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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended May 1, 1999
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________ to _____________.
Commission file number 333-51027
RESTORATION HARDWARE, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 68-0140361
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(State or Other Jurisdiction of (I.R.S. Employer ID No.)
Incorporation or Organization)
15 Koch Road, Suite J, Corte Madera, CA 94925
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (415)924-1005
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Indicate by check [x] whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days [x] Yes [ ] No
As of May 1, 1999, 16,408,546 shares of the Registrant's Common Stock were
outstanding.
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FORM 10-Q
FOR THE QUARTER ENDED MAY 1, 1999
INDEX
PAGE
PART I. FINANCIAL INFORMATION
ITEM 1. Condensed Consolidated Financial Statements
Balance Sheets (unaudited) as of May 1, 1999,
January 30, 1999 and May 2, 1998 3
Statements of Operations (unaudited) for the
three months ended May 1, 1999 and May 2, 1998 4
Statements of Cash Flows (unaudited) for the
three months ended May 1, 1999 and May 2, 1998 5
Notes to Condensed Consolidated Financial
Statements 6
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
ITEM 3. Quantitative and Qualitative Disclosures About
Market Risk 18
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings 18
ITEM 5. Other Information 18
ITEM 6. Exhibits and Reports on Form 8-K 19
SIGNATURE PAGE
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PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
RESTORATION HARDWARE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(dollars in thousands)
(Unaudited)
May 1, January 30, May 2,
1999 1999 1998
--------- --------- ---------
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents .................................. $ 131 $ 8,201 $ 1,387
Accounts receivable ........................................ 5,361 5,176 4,495
Merchandise inventories .................................... 65,773 65,398 48,685
Prepaid expense and other .................................. 8,594 5,873 3,083
--------- --------- ---------
Total current assets ................................. 79,859 84,648 57,650
Property and equipment, net ................................ 77,240 72,680 47,508
Goodwill ................................................... 4,551 4,512 4,029
Other long term assets ..................................... 2,765 2,405 1,546
--------- --------- ---------
Total assets ......................................... $ 164,415 $ 164,245 $ 110,733
========= ========= =========
LIABILITIES, REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses ...................... $ 30,448 $ 39,697 $ 24,352
Current portion of deferred lease incentives ............... 2,538 2,405 1,479
Revolving line of credit and short term debt ............... 10,301 12 29,225
Other current liabilities .................................. 6,836 8,117 2,404
--------- --------- ---------
Total current liabilities ............................ 50,123 50,231 57,460
Long-term debt ............................................. 452 458 4,163
Long-term portion of deferred lease incentives ............. 26,417 25,520 16,236
Deferred rent .............................................. 5,234 4,281 2,332
--------- --------- ---------
Total liabilities .................................... 82,226 80,490 80,191
Redeemable preferred stock:
Series A, convertible, no par value, 2,634,415 shares
authorized, 0, 0 and 2,492,686 issued and outstanding,
respectively, (aggregate liquidation preference of $0,
$0, and $1,656, respectively) ........................ -- -- 2,722
Series B, convertible, no par value, 2,596,825 shares
authorized, 0, 0 and 2,218,370 issued and outstanding,
respectively, (aggregate liquidation preference of $0,
$0 and $5,277, respectively) ......................... -- -- 5,172
Series C, convertible, no par value, 1,701,658 shares
authorized, 0, 0 and 1,656,431 issued and outstanding,
respectively, (aggregate liquidation preference of $0,
$0 and $5,840, respectively) ......................... -- -- 5,792
Series D, convertible, no par value, 2,783,795 shares
authorized, 0, 0 and 2,783,795 issued and outstanding,
respectively, (aggregate liquidation preference of $0,
$0 and $30,902, respectively) ........................ -- -- 30,346
--------- --------- ---------
Total redeemable preferred stock ..................... -- -- 44,032
Stockholders' equity:
Common stock, $.0001 par value, 40,000,000, 40,000,000 and
24,500,000 shares authorized, respectively; 16,408,546
16,246,260 and 4,173,561 issued and outstanding,
respectively ......................................... 93,249 92,169 544
Deficit .................................................... (11,060) (8,414) (14,034)
--------- --------- ---------
Total stockholders' equity ........................... 82,189 83,755 (13,490)
Total liabilities, redeemable preferred stock and
stockholders' equity ................................ $ 164,415 $ 164,245 $ 110,733
========= ========= =========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
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<TABLE>
<CAPTION>
RESTORATION HARDWARE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
(Unaudited)
Three Months Ended
---------------------------
May 1, 1999 May 2, 1998
----------- -----------
<S> <C> <C>
Net sales ............................................... $ 60,049 $ 32,647
Cost of sales and occupancy ............................. 46,000 23,634
-------- --------
Gross profit ..................................... 14,049 9,013
Selling, general and administrative expenses ............ 18,275 9,553
Pre-opening store expenses .............................. 222 298
-------- --------
Loss from operations ................................... (4,448) (838)
Interest expense, net ................................... (55) (426)
-------- --------
Loss before income taxes ......................... (4,503) (1,264)
Income tax benefit ...................................... 1,846 518
-------- --------
Net loss ......................................... (2,657) (746)
Accretion of manditorily redeemable
preferred stock .................................. -- (999)
-------- --------
Common stockholder loss ................................. $ (2,657) $ (1,745)
======== ========
Loss per share:
Basic ............................................ ($ 0.16) ($ 0.42)
Diluted .......................................... ($ 0.16) ($ 0.42)
Weighted average shares outstanding:
Basic ............................................ 16,327 4,173
Diluted .......................................... 16,327 4,173
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
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RESTORATION HARDWARE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
---------------------------
May 1, 1999 May 2, 1998
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net loss ......................................... $ (2,657) $ (746)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization ................ 2,208 1,122
Changes in assets and liabilities:
Accounts receivable ....................... (184) 2,080
Merchandise inventories ................... (375) (6,116)
Prepaid expenses and other assets ......... (3,081) (1,319)
Accounts payable and accrued expenses...... (9,250) (2,369)
Taxes payable ............................. (3,326) (1,719)
Other current liabilities ................. 2,119 (224)
Deferred rent ............................. 953 423
Deferred lease incentives and other
long-term liabilities .................. 1,030 1,059
-------- --------
Net cash used in
operating activities .......... (12,563) (7,809)
Cash flows from investing activities:
Capital expenditures ......................... (6,722) (8,133)
Purchase of subsidiary ....................... (86) (5,400)
Foreign currency exchange gain ............... 11 --
Collections on shareholder advance ........... -- 508
-------- --------
Net cash used in
investing activities .......... (6,797) (13,025)
Cash flows from financing activities:
Borrowings under revolving line of
credit-net .............................. 10,297 15,905
Principal payments-capital lease obligations (74) (59)
Borrowings (repayments) on long-term debt, net (13) 5,460
Issuance of common stock ..................... 1,080 3
-------- --------
Net cash provided by financing
activities .................... 11,290 21,309
Net increase (decrease) in cash and cash equivalents (8,070) 475
Cash and cash equivalents:
Beginning of period .......................... 8,201 912
-------- --------
End of period ................................ $ 131 $ 1,387
======== ========
Additional cash flow information:
Cash paid for interest (net of amount
capitalized) ........................ $ 71 $ 762
======== ========
Cash paid for income taxes ............... $ 3,825 $ 1,629
======== ========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
THREE MONTHS ENDED MAY 1, 1999 AND MAY 2, 1998
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared from our records without audit and, in management's opinion, include
all adjustments (consisting of only normal recurring accruals) necessary to
present fairly the financial position at May 1, 1999 and May 2, 1998 and the
results of operations and changes in cash flows for the three months ended May
1, 1999 and May 2, 1998. The balance sheet at January 30, 1999 as presented,
has been derived from our audited financial statements for the year then ended.
Our accounting policies are described in Note 1 to the audited consolidated
financial statements for the year ended January 30, 1999. Certain information
and footnote disclosures normally included in annual financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted for purposes of the condensed consolidated interim
financial statements. The condensed consolidated interim financial statements
should be read in conjunction with the audited consolidated financial
statements, including notes thereto, for the year ended January 30, 1999.
The results of operations for the three month periods presented herein are not
necessarily indicative of the results to be expected for the full year.
Impact of New Accounting Standards -- Effective February 1, 1998, we adopted
Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income." This Statement requires that all items recognized under accounting
standards as components of comprehensive income be reported in an annual
financial statement that is displayed with the same prominence as other annual
financial statements. This Statement also requires that an entity classify
items of other comprehensive income by their nature in an annual financial
statement. For example, other comprehensive income may include foreign currency
translation adjustments, minimum pension liability adjustments, and unrealized
gains and losses on marketable securities classified as available-for-sale. Our
comprehensive income does not differ from net income for the three months ended
May 1, 1999 and May 2, 1998.
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards ("FAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities". This Statement, which is currently
effective, requires all derivatives to be recognized in the balance sheet as
either assets or liabilities and measured at fair value. In addition, all
hedging
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relationships must be reassessed and documented pursuant to the provisions of
FAS No. 133. The FASB has recently issued an exposure draft that would extend
the required implementation to fiscal years beginning after June 15, 2000. We
will adopt FAS No. 133 when required to do so, but do not expect the adoption
to materially affect our financial statements as such activities are minimal.
2. REVOLVING LINE OF CREDIT
We have a revolving line of credit agreement with a commercial bank which allows
for cash borrowings and letters of credit up to $70.0 million through June 2000.
Interest is paid monthly at the bank's reference rate (7.75% at May 1, 1999) or
LIBOR plus 1.25%, depending on the nature of the borrowings and our debt to
tangible net worth position. At May 1, 1999, we had $10.3 million outstanding on
the line of credit and $1.4 million outstanding under letters of credit. The
agreement has certain restrictive covenants, including debt to tangible net
worth and minimum earnings before income tax requirements. We were not in
compliance with the minimum earnings before income tax covenant for the quarter
ended May 1, 1999, and we obtained a waiver of compliance from the bank.
3. EARNINGS PER SHARE
Basic earnings per share is computed as net income available to common
shareholders divided by the weighted average number of common shares outstanding
for the period. Diluted earnings per share reflects the potential dilution that
could occur from common shares to be issued through stock options, warrants and
other convertible securities. The potential dilutive effects of stock options
are excluded from the diluted earnings per share for the quarters ended May 1,
1999 and May 2, 1998 because their inclusion in net loss periods would be anti-
dilutive to earnings per share.
4. SEGMENT REPORTING
We classify our business interests into three identifiable segments: retail,
furniture and other. The retail segment includes revenue and expense
associated with our retail locations (67 and 44 in 1999 and 1998,
respectively). The furniture segment includes all revenue and expense
associated with The Michaels Furniture Company ("Michaels"). Other includes all
revenue and expense associated with the catalog and other operations. The
accounting policies of the segments are the same as those described in Basis of
Presentation (Note 1). We evaluate performance and allocate resources based on
income from operations which excludes unallocated corporate general and
administrative costs. Certain segment information, including segment assets,
asset expenditures and related depreciation expense, is not presented as all
assets of the Company are commingled and are not available by segment.
Financial information for our business segments is as follows:
<TABLE>
<CAPTION>
Three Months Ended
-----------------------------
May 1, May 2,
1999 1998
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<S> <C> <C>
Net Sales
Retail ................................. $56,065 $30,086
Furniture .............................. 6,677 3,931
Other .................................. 1,922 --
Intersegment sales ..................... (4,615) (1,370)
------- -------
Consolidated net sales ................... 60,049 32,647
======= =======
Income/(Loss) from operations
Retail ................................. 1,396 2,716
Furniture .............................. 508 614
Unallocated ............................ (5,660) (3,894)
Intersegment income from operations .... (692) (274)
------- -------
Consolidated loss from operations ........ $(4,448) $ (838)
======= =======
</TABLE>
5. SUBSEQUENT EVENT
In June 1999, we initiated a consumer recall for sock monkeys sold. Since the
recall commenced on our about the date of this filing, the overall impact of
the recall cannot be accurately determined.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
THE THREE MONTHS (FIRST QUARTER) ENDED MAY 1, 1999 AS COMPARED TO THE THREE
MONTHS (FIRST QUARTER) ENDED MAY 2, 1998
NET SALES. Net sales increased $27.4 million, or 83.9%, to $60.0 million in the
first quarter of 1999 from $32.6 million in the first quarter of the prior year.
This increase in net sales was attributable to new store openings, the "Turn
Back the Century Sale"(a promotion of mission-style and leather furniture), an
increase in comparable store sales and sales from our wholly owned subsidiary
acquired during the first quarter of 1998. At May 1, 1999, we operated 67 stores
as compared to 44 stores at May 2, 1998. These additional 23 stores contributed
$19.8 million of the sales increase for the quarter. Comparable store sales
increased 18.4% in the first quarter of 1999 in part as a result of increases in
number of sales transactions in the stores compared to the prior year and as a
result of the "Turn Back the Century Sale". Excluding sales from the "Turn Back
the Century" event, the comparable store sales increase would have been
approximately 7.0% in the first quarter of 1999. We expect comparable store
sales to decrease in the future as our store base matures.
GROSS PROFIT. Gross profit increased $5.0 million, or 55.6%, to $14.0 million
in the first quarter of 1999 from $9.0 million in the first quarter of the prior
year. As a percentage of net sales, first quarter gross profit was 23.4% in
1999 compared to 27.6% in 1998. The decrease in gross profit for the first
quarter, as a percentage of net sales, resulted in part from the impact of the
"Turn Back the Century Sale" due to the 10% to 25% merchandise discounts offered
on select mission-style and leather furniture during this period. In addition,
as a customer service accommodation, we honored the discount on some sales made
prior to the sale event. The sale promotion also challenged the Michaels
Furniture Company due to higher than expected demand for the product.
