paragraph 25.14.
Coincidentally with the monthly Base Rent next due following
Tenant's receipt of such statement, Tenant shall pay to Landlord (in the case of
an underpayment) or Landlord shall credit against the next Base Rent due from
Tenant (in the case of an overpayment) the difference between (i) Tenant's Share
of any excess of operating Costs for the preceding calendar year over the
Expense Stop (the "Prior Year's Increase") and (ii) the Operating cost Payments
made by Tenant for such preceding calendar year. In addition, Tenant shall pay
to Landlord coincidentally with such next due Bass Rent an amount equal to (A)
one-twelfth (1/12) of the prior Year's Increase, it any, multiplied by (B) the
number of months or partial months (including the then current month) then
elapsed in the current calendar year, less (C) the aggregate of any operating
Cost Payments made by Tenant for such current calendar year. Monthly thereafter
until adjustment is made the following year pursuant to this paragraph, Tenant
shall pay together with the monthly Base Rent one-twelfth (1/12) of any such
Prior Year's Increase. In no event will Tenant be entitled to receive the
benefit of a reduction in operating Costs below the Expense Stop.
For any partial calendar year at the termination of this
Lease, Tenant's Share of any increases in Operating Costs for such year over the
Expense Stop shall be prorated on the basis of a 365-day year by computing
Tenant's Share of the increases in Operating Costs for the entire year and then
prorating such amount for the number of days this Lease was in effect during
such year. Notwithstanding the termination of this Lease, and within ten (10)
days after Tenant's receipt of Landlord's statement regarding the determination
of increases in Operating Costs for the calendar year in which this Lease
terminates, Tenant shall pay to Landlord or Landlord shall pay to Tenant, as the
case may be,, an amount equal to the difference between Tenant's Share of the
increases in Operating Costs for such year (as prorated) and the amount
previously paid by Tenant toward such increases.
5.5 ADDITIONAL TAXES. Tenant shall reimburse to Landlord,
within thirty (30) days after receipt: of a demand therefor, Tenant's Share of
any and all taxes payable by Landlord (other than net income taxes or any taxes
included within Operating Costs), whether or not now customary or within the
contemplation or the parties hereto (i) upon, allocable to or measured by the
area of the Building, (ii) upon all or any portion of the Rent payable hereunder
and under other leases of space in the Building, including any gross receipts
tax or excise tax levied with respect to the receipt of such Rent, or (iii) upon
or with respect to the possession leasing, operation, management, maintenance,
alteration, repair, use or occupancy of the Building or any portion thereof.
Tenant shall not be required to reimburse Landlord for taxes under this
Paragraph 5.5 to the extent Tenant has paid Tenant's Share of such taxes through
operating cost Payments under Paragraph 5.2. In the event of a sale, transfer of
ownership, or refinancing of the building during the term of this lease,
Landlord guarantees that no resultant tax increase will be passed through to
Tenant.
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5.6 TENANT'S RIGHT TO, AUDIT. In the event of any dispute or
uncertainty as to the amount of Operating Costs and Tenant's Share thereof
(including calculation of the Expense Stop under Subsection 5.2), Tenant may
require clarification as to any disputed amount, including without limitation,
receiving and reviewing legible copies of all of Landlord's invoices and paid
receipts, with respect to the disputed items, and pursuing an audit as
hereinafter specified, provided Tenant notifies Landlord in writing within one
hundred eighty (180) days of its receipt of Landlord's statement that Tenant
elects to inspect and/or audit such records pursuant to this Section. Should
Tenant elect to inspect and/or audit such records, Tenant's inspection and/or
audit shall be completed and the results thereof submitted to Landlord no later
than one year after Tenant's receipt of Landlord's statement. If Landlord and
Tenant are unable to agree as to any disputed item, Tenant may, at its sole cost
and expense, audit on its own (or engage an independent certified public
accounting firm to audit) Landlord's accounting records related to the disputed
items, which audit shall be scheduled promptly at the reasonable convenience of
both Landlord and Tenant, such audit to take place in Landlord's offices. If the
results of such audit by an independent CPA approved by Landlord, whose approval
shall not be unreasonably withheld, and Tenant indicate that the aggregate cost
of the disputed item is incorrect, then the Landlord shall refund the
discrepancy, and if the amount of the discrepancy is more than five percent
(5%), then Landlord shall pay for the reasonable cost of the audit, (not to
exceed $5,000.00), as well as refund the discrepancy amount.
5.7 TENANT'S TAXES. Tenant shall pay before delinquency
(whether levied on Landlord or Tenant), any and all taxes assessed upon or
measured by (i) Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, (ii) any improvements or alterations made to
the Premises prior to or during the term of this Lease paid for by Tenant after
initial build out of Tenant's improvements, or (iii) this transaction or any
document to which Tenant is a party creating or transferring an interest or an
estate in the Premises. For the purpose of determining said amounts, figures
supplied by the County Assessor as to the amount so assessed shall be
conclusive. Tenant shall comply with the provisions of any law, ordinance or
rule of the taxing authorities which require Tenant to file a report of Tenant's
property located in the Promises.
6. USE
6.1 USE. The Premises shall be used and occupied y Tenant for
general office purposes and for no other purpose without the prior written
consent of Landlord.
6.2 SUITABILITY. Tenant acknowledges that neither Landlord nor
any agent of Landlord has made any representation or warranty with respect to
the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises except as provided in
the Work Letter. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Building were at such time in
satisfactory condition, except for hidden or latent defects, unless within
thirty (30) days after such date Tenant shall give Landlord written notice
specifying in reasonable detail the respects in which the Premises or the
Building were not in satisfactory condition.
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6.3 USES PROHIBITED.
(a) Tenant shall not do nor permit anything to be
done in or about the Premises nor bring or keep anything therein which will in
any way increase the existing rate or affect any fire or other insurance upon
the Building or any of its contents, or cause a cancellation of any insurance
policy covering said Building or any part thereof or any of its contents, nor
shall Tenant sell or permit to be kept, used or sold in or about said Premises
any articles which may be prohibited by a standard form policy of fire
insurance.
(b) Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, or injure or annoy then,
or use or allow the Premises to be used for any unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in or about the
Premises. Tenant shall not commit or suffer to be committed any waste in or upon
the Premises. Tenant shall not bring onto the Premises any apparatus, equipment
or supplies that may overload the Premises or the Building or any utility or
elevator system or jeopardize the structural integrity of the Building or any
part thereof.
(c) Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict
with, and at its sole cost and expense shall promptly comply with, any law,
statute, ordinance or governmental rule, regulation or requirement now in force
or which way hereafter be enacted or promulgated relating to the condition, use
or occupancy of the Premises, excluding structural changes not relating to or
affecting the condition, use or occupancy of the Premises or Tenant's
improvements or acts. The judgment of any court of competent jurisdiction or the
admission of Tenant in. any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of the fact as
between Landlord and Tenant. Tenant's obligation under this Paragraph shall be
limited to those situation in which a violation of law or non-compliance with a
rule or regulation results from the particular use made of the Premises or any
portion thereof by Tenant, it being understood that Tenant shall not be
responsible for complying with any violations, orders, codes or duties which are
imposed on the building generally and which are not caused by Tenant.
7. SERVICE AND UTILITIES
7.1 LANDLORD'S OBLIGATIONS. Provided Tenant is not in default
hereunder, Landlord shall furnish to the Premises during reasonable hours of
generally recognized business days and subject to the rules and regulations of
the Building, water, gas and electricity suitable for the intended use of the
Premises, heat and air conditioning required for the comfortable use and
occupancy of the Premises Monday through Friday from 7:00 A.M. to 7:00 P.M.
excluding New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving, and
Christmas Day with a temperature range of 73 degrees plus or minus 2 degrees
Fahrenheit, scavenger, janitorial services as described in Exhibit E attached
hereto, window washing service and elevator service in a manner as furnished in
first class office buildings in the San Francisco Day area. Landlord shall also
maintain and keep lighted the common lobbies, hallways, stairs and toilet rooms
in the Building.
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7.2 TENANT'S OBLIGATION. Tenant shall pay for, prior to
delinquency, all telephone and all other materials and services, not expressly
required to be paid by Landlord, which may be furnished to or used in, on or
about the Promises during the term of this Lease.
7.3 TENANT'S ADDITIONAL REQUIREMENTS
(a) Tenant shall pay for heat and air-conditioning
furnished at Tenant's request during non-business hours and/or on non-business
days on an hourly basis at the rate of $40.00 per hour per zone (approximately
39,000 square feet). Landlord reserves the right to adjust the rates to
compensate for actual increases or decreases in the rates charges by the utility
company. Tenant shall not use in excess of Building Standard amounts (as
determined by Landlord) of electricity, water or any other utility without
Landlord's prior written consent, which consent Landlord shall not unreasonably
withhold. Landlord may cause a water meter or electric current meter to be
installed in the Premises so as to measure the amount of water and electric
current consumed for any such excess use. The cost of such meters and of
installation, maintenance and repair thereof shall be paid by Tenant and Tenant
agrees to pay Landlord promptly upon demand by landlord for all such water and
electric current consumed as shown by said motors, at the rates charged for such
services by the city in which the Building is located or by the local public
utility furnishing the same, plus any additional expense incurred in keeping
account of the water and electric current so consumed. If a separate meter is
not installed to measure any such excess use, Landlord shall have the right to
estimate the amount of such use through qualified personnel. In addition,
Landlord may impose a reasonable charge for the use of any additional or unusual
janitorial services required by Tenant because of any Suite Improvements
different from or above Building Standard, carelessness of Tenant or the nature
of Tenant's business (including hours of operation).
(b) If any lights other than Building Standard or
equipment are used in the Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord may install supplementary
air conditioning units in the Premises and the cost thereof, including the cost
of installation, operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord.
(c) in no event shall Tenant; (i) connect any
apparatus, machine or device through electrical outlets except in the manner for
which such outlets are designed and without the use of any device intended to
increase the plug capacity of any electrical outlet or (ii) maintain at any time
an electrical demand load in excess of four (4) watts per square foot of usable
area of the Premises.
7.4 INTERRUPTION OF SERVICES. Any failure to furnish any of
the foregoing shall not constitute an eviction of Tenant, constructive or
otherwise and, notwithstanding any law to the contrary that may now or hereafter
exist, Tenant shall not be entitled to terminate this Lease on account of such
failure. Landlord shall not be liable under any circumstances for loss of or
injury to property or business or consequential damages, however occurring,
through or in connection with failure to furnish any of the foregoing.
Notwithstanding Force Majeure Events, in the event that. the utilities or
services which Landlord is obligated hereunder to provide or make available to
the Premises and are required for Tenant's use and occupancy of the Premises are
interrupted or such utilities or services altogether cease to be provided to the
Tenant for a
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period of five (5) business days, rent payable hereunder shall abate for the
length of the interruption retroactive to the first day thereof.
8. MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS
8.1 MAINTENANCE AND REPAIRS
(a) LANDLORD'S OBLIGATIONS. Landlord shall maintain
in good order, condition and repair the structural and common areas of the
Building,, including without implied limitation, the roof and exterior walls of
the Building, and the basic heating, ventilating,, air conditioning,,
electrical, plumbing, fire protection, life safety, security and mechanical
systems of the Building (the "Building systems"), provided that any maintenance
and repair caused by the acts or omissions of Tenant or Tenant's agents,
employees, invitees, visitors (collectively "Tenant's Representatives") shall be
paid for by Tenant. Notwithstanding the provisions of this Section, in the event
Landlord fails or neglects to commence and make the repairs to the Building
which Landlord is required to make in accordance with the terms of this Lease
within thirty (30) days after receipt of written notice from Tenant of the
necessity therefore, or within twenty-four (24) hours in the event of any
emergency, and appropriate notice from Tenant, then Tenant may, but shall not be
obligated to, make such repairs and Landlord shall reimburse Tenant for the
reasonable cost thereof within thirty (30) days after receipt of a bill therefor
and copies of applicable invoices. In the event such repairs cannot be completed
within thirty (30) days after receipt; of written notice from Tenant of the
necessity therefor, and Landlord commences the making of such repairs within
said thirty (30) day period and thereafter pursues the completion thereof with
reasonable diligence, Landlord shall have additional time as is reasonably
necessary to complete the same before Tenant has the right to exercise any
remedies set forth in this Lease, including this section.