We were unable to immediately meet the extraordinary demand for the sale items
and many customer orders are expected to be manufactured and delivered during
the second quarter of 1999. Due to these production constraints, we expect that
gross margin in the second quarter will be negatively impacted as a result of
the fulfillment of these customer orders.
During the first quarter, we also incurred higher procurement, warehousing and
distribution costs than anticipated. We utilize third party warehouses across
the country to supply furniture and lighting inventories to our stores. We were
challenged during the first quarter in managing these costs.
The estimated first quarter merchandise margin percentage for non-sale
merchandise was comparable to a year ago.
SELLING, GENERAL AND ADMINISTRATIVE (SG&A) EXPENSES. SG&A expense increased
$8.7 million, or 90.6%, to $18.3 million in the first quarter of 1999 from $9.6
million in the first quarter of the prior year. As a percentage of net sales,
SG&A expenses increased to 30.4% in the first quarter of 1999 compared to 29.3%
in the first quarter of the prior year. The increase in SG&A expense for the
first quarter, as a percentage of net sales, resulted
<PAGE>
in part from the "Turn Back the Century Sale", higher store payrolls due
to increased traffic and customer service, and advertising expenses incurred
to market the event. Additionally, operating costs were incurred for our
catalog compared to zero costs during the same period in the prior year.
PREOPENING STORE EXPENSE. Pre-opening store expense decreased $76,000 to
$222,000 in the first quarter of 1999 from $298,000 in the first quarter of
the prior year. Pre-opening expense was lower during the first quarter of 1999
due in part to two store openings compared to three store openings in the
first quarter of the prior year. Additionally, four stores are scheduled to
open in the first half of the second quarter of 1999 compared to the five
stores that opened in the first half of the second quarter of the prior year.
Pre-opening store expense includes all costs associated with the start-up of
the store prior to opening including recruiting, payroll, travel, supplies,
occupancy related and advertising, and are expensed as incurred.
NET INTEREST EXPENSE. Interest expense, net of interest income, which includes
capital lease interest and interest expense on borrowings under our line of
credit facility, decreased $371,000 to $55,000 for the first quarter of 1999
from $426,000 in the first quarter of the prior year. The decrease was due to
lower borrowings in the first quarter of 1999 compared to the first quarter of
the prior year, primarily attributable to our initial public offering in June
of 1998 and lower average store inventories during the first quarter of 1999.
LIQUIDITY AND CAPITAL RESOURCES
Our main sources of liquidity and capital resources have been cash flows from
operations, borrowings under our credit facilities and proceeds from equity
financings and the initial public offering. Our primary capital requirements
have been for new store development, working capital and general corporate
needs.
Net cash used in operating activities for the first quarter of 1999 was $12.6
million, an increase of $4.8 million over net cash used of $7.8 million in the
first quarter of the prior year. This increase resulted primarily from a
higher net loss, a higher other assets balance and a decline in accounts
payable and accrued expenses balance, partially offset by an increase in other
liability balances.
Net cash used in investing activities for the first quarter of 1999 was $6.8
million, a decrease of $6.2 million over net cash used in investing activities
of $13.0 million in the first quarter of the prior year. Historically, cash used
in investing activities has been related to capital expenditures for new store
expansion. Such
<PAGE>
expenditures totaled $6.7 million for the first quarter of 1999 compared to
$8.1 million in the first quarter of the prior year. Additionally, we used
$5.4 million to purchase Michaels in the first quarter of 1998.
Net cash provided by financing activities for the first quarter of 1999
was $11.3 million, compared to $21.3 million in the prior year, a decrease of
$10.0 million. We borrowed $10.3 million on our revolving line of credit for the
first quarter of 1999, compared to net borrowings of $15.9 million on
our revolving line of credit and borrowings of $5.4 million under long-term debt
agreements in the first quarter of the prior year.
We have a revolving line of credit agreement with a commercial bank which allows
for cash borrowings and letters of credit up to $70.0 million through June 2000.
Interest is paid monthly at the bank's reference rate (7.75% at May 1, 1999) or
LIBOR plus 1.25%, depending on the nature of the borrowings and our debt to
tangible net worth position. At May 1, 1999, we had $10.3 million outstanding on
the line of credit and $1.4 million outstanding under letters of credit. The
agreement has certain restrictive covenants, including debt to tangible net
worth and minimum earnings before income tax requirements. We were not in
compliance with the minimum earnings before income tax covenant for the quarter
ended May 1, 1999, and we obtained a waiver of compliance from the bank.
We believe that cash flow from operations and funds available under our credit
facilities will satisfy our capital requirements for the next 12 months.
However, should we be unable to comply with the restrictive covenants of our
credit facility during the year, and are unable to obtain an amendment or waiver
of compliance from our lender, we would seek additional sources of debt or
equity financing or adjust the planned level of capital and other expenditures
as needed. Such financing may not be available or, if available, may be on
terms that are not favorable to us or our stockholders.
In connection with the acquisition of the furniture subsidiary, we are required
to pay the former owner contingent cash consideration equal to 35% of Michaels'
earnings before interest, taxes, depreciation and amortization ("EBITDA") for
the period from March 20, 1998 to January 30, 1999 and 25% of Michaels' EBITDA
for fiscal years ending January 29, 2000 and January 27, 2001. In addition, we
are required to transfer shares of Michaels to the former owner of Michaels
equal to (i) 3.3% of the outstanding shares of Michaels if Michaels' EBITDA for
the period commencing on March 20, 1998 and ending on January 30, 1999 equals or
exceeds $2.6 million, (ii) an additional 3.3% of such shares of Michaels if
Michaels' EBITDA for the fiscal year ending January 29, 2000 equals of exceeds
$3.6 million and (iii)an additional 3.4% of such shares of Michaels if Michaels'
EBITDA for the fiscal year ending January 27, 2001 equals or exceeds $4.0
million. An EBITDA based payment of $647,000 was paid in March 1999 to the
President of Michaels and no shares of Michaels were transferred to the
President.
<PAGE>
YEAR 2000
We have formed a Year 2000 (Y2K) Task Force to address the Y2K issue, including
efforts to assess issues we face if third parties who we do business with are
not prepared to fully address their Y2K issues, and contingency planning. The
primary goal of this Task Force is to ensure an uninterrupted transition into
the new Millennium. The Task Force, which utilizes the expertise of outside
consultants, has prepared a plan that will identify, prioritize and address Y2K
issues, both internal and those of significant third parties. Our Y2K Readiness
Project (the "Project") includes all Restoration Hardware locations, software,
hardware, interfaces with third party systems, and manufacturing, as well as
non-information technology (IT) components such as environmental and safety
systems, facilities, utilities and supplier readiness.
The Project is divided into four main phases. Phase 1 (Project Scope), which
included defining the project scope, providing for Company-wide awareness and
generating a preliminary estimate of expense or a project budget is 100%
complete. Phase 2 (Inventory) includes identification and inventorying of IT
resources and significant dependence on third parties. Phase 3 (Assessment)
includes assessment of Y2K compliance on both internal and third party IT
components and impact of compliance on current business operations. Phase 4
(Remediation and Testing) will include rectification and remediation planning
and implementation and development of a contingency plan for critical business
operations should non-compliance potentially disrupt normal business functions.
Phase 2 of the Project is now approximately 95% complete. Completed tasks of
this phase include identification and prioritization of approximately 4,000
vendors and merchandise suppliers with whom we do business and a physical
inventory and Y2K compliance testing of all personal computers (PC's). Nearly
all PC's passed the Y2K test and those that failed will be replaced. The only
components remaining to be inventoried are our computer network server software
and a few remaining Company-owned assets at the retail store locations, such as
HVAC equipment. Phase 2 is expected to be complete by July 1999.
Phase 3 of the Project consists of assessing the Y2K compliance of all date
dependent assets and business relationships through a combination of direct
contact and independent research. Methods of correction and contingency
planning will be implemented according to the assigned priorities. A critical
task within this phase is the Y2K compliance assessment of our business
partners, including merchandise suppliers. A Y2K compliance inquiry letter has
been sent to all identified business partners, and the Task Force is reviewing
and tracking all responses. This phase was initiated concurrently with Phase 2,
and is scheduled to be completed by July 1999. We anticipate that all four
phases of the project will be completed by October 1999.
<PAGE>
The replacement of the current manufacturing system at Michaels has been moved
to September 1999 from July 1999 due to turnover in the software vendor's
implementation team assigned to the project. The current system had previously
been identified as non-Y2K compliant and it was determined that replacement
software would be purchased and installed, rather than upgrade the existing
software to a Y2K compliant version. In addition, we expect to retrofit all
retail store point-of-sale systems and their software by October 1999. This
retrofit includes updates for Y2K compliance as well as enhancements to the
existing software. Other than as noted herein, no significant IT system
modifications or replacements have been identified.
As of May 1, 1999, we had incurred approximately $320,000 of costs to implement
our Y2K Project. All of these costs have been expensed as incurred, and have
been funded from our operating cash flows. We estimate that expenditures
necessary to complete the Project will be approximately $700,000. Anticipated
costs not yet incurred include progress payments for the replacement of Michaels
software system, continued professional consultants services, stores' PC
Registers retrofit, replacement of failed Y2K tested PC's, and other software
application upgrades, as necessary. This estimate, based on management's best
estimates, was derived using numerous assumptions about future events including
the continued availability of certain resources, third party modification plans
and other factors. However, there can be no assurance that this estimate will be
achieved, and actual results could differ materially from this estimate.
Specific factors that might cause such material differences include, but are not
limited to, the ability to locate and correct all relevant computer codes, the
success achieved by our suppliers in reaching Y2K readiness, the timely
availability of necessary replacement items and similar uncertainties.
We intend and expect to implement the changes necessary to address the Y2K issue
for our internal IT systems. Because we have no "in-house" applications, that
is, all software has been purchased from third party vendors and no software has
been programmed or coded within the Company, we believe that with modifications
to existing software and/or conversions to new software, the Y2K issue is not
reasonably likely to pose significant operational problems for our IT systems as
modified and converted.
We are presently unable to assess the likelihood that we will experience
significant operational problems due to unresolved Y2K compliance issues from
third parties. This not only applies to software and hardware vendors, but also
to vendors of non-IT components. Although we are currently working with third
party vendors to address any issues, there can be no assurance that we can
timely mitigate our risks related to a third party's failure to resolve its Y2K
issues. If such mitigation is not achievable, unresolved Y2K compliance issues
could have a material impact on our operations.
<PAGE>
We currently believe that the most reasonably likely worst-case scenario that we
may confront, aside from the failure to replace the existing Michaels software
system, relate to a possible failure in one or more geographic regions of third
party systems over which we have no control, such as, but not limited to,
electrical, communication and delivery services. For example, if such services
were to cease we may have to temporarily close stores in the affected areas.
Given such a scenario, our focus in developing a contingency plan will be
related to keeping stores open and obtaining replenishment inventories,
maintaining communication and data transfer between the home office and store
locations and ultimately of ensuring that payments are made to both employees
and vendors.
FACTORS THAT MAY AFFECT FUTURE RESULTS
SEASONALITY AND QUARTERLY FLUCTUATIONS
Our business is highly seasonal, reflecting the general pattern associated with
the retail industry of peak sales and earnings during the holiday season. Due to
the importance of the holiday selling season, the fourth quarter of each year
has historically contributed, and we expect it will continue to contribute, a
disproportionate percentage of our net sales and most of our net income for the
entire year. In anticipation of increased sales activity during the fourth
quarter we incur significant additional expenses. If, for any reason, our sales
were to fall below our expectations in November and December, our business,
financial condition and annual operating results would be materially adversely
affected. In addition, we make decisions regarding merchandise well in advance
of the season in which it will be sold, particularly for the holiday selling
season. Significant deviations from projected demand for products could have a
material adverse effect on our financial condition and results of operations.
Our quarterly results of operations may also fluctuate based upon a variety of
other factors, including, among other things, the number and timing of store
openings and related pre-opening store expenses, the amount of net sales
contributed by new and existing stores, the mix of products sold, the timing and
level of markdowns, promotional events, store closings, refurbishments or
relocations, the mix of Michaels sales to third parties, adverse weather
conditions, shifts in the timing of holidays, timing of catalog releases or
catalog sales, competitive factors and general economic conditions. We have
experienced, and expect to continue to experience, substantial seasonal
fluctuations in our sales and operating results, which is typical of many
retailers. Historically, a disproportionate amount of our retail sales,
approximately half of our annual net sales, and nearly all of our profits have
been realized during the fourth quarter. We expect this pattern to continue
during the current year and anticipate that in subsequent years the fourth
quarter will continue to
<PAGE>
contribute disproportionately to our operating results, particularly during
November and December.
IMPLEMENTATION AND MANAGEMENT OF AGGRESSIVE GROWTH STRATEGY
Our net sales and net income have grown significantly during the past several
years, primarily as a result of the opening of new stores. We intend to continue
to pursue an aggressive growth strategy for the foreseeable future, and our
future operating results will depend largely upon our ability to open and
operate stores and manage a larger business successfully. We intend to open
approximately 30 new stores in 1999 (of which 2 stores have been opened as of
May 1, 1999). Our ability to open stores on a timely basis and the performance
of such stores will depend upon many factors, including, among others, our
ability to identify and enter new markets, locate suitable store sites,
negotiate acceptable lease terms, hire and train store managers and sales
associates and obtain adequate capital resources on acceptable terms. Any
restrictions on our ability to expand would have a material adverse effect on
our business, results of operations and financial condition. As a result, there
can be no assurance that we will be able to achieve our targets for opening new
stores. Moreover, there can be no assurance that our new stores will be
successful or achieve operating results comparable to our existing stores.