(b) TENANT'S OBLIGATIONS
(1) Tenant, at Tenant's sole cost and
expense, except for services furnished by Landlord pursuant to paragraph 7
hereof, shall maintain the Premises in good order, condition and repair
including the interior surfaces of the ceilings, walls and floors, all doors,
interior windows, and all plumbing pipes, electrical wiring, switches, fixtures,
nonbuilding standard lights, and equipment installed for the use of the
Premises. Notwithstanding any law to the contrary that may now or hereafter
exist, Tenant shall not have the right to make repairs at Landlord's expense or
to terminate this Lease because of Landlord's failure to keep the Premises in
good order, condition and repair.
(2) In the event Tenant fails to maintain
the Premises in good order, condition and repair, Landlord shall give Tenant
notice to do such acts as are reasonably required to so maintain the Premises.
In the event Tenant fails to promptly commence such work and diligently
prosecute it to completion, Landlord shall have the right to do such acts and
expand such funds at the expense of Tenant as are reasonably required to perform
such work.. Any amount so expanded by Landlord shall be paid by Tenant promptly
after demand with interest from the date expanded by Landlord until paid by
Tenant at the "Default Rate," as defined below. Landlord shall have no liability
to Tenant for any damage, inconvenience or interference with the use of the
Promises by Tenant as a result of performing any such work. As
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used in this Lease, "Default Rate" shall mean the Bank of America Reference Rate
plus two percent (2%) per annum.
(c) COMPLIANCE WITH LAW. Landlord and Tenant shall
each do all acts required to comply with all applicable laws, ordinances,
regulations and rules of any public authority relating to their respective
maintenance obligations as salt forth herein.
8.2 ALTERATIONS AND ADDITIONS
(a) Tenant shall make no alterations, additions or
improvements to the Premises or any part thereof without obtaining the prior
written consent of Landlord, which consent Landlord agrees not to unreasonably
withhold.
(b) Landlord may impose as a condition to the
aforesaid consent such requirements as Landlord may deem necessary in its sole
discretion, including without limitation thereto, performing the work itself,
specifying the manner in which the work is done, and selecting the contractor by
whom the work is to be performed and the times during which it is to be
accomplished. Tenant shall pay to Landlord upon demand an amount equal to the
reasonable costs and expenses for time spent by Landlord's employees or
contractors in supervising, approving and administering such alterations.
(c) All work performed under the Work Letter shall be
the property of Landlord and shall remain upon and be surrendered with the
Promises. At the time that Landlord consents to any alteration subsequent to the
commencement of this Lease, Landlord shall specify whether the same shall be the
property of Landlord and shall remain upon and be surrendered with the Premises
upon the termination or expiration of the Lease or whether Tenant must remove
all or any part of same.
(d) All articles of personal property and all
business and trade fixtures, machinery and equipment, cabinetwork, furniture and
movable partitions owned by Tenant or installed by Tenant at its expense in the
Premises shall be and remain the property of Tenant and may be removed by Tenant
at any time during the Lease term when Tenant is not in default hereunder.
9. ENTRY BY LANDLORD
Landlord and Landlord's agents shall, at any and all times
upon reasonable notice to Tenant, have the right to enter the Premises to
inspect the same, to supply janitorial service and any other service to be
provided by Landlord to Tenant hereunder, to show the Premises to prospective
purchasers (and during the last twelve (12) months of the term to prospective
tenants), to post notices of non-responsibility and "for lease" signs, and to
alter, improve or repair the Premises and any portion of the building, and may
for that purpose erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed. with minimal
interference and disruption to Tenant's business, always providing the entrance
to the Premises shall not be blocked thereby. Landlord shall conduct its
activities under this Paragraph 9 in a manner that will minimize inconvenience
to Tenant without incurring additional expense to Landlord. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Promises,
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excluding Tenant's vaults and safes, and Landlord and Landlords' agents shall
have the right to use any and all means which Landlord may deem proper to open
said doors in an emergency, in order to obtain entry to the Premises, and any
entry to the Premises obtained by Landlord or Landlord's agents by any of said
means, or otherwise, shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into or a detainer of, the Premises, or an
eviction of Tenant from the Premises or any portion thereof. Tenant shall not be
released from its obligations under this Lease nor be entitled to any abatement
of Rent on account of Landlord's entry under this Paragraph, and Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises.
10. LIENS
Tenant shall keep the Premises and the Building free from any
liens arising out of work performed, materials furnished, or obligations
incurred by Tenant and shall indemnify, hold harmless and defend Landlord from
any liens and encumbrances arising out of any work performed or materials
furnished by or at the direction of Tenant. In the event that Tenant shall not,
within twenty (20) days following the imposition of any such lien, cause such
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies provided herein and by law, the
right, but no obligation, to cause the same to be released by such means as it
shall does proper, including payment of the claim giving rise to such lien. All
such sums paid by Landlord and all expenses incurred by it in connection
therewith, including attorneys' fees and costs, shall be payable to Landlord by
Tenant on demand with interest at the Default Rate until paid. Landlord shall
have the right at all times to post and keep posted an the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord and the Premises, and any other party having an interest
therein, from mechanical and materialmen's liens, and Tenant shall give to
Landlord at least three (3) business days prior written notice of the expected
date of commencement of any work relating to alterations or additions to the
Premises.
11. INDEMNITY
11.1 TENANT'S INDEMNITY. Tenant shall Indemnify and hold
Landlord harmless from and defend Landlord against any and all claims of
liability for any injury or damage to any person or property whatsoever (i)
occurring in,, on or about the Premises or any part thereof; and (ii) occurring
in, on or about any facilities (including, without limiting the generality of
the term "facilities," elevators, stairways, passageways, hallways and parking
areas), the use of which Tenant may have in conjunction with other tenants of
the Building, to the extent such injury or damage is caused by the act,
negligence, fault or omission of any duty with respect to the same by Tenant or
Tenant's invitees and Representatives. Tenant shall further indemnify and, hold
Landlord harmless from and against any and all claims to the extent arising from
any breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease or to the extent arising from any act
or negligence of Tenant or Tenant's Representatives and from and against all
costs, attorneys' fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon. If any action or
proceeding is brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
reasonably satisfactory to
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Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises from any cause and Tenant hereby waives all claims in respect
thereof against Landlord except as provided in 11.2 and 11.3.
11.2 EXEMPTION OF LANDLORD FROM LIABILITY. Except to the
extent caused by its negligence or willful misconduct, Landlord shall not be
liable for injury or damage which may be sustained by the person or property of
Tenant, its employees, invitees or customers, or any other person in or about
the Premises, caused by or resulting from fire, steam, electricity gas, water or
rain, which may leak or flow from, or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the same, whether
the damage or injury results from conditions arising upon the Premises or upon
other portions of the Building of which the Premises are a part, or from other
sources. Landlord shall not be liable for any damages arising from any act or
neglect of any other tenant of the Building.
11.3 LANDLORD INDEMNITY. Landlord shall indemnify and hold
Tenant harmless from and defend Tenant against any and all claims of liability
for any injury or damage to any person or property whatsoever occurring in, on
or about the Premises or the Project, to the extent such injury or damage in
caused by negligence or willful misconduct by Landlord or Landlord's agents or
employees from any breach or default in the performance of any obligation an
Landlord's part to be performed under the terms of this Lease, and from and
against all costs, attorneys' fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon. If any
action or proceeding is brought against Tenant by reason of any such claim,
Landlord, upon notice from Tenant, shall defend the same at Landlord's expense
by counsel reasonably satisfactory to Tenant. Notwithstanding the foregoing,
however, in no event shall Landlord be liable under any circumstances for loss
or injury to business or consequential damage or punitive damage however
occurring.
12. INSURANCE
12.1 COVERAGE. Tenant shall, at all times during the term of
this Lease, and at its own cost and expense, procure and continue in force the
following insurance coverage:
(a) Commercial General Liability Insurance with a
combined single limit for personal or bodily injury and property damage of not
less than $3,000,000 or such other level of coverage that Landlord may require
in its reasonable judgment.
(b) Fire and Extended coverage insurance, including
vandalism and malicious mischief coverage, covering and in an amount equal to
the full replacement value of all fixtures, furniture and improvements installed
in the Premises by or at the expense of Tenant.
12.2 INSURANCE POLICIES. The aforementioned minimum limits of
policies shall in no event limit the liability of Tenant hereunder. The
aforesaid insurance shall name Landlord and its partners property manager, and
mortgagees as an additional insured. said insurance shall be with companies
having a rating of not less than A+, XI in "Best's Insurance Guide". Tenant
shall furnish from the insurance companies or cause the insurance companies to
furnish
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certificates of coverage. No such policy shall be cancelable or subject to
reduction of coverage or other modification or cancellation except after thirty
(30) days prior written notice to Landlord by the insurer. All such policies
shall be written as primary policies, not contributing with and not in excess of
the coverage which Landlord may carry. Tenant shall,, at least twenty (20) days
prior to the expiration of such policies, furnish Landlord with evidence of
renewals or binders. Tenant agrees that it Tenant does not take out and maintain
such insurance, Landlord nay (but shall not be required to) procure said
insurance on Tenant's behalf and charge Tenant the premiums together with a
reasonable handling charge and Default Interest from the date paid by Landlord,
payable upon demand. Tenant shall have the right a provide such insurance
coverage pursuant to blanket policies obtained by Tenant, provided such blanket
policies expressly afford coverage to the Premises and to Tenant as required by
this Lease.
12.3 WAIVER OF SUBROGATION. To the extent permitted by their
respective policies of insurance, Landlord and Tenant each hereby waive any
right of recovery against the other and the authorized representatives of the
other for any loss or damage that is covered by any policy of insurance
maintained by either party with respect to the Premises or the Project or any
operation therein. If any policy of insurance relating to this Lease, the
Premises or the Project does not permit the foregoing waiver or if the coverage
under any such policy would be invalidated as a result of such waiver, the party
maintaining such policy shall, if possible, obtain from the insurer under such
policy a waiver of all right of recovery by way of subrogation against either
party in connection with any claim, loss or damage covered by such policy.
12.4 SELF-INSURANCE OPTION. Tenant may elect at any time
during the term of this Lease not to carry liability and property damage
insurance required above and to "self insure" against such risks provided that
(i) Tenant has in effect a program of "self insurance" against such risks, (ii)
Tenant has and maintains a not worth of at lease ONE HUNDRED MILLION DOLLARS
($100,000,000.00) as evidenced by documentation reasonably satisfactory to
Landlord, and (iii) the failure to carry such Insurance does not violate any
law, statute, code, act, ordinance, order, judgment, decree, injunction, rule,
regulation, permit, license, authorization or other requirement which is issued
by the government or governmental agency with jurisdiction over the Leased
Premises which is applicable to Tenant in the conduct of its business. In the
event Tenant elects to self insure, Tenant agrees to provide Landlord with
written notice and evidence of such self insurance with coverage not less than
that called out for in this Lease.
12.5 LANDLORD'S INSURANCE. During the term hereof, Landlord
shall keep the Building and all Tenant Improvements to the Premises insured
through reputable insurance underwriters against perils covered by a standard
"all risk" insurance policy or policies as such policies are in use as of the
dare of this Lease (excluding perils such as flood and other standard "all risk"
policy form exclusions) in an amount or amounts equal to not less than eighty
percent (80%) of the full replacement value of the Building (excluding the land
and the footings, foundations and installations below grade). During the term
hereof, Landlord shall keep in force general liability insurance in the amount
and coverage as Landlord deans commercially reasonable but in no event less than
$1,000,000.00.
13. DAMAGE OR DESTRUCTION.
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13.1 LOSS COVERED BY INSURANCE. If, at any time prior to the
expiration or termination of this Lease, the Premises or Building is wholly or
partially damaged or destroyed by a casualty, which loss to Landlord is (except
for any applicable deductible) fully covered by insurance maintained by Landlord
or for Landlord's benefit, which casualty renders the Premises totally or
partially inaccessible or unusable by Tenant in the ordinary conduct of Tenant's
business, then:
(a) REPAIRS WHICH CAN BE COMPLETED WITHIN SIX (6)
MONTHS. Within sixty (60) days of notice to Landlord of such damage or
destruction, Landlord shall provide Tenant with notice of its determination of
whether the damage or destruction can be repaired within six (6) months of such
damage or destruction without the payment of overtime or other premium. If all
repairs to such Premises or Building can, in Landlord's judgment, be completed
within six (6) months following the date of such damage or destruction without
the payment of overtime or other premiums, Landlord shall, at Landlord's
expense, repair the same to substantially their former condition to the extent
permitted by the then applicable codes, laws and regulations and this Lease
shall remain in full force and effect and a proportionate reduction of the Rent
shall be allowed Tenant for such portion of the Premises as shall be rendered
inaccessible or unusable to Tenant, and which is not used by Tenant, during the
period of time that such portion is unusable or inaccessible and not used by
Tenant.
(b) REPAIRS WHICH CANNOT BE COMPLETED WITHIN SIX (6)
MONTHS. If all such repairs to Building and Premises cannot, in Landlord's
judgment, be completed within six (6) months following the date of notice to
Landlord of such damage or destruction without the payment of overtime or other
premiums, Landlord shall notify Tenant of such determination and either Landlord
or Tenant may, at its option, upon written notice to the other party given
within thirty (30) days after Landlord's determination of how long it will take
to repair the occurrence of such damage or destruction, elect to terminate this
Lease as of the date of the occurrence of such damage or destruction. In the
event that neither Landlord nor Tenant elect to terminate the Lease in
accordance with the foregoing provisions, then Landlord shall, at Landlord's
expense, repair such damage or destruction to substantially their former
condition to the extent permitted by the then applicable codes, laws and
regulations and in such event, this Lease shall continue in full force and
affect but the Rent shall be proportionately reduced as hereinabove provided in
Section 13.1(a); provided, however, that if any such repair in not commenced by
Landlord within sixty (60) days after receipt at insurance proceeds or is not
substantially completed by Landlord within nine (9) months attar the occurrence
of such damage or destruction,, then in either such event Tenant may, at its
option, upon written notice to Landlord, elect to terminate this Lease as of the
date of the occurrence of such damage or destruction.
15. ASSIGNMENT AND SUBLETTING
15.1 LANDLORD'S CONSENT REQUIRED. Except as otherwise as
permitted in Section 15.9, Tenant shall not assign, transfer, mortgage, pledge,
hypothecate or encumber this Lease or any interest therein (each a "Transfer"),
and shall not sublet the Premises or any part thereof, without the prior written
consent of Landlord and any attempt to do so without such consent being first
had and obtained shall be wholly void and shall constitute a breach of this
Lease.
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15.2 REASONABLE CONSENT.
(a) If Tenant complies with the following conditions,
Landlord shall not unreasonably withhold its consent to the subletting of the
Premises or any portion thereof or the assignment of this Lease. Tenant shall
submit in writing to Landlord (i) the name and legal composition of the proposed
subtenant or assignee; (ii) the nature of the business proposed to be carried on
in the Premises; (iii) the terms and provisions of the proposed sublease; (iv)
such reasonable financial information as Landlord may request concerning the
proposed subtenant or assignee; and (v) the form of the proposed sublease or
assignment. Within ten (10) business days after Landlord receives all such
information it shall notify Tenant whether it approves such assignment or
subletting or if it elects to proceed under Paragraph 15.8 below.
(b) The parties hereto agree and acknowledge that,
among other circumstances for which Landlord could reasonably withhold its
consent to a sublease or assignment, it shall be reasonable for Landlord to
withhold its consent where (i) Landlord reasonably disapproves of the
Transferee's reputation or creditworthiness or the character of the business to
be conducted by the Transferee at the Premises, (ii) the assignment or
subletting would increase the burden on the Building services or the number of
people occupying the Premises, or (iii) Landlord otherwise determines that the
assignment or sublease would have the effect of decreasing the value of the
Project or increasing the expenses associated with operating the Project.
15.3 EXCESS CONSIDERATION. If Landlord consents to the
assignment or sublease, Landlord shall be entitled to receive as additional Rent
hereunder one-half of any consideration paid by the Transferee for the
assignment or sublease and, in the case of a sublease, one-half of the excess of
the rent and other consideration payable by the subtenant over the amount of
Base Rent and Operating Cost Payments payable hereunder applicable to the
subleased space.
15.4 NO RELEASE OF TENANT. No Consent by Landlord to any
assignment or subletting by Tenant shall relieve Tenant of any obligation to be
performed by Tenant under this Lease, whether occurring before or after such
consent, assignment or subletting, and the Transferee shall be jointly and
severally liable with Tenant for the payment of Rent (or that portion applicable
to the subleased space in the case of a sublease) and for the performance of all
other terms and provisions of the Lease. The consent by Landlord to any
assignment or subletting shall not relieve Tenant and any such Transferee from
the obligation to obtain Landlord's express written consent to any subsequent
assignment or subletting. The acceptance of rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision of this
Lease or to be a consent to any assignment, subletting or other transfer.
consent to one assignment, subletting or other transfer shall not be deemed to
constitute consent to any subsequent assignment, subletting or other transfer.
15.5 ATTORNEYS' FEES. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with reviewing any proposed assignment or
sublease.
15.6 TRANSFER OF OWNERSHIP INTEREST. If Tenant is a business
entity, any direct or indirect transfer of 50 percent or more of the ownership
interest of the entity (whether all at one time or over the term of the Lease)
shall be deemed a Transfer.
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15.7 EFFECTIVENESS OF TRANSFER. No permitted assignment by
Tenant shall be effective until landlord has received a counterpart of the
assignment and an instrument in which the assignee assumes all of Tenant's
obligations under this Lease arising on or after the date of assignment. The
voluntary, involuntary or other surrender of this Lease by Tenant, or a mutual
cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate all
or any existing subleases or operate as an assignment to landlord of any or all
of such subleases.
15.8 LANDLORD'S RIGHT TO SPACE. Except where excess
consideration is applicable as provided in Section 15.3 above, notwithstanding
any other provisions of this Paragraph 15 to the contrary, it Tenant notifies
Landlord that it desires to assign this Lease or sublet all (or any part) of the
Premises, Landlord, in lieu of consenting to such assignment or sublease, may
elect to terminate this Lease (in the case of an assignment or a sublease of the
entire Premises), or to terminate this Lease as it relates to the space proposed
to be subleased by Tenant (in the case of a sublease of less than the entire
Premises). In such event, this Lease (or portion thereof) will terminate on the
date the assignment or sublease was to be effective, and Landlord may lease such
space to any party, including the prospective Transferee identified by Tenant.
15.9 PERMITTED ASSIGNMENT. Notwithstanding any provision to
the contrary in this Section 15, Tenant shall not be required to obtain
Landlord's consent to an assignment of the Premises to a subsidiary or
affiliated company of Tenant or to a corporation into which or with which Tenant
may be merged or consolidated, or to a corporation which shall acquire all or
substantially all of the principal business of Tenant at the Premises.
16. SUBORDINATION
16.1 SUBORDINATION. Tenant agrees that upon delivery to it by
any mortgagee of the Building of a "non-disturbance letter" as defined in
Section 16. 4 below, this Lease at Landlord's option, shall be subject and
subordinate to a ground or underlying Lease which now exist or may hereafter be
executed affecting all or any part of the Project, and to the lion of any
mortgages or deeds of trust in any amount or amounts whatsoever now or hereafter
placed on or against the Land or building, Landlord's interest or estate
therein, or any ground or underlying lease, without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. if any mortgagee, trustee or ground lessor (each
a Holder) shall elect to have this Lease prior to the lien of its mortgage, deed
of trust or ground lease (an "Encumbrance"), and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such Encumbrance, whether
this Lease is dated prior to or subsequent to the date of said Encumbrance or
the date of the recording thereof.
16.2 SUBORDINATION AGREEMENTS. Tenant will execute and deliver
upon demand without charge therefor, such further instruments evidencing such
subordination of this Lease to such Encumbrances as may be required by Landlord.
16.3 ATTORNMENT. If this Project is transferred to any
purchaser pursuant to or in lieu of proceedings to enforce any Encumbrances and
this Lease is either prior to such Encumbrance or the Holder at its option
elects to have this Lease survive such transfer, Tenant
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shall attorn to such purchaser and recognize such purchaser as the landlord
under this Lease, and this Lease shall continue as a direct lease between such
purchaser and Tenant.
16.4 NON-DISTURBANCE LETTER. Notwithstanding any provisions to
the contrary in section 16, Tenant's agreement to the provisions of said Section
is conditioned upon Tenant receiving a non-disturbance letter (as defined below)
from the holder of the existing mortgage or deed of trust or any future mortgage
or deed of trust an the Building. The "non-disturbance latter" shall be a letter
from the holder of any such mortgage or deed of trust to the affect that in the
event of a foreclosure or other action taken under any such security instrument
that this Lease and the rights of Tenant hereunder shall not be disturbed,
diminished or interfered with, but shall continue in full force and effect so
long as Tenant shall not be in default hereunder.
17. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant
paying the Rent and performing its other covenants and conditions under this
Lease, Tenant shall have the quiet possession of the Premises for the term of
this Lease as against any persons or entities lawfully claiming by, through or
under Landlord, subject, however, to the terms of this Lease and of any
Encumbrance.
18. DEFAULT; REMEDIES
18.1 DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" by Tenant:
(a) Tenant fails to pay Rent when due and such
failure continues for five (5) days after written notice thereof to Tenant;
(b) Tenant Transfers or attempts to Transfer this
Lease without complying with the provisions of Paragraph 15;
(c) Tenant fails to observe and perform any other
provision of this Lease to be observed or performed by Tenant, where such
failure continues for thirty (30) days after written notice thereof by Landlord
to Tenant; provided, however, that if the nature of the default is such that the
same cannot reasonably be cured within said thirty (30) day period, Tenant shall
not be deemed to be in default if Tenant shall within such period commence such
cure and thereafter diligently prosecute the same to completion;
(d) Tenant abandons the Premises; or
(e) The making by Tenant of any general assignment or
general arrangement for the benefit of creditors; the filing by or against
Tenant of a petition seeking relief under any law relating to bankruptcy
(unless, in the care of a petition filed against Tenant, the same is dismissed
within sixty (60) days); the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, whose possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure in not discharged within thirty (30)
days.
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18.2 REMEDIES. Upon the occurrence of an Event of Default,
Landlord may, at any time thereafter exercise the following remedies, which
shall be in addition to any other rights or remedies now or hereafter available
to Landlord at law or in equity:
(a) Maintain this Lease in full force and effect and
recover Rent as it becomes due, without terminating Tenant's right to possession
irrespective of whether Tenant shall have abandoned the Premises. In the event
Landlord elects not to terminate the Lease, Landlord shall have the right to
attempt to relet the Premises at such rent and upon such conditions and for such
a term, and to do all acts necessary to maintain or preserve the Premises as
Landlord deems reasonable and necessary without being deemed to have elected to
terminate the Lease, including removal of all persons and property from the
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. In the event any such
reletting occurs, rents received by Landlord from such subletting shall be
applied (i) first, to the payment of the costs of maintaining, pre preserving
altering and preparing the Premises for subletting and other costs of
subletting, including but not limited to brokers' commissions, attorneys' fees
and expenses of removal of Tenant's personal property, trade fixtures,
alterations and leasehold improvements; (ii) second, to the payment of Rent then
due and payable; (iii) third, to the Payment of future Rent as the same may
become due and payable hereunder; and (iv) fourth, the balance, if any, shall be
paid to Tenant upon (but not before) expiration of the term of this Lease. If
the rents received by Landlord from such subletting, after application as
provided above, are insufficient in any month to pay the Rent due and payable
hereunder for such month, Tenant shall pay such deficiency to Landlord monthly
upon demand. Notwithstanding any such subletting for Tenant's account without
termination, Landlord may at any time thereafter, by written notice to Tenant,
elect to terminate this Lease by virtue of a previous Event of Default. During
the continuance of an Event of Default, for so long as Landlord does not
terminate Tenant's right to possession of the Premises, Landlord shall not
unreasonably withhold its consent to an assignment of this Lease or a sublease
of the Premises as set forth in Paragraph 3.5.2 -"Reasonable Consent".