We plan to continue to enter new markets in various regions of the United States
in 1999 and 2000. Operation of a greater number of new stores and expansion into
new markets may present competitive, distribution and merchandising challenges
that are different from those currently encountered by us in our existing stores
and markets. In addition, there can be no assurance that our expansion within
our existing markets will not adversely affect the individual financial
performance of our existing stores or our overall results of operations.
Specifically, we cannot determine the impact on current profitability as we
expand our distribution of catalogs and increase our mail order business.
We will need to continually evaluate the adequacy of our store management and
management information and distribution systems to manage our planned expansion.
There can be no assurance that we will anticipate all of the changing demands
that our expanding operations will impose on such systems, and the failure to
adapt our systems and procedures to such changing demands could have a material
adverse effect on our business, results of operations and financial condition.
There can be no assurance that we will successfully achieve our expansion
targets or, if achieved, that planned expansion will not have an adverse impact
on results of operations.
We will need to increase our production capacity and improve the manufacturing
process at Michaels to meet our store and product growth demands. Additionally,
Michaels currently supplies product to many third party dealers. There can be no
assurance that sales to third party dealers will continue or that a change in
the mix of sales within the Company and to third party dealers will not
adversely impact the results of operations. There can be no assurance that we
will be able to adequately supply the retail stores or third party dealers and
operate Michaels at the historical levels of profitability.
<PAGE>
We anticipate that we will need to expand our current distribution network to
accommodate our planned expansion in 1999 and thereafter and are currently
investigating a new Warehouse Management System as well as a change in
distribution strategy. There can be no assurance that such change will not
cause disruptions that could materially adversely affect our business, results
of operations and financial condition. We rely on third party warehouses to
handle our products and the expense related to this fluctuates with inventory
levels and there can be no assurance that we can reduce this expense as
inventory levels increase. Further, we rely upon third party carriers and
warehouses for our product shipments, including shipments to and from all of
our stores, and accordingly are subject to the risks, including employee
strikes and inclement weather, associated with such carriers' ability to
provide warehousing and delivery services to meet our needs. In addition,
distribution, warehousing and freight costs also fluctuate as a result of
sales activity and there is no assurance that we can generate sufficient
merchandise margins to offset these additional costs. We are also dependent
upon temporary employees to adequately staff our distribution facility,
particularly during busy periods such as the Christmas season and while stores
are opening. There can be no assurance that we will continue to receive
adequate assistance from our temporary employees, or that there will continue
to be sufficient sources of temporary employees.
Historically, cash flow from operations has been insufficient to finance our
growth and we have relied upon our line of credit and the proceeds from our
initial public offering in June 1998 to finance working capital requirements.
There can be no assurance that our operations will generate sufficient cash flow
or that adequate financings will be available to finance our continued growth.
SMALL STORE BASE
We operated 67 stores at May 1, 1999. The results achieved to date by our
relatively small store base may not be indicative of the results that may be
achieved from a larger number of stores. In addition, should any new store be
unprofitable or should any existing store experience a decline in profitability,
the effect on our results of operations could be more significant than would be
the case if we had a larger store base.
FLUCTUATIONS IN COMPARABLE STORE SALES
A variety of factors affect our comparable store sales including, among others,
the general retail sales environment, our ability to efficiently source and
distribute products, changes in our merchandise mix, promotional events, the
impact of competition and our ability to execute our business strategy
efficiently. Our comparable store sales results have fluctuated significantly in
the past and we believe that such fluctuations may continue. Past comparable
store sales results are no indication of future results, and we expect that our
comparable store sales results will decrease in the future.
<PAGE>
DEPENDENCE ON KEY PERSONNEL
Our performance depends largely on the efforts and abilities of executive and
senior management team, particularly Stephen Gordon, our Chief Executive Officer
and founder, Thomas Christopher, our President and Chief Operating Officer, and
Thomas Low, our Chief Financial Officer. The loss of Mr. Gordon's services or
the services of other members of the management team could have a material
adverse effect on our business, results of operations and financial condition.
We do not have employment agreements with any of the members of our executive
management team. In addition, our performance will depend upon our ability to
attract and retain qualified management, merchandising and sales personnel.
There can be no assurance that Mr. Gordon and the existing management team will
be able to manage the Company or our growth or that we will be able to attract
and retain additional qualified personnel as needed in the future.
DEPENDENCE ON KEY VENDORS
Our performance depends on our ability to purchase our merchandise in sufficient
quantities at competitive prices. Although we have many sources of merchandise,
two of our vendors (Mitchell Gold, a manufacturer of upholstered furniture and
Robert Abbey Inc., a manufacturer of table and floor lamps)together accounted
for approximately 15% of our aggregate merchandise purchases in fiscal year
1998. In addition, our smaller vendors generally have limited resources,
production capacities and operating histories, and some of our vendors have
limited the distribution of their merchandise in the past. We have no long-
term purchase contracts or other contractual assurances of continued supply,
pricing or access to new products and any vendor or distributor could
discontinue selling to us at any time. There can be no assurance that we will
be able to acquire desired merchandise in sufficient quantities on terms
acceptable to using the future, or be able to develop relationships with new
vendors or that any inability to acquire suitable merchandise or the loss of
one or more key vendors will not have a material adverse effect on our
business, results of operations and financial condition. In addition, a single
vendor supports our management information systems and we have generally
employed a single general contractor to oversee the construction of our new
stores. A failure by such vendor to support these systems or by such
contractor to continue such services adequately could have a material adverse
effect on the Company. We are currently replacing a non-Y2K compliant software
system at Michaels and expect to have the new software in place by September
1999. The failure of this implementation could have a material adverse effect
on the production capabilities of Michaels.
DEPENDENCE ON IMPORTS AND VULNERABILITY TO IMPORT RESTRICTIONS
Historically we have purchased approximately 15% of our merchandise directly
from vendors located abroad, primarily in India, and expect that such purchases
will increase slightly as a percentage of total
<PAGE>
merchandise purchases in 1999. These arrangements are subject to the risks of
relying on products manufactured abroad, including import duties and quotas,
loss of "most favored nation" trading status, currency fluctuations, work
stoppages, economic uncertainties including inflation, foreign government
regulations, political unrest and trade restrictions, including United States
retaliation against foreign trade practices. While we believe that we could
find alternative sources of supply, an interruption or delay in supply from
India or our other foreign sources, or the imposition of additional duties,
taxes or other charges on these imports could have a material adverse effect
on our business, financial condition and results of operations unless and
until alternative supply arrangements are secured. Moreover, products from
alternative sources may be of lesser quality or more expensive than those
we currently purchase.
CHANGES IN CONSUMER TRENDS
Our success depends on our ability to anticipate and respond to changing
merchandise trends and consumer demands in a timely manner. We believe we are
benefiting from a lifestyle trend toward increased interest in home renovation,
gardening and interior decorating. Any change in such trend could adversely
affect consumer interest in our major product lines. Moreover, our products must
appeal to a broad range of consumers whose preferences cannot always be
predicted with certainty and may change between sales seasons. If we misjudge
either the market for our merchandise or our customers' purchasing habits, we
may experience a material decline in sales or be required to sell inventory at
reduced margins. We could also suffer a loss of customer goodwill if our stores
or newly acquired furniture making operations do not adhere to our quality
control or service procedures or otherwise fail to ensure satisfactory quality
of our products. These outcomes may have a material adverse effect on our
business, operating results and financial condition.
GENERAL ECONOMIC CONDITIONS
Certain economic conditions affect the level of consumer spending on merchandise
that we offer, including, among others, general business conditions, interest
rates, taxation and consumer confidence in future economic conditions. Adverse
economic conditions and any related decrease in consumer demand for
discretionary items such as those offered by us could have a material adverse
effect on our business, results of operations and financial condition.
GOVERNMENT REGULATION
Many of our imported products are subject to existing or potential duties,
tariffs or quotas that may limit the quantity of certain types of goods which
may be imported into the United States and other countries. In addition, we are
subject to currency fluctuations, work stoppages, economic uncertainties
including inflation, foreign government regulations, political
<PAGE>
unrest and trade restrictions, including United States retaliation against
foreign practices.
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This report on this quarterly Form 10-Q contains "forward looking statements,"
within the meaning of the Private Securities Litigation Reform Act of 1995, that
involve known and unknown risks. Such forward-looking statements include
statements as to our plans to open additional stores, the anticipated
performance of new stores, the impact of competition and other statements
containing words such as "believes," "anticipates," "estimates," "expects,"
"may," "intends," and words of similar import or statements of management's
opinion. These forward-looking statements and assumptions involve known and
unknown risks, uncertainties and other factors that may cause the actual
results, market performance or our achievements to differ materially from any
future results, performance or achievements expressed or implied by such
forward-looking statements. Important factors that could cause such differences
include, but are not limited to, changes in economic or business conditions in
general, changes in product supply, changes in the competitive environment in
which we operate, competition for and the availability of sites for new stores,
changes in our management information needs, changes in customer needs and
expectations and governmental actions. We undertake no obligation to update any
forward-looking statements in order to reflect events or circumstances that may
arise after the date of this report.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There are no material changes to our market risk as disclosed in our report on
Form 10-K filed for the fiscal year ended January 30, 1999.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There are no material pending legal proceedings against us. We are, however,
involved in routine litigation arising in the ordinary course of our business,
and, while the results of the proceedings cannot be predicted with certainty, we
believe that the final outcome of such matters will not have a material adverse
effect on our consolidated financial position or results of operations.
In cooperation with the U.S. Consumer Product Safety Commission, Restoration
Hardware is recalling approximately 13,000 Sock Monkey stuffed animals sold
since mid-1997. Sewing needles or pins have been found in the stuffing of a
significant number of monkeys after a small child in Utah received a minor
injury to her lip and a Restoration Hardware employee in Portland, Oregon found
a needle in a sock monkey on display. All merchandise has been removed from
sale. The monkeys were manufactured by third parties in the United States and in
China. Needles have been found in both domestic and overseas production. In June
1999, a consumer recall will be initiated for sock monkeys sold. We will be
refunding all customer returns and will be offering a small discount on a future
purchase as a customer accomodation. Since the recall was commenced on or about
the date of this filing, the overall impact of the recall cannot be accurately
determined. Accordingly, no assurance can be made that the outcome of the recall
would not have a material adverse effect on our business, operating results and
financial condition. For further information regarding the recall, a toll free
number was established (1-877-747-4671) and information will be posted on our
website at www.restorationhardware.com.
ITEM 5. OTHER INFORMATION
During the second quarter of 1999, the Director of Distribution and Director of
Inventory Management resigned. We are currently recruiting a new Director of
Distribution. All responsibilities previously held by the Director of Inventory
Management have been assumed by others.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8K
(a) Exhibits
3.1 Amended and Restated Certificate of Incorporation (1)
3.2 Bylaws, as amended at date (1)
4.1 Reference is made to Exhibit 3.1 (1)
4.2 Reference is made to Exhibit 3.2 (1)
4.3 Specimen Common Stock Certificate (1)
10.1 Form of 1995 Stock Option Plan (1)
10.2 Form of 1998 Stock Incentive Plan (1)
10.3 Form of 1998 Employee Stock Purchase Plan (1)
10.4 Form of Indemnity Agreement for Officers and Directors
10.5 Restated Investors Rights Agreement dated may 16, 1997 among the
Company, the founders and Common Stock Warrantholders, Series D
Warrantholders and Common Stock holders and Investors (1)
10.6 Stock Purchase Agreement dated March 20, 1998 between the Company and
Michael Vermillion (1)
10.7 Supply Agreement dated March 20, 1998 between the Company, Michaels
Concepts in Wood, Inc. and Michael Vermillion (1)
10.8 Lease Agreement dated May 4, 1994 between the Company and Stephen and
Christine Gordon (1)
10.9 Commercial lease and Deposit Receipt dated October 18, 1994 and
Addendums dated October 20, 1994 and November 21, 1994 between the
Company and H. Koch and Sons (1)
10.10 Office Lease dated February 21, 1997 between the Company and Paradise
Point Partners (1)
10.11 Standard Industrial/Commercial Multi-Tenant Lease dated May 12, 1997
between the Company and Mortimer B. Zuckerman (1)
10.12 Fourth Amended and Restated Loan and Security Agreement dated April,
1998 (1)
10.13 Second Amendment to the Fourth Amended and Restated Loan and Security
Agreement dated October, 1998 (2)
*10.14 Standard Industrial/Commercial Multi-Tenant Lease dated October 6, 1998
between the Company and Central Valley LLC
*27.1 Financial Data Schedule
(1) Incorporated by reference to the exhibit with the same number filed with
the Company's Registration Statement on Form S-1 (File No. 333-51027) filed
on June 17, 1998.
(2) Incorporated by reference to the exhibit with the same number filed with
the Company's Quarterly Report on Form 10-Q for the quarterly period ended
October 31, 1998.
* Filed herewith.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information required to
be set forth therein is not applicable or is shown in the financial statements
or notes thereto.
<PAGE>
(c) Reports on Form 8-K
We filed no reports on Form 8-K during the three month period ended May 1,
1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
RESTORATION HARDWARE, INC.
--------------------------
Date: June 14, 1999 /s/ Stephen Gordon
--------------------------
By: Stephen Gordon
Chief Executive Officer and Chairman
RESTORATION HARDWARE, INC.