(b) Terminate Tenant's right to possession of the
Premises at any time by written notice to Tenant, in which case Tenant shall
immediately surrender possession of the Promises to Landlord. Tenant expressly
acknowledges that in the absence of such written notice from Landlord,, no other
act of Landlord, including, but not limited to, its re-entry into the Premises,
its efforts to relet the Premises,, its reletting of the Premises for Tenant's
account, its storage of Tenant's personal property and trade fixtures,. its
acceptance of keys to the Promises from Tenant or its exercise of any other
rights and remedies under this Paragraph 18.2, shall constitute an acceptance of
Tenant's surrender of the Premises or constitute a termination of this Lease or
of Tenant's right to possession of the Promises. If Landlord terminates Tenant's
right to possession in writing,, Landlord shall be entitled to recover from
Tenant all damages as provided in California Civil Code Section 1951.2 or any
other applicable existing or future law, ordinance or regulation providing for
recovery of damages for such breach, including but not limited to the following:
(1) The reasonable cost of recovering the
Premises; plus
(2) The reasonable cost of removing Tenant's
alterations, trade fixtures and Above-Standard Improvements; plus
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(3) All unpaid Rent due or earned hereunder
prior to the date of termination, less the proceed of any reletting or any
rental received from subtenants prior to the date of termination applied as
provided in subsection (a) above, together with interest at the Default Rate, on
such sums from the date such Rent is due and payable until the date of the award
of damages; plus
(4) The amount by which the Rent which would
be payable by Tenant hereunder, including operating Cost Payments from the date
of termination until the date of rim award of damages exceeds the amount of such
rental loss Tenant proves could have been reasonably avoided, together with
interest at the Default Rate on such sums from the date such Rent is due and
payable until the date of the award of damages; plus
(5) The amount by which the Rent which would
be payable by Tenant hereunder, including Operating Cost Payments for the
remainder of the then term, after the date of the award of damages exceeds the
amount of such rental loss as Tenant proves could have boon reasonably avoided,
discounted at the discount rate published by the Federal Reserve Bank of San
Francisco for member banks at the time of the award plus one percent (1%); plus
(6) Such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law.
(c) During the continuance of an Event of Default,
Landlord may enter the Premises without terminating this Lease and remove all
Tenant In personal property, and trade fixtures from the Premises. If Landlord
removes such property from the Premises and stores it at Tenant's risk and
expense, and if Tenant fails to pay the cost of such removal and storage after
written demand therefor and/or to pay any Rent then due, after the property has
been stored for a period of thirty (30) days or more landlord may sell such
property at public or private sale, in the manner and at such times and places
as Landlord in its sole discretion deems commercially reasonable following
reasonable notice to Tenant of the time and place of such sale. The proceeds of
any such sale shall be applied first to the payment of the expenses for removal
and storage of the property, preparation for and conducting such sale, and
attorneys' fees and other legal expenses incurred by Landlord in connection
therewith, and the balance shall be applied as provided in subsection (a) above.
Tenant hereby waives all claims for damages
that may be caused by Landlord's reentering and taking possession of the
Premises or removing and storing Tenant's personal property pursuant to this
Paragraph, and Tenant shall hold Landlord harmless from and against any lose,
cost or damage resulting from any such act. No reentry by Landlord shall
constitute or be construed as a forcible entry by Landlord.
(d) Landlord may cure the Event of Default at
Tenant's expense. If Landlord pays any sum or incurs any expense in curing the
Event of Default, Tenant shall reimburse Landlord upon demand for the amount of
such payment or expense with interest at the Default Rate from the date the sun
is paid or the expense is incurred until Landlord is reimbursed by Tenant.
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18.3 LATE CHARGES. Tenant hereby acknowledges that late
payment by Tenant to Landlord of Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges. Accordingly, if any installment of Base Rent or
operating costs Payments is not received by Landlord or Landlord's designee
within five (5) days after notice that such amount is past due, or if any
installment of other Rent is not received by Landlord or Landlord's designee on
or before the date such amount shall be dues, Tenant shall pay to Landlord a
late charge equal to seven percent (7%) of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount nor prevent Landlord from exercising
any of the other rights and remedies granted hereunder. Notwithstanding the
foregoing, Tenant shall be allowed two (2) grace periods per annum.
18.4 INTEREST. In addition to the late charges referred to
above which are intended to defray Landlord's costs resulting from late
payments, any late payment of Rent shall, at Landlord's options, bear interest
from the due date of any such payment to the date the same in paid at the
Default Rate, provided, however, that if Landlord imposes a late charge on any
overdue payment, such overdue payment shall not begin to bear interest under
this Paragraph 18.4 until thirty (30) days after the due date thereof.
18.5 DEFAULT BY LANDLORD. Landlord shall not be in default
unless Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no event later than thirty (30) days after written
notice by Tenant to Landlord and to any Holder whose name and address shall have
theretofore been furnished to Tenant in writing,, specifying that Landlord has
failed to perform such obligations; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
19. PARKING
Tenant and Tenant's employees, invitees and customers shall
have the right to use the parking areas of the Building subject to such
regulations and charges as Landlord shall adopt from time to time, and subject
to the right of Landlord to restrict the use by Tenant and Tenant's
Representatives when in the sale judgment of Landlord such use is excessive for
the parking area in relationship to the reasonable use required by other
Tenants. Tenant will be allocated four (4) parking stalls free of charge for
every 1,000 rentable square feet contained in the Leased Premises.
20. RELOCATION PREMISES
(Intentionally Deleted)
21. MORTGAGEE PROTECTION.
Tenant agrees to give any Holder, by registered mail, a copy
of any notice of default served upon the Landlord, provided that prior to such
notice Tenant has been notified in
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writing (by way of notice of assignment of rents and Lease or otherwise) of the
address of such Holder. If Landlord shall have failed to cure such default
within the time period act forth in Paragraph 18.5 the Holder shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that rime, then such additional time as may be necessary
to cure such default (including the time necessary to foreclose or otherwise
terminate its Encumbrance, if necessary to affect such cure), and this Lease
shall not be terminated so long as such remedies are being diligently pursued.
22. ESTOPPEL CERTIFICATES
(a) Upon ten (10) days' notice from Landlord, Tenant shall
execute and deliver to Landlord, in form provided by or reasonably satisfactory
to Landlord, a certificate stating whether this Lease is in full force and
effect, describing any amendments or modifications hereto, acknowledging that
this Lease is subordinate or prior, as the case say be, to any Encumbrance and
stating any other information Landlord may reasonably request. including the
term of this Lease, the monthly Base Rent, the estimated Operating Cost
Payments, the date to which Rent has been paid, the amount of any security
deposit or prepaid Rent, whether either party hereto is in default under the
terms of the Lease, whether Landlord has completed its construction obligations
hereunder and any other information reasonably requested by Landlord. Any person
or entity purchasing, acquiring an interest in or extending financing with
respect to the Project shall be entitled to rely upon any such certificate.
Tenant shall be liable to Landlord for any damages incurred by Landlord
including any profits or other benefits from any financing of the Project or any
interest therein which are lost or made unavailable as a result, directly or
indirectly, of Tenant's failure or refusal to timely execute or deliver such
estoppel certificates.
(b) Tenant's failure to deliver such statement within such
time shall be conclusive upon Tenant:
(1) That this Lease is in full force and affect,
without modification except as may be represented by Landlord;
(2) That there are no uncured defaults in Landlord's
performance; and
(3) That not more than one month's Rent has been paid
in advance; and
(4) That Landlord has completed its construction
obligations.
(c) If Landlord desires to finance or refinance the Building,
or any part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord a true copy of its financial statements as contained in Tenant's annual
report to its shareholders.
23. SURRENDER, HOLDING OVER.
23.1 SURRENDER. Upon the expiration or termination of this
Lease, Tenant shall surrender the Premises to Landlord in its original
condition, except for reasonable wear and tear and damage from casualty, the
elements or condemnation; provided, however, that prior to the expiration or
termination of this Lease Tenant shall remove from the Premises all Tenant's
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personal property, trade fixtures, alterations and other Above-Standard
Improvements that Tenant has the right or is required by Landlord to remove
under the provisions of this Lease. If any of such removal is not completed at
the expiration or termination of this Lease, Landlord may remove the same at
Tenant's expense. Any damage to the Premises or the Building caused by such
removal shall be repaired promptly by Tenant or, if Tenant fails to do so,
Landlord may do so at Tenant's expense, in which event Tenant shall immediately
reimburse Landlord for such expenses together with interest at the Default rate
until so paid. Tenant's obligations under this paragraph shall survive the
expiration or termination of this Lease. Upon expiration or termination of this
Lease or of Tenant's possession, Tenant shall surrender all keys to the Premises
or any other part of the building and shall make known to Landlord the
combination of locks, on all safes, cabinets and vaults that may be located in
the Premises.
23.2 HOLDING OVER. If Tenant remains in possession of the
Premises after the expiration or termination of this Lease, Tenant's continued
possession shall be on the basis of a tenancy at the sufferance of Landlord, and
Tenant shall continue to comply with or perform all the terms and obligations of
the Tenant under this Lease, except that the Base Rent during Tenant's holding
ever shall be one hundred twenty-five percent (125%) of the monthly Base Rent
payable in the last month prior to the termination or expiration hereof. Tenant
shall indemnity and hold Landlord harmless from and against all claims,
liability, damages, costs or expenses, including reasonable attorneys fees and
costs of defending the same, incurred by Landlord and arising directly or
indirectly from Tenant's failure to timely surrender the Premises, including (i)
any loss, cost, penalties, or damages, including lost profits, claimed by any
prospective tenant of the Premises, and (ii) Landlord's damages as a result of
such prospective tenant rescinding or refusing to enter into the prospective
lease of the Premises by reason of such failure to timely surrender the
Premises.
24. HAZARDOUS MATERIALS
24.1 TENANT'S INDEMNITY. Tenant shall not (either with or
without negligence) cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances or materials.
Tenant shall not allow the storage or use of such substances or materials in any
manner not sanctioned by law nor allow to be brought into the Project any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., any applicable state or local laws and the
regulations adopted under these acts. if any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Premises. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or materials
on the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Promises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the lease term.
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24.2 LANDLORD'S INDEMNITY. Landlord shall indemnify and hold
Tenant harmless with respect to claim of governmental agencies and any loss
resulting therefrom to the extent of any hazardous, toxic or infectious waste
deposited an or under the Premises prior to the commencement date of this Lease
(other than any conditions caused by Tenant during Early Possession).
25. MISCELLANEOUS
25.1 ATTORNMENT. Upon any transfer by Landlord of Landlord's
interest in the Promises or the Building (other than a transfer for security
purposes only), Tenant agrees to attorn to any transferee or assignee of
Landlord.
25.2 CAPTIONS; ATTACHMENTS; DEFINED TERMS
(a) The captions of the paragraphs of this Lease are
for convenience only and shall not be deemed to be relevant in resolving any
question of interpretation or construction of any paragraph of this Lease. The
provisions of this Lease shall be construed in accordance with the fair meaning
of the language used and shall not be strictly construed against either party.
When required by the contents of this Lease, the singular includes the plural.
Wherever the tarn "including" is used in this Lease, it shall be interpreted as
meaning "including, but not limited to," the matter or matters thereafter
enumerated.
(b) Exhibits attached hereto, and addenda and
schedules initialed by the parties, are deemed to constitute part of this Lease
and are incorporated herein.
(c) The words "Landlord" and "Tenant" as used herein,
shall include the plural as well as the singular. Words used in neuter gender
include the masculine and feminine and words in the masculine or feminine gender
include the neuter. The obligations of this Lease as to a Tenant which consists
of husband and wife shall extend individually to their sole and separate
property as well as community property.
25.3 ENTIRE AGREEMENT. This Lease along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and Tenant
relative to the Premises, and this Lease and the exhibits and attachments may be
altered,, amended or revoked only by instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents or
representatives relative to the leasing of the Premises are merged in or revoked
by this Lease.
25.4 SEVERABILITY. If any term or provision of this Lease
shall,, to any extent, be determined by a court of competent jurisdiction to be
invalid or unenforceable the remainder of this Lease shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforceable to the fullest extent permitted by law.
25.5 COSTS OF SUIT
(a) If Tenant or Landlord brings any action for the
enforcement. or interpretation of this Lease, including any suit by Landlord for
the recovery of Rent or
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possession of the Premises, the losing party shall pay
to the prevailing party a reasonable sum for attorneys' fees. The "prevailing
party" will be determined by the court before whom the action was brought based
upon an assessment of which party's major arguments or positions taken in the
suit or proceeding could fairly be said to have prevailed over the other party's
major arguments or positions on major disputed issues in the court's decision.
(b) Should Landlord, without fault on Landlord's
part, be made a party to any litigation instituted by Tenant or by any third
party against Tenant, or by or against any person holding under or using the
Premises by license of Tenant, or for the foreclosure of any lion for labor or
material furnished to or for Tenant or any such other person or otherwise
arising out of or resulting from any act or transaction of Tenant or of any such
other person, Tenant covenants to save and hold Landlord harmless from any
judgment rendered against Landlord or the Premises or any part thereof, and all
costs and expenses, including reasonable attorneys' fees, incurred by Landlord
in or in connection with such litigation.
25.6 TIME; JOINT AND SEVERAL LIABILITY. Time is of the essence
of this Lease and each and every provision hereof, except as to the conditions
relating to the delivery of possession of the Premises to Tenant. All the terms,
covenants and conditions contained in this Lease to be performed by either
party, if such party shall consist of more than one person or organization,
shall be domed to be joint and several, and all rights and remedies of the
parties shall be cumulative and nonexclusive of any other remedy at law or in
equity.
25.7 BINDING EFFECT; CHOICE OF LAW. The parties hereto agree
that all provisions hereof are to be construed as both covenants and conditions
an though the words imparting such covenants and conditions were used in each
separate paragraph hereof. Subject to any provisions hereof restricting
assignment or subletting by Tenants all of the provisions hereof shall bind and
inure to the benefit or the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California.
25.8 WAIVER. No covenant, term or condition or the breach
thereof shall be deemed waived, except by written consent of the party against
whom the waiver is claimed, and any waiver or breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term or condition. Acceptance by
Landlord of any performance by Tenant after the time the same shall have become
due shall not constitute a waiver by Landlord of the breach or default of any
covenant, term or condition unless otherwise expressly agreed to by Landlord in
writing.
25.9 FORCE MAJEURE. In the event either Landlord or Tenant is
delayed, interrupted or prevented from performing any of its obligations under
this Lease (financial inability excepted), including its obligations under the
Work Letter,, and such delay, interruption or prevention Js due to fire, act of
God, governmental act, strike, labor dispute, unavailability of materials or any
other cause outside the reasonable control of such party, then the time for
performance of the affected obligations of such party shall be extended for a
period equivalent to the period of such delay, interruption or prevention.
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23.10 LANDLORD'S LIABILITY; CONSEQUENTIAL DAMAGES. The term
Landlord, as used in this Lease, shall mean only the owner or owners of the
Project at the time in question. Notwithstanding any other term or provision of
this Lease, the liability of Landlord for its obligations under this Lease is
limited solely to Landlord's interest in the Project as the same may from time
to time be encumbered, however, Landlord covenants to maintain throughout the
term of this Lease a net worth of at least one Million Dollars ($1,000,000.00)
in the Project, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's
stockholders, directors, officers or partners an account of any of Landlord's
obligations or actions under this Lease. In the event of any conveyance of title
to the Building or the Project, then from and after the date of such conveyance,
Landlord shall be relieved of all liability with respect to Landlord's
obligations to be performed under this Lease after the date of such conveyance.
Upon any conveyance of title to the Building or the Project, the grantee or
transferee, by accepting such conveyance,, shall be deemed to have assumed
Landlord's obligations to be performed under this Lease from and after the date
of transfer, subject to the limitations an liability set forth above in this
Paragraph 24.10. In no event will either Landlord or Tenant be liable to the
other under this Lease for consequential or indirect damages or lose of profits,
except as provided under Sections 6, 16, 22, 23 and 24.
25.11 CONSENTS AND APPROVALS. Wherever the consent,, approval,
judgment or determination of Landlord is required or permitted under this Lease,
Landlord may exercise its good faith business judgment in granting or
withholding such consent or approval or in making such judgment or determination
without reference to any extrinsic standard of reasonableness, unless the
provision providing for such consent, approval, judgment or determination
specifies that Landlord's consent or approval in not to be unreasonably
withheld,, or that such judgment or determination is to be reasonable, or
otherwise specifies the standards under which Landlord may withhold its consent.
if it is determined that Landlord failed to give its consent where it was
required to do so under this Lease, Tenant shall be entitled to specific
performance but not to monetary damages for such failure,, unless Landlord
withhold its consent maliciously and in bad faith.
The review and/or approval by Landlord of any item to
be reviewed or approved by Landlord under the terms of this Lease or any
Exhibits hereto shall not impose upon Landlord any liability for accuracy or
sufficiency of any such item or the quality or suitability of such item for its
intended use. Any such review or approval is for the sole purpose of protecting
Landlord's interest in the Project under this Lease,, and no third parties,
including Tenant or Tenant's Representatives or any person or entity claiming
by, through or under Tenant, shall have any rights hereunder.
25.12 SIGNS. Tenant shall not place or permit to be placed in
or upon the Premises where visible from outside the Premises or any part of the
Building, any signs, notices, drapes, shutters, blinds or displays of any type
without the prior consent of Landlord. Landlord shall include Tenant in the
Building directories located in the Building, and Tenant. shall be granted
identity on the Building monument. Landlord reserves the right in Landlord's
sole discretion to place and locate on the roof, exterior of the Building, and
in any area of the Building not leased to Tenant such signs, notices, displays
and similar items an Landlord deems appropriate in the proper operation of the
Building.
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25.13 RULES AND REGULATIONS. Tenant and Tenant's
Representatives shall observe and comply fully and faithfully with all
reasonable and nondiscriminatory rules and regulations adopted by Landlord for
the care, protection,, cleanliness and operation of the Building and its tenants
including those annexed to this Lease as Exhibit D and any reasonable
modifications or additions thereto adopted by Landlord, provided Landlord shall
give written notice thereof to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance by any other tenant or occupant of the Building of
any of said rules and regulations; however, Landlord agrees to use reasonable
efforts to enforce compliance on all tenants of the Building with respect to
rules and regulations.
25.14 NOTICES. All notices or demands of any kind required or
desired to be given by Landlord or Tenant hereunder shall be in writing and
shall be personally delivered, sent in the United States mail, certified or
registered, postage prepaid, or sent by private messenger, addressed to the
Landlord or Tenant respectively at the addresses set forth below:
Landlord: Tenant:
SDC 7 MONSANTO COMPANY
One Annabel Lane, Suite 201 Director, Real Estate Program
P.O. Box 640 800 North Lindbergh Blvd.
San Ramon, CA 94583 St. Louis, MO 63167
and
MONSANTO COMPANY
c/o THE SOLARIS GROUP
Suite 200, BR7
Attn: Company Counsel
or such other address an shall be established by notice to the other pursuant to
this paragraph. Notices personally delivered or delivered by private messenger
shall be deemed delivered when received at the address for such party designated
pursuant to this paragraph. Notices sent by mail shall be deemed delivered an
the earlier of the third business day following deposit thereof with the United
States Postal Service or the delivery date shown an the return receipt prepared
in connection therewith.
25.1.5 AUTHORITY. If Tenant is a corporation or a partnership,
each individual executing this Lease an behalf of Tenant represents and warrants
that Tenant is a duly organized and validly existing entity, the persons signing
on behalf of Tenant, are duly authorized to execute and deliver this Lease an
behalf of Tenant and this Lease is binding upon Tenant in accordance with its
terms. If Tenant is a corporation, Tenant, shall, within thirty (30) days after
execution of this lease, deliver to Landlord a certified copy of a resolution of
the board of directors of said corporation authorizing or ratifying the
execution of this Lease.
25.16 OPTION TO EXTEND TERM. Subject to the provisions of this
Section 25.16, Landlord hereby grants Tenant two (2) consecutive options (the
"First option to Extend" and
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"Second option to Extend," respectively and collectively and the "Options to
Extend") to extend the term of this Lease in each case by an additional period
of five (5) years (the "First Extension Term" and "second Extension Terms
respectively and collectively the "Extension Terms"). Tenant's notice of
election to exercise the First option to Extend must be given to Landlord no
less than nine (9) months prior to the expiration date of the initial Term.
Tenant's notice of election to exercise the Second Option to Extend must be
given to Landlord no less than nine (9) months prior to the expiration date of
the First Extension Term. Tenant's failure to notify Landlord of exercise of
either option to Extend within the time stated shall be a waiver of said option.
Tenant must exercise the Option with respect to all of the Premises as of the
commencement of the applicable Extension Term. References in this Lease to the
Term of the Lease shall be deemed to include the Extension Term(s) unless the
context clearly provides to the contrary.
(a) RENT. Base Rent during the Extension Terms shall
equal ninety-five percent (95%) of the Fair Market Rent prevailing as of the of
the applicable Extension Term, but in no event shall the rent be less than rent
Tenant is paying at the time it exercises the options. "Fair Market Rent" for
the Premises shall mean the monthly amount per square foot of rentable area that
a willing renewal tenant would pay for unencumbered space,, and that a willing
landlord would accept from a renewal tenant, for comparable space on comparable
lease terms (including parking rights) in comparable Class A buildings in the
Cities of Walnut Creek, San Ramon, and Pleasanton, California, and taking into
account such factors as the location of the Building, the size of the Building,
the quality and age of the Building and tenant improvements in the Premises and
the comparison buildings and premises, the floor level of the Premises and the
comparison premises, the term of the Extension Term and the comparison leases,
and the date the comparable renewal rates became or will become effective.
(b) TERMS AND CONDITIONS. During any Extension Term,
all of the terms, covenants and conditions of this Lease shall apply without
change, except (i) the Basic Rent for the Promises shall be determined in the
manner set forth in this Section, and (ii) there shall be no further options to
extend beyond the Second Extension Term.
(c) FAIR MARKET RENT DETERMINATION. Fair Market Rent
for the Extension Term shall be determined as follows:
(1) Landlord shall notify Tenant of its
initial proposal of Fair Market Rent for the Premises for the Extension Term not
less than thirty (30) days after receipt of Tenant's Extension Notice. Within
thirty (30) days after receipt of Landlord's notice, Tenant shall notify
Landlord in writing either that (1) Tenant accepts Landlord's proposal of Fair
Market Rent or (ii) Tenant wishes to negotiate Fair Market Rent for the
Extension Term. If Tenant does nor. give Landlord any notice within said Thirty
(30) day period, Landlord's proposal of Fair Market Rent for the Extension Term
shall be binding upon Tenant. If Tenant elects to negotiate Fair Market Rent,
Landlord and Tenant shall negotiate in good faith in an attempt to determine
Fair Market Rent for the Extension Term. If Landlord and Tenant are able to
agree within twenty (20) days after the date of Tenant notice to Landlord (or if
Tenant accepts Landlord's initial proposal), then the amount determined shall
constitute a determination of Fair market Rent for purposes of this Section, and
the parties shall immediately execute an amendment to this Lease stating the
Basic Rent for the Extension Term.
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(2) If Landlord and Tenant are unable to
agree within twenty (20) days after the date of Tenant's notice to Landlord,
Tenant will within fifteen (15) days thereafter at its election in writing to
Landlord allow the lease expire or elect to pursue binding arbitration, with
twenty (20) days after Tenant's election, the parties shall each appoint as an
arbitrator a real estate appraiser who shall be a member of the American
Institute of Real Estate Appraisers (or its successor organization) with at
least ton (10) years experience in appraising of office properties and leasehold
interests therein, including at least five (5) years experience with the markets
in the Cities of Walnut Creek, San Ramon and Pleasanton, California. If either
Landlord or Tenant shall fail timely to appoint an arbitrator, the other may
apply to the San Francisco office of the American Arbitration Association (the
"AAA" for such appointment of such arbitrator fifteen (15) days after notice
that such arbitrator has not been appointed. The two arbitrators shall attempt
to agree on the Fair Market Rent. If they fail to agree within ten (10) days,
the two arbitrators shall within twenty (20) days after appointment of the
second arbitrator, appoint an independent third arbitrator who shall be
similarly qualified. if the two arbitrators are unable to agree timely on the
selection of the third arbitrator, then either arbitrator on behalf of both may
request such appointment from the San Francisco office of the AAA. The two
arbitrators selected by the parties shall independently determine and submit to
the third arbitrator a written determination of the Fair Market Rent for the
Premises, supported by the reasons therefor. The third arbitrator shall select
the determination of either Landlord's arbitrator or Tenant's arbitrator as the
Fair Market Rent. The role of the third arbitrator shall be limited solely to
the issue of whether the determination of Landlord's arbitrator or Tenant's
arbitrator is closest to the actual Fair Market Rent and shall have no right to
propose a middle ground or to modify either of the two determinations or the
provisions of this Lease. The decision of the third arbitrator shall be binding
upon Landlord and Tenant. The cost of the arbitration (exclusive of each party's
witness and attorneys' fees, which shall be paid by such party) shall be borne
equally by the parties.