--------------------------
Date: June 14, 1999 /s/ Thomas Low
--------------------------
By: Thomas Low
Senior Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT 10.14
STANDARD INDUSTRIAL COMMERCIAL MULTI-TENANT LEASE -- GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Provisions ("Basic Provisions").
1.1 Parties: The Lease ("Lease"), dated for reference purposes only,
October 6, 1998, is made by and between Central Valley LLC, ("Lessor") and
Restoration Hardware. Inc., a Delaware Corporation ("Lessee"), (collectively the
"Parties", or individually a "Party").
1.2(a) Premises: That certain portion of the Building including all
improvements therein or to be provided by Lessor under the terms of this Lease,
commonly known by the street address of 1565 N. MacArthur Drive, Ste. 100,
located in the City of Tracy, County of San Joaquin, State of California with
zip code 95376, as outlined on Exhibit A attached hereto ("Premises"). The
"Building" is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): a 191,237 square
foot portion of a 755,450 square foot concrete tilt-up building located in the
Stonebridge Industrial Park. In addition to Lessee's rights to use and occupy
the Premises as hereinafter specified, Lessee shall have non-exclusive rights to
the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified,
but shall not have any rights to the roof, exterior walls or utility raceways of
the Building or to any other buildings in the Industrial Center. The Premises,
the Building, the Common Areas, the land upon which they are located, along with
all other buildings and improvements thereon, are herein collectively referred
to as the "Industrial Center" (Also see Paragraph 2.)
1.2(b) Parking: (n/a) unreserved vehicle parking spaces ("Unreserved Parking
Spaces"); and (n/a) reserved vehicle parking spaces ("Reserved Parking Spaces").
(Also see Paragraph 2.6.)
1.3 Term: sixty (60) months ("Original Term") commencing on the later of;
(i) the date the work described in Exhibit C is completed, or (ii) December 1,
1998 ("Commencement Date") and ending on the fifth anniversary of the
Commencement Date ("Expiration Date"). (Also see Paragraph 3.)
1.4 Early Possession: October 6, 1998 ("Early Possession Date"). (Also see
Paragraphs 3.2 and 3.3.)
1.5 Base Rent: $48,765.43 per month ("Base Rent"), payable on the first
day of each month commencing Commencement Date. (Also see Paragraph 4.)
[x] If this box is checked, this Lease provides for the Base Rent to be adjusted
per Addendum 1.5, attached hereto.
1.6(a) Base Rent Paid Upon Execution: $48,765.43 as Base Rent for the first
month's rent.
1.6(b) Lessee's Share of Common Area Operating Expenses: Twenty-five and
31/100 percent (25.31%) ("Lessee's Share") as determined by
[X] prorata square footage of the Premises as compared to the total square
footage of the Building or [ ] other criteria as described in Addendum ___.
1.7 Security deposit: $ 48,765.43 ("Security Deposit"). (Also see Paragraph
5.)
1.8 Permitted Use: Storage, warehousing, assembly, distribution and related
office uses of home furnishings ("Permitted Use"). (Also see Paragraph 6.)
1.9 Insuring Party. Lessor is the "Insuring Party." (Also see Paragraph 8.)
1.10(a) Real Estate Brokers. The following real estate broker(s)
(collectively the "Brokers") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
[X] Buzz Oates Real Estate represents Lessor exclusively ("Lessors Broker");
[X] Warehouse Properties represents Lessee exclusively ("Lessee's Broker"); or
[_] represents both Lessor and Lessee ("Dual Agency"). (Also see Paragraph 15.)
1.10(b) Payment to Brokers. Upon the execution this Lease by both Parties,
Lessor shall pay to said Broker(s) jointly, or in such separate shares as they
may mutually designate in writing, a fee as set forth in a separate written
agreement between Lessor and said Broker(s) (or in the event there is no
separate written agreement between Lesser and said Broker(s), the sum of $ (per
separate agreement) for brokerage services rendered by said Broker(s) in
connection with this transaction.
1.11 Guarantor. The obligations of the Lessee under this Lease are to be
guaranteed by (none) ("Guarantor"). (Also see Paragraph 37.)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 49 through 56, and Exhibits A, B & C all of which
constitute a part of this Lease.
2. Premises, Parking and Common Areas.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon all of the terms,
covenants and conditions set forth in this Lease. Unless otherwise provided
herein, any statement of square footage set forth in this Lease, or that may
have been used in calculating rental and/or Common Area Operating Expenses, is
an approximation which Lessor and Lessee agree is reasonable and the rental and
Lessee's share (as defined in paragraph 1.6(b)) based thereon is not subject to
revision whether or not the actual square footage is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee on the
Commencement Date and warrants to Lessee that the existing plumbing,
electrical systems, fire sprinkler system, lighting, air conditioning and
heating systems, loading doors and common area grounds, if any, in the
Premises, other than those constructed by Lessee, shall be in good operating
condition on the Commencement Date. If a non-compliance with said warranty
exists as of the Commencement Date, Lessor shall, except as otherwise provided
in this Lease, promptly after receipt of written notice from Lessee setting
forth with specificity the nature and extent of such non-compliance, rectify
same at Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within sixty (60) days after the
Commencement Date correction of that non-compliance shall be the obligation of
Lessee at Lessee's sole cost and expense.
2.3 Compliance with Covenants, Restrictions and Building Code. Lessor
warrants that any improvements (other than those constructed by Lessee or at
Lessee's direction) on or in the Premises which have been constructed or
installed by Lessor or with Lessor's consent or at Lessor's direction shall
comply with all applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances in effect on the Commencement Date.
Lessor further warrants to Lessee that Lessor has no knowledge of any claim
having been made by any governmental agency that a violation or violations of
applicable building codes, regulations, or ordinances exist with regard to the
Premises as of the Commencement Date. Said warranties shall not apply to any
Alterations or Utility Installations (defined in Paragraph 7.3(a)) made, or to
be made by Lessee. If the Premises do not comply with said warranties, Lessor
shall, except as otherwise provided in this Lease, promptly after receipt of
written notice of Lessee setting forth the nature and extent of such non-
compliance, take such action, at Lessor's expense, as may be reasonable or
appropriate to rectify the non-compliance. Lessor makes no warranty that the
Permitted Use in Paragraph 1.8 is permitted for the Premises under Applicable
Laws (as defined in Paragraph 2.4).
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has been
advised by the Broker(s) to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, seismic and earthquake requirements,
and compliance with the Americans with Disabilities Act and applicable zoning,
municipal, county, state and federal laws, ordinances and regulations and any
covenants or restrictions of record (collectively, "Applicable Laws") and the
present and future suitability of the Premises for Lessee's intended use; (b)
that Lessee has made such investigation as it deems necessary with reference to
such matters, is satisfied with reference thereto, and assumes all
responsibility therefore as the same relate to Lessee's occupancy of the
Premises and/or the terms of this Lease; and (c) that except as set forth herein
or in the addendum neither Lessor, nor any of Lessor's agents, has made any oral
or written representations or warranties with respect to said matters other than
as set forth in this Lease.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no larger than full-
size passenger automobiles or pick-up trucks, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
<PAGE>
(b) If Lessee permits or allows any of the prohibited activities described in
this Paragraph 2.6, then Lessor shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
(c) Lessor shall throughout the term of this Lease provide parking facilities
required by Applicable Law.
2.7 Common Areas--Definition. The term "Common Areas" is defined as all areas
and facilities outside the Premises and within the exterior boundary line of the
Industrial Center and interior utility raceways within the Premises that are
provided and designated by the Lessor from time to time for the general non-
exclusive use of Lessor, Lessee and other lessees of the Industrial Center and
their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
2.8 Common Areas-Lessee's Rights. Lessor hereby grants to Lessee for the
benefit of Lessee and its employees, suppliers, shippers, contractors, customers
and invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by Lessor
under the terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Industrial Center. Under no circumstances
shall the right herein granted to use the Common Areas be deemed to include the
right to store any property, temporarily or permanently, in the Common Areas;
provided, however, that Lessee shall have the right to erect a fence around a
portion of the outside Common Area shown on Exhibit B. Any such storage shall be
permitted only by the prior written consent of Lessor or Lessor's designated
agent, which consent may be revoked at any time. In the event that any
unauthorized storage shall occur then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 Common Areas-Rules and Regulations. Lessor or such other person(s) as
Lessor may appoint shall have the exclusive control and management of the Common
Areas and shall have the right, from time to time, to establish, modify, amend
and enforce reasonable Rules and Regulations with respect thereto in accordance
with Paragraph 40. Lessee agrees to abide by and conform to all such Rules and
Regulations, and to cause its employees, suppliers, shippers, customers,
contractors and invitees to so abide and conform. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees of the Industrial Center.
2.10 Common Areas-Changes. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance purposes so
long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the Industrial Center
to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common Areas;
(e) To use the Common Areas while engaged in making additional improvements,
repairs or alterations to the Industrial Center, or any portion thereof;
and
(f) To do and perform such other acts and make such other changes in, to or
with respect to the Common Areas and Industrial Center as Lessor may, in the
exercise of sound business judgment, deem to be appropriate.
(g) Notwithstanding anything to the contrary herein, in no event shall Lessor
make any changes to the Common Areas that will either: (i) reduce the number of
parking spaces available to Lessee, (ii) materially affect the visibility of, or
access to, the premises, or (iii) alter the existing quality of the Industrial
Center.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of this
Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If an Early Possession Date is specified in Paragraph
1.4 and if Lessee totally or partially occupies the Premises after the Early
Possession Date but prior to the Commencement Date, the obligation to pay Base
Rent and Lessee's share of Common Area Operating Expenses shall be abated for
the period of such early occupancy. All other terms of this Lease, however,
(including the obligations to carry the insurance required by Paragraph 8) shall
be in effect during such period. Any such early possession shall not affect nor
advance the Expiration Date of the Original Term.
3.3 Delay In Possession. If for any reason Lessor cannot deliver possession
of the Premises to Lessee by the Early Possession Date, if one is specified in
Paragraph 1.4, or if no Early Possession Date is specified, by the
Commencement Date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease, or the obligations of
Lessee hereunder, or extend the term hereof, but in such case, Lessee shall
not, except as otherwise provided herein, be obligated to pay rent or perform
any other obligation of Lessee under the terms of this Lease until Lessor
delivers possession of the Premises to Lessee. If possession of the Premises
is not delivered to Lessee within sixty (60) days after the Commencement Date,
Lessee may, at its option, by notice in writing to Lessor within ten (10) days
after the end of said sixty (60) day period, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder; provided
further, however, that if such written notice of Lessee is not received by
Lessor within said ten (10) day period, Lessee's right to cancel this Lease
hereunder shall terminate and be of no further force or effect Except as may
be otherwise provided, and regardless of when the Original Term actually
commences, if possession is not tendered to Lessee when required by this lease
and Lessee does not terminate this Lease, as aforesaid, the period free of the
obligation to pay Base Rent, if any, that Lessee would otherwise have enjoyed
shall run from the date of delivery of possession and continue for a period
equal to the period during which the Lessee would have otherwise enjoyed under
the terms hereof, but minus any days of delay caused by the acts, changes or
omissions of Lessee.
4. Rent.
4.1 Base Rent. Lessee shall pay Base Rent and other rent or charges, as the
same may be adjusted from time to time, to Lessor in lawful money of the United
States, without offset or deduction, on or before the day on which it is due
under the terms of this Lease. Base Rent and all other rent and charges for any
period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designate in writing to Lessee.
4.2 Common Area Operating Expenses. Subject to addendum paragraph 4.2, Lessee
shall pay Lessor during the term hereof, in addition to the Base Rent, Lessee's
Share (as specified in Paragraph 1.6(b) of all Common Area Operating Expenses,
as hereinafter defined, during each calendar year of the term of this Lease, in
accordance with the following provisions:
(a) "Common Area Operating Expenses" are defined, for purposes of this
Lease, as all costs incurred by Lessor relating to the ownership and operation
of the Industrial Center, including, but not limited to, the following:
(i) The operation, repair and maintenance, in neat, clean, good
order and condition, of the following:
(aa) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Common
Area lighting facilities, fences and gates, elevators, roof, and exterior
building painting.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to service the
Common Areas.
(iii) Trash disposal, property management and security services and the
costs of any environmental inspections.
(iv) Reserves set aside for maintenance and repair of Common Areas.
(v) Any increase above the Base Real Property Taxes (as defined in
Paragraph 10.2(b)) for the Building and the Common Areas.
(vi) Any "Insurance Cost Increase" ( as defined in Paragraph 8.1).
(vii) The cost of insurance carried by the Lessor with respect to the
Common Areas.
(viii) Any deductible portion of an insured loss concerning the Building
or Common Areas.
(ix) Any other services to provided by Lessor that are stated
elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes that are
specifically attributed to the Building or to any other building in the
Industrial Center or to the operation, repair, and maintenance thereof, shall be
allocated entirely to the Building or to such other building. However, any
Common Area Operating Expenses and Real Property Taxes that are not specifically
attributed to the Building or to any other building or to the operation, repair
and maintenance thereof, shall be equitably allocated by Lessor to all buildings
in the Industrial Center.
(c) The inclusion of the improvements, facilities and services set forth in
Subparagraph 4.2(a) shall not be deemed to impose an obligation upon Lessor to
either have said improvements or facilities or to provide those services unless
the Industrial Center already has the same, Lessor already provides the
services, or Lessor has agreed elsewhere in this Lease to provide the same or
some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be payable by
Lessee within thirty (30) days after a reasonable detailed statement of actual
expenses is presented to Lessee by Lessor. At Lessor's option, however, an
amount may be estimated by Lessor from time to time of Lessee's Share of annual
Common Area Operating Expenses and the same shall be payable monthly or
quarterly, as Lessor shall designate, during each twelve month period of the
Lease term, on the same day as the Base rent is due hereunder. Lessor shall
deliver to Lessee within sixty days after the expiration of
<PAGE>
each calendar year a reasonably detailed statement showing Lessee's Share
of actual Common Area Operating Expenses incurred during the preceding year.