(d) OPTIONS ARE PERSONAL. Except as permitted in
Section 15.9, the options to extend granted herein are personal to the original
Tenant executing this Lease, and notwithstanding anything to the contrary
contained in the Lease, the rights contained in this Addendum are not assignable
or transferable by such original Tenant. Landlord grants the rights contained
herein to Tenant in consideration of Tenant's strict compliance with the
provision hereof , including, without limitation, the manner of exercise of this
option.
25.17 RIGHT OF FIRST REFUSAL. Landlord hereby grants Tenant an
ongoing Right of First Refusal for any space offered to lease as shown an the
attached Exhibit H. Landlord will of far Tenant its Right of First Refusal as
space becomes available during the initial term of the Lease. In order for
Tenant to exercise its Right of First Refusal, Tenant must provide Landlord with
notice of its intent to exercise such Right of First Refusal in writing within
five (5) business days from receipt of notice from Landlord of Landlord's intent
to Lease such Right of First Refusal space. The terms and conditions of the
Right of First Refusal space shall be those as offered and accepted by Landlord
and to a bona fide third party tenant. If Tenant does not exercise its Right of
First Refusal within the aforementioned time period, Tenant shall be deemed to
have passed on its Right of First Refusal.
25.18 BROKER. Landlord and Tenant each represents to the other
that it has not had dealings with any real estate broker, finder, or other
person, with respect. to this Lease and
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transaction in any manner except Cushman & Wakefield of California, Inc.
Landlord shall pay any commissions or fees that are payable to the above-named
broker with respect to this Lease and transaction. Each party shall hold the
other party harmless from all costs and damages resulting from any claim that
may be asserted against the indemnified party by any broker, finder, or other
person with whom the indemnifying party has dealt. Landlord and Tenant have
executed this Lease on the date and year set forth at the beginning of this
Lease.
Landlord: Tenant:
SDC 7, MONSANTO COMPANY
a California Partnership a Delaware corporation
By: __________________________ By: ___________________________
General Partner President, The Agricultural
Group, an operating unit
of Monsanto Company
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EXHIBIT - B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF _____________________, 1993
BETWEEN
SDC 7, AS LANDLORD,
AND
MONSANTO COMPANY DBA THE SOLARIS GROUP, A DIVISION OF
THE AGRICULTURAL GROUP OF MONSANTO COMPANY,
A DELAWARE CORPORATION, AS TENANT ("LEASE")
WORK LETTER
1. SUITE IMPROVEMENTS. Landlord shall with reasonable diligence
construct and install in the Premises the improvements and fixtures provided
for in this Construction Rider ("Suite Improvements"). Improvements
consisting of the type and materials described an Schedule 1 attached to this
Construction Rider are referred to herein as "Building Standard Materials".
All Suite Improvements above "Building Shell" (as described in schedule 1)
that utilize materials in addition to, substitution for or modification of
the Building standard Materials are called herein "Above-Standard Suite
Improvements".
1.1. PLANS. Interform has been retained by Tenant as the space
planner for the Premises.
The Space Planner will prepare and deliver to Landlord for
its approval detailed plans and specifications sufficient to permit the
construction of the Suite Improvements by Landlord's contractor
("Construction Documents"). Landlord will provide Tenant and Space Planner
with any changes it requires to the Construction Documents. The Space Planner
will then revise the Construction Documents and resubmit them to Landlord for
its approval. The revised Construction Documents as approved by Landlord are
herein called the "Final Construction Documents." In all events Landlord must
have received Final Construction Documents, excluding finishes, cabinetry
details, sections and elevations, on or before August 31, 1993. The finishes,
cabinetry details, sections and elevations will be submitted no later than
September 7, 1993.
If Tenant fails to cause the Space Planner to deliver any of
the foregoing items within the time periods provided above, or if Landlord
has not received Final Construction Documents and finishes, cabinetry
details, sections and elevations on or before the date set forth above,
Landlord may proceed to install Building Standard Materials in the Premises.
If Landlord does not elect to proceed with Building Standard Materials,
Tenant shall be responsible for all additional costs and delays arising from
its failure to so approve such items, as provided in Paragraph 1.4 below.
1.2. CONSTRUCTION. Upon Landlord's receipt of the Final
Construction Documents, Landlord shall proceed with reasonable diligence to
cause the Suite Improvements to be Substantially Completed on or prior to the
Scheduled Commencement Date. The Suite Improvements shall be deemed to be
"Substantially Completed" when they have been completed in accordance with.
the Final Construction Documents except for finishing details minor
omissions, decorations and mechanical adjustments of the type
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normally found on an architectural "punch list". (The definition of
Substantially Completed shall also define the terms "Substantial Completion" and
"Substantially Complete.")
1.3. COST OF SUITE IMPROVEMENTS. See Section 1 of Building
Lease entitled PREMISES.
1.4. TENANT DELAYS. Tenant shall be responsible for, and shall pay
to Landlord, any and all costs and expenses incurred by Landlord in
connection with any delay in the commencement or completion of any Suite
Improvements and any increase in the cost of Suite Improvements (whether or
not, Above-Standard) caused by (i) Tenant's failure to cause the Space
Planner to deliver the item described above within the rise periods required
above, (ii) the failure of Landlord to receive Final Construction Documents,
finishes, cabinetry details, sections and elevations on or before the dates
set forth above, (iii) Above-Standard Suite Improvements requested by Tenant,
(iv) any changes or modifications in the work requested by Tenant following
approval of the Final Construction Documents (v) Tenant's early entry onto
the Premises as described in Paragraph 3 hereof, or (vi) any other delay
requested or caused by Tenant (collectively, ".Tenant Delays").
Notwithstanding the foregoing, no Tenant Delay shall be deemed to have
occurred unless and until Landlord gives writ-ten notice to Tenant specifying
the action, inaction or occurrence constituting the Tenant Delay and the
number of days of such Tenant Delay ("Tenant Delay Notice"). Failure of
Tenant to deliver signed and approved Construction Documents to Landlord by
August 31, 1993, and or signed and approved drawings with finishes, cabinetry
details and sections on or before September 7, 1993, shall not require from
Landlord written notice, but shall automatically be considered a Tenant
Delay, and the number of days of such Tenant Delay shall equal the number of
days after August 31, 1993 and September 7, 1993, to and including the date
the signed and approved Construction Documents are given to Landlord.
2. COMMENCEMENT OF TERM . Upon Substantial Completion of the Suite
Improvements, Landlord shall deliver possession of the Premises to Tenant. If
any delays in Substantial Completion of the Suite Improvements are attributable
to Tenant Delays, Landlord will be deemed to have delivered the Premises and the
Commencement Date shall occur on the date on which Landlord would have
Substantially Completed the Premises and tendered the Premises to Tenant if
Substantial Completion had not been delayed by the number of days specified in
any and all Tenant Delay Notices given by Landlord, as described in Paragraph
1.4.
3. ACCESS TO PREMISES. Landlord, at its discretion, may allow Tenant or
Tenant's Representatives to enter the Premises prior to the Commencement Date to
permit Tenant to make the Premises ready for its use and occupancy; provided,
however, that prior to such entry of the Premises, Tenant shall provide evidence
reasonably satisfactory to Landlord that Tenant's insurance, as described in
Paragraph 12 of the Lease, shall be in effect as of the time of such entry. Such
permission may be revoked at any time upon twenty-four (24) hours notice, and
Tenant or its Representatives shall not interfere with Landlord or Landlord's
contractor in completing the Building or the Suite improvements. Tenant agrees
that Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's property placed upon or installed in the
Premises prior to the Commencement Date, the same being at Tenant's sale risk,
and Tenant shall be liable for all injury, loss or damage to persons or property
arising as a result of such entry of the Premises by Tenant or its
Representatives.
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4. OWNERSHIP OF SUITE IMPROVEMENTS. All Suite Improvements, whether or
not Above-Standard, and whether installed by Landlord or Tenant, shall become a
part of the Premises, shall be the Property of Landlord and, unless Landlord
elects otherwise as provided in the Lease, shall be surrendered by Tenant with
the Premises, without any compensation to Tenant, at the expiration or
termination of the Lease.
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SCHEDULE 1 TO EXHIBIT B
BUILDING SHELL
* All core areas, elevator lobbies and restrooms complete.
* Main HVAC loop in place ready to receive mixing boxes for zoning.
* Main fire sprinkler risers and grid in place ready for drop down.
* All perimeter walls sheetrocked and ready for finish.
* Upper floors covered with 3-1/2 inch concrete.
* Electrical service to closets on floor.
* Telephone outlet/conduit to closets on floor.
BUILDING STANDARD MATERIALS
ELECTRICAL
* Day Bright 244 light fixtures with energy conserving ballasts and
lamps; per Title 24 requirements.
* Double switching in individual offices.
* One duplex 110 receptacle at each work station.
* One telephone outlet at each work station.
HVAC
* One zone per 800 usable square feet.
* Individual pneumatic thermostats per 800 usable square feet.
FIRE SPRINKLERS
* One 160 degree rate, semi-recessed sprinkler head per 144 usable square
feet.
PARTITIONS AND- DOORS
* 5/8-inch drywall on 2-1/2 inch steel studs with smooth finish.
* Solid core oak doors 36" " 96".
* Aluminum door jambs.
* Schlage door latches or equal.
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PAINT
* Kelly Moore or equal.
RATED CEILING ASSEMBLY
* USG: Aurora Reveal Tile.
CARPET, TILE AND BASE
* Carpet: 34 oz. Monterey.
* Armstrong Imperial Modern Excelon Tile or equal.
* 3/8 inch nylon composition pad.
* 4 inch rubber top set base or equal.
WINDOW COVERING
* Mini Blinds.
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EXHIBIT C - SPACE PLAN
TO BE PROVIDED
<PAGE>
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed,, displayed, printed, fixed or otherwise displayed by Tenant on or to
any part of the outside or inside of the Building or the Premises without the
prior written consent of Landlord and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. All approved signs or lettering on doors shall be
printed, painted, affixed or inscribed at the expense of Tenant by a person
approved by Landlord. Tenant shall not place anything or allow anything to be
placed. near the glass of any window, door, partition or wall which may appear
unsightly from our-side the Premises; provided, however that Tenant may request
Landlord to furnish and install a building standard window covering at all
exterior windows at Tenant's cost. Tenant shall nor. install any radio or
television antenna, load speaker, or other device an or about the roof area or
exterior walls of the Building.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by it for any' purpose other
than for ingress to and egress from the Premises. The halls, passages, exits,
entrances, elevators, stairways, balconies and roof are not for the use of the
general public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the judgment of the
Landlord shall be prejudicial to the safety, character, reputation and interests
of the Building and its tenants, provided that nothing herein contained shall be
construed to prevent, such access to the common areas by parsons with whom
Tenant normally deals in the ordinary course of its business unless such persons
are engaged in illegal activities. In no event, may Tenant go upon the roof of
the Building.
3. Landlord will furnish Tenant with ________ keys to the Promises,
free of charge. Additional keys shall be obtained only from Landlord and
Landlord may make a reasonable charge for such additional keys. The additional
locking devices shall be installed in the Premises by Tenant, nor shall any
locking devices be changed or altered in any respect without the prior written
consent of Landlord, which consent- shall not be unreasonably withheld. All
locks installed in the Premises excluding Tenant's vaults and safes, or special
security areas (which shall be designated by Tenant in a written notice to
Landlord), shall be keyed to the Building master key system. Landlord may make
reasonable charge for any additional lock or any bolt (including labor)
installed on any door of the Premises. Tenant, upon the termination of its
tenancy, shall deliver to Landlord all keys to doors in the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be deposited therein and Tenant
shall bear the expense of any breakage, stoppage or damage resulting from its
violation of this rule.
5. Tenant shall not overload the floor of the Premises or mark, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. No boring, cutting or stringing of
wires or laying of linoleum or other similar floor coverings or installation of
wallpaper or paint shall be permitted except with the prior written consent of
the Landlord and as the Landlord may direct.
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6. Tenant may use the freight elevators in accordance with such
reasonable scheduling as Landlord shall deem appropriate. Tenant shall schedule
with Landlord, by written notice given no less than forty-eight (48) hours in
advance, its move into or out of the Building which moving shall occur after
5:00 p.m. or on weekend days if required by Landlord; and Tenant shall reimburse
Landlord upon demand for any additional security or other charges incurred by
Landlord as a consequence of such moving. The persons employed by Tenant to move
equipment or other items in or out of the Building must be acceptable to
Landlord. The floors, corners and walls of elevators and corridors used for
moving of equipment or other item in or out of the Project must be adequately
covered, padded and protected and, Landlord may provide such padding and
protection at Tenant's expense if Landlord determines that such measures
undertaken by Tenant or Tenant's movers are inadequate. Landlord shall have the
right to prescribe the weight, size and position of all safes and other heavy
equipment or furnishings brought into the Building and also the times and manner
of moving the same in or out of the Building. safes or other heavy objects
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to properly distribute the weight-Landlord will not be
responsible for lose of or damage to any such safe or property from any cause
and all damage done to the Building by moving or maintaining any such safe or
other property shall be repaired at the expense of Tenant. There shall not be
used in any space, or in the public halls of the Building, either by any Tenant
or others, any hand trucks except chose equipped with rubber tires and side
guards.
7. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
by Landlord in writing. Except with the written consent, of Landlord, no person
or persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of Tenant by the janitor or any
other employee or any other person Janitor service will not. be furnished on
nights when rooms are occupied after 9:30 p.m. Window cleaning shall be done
only by Landlord.
8. Tenant shall not use or keep in the Promises or the Building any
kerosene, gasoline or flammable, combustible or noxious fluid or material, or
use any method of hearing or air conditioning other than that supplied by
Landlord. Tenant shall not use, ]coup or permit or suffer the Promises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Promises or the
Building. Tenant shall not make or permit, to be made any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring Buildings
or promises or those having business with them whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way.
9. The Premises shall not be used for the storage of merchandise except
as such storage may be incidental cc the use of the Premises for general office
purposes. Tenant shall not occupy or permit any portion Of the promises cc be
occupied for the manufacture or sale of liquor, narcotics, or tobacco in any
form. The promises shall nor- be used for lodging or sleeping or for any illegal
purposes. No cooking shall be done or permitted by Tenant on the Premises,
except that use by Tenant of underwriters' Laboratory approved portable
equipment
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for brewing coffee, can and similar beverages and of microwave ovens approved by
Landlord shall be permitted provided that such use is in accordance with all
applicable federal, state and local laws, codes, ordinances, rules and
regulations.
[missing page here]
Tenant's employees leave the Building, and that all electricity shall likewise
be carefully shut off, so as to prevent waste or damage and for any default or
carelessness Tenant shall make good all injuries sustained by other tenants or
occupants of the building or Landlord. On multiple-tenancy floors, all tenants
shall keep the doors to the Building corridors closed at all times except for
ingress and egress, and all tenants shall at all times comply with any rules and
orders of the fire department with respect to ingress and egress.
15. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the rules and regulations of the Building.
16. Landlord shall attend to the requests of Tenant after notice
thereof from Tenant by telephone, in writing or in person at the office of the
Landlord. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from the
Landlord.
17. "Intentionally Deleted"
18. Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time-to-time by Landlord and Tenant also
shall provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security regulations
19. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of those Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the Project.
20. Canvassing, soliciting, paddling or distribution of handbills or
other written material in the Building and Project is prohibited and Tenant
shall cooperate to prevent same.
21. Landlord reserves the right, with six (6) months prior notice to
Tenant, to (i) select the name of the Project and Building and to make such
change or changes of name, street address or suite numbers (if mandated by a
city, state or Federal Agency) as it may deem appropriate from time to time,
(ii) grant to anyone the exclusive right to conduct any business or render any
service in or to the Building and its tenants, provided such exclusive right
shall not operate to require Tenant to use or patronize such business or service
or to exclude Tenant, from its use of Premises expressly permitted in the Lease,
and (iii) reduce, increase, enclose or otherwise change at any time and from
time to time the size, number, location, lay-out and nature of the common areas
and facilities and other tenancies and premises in the Project and to create
additional rentable areas through use or enclosure of common areas if mandated
by a city, state or federal agency. Tenant shall not refer to the Project by any
name other than the name as selected by Landlord (as same may be changed
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from time to time), or the postal address, approved by the United States Post
Office. Without the written consent of Landlord, Tenant shall not use the name
of the Building or Bishop Ranch Business Park in connection with or in promoting
or advertising the business of Tenant or in any respect except as Tenant's
address.
22. Tenant shall store all its trash and garbage within the Premises
until removal of same to such location in the Project. as may be designated from
time to time by Landlord. No material shall be placed in the Project trash boxes
or receptacle if such material is of such nature that it may not be disposed of
in the ordinary and customary manner of removing and disposing of trash and
garbage in the City of San Ramon without being in violation of any law or
ordinance governing such disposal.
23. Landlord shall furnish heating and air conditioning during the
hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, except for holidays. In
the event Tenant requires heating and air conditioning during off hours,
Saturdays, Sundays or holidays, Landlord shall on notice provide such services
at the rate established by Landlord from time-to-time. Landlord shall have the
right to control and operate the public portions of the Building and the public
facilities, and heating and air conditioning, as well as facilities furnished
for the common use of the Tenants, in such manner as it deems best for the
benefit of the Tenants generally.
24. The directory of the Building will be provided for the display of
the name and location of tenants and Landlord reserves the right to exclude any
other names therefrom. Any additional name that Tenant shall desire to place
upon the directory must first be approved by Landlord and, if so approved, a
charge will be made for each such name.
25. Except with the prior written consent of Landlord, Tenant shall not
sell, or permit the sale from the Premises of, or use or permit the use of arty
sidewalk or common area adjacent to the Promises for the sale of newspapers,
magazines, periodicals, theater tickets or any other goods, merchandise or
service, nor shall Tenant carry on,, or permit or allow any employee or other
person to carry on, business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building, nor shall the
Premises be used for manufacturing of any kind, or for any business or activity
other than that specifically provided for in Tenant's lease.
26. The word "Tenant" occurring in these Rules and Regulations shall
mean Tenant and Tenant's Representatives. The word "Landlord" occurring in these
Rules and Regulations shall mean Landlord's assigns, agents, clerks, employees
and visitors.
ACKNOWLEDGED AND ACCEPTED:
Landlord: Tenant
By: By:
------------------------------- -----------------------------------
Date: Date:
----------------------------- --------------------------------
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EXHIBIT E
JANITORIAL SPECIFICATIONS
The following specific janitorial services will be provided in accordance with
provisions of Paragraph 7.1, Landlord's obligations:
OFFICE AREAS (DAILY)
1. Empty all waste baskets and disposal cans, if liners used, replace as
necessary.
2. Spot dust, desks, chairs, file cabinets, counters and furniture.
3. Spot vacuum all carpets and walk-off mars; spot as necessary.
4. Sweep all hard surface floors with treated dust mop.
OFFICE AREAS (WEEKLY)
1. Vacuum carpets completely, including around base boards, etc.
2. Perform low dusting of furniture.
3. Dust window sills and ledges.
OFFICE AREAS (QUARTERLY)
1. Perform all high dusting of doors, sashes, moldings, etc.
2. Dust venetian blinds as needed.
OFFICE AREA CORRIDORS AND LOBBIES (DAILY SERVICE)
1. Vacuum carpets and dust mop any hard floors.
2. Spot clean carpets of all spillage.
3. Clean all thresholds.
OFFICE AM CORRIDORS AM LOBBIES (WEEKLY)
1. Perform all high dusting of doors, sashes, moldings, etc.
2. Vacuum and clean all coiling vents.
3. Polish any metal railings, placards, etc.
STAIRWAYS, (DAILY)
1. Sweep all hard surface steps.
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2. Dust banisters.
STAIRWAYS (WEEKLY)
1. Sweep all hard surfaces.
2. Spot mop all spills as needed.
RESTROOMS COMMON AREA (DAILY SERVICE)
1. Empty all waste containers and replace liners as needed.
2. Clean all metal, mirrors, and fixtures.
3. Sinks, toilet bowls and urinals are to be kept free of scale.
4. Clean all lavatory fixtures using disinfectant cleaners.
5. Wash and disinfect underside and tops of toilet seats.
6. Wipe down walls around urinals.
7. Refill soap, towel, and tissue dispensers.
8. Wet mop tile floors with disinfectant solution.
9. Refill sanitary napkin machines as necessary.
RESTROOMS COMMON AREA (WEEKLY)
1. Perform high dusting and vacuum vents.
2. Use germicidal solution in urinal traps, lavatory traps and floor
drains.
RESTROOMS COMMON AREA (MONTHLY)
1. Scrub floors with power machine.
2. Wash down all ceramic tile and toilet compartments.
ELEVATORS (DAILY)
1. Vacuum floors.
2. Clean thresholds.
3. Spot walls and polish surfaces-
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GENERAL
All glass entry doors to offices, corridors, or lunch rooms are to be cleaned as
necessary.
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EXHIBIT F
DOOR SIGN, DIRECTORY STRIP AND MAIL BOX REQUEST
1. I, the undersigned, hereby authorize Landlord to order one door sign of
( ) wood, ( ) vinyl, ( ) chrome. The business name on it shall be:
---------------------------------------------------------------------
2. The directory strip shall read:
---------------------------------------------------------------------
3. The mail box strip shall read:
---------------------------------------------------------------------
----------------------------------------------- ---------------
Signature Date
Street Address:
----------------------------
Street Number:
----------------------------
Complex:
----------------------------
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EXHIBIT G
COMMENCEMENT OF LEASE
It is hereby agreed to that (a) the "Commencement Date" under that certain Lease
dated _____________________ by and between SDC 7 as Landlord and Monsanto
Company dba The Solaris Group, division of The Agricultural Group at Monsanto
Company, a Delaware corporation as Tenant, covering Premises located at 2527
Camino Ramon, Suite 200, is _________________, 19___, (b) the "Expiration Date"
thereof is _________ P.M. on _______________________, 19___, and (c) Landlord
has completed all of its construction obligations under the Work Letter.
ACKNOWLEDGED AND ACCEPTED:
Landlord: Tenant:
By: By:
---------------------------------- ----------------------------------
Date: Date:
-------------------------------- --------------------------------
<PAGE>
Bishop Ranch 7, San Ramon
EXISTING INFRASTRUCTURE IN MONSANTO SPACE INCLUDES:
1) Security System - Y2K Compliant; includes latest upgrades; badge
readers throughout entire premises +/- 20 card readers throughout
space.
2) Cat 5 Wiring throughout entire office space. There are dual LAN drops
and dual Analog ports at each and every location. ISDN capable at any
port throughout the office space.
3) PBX Room. Modem technology includes existing racks and all cabling in
tact and operational to each workstation and office area.
4) Raised Floor Computer Room. Includes separate, 24 hour a day/7 day per
week air conditioning system, and Halon fire suppression system, which
has just been recharged.
5) Server Racks potentially available. Power conditioner/surge protection
in place and available. Uninterrupted Power Supply (UPS) system
operational and available.
<PAGE>
AGREEMENT AND RELEASE
This Agreement and Release ("Agreement") is entered into this 14th day
of December, 1999 ("Execution Date") by and between FiNet.com, Inc., a Delaware
corporation with principal offices located at 2527 Camino Ramon, Bishop Ranch 7,
San Ramon, CA 94583 ("Company") and Mark L. Korell, an individual residing at
2727 Deer Meadow Drive, Danville, CA 94956 ("Executive").
RECITALS:
WHEREAS, Company has employed Executive since October 13, 1998 in the
position of Chairman and Chief Executive Officer pursuant to a written
employment agreement effective as of that date and as amended ("Employment
Agreement"); and
WHEREAS, Executive now wishes to retire and Company and Executive
("Parties") wish to terminate the Employment Agreement and Executive's
employment in a mutually acceptable manner, without dispute and pursuant to the
following terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein, it is mutually agreed as follows:
AGREEMENTS
1. TERMINATION OF AGREEMENT AND EMPLOYMENT.
Executive hereby resigns his employment pursuant to retirement, and
Company accepts his resignation on that basis, effective January 15, 2000
("Retirement Date"). As of that date, Executive's employment and all positions
and assignments to and/or with the Company as well as all duties,
responsibilities and authorities with the Company, will terminate. The Parties
further mutually agree that as of the Execution Date, Executive is not expected
nor authorized to take any action on behalf of or otherwise to obligate the
Company in any manner, and that as of the Retirement Date, the Employment
Agreement is terminated and of no further force and effect, except for
provisions which by their meaning continue thereafter by their terms and/or
pursuant to the terms of this Agreement.