If Lessee's payments under this Paragraph 4.2(d) during said preceding year
exceeds Lessee's share as indicated on said statement, Lessee shall be
credited the amount of such over-payment against Lessee's Share of Common Area
Operating Expenses next becoming due. If Lessee's payments under this
Paragraph 4.2(d) during said preceding year were less than Lessee's Share as
indicated on said statement, Lessee shall pay to Lessor the amount of the
deficiency within thirty (30) days after delivery by Lessor to Lessee of said
statement.
4.3. Audit. Lessor shall keep at Lessor's Sacramento office for a period of
at least twelve (12) months after the expiration of each calendar year, full and
accurate books, records and supporting documents in connection with the Lessor's
annual statement of Common Area Operating Expenses and Real Property Taxes.
Lessee shall have the right to challenge the accuracy of any Common Area
Operating Expenses or Real Property Taxes, and, if Lessee challenges any Common
Area Operating Expenses or Real Property Taxes, Lessor shall make Lessor's books
and supporting documents available to Lessee and Lessee may inspect the same.
The Common Area Operating Expenses and Real Property Taxes (as hereafter
defined) shall be appropriately adjusted on the basis of such audit. Lessee
shall pay the cost and expense of such audit, unless such audit shows a
discrepancy of at least five percent (5%) of Common Area Operating Expenses or,
as the case may be, Real Property Taxes, in which event Lessor shall pay the
costs and expenses of such audit.
5. Security Deposit. Lessee shall deposit with Lessor upon Lessee's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise defaults
under this Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorneys' fees) which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefore
deposit monies with Lessor sufficient to restore said Security Deposit to the
full amount required by this Lease. Lessor shall not be required to keep all or
any part of the Security Deposit separate from its general accounts. Lessor
shall, at the expiration or earlier termination of the term hereof and after
Lessee has vacated the Premises, return to Lessee (or, at Lessor's option, to
the last assignee, if any, of Lessee's interest herein), that portion of the
Security Deposit not used or applied by Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall be considered
to be held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this lease. Following the
first year anniversary of the lease, provided Lessee is not then currently in
default of any of the terms or conditions of this lease, refund Lessee's
security deposit.
6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the Permitted Use
set forth in Paragraph 1.8, or any other legal use which is reasonably
comparable thereto, and for no other purpose. Lessee shall not use or permit
the use of the Premises in a manner that is unlawful, creates waste or a
nuisance, or that disturbs owners and/or occupants of, or causes damage to the
Premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay its
consent to any written request by Lessee. Lessee's assignees or subtenants,
and by prospective assignees and subtenants of Lessee, its assignees and
subtenants, for a modification of said Permitted Use, so long as the same will
not impair the structural integrity of the improvements on the Premises or in
the Building or the mechanical or electrical systems therein, does not
conflict with uses by other lessees, is not significantly more burdensome to
the Premises or the Building and the improvements thereon, and is otherwise
permissible pursuant to this Paragraph 6. If Lessor elects to withhold such
consent, Lessor shall within five (5) business days after such request give a
written notification of same, which notice shall include an explanation of
Lessors reasonable objections to the change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used
in this Lease shall mean any product, substance, chemical, material or waste
whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment, or the Premises; (ii) regulated or monitored by any governmental
authority; or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Lessee
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Requirements (as defined in
Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority, and (iii) the presence
in, on or about the Promises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or occupying
the Premises or neighboring properties. Notwithstanding the foregoing, Lessee
may, without Lessor's prior consent, but upon notice to Lessor and in compliance
with all Applicable Requirements, use any ordinary and customary materials
reasonably required to be used by Lessee in the normal course of the Permitted
Use, so long as such use is not a Reportable Use and does not expose the
Premises or neighboring properties to any meaningful risk of contamination or
damage or expose Lessor to any liability therefor. In addition, Lessor may (but
without any obligation to do so) condition its consent to any Reportable Use of
any Hazardous Substance by Lessee upon Lessee's giving Lessor such additional
assurances as Lessor, in its reasonable discretion, deems necessary to protect
itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefor, including but not limited to
the installation (and, at Lessor's option, removal on or before Lease expiration
or earlier termination) of reasonably necessary protective modifications to the
Premises (such as concrete encasement) and/or the deposit of an additional
Security Deposit under Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee knows, or has cause to believe, that a
Hazardous Substance has come to be located in, on, under or about the Premises
or the Building, other than as previously consented to by Lessor, Lessee shall
immediately give Lessor written notice thereof, together with a copy of any
statement, report, notice, registration, application, permit, business plan,
license, claim, action, or proceeding given to, or received from, any
governmental authority or private party concerning the presence, spill, release,
discharge of, or exposure to, such Hazardous Substance including but not limited
to all such documents as may be involved in any Reportable Use involving the
Promises. Lessee shall not cause or permit any Hazardous Substance to be spilled
or released in, on, under or about the Promises (including, without limitation,
through the plumbing or sanitary sewer system).
(c) Indemnification. Lessee shall indemnify, protect, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of or involving any Hazardous
Substance brought onto the Premises by or for Lessee or by anyone under
Lessee's control. Lessee's obligations under this Paragraph 6.2(c) shall
include, but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Lessee, and the
cost of investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof, or of
any contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release Lessee from its
obligations under this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such agreement.
Lessor shall indemnify, defend, protect and hold Lessee harmless from and
against all liabilities, losses, costs and expenses, demands, causes of
action, claims or judgements directly or indirectly arising out of the use,
generation, storage or disposal of Hazardous Materials by Lessor or any of
Lessor's agents, employees or contractors. Lessor's obligations pursuant to
the foregoing indemnity shall survive the termination of this Lease. Lessor
and Lessee shall mutually agree upon acceptable counsel.
6.3 Lessees Compliance with Requirements. Lessee shall, at Lessee's sole
cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements" which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises
(including but not limited to matters pertaining to (i) industrial hygiene,
(ii) environmental conditions on, in, under or about the Premises, including
soil and groundwater conditions, and (iii) the use, generation, manufacture,
production, installation; maintenance, removal, transportation, storage,
spill, or release of any Hazardous Substance), now in effect or which may
hereafter come into effect. Lessee shall, within five (5) days after receipt
of Lessor's written request, provide Lessor with copies of all documents and
information, including, but not limited to, permits, registrations, manifests,
applications, reports and certificates, evidencing Lessee's compliance with any
Applicable Requirements specified by Lessor, and shall immediately upon receipt,
notify Lessor in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Lessee or the Premises to comply with any
Applicable Requirements and (iv) the Americans with Disabilities Act of 1990 and
all regulations issued thereunder. Notwithstanding anything to the contrary
herein, in no event shall Lessee be required to make or pay for any structural
or capital alterations to the Building that are required by Applicable
Requirements unless such alterations are required due to Lessee's particular use
of space (as opposed to industrial uses generally) or alterations voluntarily
made to the Premises by Lessee.
6.4 Inspection; Compliance with Law. Lessor, Lessor's agents, employees,
contractors, and designated representatives, and the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lenders") shall have the right
to enter the Premises at any time in the case of an emergency, and otherwise at
times, for the purpose of inspecting the condition of the premises and for
verifying compliance by Lessee with this Lease and all Applicable Requirements
(as defined in Paragraph 6.3), and Lessor shall be entitled to employ experts
and/or consultants in connection therewith to advise Lessor with respect to
Lessee's activities, including, but not limited to Lessee's installation,
operation, use, monitoring, maintenance or removal of any Hazardous Substance on
or from the Premises. The costs and expenses of any such inspections shall be
paid by the party requesting same, unless a Default or Breach of this Lease by
Lessee or a violation of Applicable Requirements or a contamination, caused or
materially contributed to by Lessee, is found to exist or to be imminent, or
unless the inspection is requested or ordered by a governmental authority as the
result of any such existing or imminent violation or contamination. In such
case, Lessee shall upon request reimburse Lessor or Lessor's Lender, as the case
may be, for the costs and expenses of such inspections.
<PAGE>
7. Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessors
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall,
at Lessee's sole cost and expense and at all times, keep the Premises and
every part thereof in good order, condition and repair (whether or not such
portion of the Premises requiring repair, or the means of repairing the same,
are reasonably or readily accessible to Lessee, and whether or not the
need for such repairs occurs as a result of Lessee's use, any prior use, the
elements or the age of such portion of the Premises), including, without
limiting the generality of the foregoing, in full compliance with the
Americans with Disabilities Act of 1990 and all regulations issued hereunder,
all equipment or facilities specifically serving the Premises, such as
plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities, boilers, fired or unfired pressure vessels, fire hose connections
if within the Premises, fixtures, interior walls, interior surfaces of
exterior walls, ceilings, floors, windows, doors, plate glass, and skylights,
but excluding any items which are the responsibility of Lessor pursuant to
Paragraph 7.2 below. Lessee, in keeping the Premises in good order, condition
and repair, shall exercise and perform good maintenance practices. Lessee's
obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements thereon or a part thereof
in good order, condition and state of repair. However, in no event shall
Lessee's obligation to repair under this subsection extend to (i) damage and
repairs covered under any insurance policy carried by Lessor in connection
with the Building; (ii) damage caused by any defects in the design,
construction or materials of the Building, including the Premises or
improvements installed therein by Lessor; (iii) damage caused in whole or in
part by the negligence or willful misconduct of Lessor or Lessor's agents,
employees, invitees or licensees; (iv) repairs covered under Operating Costs;
(v) reasonable wear and tear; (vi) conditions covered under any warranties of
Lessor's contractors; or (vii) damage by fire and other casualties, or acts of
governmental authorities, or acts of God and the elements.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain a contract, with copies to Lessor, in customary form and substance for
and with a contractor specializing and experienced in the inspection,
maintenance and service of the heating, air conditioning and ventilation
system for the Premises. However, Lessor reserves the right, upon notice to
Lessee, to procure and maintain the contract for the heating, air conditioning
and ventilating systems, and if Lessor so elects, Lessee shall reimburse
Lessor, upon demand, for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten(10) days' prior
written notice to Lessee (except in the case of an emergency, in which case no
notice shall be required), perform such obligations on Lessee's behalf, and
put the Premises in good order, condition and repair, in accordance with
Paragraph 13.2 below.
7.2 Lessors Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants, Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation), Lessor shall keep in good order,
condition and repair the foundations, floor slabs, exterior walls, structural
condition of interior bearing walls and structural components of building, roof
system, underground utilities, exterior roof, fire sprinkler and/or standpipe
and hose (if located in the Common Areas) or other automatic fire extinguishing
system including fire alarm and /or smoke detection systems and equipment, fire
hydrants, parking lots, walkways, parkways, driveways, landscaping, fences,
signs and utility systems serving the Common Areas and all parts thereof, as
well as providing the services for which there is a Common Area Operating
Expense pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the
exterior or interior surfaces of exterior walls nor shall Lessor be obligated to
maintain repair or replace windows, doors or plate glass of the Premises. Lessee
expressly waives the benefit of any statute now or hereafter in affect which
would otherwise afford Lessee the right to make repairs at Lessors expense or to
terminate this Lease because of Lessor's failure to keep the Building,
Industrial Center or Common Areas in good order, condition and repair.
7.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions, Consent Required. The term "Utility Installations" is used
in this Lease to refer to all air lines, power panels, electrical distribution,
security, fire protection systems, communications systems, lighting fixtures,
heating, ventilating and air conditioning equipment, plumbing, and fencing in,
on or about the Premises. The term "Trade Fixtures" shall mean Lessee's
machinery and equipment which can be removed without doing material damage to
the Premises. The term "Alterations" shall mean any modification of the
improvements on the Premises which are provided by Lessor under the terms of
this Lease, other than Utility Installations or Trade Fixtures. "Lessee-Owned
Alterations and/or Utility Installations" are defined as Alterations and/or
Utility Installations made by Lessee that are not yet owned by Lessor pursuant
to Paragraph 7.4(a). Lessee shall not make nor cause to be made any Alterations
or Utility Installations in, on, under or about the Premises without Lessors
prior written consent. Lessee may, however, make non-structural Utility
Installations to the interior of the Premises (excluding the roof) without
Lessor's consent but upon notice to Lessor, so long as they are in full
compliance with the Americans with Disabilities Act of 1990 and all regulations
issued hereunder, are not visible from the outside of the Premises, do not
involve puncturing, relocating or removing the roof or any existing walls, or
changing or interfering with the fire sprinkler or fire detection systems and
the cumulative cost thereof during the term of this Lease as extended does not
exceed $20,000.00.
(b) Consent. Any Alterations or Utility Installations that Lessee shall
desire to make and which require the consent of the Lessor shall be presented
to Lessor in written form with detailed plans. All consents given by Lessor,
whether by virtue of Paragraph 7.3(a) or by subsequent specific consent, shall
be deemed conditioned upon; (i) Lessee's acquiring all applicable permits
required by governmental authorities; (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the
Alteration or Utility Installation to Lessor prior to commencement of the work
thereon; and (iii) the compliance by Lessee with all conditions of said
permits in a prompt and expeditious manner. Any Alterations or Utility
Installations by Lessee during the term of this Lease shall be done in a good
and workmanlike manner, with good and sufficient materials and be in
compliance with all Applicable Requirements. Lessee shall promptly upon
completion thereof furnish Lessor with as-built plans and specifications
therefor.