2. PAYMENTS.
(a) On or before the Retirement Date, the Company will
pay to Executive all accrued but unpaid salary, bonus, commissions, compensation
time, vacation, and unreimbursed business expenses through the Retirement Date.
(b) Effective upon the later of the Retirement Date and
the expiration of the Revocation Period as provided below ("Effective Date"),
the Company will pay to Executive, pursuant to its regularly scheduled payroll
periods for Executives in effect at the time, separation payments consisting of
the equivalent of six (6) months of his current base salary deemed to be
<PAGE>
the gross amount of $31,250 per month less necessary withholdings and
deductions ("Separation Payment"). The longer of the period of payments or
six months is deemed to be the severance period ("Severance Period"). All
portions of the Separation Payment will be made by Company check, mailed to
the address listed for Executive above, unless the Company is otherwise
instructed by Executive in writing. Executive specifically agrees and
acknowledges that the payments and other benefits provided for in this
Agreement exceed any amounts to which he is otherwise entitled pursuant to
the Employment Agreement, Company's policies, plans or procedures.
(c) Executive is eligible to continue his current health
coverage under the Company's group health plan, as it may be modified from time
to time, pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended ("COBRA"). Executive has indicated his
intention to continue such coverage and to pay the premiums required to maintain
such coverage. Company agrees to pay these premiums to maintain coverage for the
Executive for the Severance Period as is currently provided under its group
health insurance plan in effect at the time.
(d) During the Severance Period, all options previously
awarded to Executive will continue to vest as if he had remained employed during
this Period, and further, will remain exercisable for up to 90 days following
the expiration of the Severance Period. Company acknowledges that the 135,000
shares of Company common stock owned by Executive and the shares of Company
common stock issuable by Company upon exercise of stock options held by
Executive have been registered for sale pursuant to the Securities Act of 1933.
Company further acknowledges that following the Retirement Date Executive will
not be subject to the Company's Insider Trading Policy.
(e) The Parties agree that Executive will not remain
eligible to receive the Profit Bonus and FY 2000 Revenue Increase Bonus, as set
forth in the Employment Agreement, on a pro-rated or any other basis. The
Parties further agree that Executive is not eligible for payment of a FY Equity
Bonus, nor to receive any additional "True-Up" options to be calculated on the
basis of the sale of additional equity on or after the Retirement Date.
(f) In addition to any and all other acknowledgments
contained herein, Executive specifically acknowledges that, as of the Retirement
Date, and except as otherwise provided herein, he has received all salary,
bonus, vacation, commissions, compensation time, options, warrants, stock
grants, and/or other payments to which he is or may be entitled pursuant to law,
the Employment Agreement, or any other prior agreement or any of the Company's
policies or programs, and that he accrues no other benefits or entitlements on
or after the Retirement Date, including but not limited to vacation, except as
provided in this Agreement.
3. COMPANY PROPERTY.
On or before the Execution Date, Executive agrees to return all items
of Company property he had or over which he had control, including but not
limited to any equipment belonging to the Company, all code and computer
programs and information of whatever nature, as well as any other materials,
documents or information, including but not limited to confidential information
in his possession or control, and that he will retain no copies thereof,
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<PAGE>
except as may be required and as mutually agreed in order for Executive to
provide the services as set forth in Section 4 below.
4. ACKNOWLEDGEMENT AND RELEASE.
(a) In consideration of the promises and undertakings
contained herein, Executive, on behalf of himself, his marital community, heirs,
executors, administrators and assigns (herein collectively "Executive") on the
one hand and the Company (including any and all of its related and affiliated
entities, Executives, agents, attorneys, shareholders, affiliates, officers
and/or directors of any of them (herein collectively called "Associated
Persons") on the other hereby releases in full and discharges and acquits the
other from any and all claims, causes of action, liabilities, demands, damages,
penalties, debts, obligations, actions and causes of action ("Claims") whether
now known or unknown, arising on or before the date hereof and arising out of or
relating to Executive's employment with the Company or retirement or other
termination therefrom, EXCEPT that: (i) Executive shall retain all benefits, if
any, which shall have vested as of the Retirement Date under the Company's
401(k) Plan and he shall be entitled to receive such vested benefits under the
terms of the Plan; and further that (ii) Executive is not releasing, discharging
or acquitting the Company from any Claims arising under the express terms of
this Agreement. This release of claims specifically refers to and includes
rights or claims arising under the federal Age Discrimination in Employment Act
and any applicable provision of state law.
(b) Without limiting the generality of the foregoing, the
Claims released herein include any Claims arising out of, based upon or in any
way related to (i) the Employment Agreement, the negotiation of this Agreement,
and/or any other prior employment agreements, incentive agreements or benefits
or retirement plans; (ii) any property, contract or tort claims, including
wrongful discharge, breach of employment contract, breach of the covenant of
good faith and fair dealing, retaliation, intentional or negligent infliction of
emotional distress, tortious interference with existing or prospective economic
advantage, negligence, misrepresentation, breach of privacy, defamation, loss of
consortium, breach of fiduciary duty, violation of public policy or any other
common law claim of any kind; (iii) any violation or alleged violation of Title
VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, as amended, the Older Workers Benefit Protection Act of 1990,
the Equal Pay Act, as amended, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, the Americans With Disabilities Act, the Civil
Rights Act of 1866, the Consolidated Omnibus Budget Reconciliation Act, the
California Fair Employment and Housing Act, the California Family Rights Act,
the California Labor Code, the California Unemployment Insurance Code, or the
California Workers' Compensation Act; (iv) any claims for severance pay, bonus,
sick leave, vacation or holiday pay, life insurance, health, disability or
medical insurance or any other fringe benefit; and (v) any claim relating to or
arising under any other local, state or federal statute or regulation or
principle of common law (whether in contract or in tort) governing the
employment of individuals, discrimination in employment and/or the payment of
wages or benefits.
Executive understands that if any fact with respect to any matter
covered by this Agreement is found to be other than, or different from the facts
now believed by him to be true, he expressly accepts and assumes the risk of
such possible difference in facts and agree that this Agreement shall be, and
remain, in full force and effect notwithstanding such difference in fact.
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<PAGE>
Executive acknowledges and warrants that there are no claims or actions
currently filed or pending relating to the subject matter of this Agreement.
5. CONSULTATION.
Executive has twenty-one (21) days to consider whether to sign this
Agreement. If he signs this Agreement, he has the right to revoke the waiver and
release of claims under the Age Discrimination in Employment Act ("ADEA") within
seven (7) days of signing this Agreement, and the ADEA waiver and release will
not become effective or enforceable until that revocation period has expired.
Further, by signing this Agreement, Executive acknowledges that in exchange for
the release of claims, including the release under the ADEA, he will receive
benefits and money he would not otherwise be entitled to receive. Executive is
advised to consult an attorney before signing this Agreement. Should he exercise
his right to revoke the ADEA waiver within the seven-day period following his
signing this Agreement, he will not receive the payments described above in
Section 2.
6. GENERAL RELEASE.
The release set forth above is a general release and, except as
expressly provided herein, is intended to encompass all known and unknown,
foreseen and unforeseen claims which either party may have against the other,
including all Associated Persons up to and including the date of this Agreement.
It is further understood and agreed that Executive expressly waives all rights
under Section 1542 of the Civil Code of the State of California and any similar
law of any state or territory of the United States. Said section provides as
follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Notwithstanding the foregoing, the above release shall not apply to any
contractual, statutory or common law indemnification rights possessed by
Executive as an office or director or former officer or director of Company.
7. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
(a) Confidentiality of Agreement. The Parties,
specifically including all Associated Persons, specifically agree to keep the
fact and terms of this Agreement confidential. Executive agrees to discuss it
only with his attorney, advisors, accountant and immediate family. Company
agrees to discuss it only with officers, directors, or agents with a specific
need to know, and to specifically instruct such persons regarding the
obligations of this Agreement, including but not limited to the confidentiality
and non-disparagement provisions.
(b) Confidential and Proprietary Information. Executive
reiterates the confidentiality provisions of the Employment Agreement, and
agrees to forever hold in strictest confidence and trust all trade secrets and
confidential or proprietary information of any nature and in any form which is
treated as confidential by Company and which is not generally known to the
public, and will not disclose it except for legitimate Company purposes and with
the Company's express written consent. For these purposes, confidential
information means all
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<PAGE>
business information of whatever nature regarding the Company, its
Executives, directors, customers and suppliers; its procedures, business
methods, financial, personnel and salary information; and identities and all
other information regarding or otherwise related to its customers and
suppliers of goods and services, any or all of which information is not
otherwise generally known to the public at large.
(c) The Parties agree that the remedy at law for any
breach of the foregoing will be inadequate, and that either Party shall be
entitled to seek appropriate injunctive relief in addition to any remedy at law
in case of any breach of these provisions of this Section.
8. AGREEMENT NOT TO MALIGN.
(a) The Parties agree that neither they, nor any
authorized representative or agent, will make or publish, either verbally or in
writing, any statement or comment which could be reasonably interpreted to be
derogatory or injurious to either party or any Associated Person. The foregoing
notwithstanding, the Parties shall not be precluded from providing information
or making statements or comments to or before any regulatory or administrative
agency, governmental body or court of law when called upon to do so, which they
believe in good faith to be true and which might otherwise be deemed to violate
this section.
(b) The Parties agree to issue a press release promptly
following execution of this Agreement, or otherwise as mutually agreed,
materially similar to the language set forth in Attachment A. The Parties
specifically acknowledge that Attachment A has been negotiated between them and
is mutually acceptable and further, that any inquiries regarding Executive from
members of the press or from prospective employers will be referred exclusive to
Gary A. Palmer or Stephen Sogin, who will respond in a manner consistent with
the provisions of Attachment A.
9. AUTHORITY.
Both Parties warrant and represent that each has the sole right and
exclusive authority to execute this Agreement and Release, and that neither is
restricted in so doing.
10. REMEDIES.
(a) Any dispute or difference between the Parties in
connection with this Agreement shall be referred to non-binding mediation
pursuant to an established mediation service to be selected by agreement between
the Parties within ten (10) business days. The mediation shall be scheduled and
conducted as promptly as practicable, and the costs of mediation shall be borne
equally by the Parties. If the Parties cannot themselves agree on a mediator,
they shall each designate one person and those two designees in turn shall
select a mediator.
(b) If mediation does not resolve the matter, or if the
designees are unable to agree on a mediator, then either party shall submit the
controversy or claim, within 90 days, to final and binding arbitration in
accordance with the Federal Arbitration Act and the rules of the American
Arbitration Association ("AAA") then in effect, such arbitration to be conducted
in the
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<PAGE>
City and County of San Francisco, California. Attorney's fees and costs shall
be allocated by agreement in mediation or by the arbitrator in arbitration.
11. COMPLETE AGREEMENT.
This Agreement expresses the full and complete agreement between the
Parties regarding the subject matter hereof, and any modification of this
Agreement shall not be effective unless it is in a writing signed by all Parties
to this Agreement. No party has been or is being influenced to any extent or is
relying upon any representation, covenant or statement by any other person
unless set forth in this Agreement.
12. NO LIABILITY.
The Parties agree and understand that the payment of monies and giving
of other consideration, and the execution of this release and the agreements
contained herein do not constitute nor shall be construed as an admission of any
liability whatsoever by the Company, or the admission of the validity of any
claim made by or against either party.
13. GOVERNING LAW.
This Agreement shall be governed by the law of the State of California
applicable to contracts executed and wholly performed therein.
FINET.COM, INC.
By:
------------------------------------------
Its:
-------------------------------------
Date:
-------------------------------------
EXECUTIVE
----------------------------------------------
MARK L. KORELL
APPROVED AS TO FORM:
----------------------------------------------
Attorney for Executive
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<PAGE>
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THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE
REGISTRANT'S UNAUDITED FINANCIAL REPORTS AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS
TO
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
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0
0
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<OTHER-SE> 1,109,000
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<CGS> 1,713,000
<TOTAL-COSTS> 7,676,000
<OTHER-EXPENSES> 0
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<INCOME-PRETAX> (6,518,000)
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