(c) Lien Protection. Lessee shall pay when due all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use on the Premises, which claims are or may be secured by any mechanic's or
materialment's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than five (5) days' notice prior to the commencement of any
work in, on, or about the Premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises as provided by law. If
Lessee shall, in good faith contest the validity of any such lien, claim or
demand, then Lessee shall, at its sole expense, defend and protect itself,
Lessor and the Premises against the same and shall pay and satisfy any such
adverse judgment that may be rendered thereon before the enforcement thereof
against the Lessor or the Premises. If Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to one
and one-half times the amount of such contested lien, claim or demand,
indemnifying Lessor against liability for the same, as required, by law for the
holding of the Premises free from the affect of such claim, in addition, Lessor
may require Lessee to pay Lessor's attorneys' fees and costs in participating in
such action if Lessors shall decide it is to its best interest to do so.
7.4 Ownership, Removal, Surrender, and Restoration.
(a) Ownership. Subject to Lessor's right to require their removal and to
cause Lessee to become the owner thereof as hereinafter provided in this
Paragraph 7.4, all Alterations and Utility Installations made to the Premises by
Lessee shall be the property of and owned by Lessee, but considered a part of
the Premises. Lessor may, at any time and at its option, elect in writing to
Lessee to be the owner of all or any specified part of the Lessee-Owned
Alterations and Utility Installations. Unless otherwise instructed per
Subparagraph 7.4(b) hereof, all Lessee-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee.
(b) Removal. Unless otherwise agreed in writing, Lessor may require at
the time consent therefor is granted that any or all Lessee-Owned Alterations
or Utility Installations be removed by the expiration or earlier termination
of this Lease, notwithstanding that their installation may have been consented
to by Lessor. Lessor may require the removal at any time of all or any part of
any Alterations or Utility Installations made without the required consent of
Lessor. If such consent is required hereunder.
(c) Surrender/Restoration. Lessee shall surrender the Premises by the end
of the last day of the Lease term or any earlier term date, clean and free of
debris and in good operating order, condition and state of repair, ordinary wear
and tear and damage due to casualty or act of Lessor excepted. Ordinary wear and
tear shall not include any damage or deterioration that would have been
prevented by good maintenance practice or by Lessee performing all of its
obligations under this Lease. Except as otherwise agreed or specified herein,
the Premises, as surrendered, shall include the Alterations and Utility
Installations. The obligation of Lessee shall include the repair of any damage
occasioned by the Installation, maintenance or removal of Lessee's trade
Fixtures, furnishings, equipment, and Lessee-Owned Alterations and Utility
Installations, as well as the removal of any storage tank installed by or for
Lessee, and the removal, replacement, or remediation of any soil, material or
ground water contaminated by Lessee, all as may then be required by Applicable
Requirements and/or good practice. Lessee's Trade Fixtures shall remain the
property of Lessee and shall be removed by Lessee subject to its obligation to
repair and restore the Premises per this Lease.
8. Insurance; Indemnity.
8.1 Payment of Premium Increases.
(a) As used herein, the term "Insurance Cost Increase" is defined as any
Increase in the actual cost of the insurance applicable to the Building and
required to be carried by Lessor pursuant to Paragraphs 8.2(b), 8.3(a) and
8.3.(b). ("Required Insurance"), over and above the Base Premium, as hereinafter
defined, calculated on an annual basis. "Insurance Cost Increase" shall include,
but not be limited to, requirements of the holder of a mortgage or deed of trust
covering the Premises, increased valuation of the Premis, and/or a general
premium rate increase. The term "Insurance Cost Increase shall not, however,
include any premium increases resulting from the nature of the occupancy of any
other lessee of the Building. If the parties insert a dollar amount in Paragraph
1.9, such amount shall be considered the "Base Premium." If a dollar amount has
not been inserted in Paragraph 1.9 and if the Building has been previously
occupied during the twelve (12) month period immediately preceding the
Commencement Date, the "Base Premium" shall be the annual premium applicable to
such twelve (12) month period. If the Building was not fully occupied during
such twelve (12) month period, the "Base Premium" shall be the lowest annual
premium reasonably obtainable for the Required Insurance as of the Commencement
Date, assuming the most nominal use possible of the Building. In no event,
however, shall Lessee be responsible for any portion of the premium cost
attributable to liability insurance coverage in excess of $1,000,000 procured
under Paragraph 8.2(b).
<PAGE>
(b) Lessee shall pay any Insurance Cost Increase to Lessor pursuant to
Paragraph 4.2. Premiums for policy periods commencing prior to, or extending
beyond, the term of this Lease shall be prorated to coincide with the
corresponding Commencement Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force during the
term of this Lease a Commercial General Liability policy of insurance
protecting Lessee, Lessor and any Lender(s) whose names have been provided to
Lessee in writing (as additional insurers) against claims for bodily injury,
personal injury and property damage based upon, involving or arising out of
the ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $2,000,000 per occurrence
with an "Additional Insured-Managers or Lessors of Premises" endorsement and
contain the "Amendment of the Pollution Exclusion" endorsement for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not
contain any intra-insured exclusions as been insured persons or
organizations, but shall include coverage for liability assumed under this
Lease as an "insured contract" for the performance of Lessee's indemnity
obligations under this Lease. The limits of said insurance required by this
Lease or as carried by Lessee shall not, however, limit the liability of
Lessee nor retrieve Lessee of any obligation hereunder. All insurance to be
carded by Lessee shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess
insurance only. Lessee will name the following as additional insureds: Central
Valley LLC (Lessor), A&A Properties, Inc., (Property Manger) and Marvin L.
Oates (Managing Member).
(b) Carried by Lessor. Lessor shall also maintain liability Insurance
described in Paragraph 8.2(a) above, In addition to and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
8.3 Property Insurance-Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor, with
loss payable to Lessor and to any Lender(s), insuring against loss or damage
to the Premises. Such insurance shall be for full replacement cost, as the
same shall exist from time to time, or the amount required by any Lender(s),
but in no event more than the commercially reasonable and available insurable
value thereof if, by reason of the unique nature or age of the improvements
involved, such latter amount is less than full replacement cost. Lessee-Owned
Alterations and Utility Installations, Trade Fixtures and Lessee's personal
property shall be insured by Lessee pursuant to Paragraph 8.4. If the coverage
is available and commercially appropriate, Lessor's policy or policies shall
insure against all risks of direct physical loss or damage (except the perils
of flood and/or earthquake unless required by a Lender or included in the Base
Premium), including coverage for any additional costs resulting from debris
removal and reasonable amounts of coverage for the enforcement of any
ordinance or law regulating the reconstruction or replacement of any undamaged
sections of the Building required to be demolished or removed by reason of the
enforcement of any building, zoning, safety or land use laws as the result of
a covered loss, but not including plate glass insurance. Said policy or
policies shall also contain an agreed valuation provision in lieu of any co-
insurance clause, waiver of subrogation, end inflation guard protection
causing an increase in the annual property insurance coverage amount by a
factor of not less than the adjusted U.S. Department of Labor Consumer Price
index for All Urban Consumers for the city nearest to where the Premises are
located.
(b) Rental Value. Lessor shall also obtain and keep in force during the
term of this Lease a policy or policies in the name of Lessor, with loss
payable to Lessor and any Lender(s), insuring the loss of the full rental and
other charges payable by all lessees of the Building to Lessor for one year
(including all Real Property Taxes, Insurance costs, all Common Area Operating
Expenses and any scheduled rental increases). Said insurance may provide that
in the event the Lease is terminated by reason of an insured loss, the period
of indemnity for such coverage shall be extended beyond the date of the
completion of repairs or replacement of the Premises, to provide for one full
year's loss of rental revenues from the date of any such loss. Said insurance
shall contain an agreed valuation provision in lieu of any co-insurance clause,
and the amount of coverage shall be adjusted annually to reflect the projected
rental income, Real Property Taxes, insurance premium costs and other
expenses, if any, otherwise payable, for the next 12-month period. Common Area
Operating Expenses shall include any deductible amount in the event of such
loss.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums
for the property insurance of the Building and for the Common Areas or other
buildings In the Industrial Center if said increase is caused by Lessees acts,
omissions, use or occupancy of the Premises.
(d) Lessee's Improvements. Since Lessor is the Insuring Party, Lessor
shall not be required to insure Lessee-Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this lease.
8.4 Lessee's Property Insurance. Subject to the requirements of Paragraph 8.5,
Lessee's at its cost shall either by separate policy or, at Lessor's option, by
endorsement to a policy already carried, maintain insurance coverage on all of
Lessee's personal property, Trade Fixtures and Lessee-Owned Alterations and
Utility Installations in, on, or about the Premises similar in coverage to that
carded by Lessor as the Insuring Party under Paragraph 8.3(a). The proceeds from
any such insurance shall be used by Lessee for the replacement of personal
property and the restoration of Trade Fixtures and Lessee-Owned alterations and
Utility Installations. Upon request from Lessor, Lessee shall provide Lessor
with written evidence that such insurance is in force.
8.5 Insurance Policies. Insurance required hereunder shall be in companies
duly licensed to transact business in the state where the Premises are located,
and maintaining during the policy term a General Policyholder Rating of at least
B+, V, or such other rating as may be required by a Lender, as set forth in the
most current Issue of 'Bests Insurance Guide'. Lessee shall not do or permit to
be done anything which shall invalidate the insurance policies referred to in
this Paragraph 8. Lessee shall cause to be delivered to Lessor, within seven (7)
days after the earlier of the Early Possession Date or the Commencement Date,
certified copies of, or certificates evidencing the existence and amounts of,
the Insurance required under Paragraph 8.2(a) and 8.4. No such policy shall be
cancelable or subject to modification except after thirty (30) days' prior
written notice to Lessor. Lessee shall at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
Insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies,
Lessee and Lessor each hereby release and relieve the other, and waive their
entire right to recover damages (whether in contract or in tort) against the
other, for loss or damage to their property arising out of or incident to the
perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessors negligence and/or breach of express
warranties, Lessee shall indemnify, protect, defend and held harmless the
Premises, Lessor and its agents, Lessors master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorney' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in connection
with, the occupancy of the Premises by Lessee, the conduct of Lessee's business,
any act, omission or neglect of Lessee, its agents, contractors, employees or
invitees, and out of any Default or Breach by Lessee in the performance in a
timely manner of any obligation on Lessee's part to be performed under this
Lease. The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and whether
or not (in the case of claims made against Lessor) litigated and/or reduced to
judgment. In case any action or proceeding be brought against Lessor by reason
of any of the foregoing matters; Lessee upon notice from Lessee shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified.
8.8 Exemption of Lessor from Liability. Except for injury or damage resulting
from the negligence or breach of this Lease by Lessor or Lessors agents,
employees or contractors, Lessor shall not be liable for injury or damage to the
person or goods, wares, merchandise or other property of Lessee, Lessee's
employees, contractors, invitees, customer, or any other person in or about the
Premises, when such damage or injury is caused by or results from fire, steam,
electricity, gas, water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, fire sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether said injury
or damage results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part, from other sources or
places, and regardless of whether the cause or such damage or injury or the
means in repairing the same is accessible or not. Lessor shall not be liable for
any damages arising from any act or neglect of any other lessee of Lessor nor
from the failure, by Lessor to enforce the provisions of any other lease in the
Industrial Center. Notwithstanding Lessor's negligence or breach of this Lease,
Lessor shall under no circumstances be liable for injury to Lessee's business or
for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the
Premises, other than lien Lessee-Owned Alterations and Utility Installations,
the repair cost of which damage or destruction is less than fifty percent (50%)
or the then replacement cost (as defined in paragraph 9.1(d)) of the
Premises (excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations, the
repair cost of which damage or destruction is fifty percent (50%) or more of the
then Replacement Cost of the Premises (excluding Lessee-Owned Alterations and
Utility Installations and Trade Fixtures) immediately prior to such damage or
destruction. In addition, damage or destruction to the Building, other than
Lessee-Owned Alterations and Utility Installations and Trade Fixtures of any
lessees of the Building, the cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any Lessees of the
Building) of the Building shall, at the option of Lessor, be deemed to be
Premises Total Destruction.
(c) "Insured Loss" shall mean damage or destruction to the Premises,
other than Lessee-Owned Alterations and Utility Installations and Trade
Fixtures, which was caused by an event required to be covered by the insurance
described in Paragraph 8.3(a) irrespective of any deductible amounts or
coverage limits involved.
<PAGE>
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 Premises Partial Damage--Insured Loss. If Premises Partial Damage that is
an insured loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect.
9.3 Partial Damage-Uninsured Loss. If Premises Partial Damage that is not an
Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in
which event Lessee shall make the repairs at Lessee's expense and this Lease
shall continue in full force and effect), Lessor may at Lessor's option, either
(i) repair such damage as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) give
written notice to Lessee within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such damage of Lessor's desire to terminate this
Lease as of the date of such damage or destruction. In the event Lessor elects
to give such notice of Lessor's intention to terminate this lease, Lessee shall
have the right within ten(10) days after the receipt of such notice to give
written notice to Lessor of Lessee's commitment to pay for the repair of such
damage totally at Lessee's expense and without reimbursement from Lessor. Lessee
shall provide Lessor with the required funds or satisfactory assurance thereof
within thirty (30) days following such commitment from Lessee. In such event
this Lease shall continue in full force and effect, and Lessor shall proceed to
make such repairs as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the funds or
assurance thereof within the times specified above, this Lease shall terminate
as of the date specified in Lessor's notice of intention to terminate the Lease.
9.4 Total Destruction. Notwithstanding any other provision hereof, if
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate as of the date of
such Premises Total Destruction, whether or not the damage or destruction is
an Insured Loss or was caused by a negligent or willful act of Lessee. In the
event, however, that the damage or destruction was caused by Lessee, and such
losses is not a insured loss, Lessor shall have the right to recover Lessor's
damages from Lessee except as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6) months of
the term of this Lease there is damage for which the cost to repair exceeds one
month's Base Rent, whether or not an Insured Loss, Lessor may, at Lessor's
option, terminate this Lease effective sixty (60) days following the date of
occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or (ii)
the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during such period, then this
Lease shall terminate as of the date set forth in the first sentence of this
Paragraph.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii) a Hazardous
Substance Condition for which Lessee is not legally responsible, the Base Rent,
Common Area Operating Expenses and other charges, if any, payable by Lessee
hereunder for the period during which such damage or condition, its repair,
remediation or restoration continues, shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired. Except for abatement
of Base Rent, Common Area Operating Expenses and other charges, if any, as
aforesaid, all other obligations of Lessee hereunder shall be performed by
Lessee, and Lessee shall have not claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Paragraph 9 and shall not commence, in a substantial and
meaningful way, the repair or restoration of the Premises within thirty (30)
days after such obligation shall accrue, Lessee may, at any time prior to the
commencement of such repair or restoration, give written notice to Lessor and to
any Lenders of which Lessee has actual notice of Lessee's election to terminate
this Lease. If Lessee gives such notice to Lessor and such Lenders and such
repair or restoration is not commenced within fifteen (15) days after receipt of
such notice, this Lease shall terminate as of the date specified in said notice.
If Lessor or a Lender commences the repair or restoration of the Premises within
thirty (30) days after the receipt of such notice, this Lease shall continue in
full force and effect. "Commence" as used in this Paragraph 9.6 shall mean
either the unconditional authorization of the preparation of the required plans,
or the beginning of the actual work on the Premises, whichever occurs first. In
addition, if the Building or Premises is damaged or destroyed to the extent that
the Premises or Building cannot with reasonable diligence be fully repaired or
restored by Lessor within one hundred eighty (180) days after the date of the
damage or destruction, Lessee may terminate this Lease immediately upon notice
thereof to Lessor and the obligation of Lessee, if any, to pay Base Rent and
Additional Rent to Lessor shall terminate as of the date of such notice.
9.8 Termination-Advance Payments. Upon termination of this Lease pursuant to
this Paragraph 9, Lessor shall return to Lessee any advance payment made by
Lessee to Lessor and so much of Lessee's Security Deposit as has not been, or is
not then required to be, used by Lessor under the terms of this Lease.
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises and the
Building with respect to the termination of this Lease and hereby waive the
provisions of any present or future statute to the extent it is inconsistent
herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as defined in
Paragraph 10.2(a), applicable to the Industrial Center and except as otherwise
provided in Paragraph 10.3, any increases in such amounts over the Base Real
Property Taxes shall be included in the calculation of Common Area Operating
Expenses in accordance with the provisions of Paragraph 4.2.
10.2 Real Property Tax Definitions.
(a) As used herein, the term Real Property Taxes" shall include any form
of real estate tax or assessment, general, special, ordinary or extraordinary,
and any license fee, commercial rental tax, improvement bond or bonds, levy or
tax (other then inheritance, personal income or estate taxes) imposed upon the
Industrial Center by any authority having the direct or indirect power to tax,
including any city state or federal government, or any school, agricultural,
sanitary, tim, street, drainage, or other improvement district thereof, levied
against any legal or equitable interest of Lessor in the Industrial Center or
any portion thereof, Lessor's right to rent or other income therefrom, and/or
Lessors business of leasing the Premises. The term "Real Property Taxes" shall
also include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring, or changes in Applicable Law taking
effect during the term of this Lease, including but not limited to a change in
the ownership of the industrial center or in the improvements thereon, the
execution of this Lease, of any modification, amendment or transfer thereof, and
whether or not contemplated by the Parties. Lessee's portion of tax increase due
to the transfer of ownership shall not exceed 50% of their prorata share amount.
(b) As used herein, the term "Base Real Property Taxes" shall be the
amount of Real Property Taxes, which are assessed against the Premises,
Building or Common Areas in the calendar year during which the Lease is
executed. In calculating Real Property Taxes for any calendar year, the Real
Property Taxes for any real estate tax year shall be included in the calculation
of Real Property Taxes for such calendar year based upon the number of days
which such calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not include
Real Property Taxes specified in the tax assessor's records and worksheets as
being caused by additional improvements placed upon the Industrial Center by
other lessees or by Lessor for the exclusive enjoyment of such other lessees.
Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to Lessor at
the time Common Area Operating Expenses are payable under Paragraph 4.2, the
entirety of any increase in Real Property Taxes if assessed solely by reason of
Alterations, Trade Fixtures or Utility Installations placed upon the Premises by
Lessee or at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and Improvements included within the tax
parcel assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonable available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all taxes
assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center. When
possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor. If any of Lessee's said property shall be
assessed with Lessors real property, Lessee shall pay Lessor the taxes
attributable to Lessee's property within thirty (30) days after receipt of a
written statement setting forth the taxes applicable to Lessee s property.
<PAGE>
11. Utilities. Lessee shall pay directly for all utilities and services supplied
to the Premises, including but not limited to electricity, telephone, security,
gas, and cleaning of the Premises, together with any taxes thereon. If any such
utilities or services are not separately metered to the Premises or separately
billed to the Premises, Lessee shall pay to Lessor a reasonable proportion to be
determined by Lessor of all such charges jointly metered or billed with other
premises in the Building, in the manner and within the time periods set forth in
Paragraph 4-2(d).
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign transfer,
mortgage or otherwise transfer or encumber (collectively, "assign")or sublet all
or any part of Lessee's interest in this Lease or in the Premises without
Lessor's prior written consent given under and subject to the terms of Paragraph
36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of fifty-one
percent (51%) or more of the voting control of Lessee shall constitute a change
in control for this purpose. Notwithstanding the foregoing, (a) the terms of
this Section 12.1 (b) shall not apply to the Lessee so long as the stock thereof
is traded on a public exchange, and (b) Lessee may assign this lease or sublet
any portion of the Premises without Lessor's consent to any of the following (i)
any corporation which controls, is controlled by or under common control with
Lessee (ii) any corporation resulting from the merger or consolidation of
Lessee; (iii) any person or entity which acquires all of the assets of Lessee as
a growing concern of the business that is being conducted on the Premises
(collectively "Lessee Affiliate"), provided that such assignee assumes in full
the obligations of the Lessee under the Lease.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by Lessor shall
be limited to compensatory damages and/or injunctive relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting shall
not (i) be effective without the express written assumption by such assignee
sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of
any obligations hereunder, nor (iii) alter the primary liability of Lessee for
the payment of Base Rent and other sums due Lessor hereunder or for the
performance of any other obligations to be performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval of an
assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent for performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or Breach by
Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable under this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation under
this Lease, Lessor may proceed directly against Lessee, any Guarantors or anyone
else responsible for the performance of the Lessee's obligations under this
Lease, including any sublessee, without first exhausting Lessors remedies
against any other person or entity responsible therefore to Lessor, or any
security held by Lessor.
(e) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessors determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any. Lessee agrees to provide Lessor
with such other or additional information and/or documentation as may be
reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as am contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented In writing.
(g) The occurrence of a transaction described in Paragraph 12.2.(c) shall
give Lessor the right (but not the obligation) to require that the Security
Deposit be Increased by an amount equal to six (6) times the then monthly Base
Rent, and Lessor may make the actual receipt by Lessor of the Security Deposit
increase a condition to Lessor's consent to such transaction.
<PAGE>
(h) Lessor, as a condition to giving its consent to any assignment or
subletting, may require that the amount and adjustment schedule of the rent
payable under this Lease be adjusted to what is then the market value and/or
adjustment schedule for property similar to the Premises as then constituted, as
determined by Lessor.
13. Default; Breach; Remedies
13.1 Default; Breach. A "Default" by Lessee is defined as a failure by Lessee
to observe, comply with or perform any of the terms, covenants, conditions or
roles applicable to Lease under this Lease. A "Breach" by Lessee is defined as
the occurrence of any one or more of the following Defaults, and, where a grace
period for cure after notice is specified herein, the failure by Lessee to cure
such Default prior to the expiration of the applicable grace period, and shall
entitle Lessor to, pursue the remedies set forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises for more than thirty (30) consecutive
days without the intention to reoccupy same, or the abandonment of the Premises
for more than thirty (30) consecutive days.
(b) Except as expressly otherwise provided in this Lease, the failure by
Lessee to make any payment of Base Rent, Lessee's Share of Common Area Operating
Expenses, or any other monetary payment required to be made by Lessee hereunder
as and when due, the failure by Lessee to provide Lessor with reasonable
evidence of Insurance or surety bond required under this Lease, or the failure
of lessee to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) days following written notice thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the failure by
Lessee to provide Lessor with reasonable written evidence (in duly executed
original form, if applicable) of (i) the inspection, maintenance and service
contracts required under Paragraph 7.1 (b), (ii) the recision of an unauthorized
assignment subletting per paragraph 12.1, (iii) a Tenancy Statement per
Paragraphs 16 or 37, (iv) the subordination or non-subordination of this Lease
per Paragraph 30, (v) the execution of any document requested under Paragraph 42
(easements), or (vi) any other documentation or information which Lessor may
reasonably require of Lessee under the terms of this lease, where any such
failure continues for a period of ten (10) business days following written
notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof that
are to be observed, complied with or performed by Lessee, other than those
described in Subparagraphs 13.1(a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or on
behalf of Lessor to Lessee; provided, however, that if the nature of Lessee's
Default is such that more than thirty (30) days are reasonably required for its
cure, then it shall not be deemed to be a Breach of this Lease by Lessee if
Lessee commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by
Lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor' as defined in 11 U.S. Code Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's Interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1 (e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of Lessee or of
any Guarantor, given to Lessor by Lessee or any Guarantor, was materially false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's
liability with
<PAGE>
respect to this Lease other than in accordance with the terms of such guaranty,
(iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing,
(iv) a Guarantor's refusal to honor guaranty, or (v) a Guarantor's breach of its
guaranty obligation on an anticipatory breach basis, and Lessee's failure,
within sixty (60) days following written notice by or on behalf of Lessor to
Lessee of any such event, to provide Lessor with written alternative assurances
of security, which, when coupled with the then existing resources of Lessee,
equals or exceeds the combined financial resources of Lessee and the Guarantors
that existed at the time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any affirmative duty or obligation
of Lessee under this Lease, within ten (10) days after written notice to Lessee
(or in case of an emergency, without notice), Lessor may at its option (but
without obligation to do so), perform such duty or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its own
option, may require all future payments to be made under this Lease by Lessee to
be made only by cashier's check. In the event of a Breach of this Lease by
Lessee (as defined in Paragraph 13.1 ), with or without further notice or
demand, and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall terminate and Lessee
shall immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee: (i) the worth at the time of
the award of the unpaid rent which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have been reasonably
avoided; (iii) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that the Lessee proves could be reasonably avoided; and (iv)
any other amount necessary to compensate Lessor for all the detriment
proximately caused by the Lessee's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom, including but not limited to the cost of recovering possession of the
Premises, expenses of in letting, including necessary renovation and alteration
of the Premises, reasonable attorneys' fees, and that portion of any leasing
commission paid by Lessor in connection with this Lease applicable to the
unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco or the Federal Reserve Bank District in which the Premises
are located at the time of award plus one percent (1%). Efforts by Lessor to
mitigate damages caused by Lessee's Default or Breech of this Lease shall not
waive Lessor's right to recover damages under this Paragraph 13.2. If
termination of this Lease is obtained through the provisional remedy of unlawful
detainer, Lessor shall have the right to recover in such proceeding the unpaid
rent and damages as are recoverable therein, or Lesser may receive the right to
recover all or any part in a separate suit for and/or damages. If a Policy and
grace period required under Subparagraph 13.1(b), (c) or(d) was not previously
given, a notice to pay rent or quit, or to perform or quit, as the case may be,
given to Lessee under any statute authorizing the forfeiture of leases for
unlawful detainer shall also constitute the applicable notice for grace period
purposes required by Subparagraph 13.1 (b) (c) or (d). In such case, the
applicable grace period under the unlawful detainer statue shall run
concurrently after the one such statutory notice, and the failure of Lessee to
cure the Default within the greater of the two (2) such grace periods shall
constitute both an unlawful detainer and a Breach of this Lease entitling Lessor
to the remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessees right to possession in effect (In
California under California Civil Code Section 1951.4) after Lessee's Breach and
recover the rent as it becomes due provided Lessee has the right to sublet or
assign, subject only to reasonable limitations. Lessor and Lessee agree that the
limitations on assignment and subletting in this Lease are reasonable. Acts of
maintenance or preservation, efforts to relet the Premises, or the appointment
of a receiver to protect the Lessor's interest under this Lease, shall not
constitute a termination or the Lessee's right to possession.
(c) Pursue any remedy now or hereafter available to Lessor under the laws
or judicial decisions of the state wherein the Premises are located.
(d) The expiration or termination of this Lease and/or the termination of
Lessee's right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during
the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture In Event of Breach. Any agreement by Lessor for free
or abated rent or other charges applicable to the Premises, or for the giving or
paying by Lessor to or for Lessee of any cash or other bonus inducement or
consideration for Lessee's entering into this Lease, all of which concessions
are hereinafter referred to as "Inducement Provisions" shall be deemed
conditioned upon Lessee's full and faithful performance of all of the terms,
covenants and conditions of this Lease to be performed or observed by Lessee
during the term hereof as the same may be extended. Upon the occurrence of a
Breach (as defined in Paragraph 13.1 ) of this Lease by Lessee, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, Inducement or
consideration therefore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor, as additional rent due under this Lease, not
withstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which initiated the operation of this
paragraph 13.3 shall not be deemed a waiver by Lessor of the provisions of this
Paragraph 13.3 unless specifically so stated in writing by Lessor at the time of
such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lesser 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, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or deed of trust covering the Premises.
Accordingly, if any installment of rent or other sum due from Lessee shall not
be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason or late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount; nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this Lease
unless Lessor falls within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.5, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor
and by any Lender(s) whose name and address shall have been furnished to Lessee
in writing for such purpose, of written notice, specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessors obligation is such that more than thirty (30) days after such
notice are reasonably required for its performance, then Lessor shall not be in
breach of this Lease if performance is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
14. Condemnation. If the Premises or any portion thereof am taken under the
power of eminent domain or sold under the throat of the exercise of said power
(all of which are herein called "Condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the portion of
the Common Areas designated for Lessee's parking, is taken by Condemnation,
Lessee may, at Lessee's option, to be exercised in writing within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the Base Rent shall be
reduced in the same proportion as the rentable floor area of the Premises taken
bears to the total rentable floor area of the Premises. No reduction of Base
Rent shall occur if the condemnation does not apply to any portion of the
Premises. Any award for the taking of all or any part of the Premises under the
power of eminent domain or payment made under threat of the exercise of such
power shall be the property of Lessor, whether such award shall be made as
compensation for diminution of value of the leasehold or for the taking of the
fee, or as severance damages; provided, however, that Lessee shall be entitled
to any compensation, separately awarded to Lessee for Lessee's relocation
expenses and/or loss of Lessee's Trade Fixtures. In the event that this Lease is
not terminated by reason of such condemnation, Lessor shall to the extent of its
net severance damages received, over and above Lessee's Share of the legal and
other expenses incurred by Lessor in the condemnation matter, repair any damage
to the Premises caused by such condemnation authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
15.1 Brokers' Fees.
15.1 Procuring Cause. The Broker(s) named in Paragraph 1.10 is/are the
procuring cause of this Lease.
15.4 Representation and Warranties. Lessee and Lessor each represent and
warrant to the other that it has had no dealings, with any person, firm, broker,
or finder other than as named in Paragraph 1.10(a) in connection with the
negotiation of Lease and/or the consummation of the transaction contemplated
hereby, and that no broker or other person, arm or entity other than said named
Broker(s) is entitled to any commission or finder's fee in connection with said
transaction. Lessee and Lessor do each hereby agree to indemnify, protect,
defend and hold the other harmless from and against liability, for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings or actions of the indemnifying party,
including any costs, expenses, and/or attorneys' fees reasonably incurred with
respect thereto.
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party")shall within ten
(10) business days after written notice from the other Party (the "Requesting
Party" execute, acknowledge and deliver to the Requesting Party a statement in
writing stating that: (i) the Lease is unmodified and in full force and effect
or, if modified, stating the nature of such modification, (ii) the date to which
Base Rent is paid in advance, if any, and (iii) acknowledging that it is not in
default and that there are not, to the best of its knowledge, any uncured
defaults on the part of the other party, or, if there are uncured defaults,
stating the nature of uncured defaults.
<PAGE>
16.2 Financial Statement If Lessor desires to finance, refinance, or sell the
Premises or the Building, or any part thereof, Lessee and all Guarantors shall
deliver to any potential lender or purchaser designated by Lessor such financial
statements of Lessee such as a 10Q or 10K reasonably required by such lender or
purchaser. All such financial statements shall be received by Lessor and such
lender or purchaser in confidence and shall be used only for the purposes herein
set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises. In the event of
a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (10) days
following the date on which it was due, shall bear interest from the date due at
the prime rate charge by the largest state chartered bank in state in which the
Premises are located plus three percent (3%) per annum, but not exceeding the
maximum rate allowed by law, in addition to the potential late charge provided
for in Paragraph 13.4.
20. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or other Agreements; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and Financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have a
responsibility with respect thereto or with respect to any default or breach
hereof by either Party. Each Broker shall be an intended third party beneficiary
of the provisions of this Paragraph 22.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered via facsimile, in person (by hand or by
messenger or courier service) or may be sent by regular, certified or registered
mail or U.S. Postal Service Express Mail, or other national overnight courier
service with postage prepaid, or by facsimile transmission during normal
business hours, and shall be deemed sufficiently given if served in a manner
specified in this Paragraph 23. The address noted adjacent to a Party's
signature on this Lease shall be that Party's address for delivery or mailing of
notice purpose, except that upon Lessee's taking possession of the Premises, the
Premises shall may by written notice to the other specify a different address
for purpose of mailing or delivering notices to Lessee. A copy of all notices
required or permitted to be given to Lessor hereunder shall be concurrently
transmitted to such party or parties at such addresses as Lessor may from tithe
to tithe hereafter designate by written notice Lessee.
23.2 Date of Notice. Any notice sent by registered or certified mall,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail, the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the United States Postal Service or courrier. If any
notice is transmitted by facsimile transmission or similar means, the same shall
be deemed served or delivered upon receipt of a transmission report, generated
by sender's facsimile machine, which confirms delivery. If notice is received on
as Saturday or a Sunday or a legal holiday, it shall be deemed received on the
next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, of any subsequent Default of Breach by Lessee of
the same or any other term, covenant or condition hereof. Lessor's consent to,
or approval of, any such act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. Regardless of Lessors
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor shall not be a waiver of any Default or Breach by Lessee of
any provision hereof. Any payment given Lessor by Lessee may be accepted by
Lessor on account of moneys or damages due Lessor notwithstanding any qualifying
statements or conditions made by Lessee in connection therewith, which such
statements and/or conditions shall be of no force or effect whatsoever unless
specifically agreed to in writing by Lessor at or before the tithe of deposit or
such payment.
25. Recording. Either Lessor or Lessee shall upon request of the other, execute,
acknowledge and deliver to the other a short form memorandum of this Lease for
recording purposes. The Party requesting recordation shall be responsible for
payment of any fees or taxes applicable thereto.
26. No Right To Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and after the time of the expiration or
earlier termination of this Lease shall be increased to one hundred ten percent
(110%) of the Base Rent applicable during the month immediately preceding such
expiration or earlier termination. Nothing contained herein shall be construed
as a consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be subject
and subordinate to any ground lease, mortgage, deed of trust or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Lessee agrees that the Lenders holding any such Security Device shall have no
duty, liability or obligation to perform any of the Obligations of Lessor under
this Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default
pursuant to Paragraph 13.5. If any Lender shall elect to have this Lease
and/or, any option granted hereby superior to the lien of its Security Device
and shall give written notice thereof to Lessee, this Lease and such Options
shall be deemed prior to such Security Device, notwithstanding the relative
dates of the documentation or recordation thereof. The effective subordination
of this Lease to any existing or future mortgages, deeds of trust, other
security interest or leases shall be subject to the fulfillment of the
conditions precedent that (i) the holder of such mortgage or other lien on the
Building or Property shall first have agreed in writing that so long as Tenant
is not in default, the Lease shall not be terminated by foreclosure or sale
pursuant to the terms of such mortgage or lien; and (ii) such subordination
shall not otherwise restrict or limit the rights or increase the obligations of
Lessee under this Lease.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by Lessor
after the execution of this lease, Lessee's subordination of this Lease shall be
subject to receiving assurance (a "non-disturbance agreement") from the Lender
that Lessee's possession and this Lease, including any options to extend the
term hereof, will not be disturbed so long as Lessee is not in Breach hereof and
attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall be
effective without the execution of any further documents; provided, however,
that upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non-subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party or Broker who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise, settlement, judgment,
or the abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred. Lessor shall be entitled to attorneys' fees costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting Breach. Broker(s) shall be intended
third party beneficiaries of this Paragraph 31.
<PAGE>
32. Lessors Access; Showing Promises; Repairs. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or Lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may be reasonably deem necessary. Lessor may at any time place on or about the
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or
about the Premises any ordinary "For Lease" signs. All such activities of Lessor
shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the exterior of the Premises or
the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business so long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. The installation of any sign on
the Premises by or for Lessee shall be subject to the provisions of Paragraph 7
(Maintenance, Repairs, Utilities Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Lessor reserves all rights to the use
of the roof or the building, and the right to install advertising signs on the
Building, including the roof, which do not unreasonably interfere with the
conduct of Lessee's business; Lessor shall be entitled to all revenues from such
advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lessee by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one of all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions.) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessors actual reasonable costs and expenses (including but not limited
to architects', attorneys', engineers' and other consultants' fees) incurred in
the consideration of, or response to, a request by Lessee for any Lessor consent
pertaining to this Lease of the Premises, including but not limited to consents
to an assignment a subletting or the presence or use of a Hazardous Substance
shall be paid by Lessee to Lessor upon receipt of an invoice and supporting
documentation therefor. In addition to the deposit described in Paragraph 12.2
(e), Lessor may, as a condition to considering any such request by Lessee,
require that Lessee reimburse Lessor an amount of money equal to the cost Lessor
incurs in considering and responding to Lessee's request. Lessor's consent to
any act, assignment of this Lease or subletting of the Premises by existing
Default of Breach, except as may be otherwise specifically stated in writing by
Lessor at the time of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter to for which consent is being
given.
37. Guarantor.
37.1 Form of Guaranty. If there are to be any Guarantors of this Lease per
Paragraph 1.11, the form of the guaranty to be executed by each such Guarantor
shall be in the form most recently published by the American Industrial Real
Estate Association, and each such Guarantor shall have the same obligations as
Lessee under this Lease, including but not limited to the obligation to provide
the Tenancy Statement and information required in Paragraph 16.
37.2 Additional Obligations of Guarantor. It shall constitute a Default of the
Lessee under this Lease if any such Guarantor fails or refuses, upon reasonable
request by Lessor to give: (a) evidence of the due execution of the guaranty
called for by this Lease, including the authority of the Guarantor (and of the
party signing on Guarantor's behalf) to obligate such Guarantor on said
guaranty, and resolution of its board of directors authorizing the making of
such guaranty, together with a certificate of occupancy showing the signatures
of the persons authorize to sign on its behalf, (b) current financial statements
of Guarantor as may from time to time be requested by Lessor, (c) a Tenancy
Statement, or (d) written confirmation that the guaranty is still in effect.
38. Quiet Possession. Upon payment by Lessee of the rent for the Premises and
the performance of all of the covenants, conditions and provisions Lessee's part
to be observed and performed under this Lease, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease.
39. Options.
39.1 Definition. As used in this Lease, the word "Option" has the following
meaning: (a) the right to extend the term of this Lease or to renew this Lease
or to extend or renew any lease that Lessee has on other property of Lessor; (b)
the right of first refusal to lease the Premises or the right of first offer to
lease the Premises or the right of first refusal to lease other property of
Lessor or the right of first offer to lease other property of Lessor; (c) the
right to purchase the Premises, or the right of first refusal to purchase the
Premises, or the right of the first offer to purchase the Premises, or the right
to purchase other property of Lessor, or the right of first refusal to purchase
other property of Lesser, or the right of first offer to purchase other property
of Lessor.
39.2 Options Personal to Original Lessee. Each Option granted to Lessee in
this lease is personal to the original Lessee named in Paragraph 1.1 hereof, and
any affiliate thereof, and cannot be voluntarily or involuntarily assigned or
exercised by any person or entity other than said original Lessee while the
original Lessee is in full and actual possession or the Premises and without the
intention of thereafter assigning or subletting. The Options, if any, herein
granted to Lessee are not assignable, either as a part of an assignment of this
Lease or separately or apart therefrom, and no Option may be separated from
this Lease in any manner by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple Options to
extend or renew this Lease, a later option cannot be exercised unless the prior
Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an option, notwithstanding any
provision in the grant of Option to the contrary; (i) during the period
commencing with the giving of any notice of Default under Paragraph 13.1 and
continuing until the noticed Default is cured, or (ii) during the period of
time any monetary obligation due Lessor from Lessee is unpaid (without regard to
whether notice thereof is given Lessee), or (iii) during the time Lessee is in
Breach of this Lease, or (iv) in the event that Lessor has given to Lessee three
(3) or more notices of separate Defaults under Paragraph 13.1 during the twelve
(12) month period immediately preceding the exercise of the Option, whether or
not the Defaults are cured.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due
and timely exercise of the Option, if, after such exercise and during the term
of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessor gives to Lessee three (3) or more notices of separate monetary Defaults
under Paragraph 13.1 during any twelve (12) month period, whether or not the
Defaults are cured, or (iii) if Lessee commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. Security Measures. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. Reservations. Lessor reserves the right, from time to time, to grant,
without the consent or joint of Lessee, such easements, rights of way, utility
raceways, and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility raceways, dedications, maps and restrictions do not reasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
<PAGE>
43. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment `under protest' and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part or
said Party to institute suit for recovery of such sum. If shall be adjudged that
there was no legal obligation on the part of said Party to pay such sum or any
part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this
Lease.
44. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease and
typewritten or handwritten provisions shall be controlled by the typewritten or
hand-written provisions.
46. Offer. Preparation of this Lease by either Lessor or Lessee or Lessors agent
or Lessee's agent and submission of same to Lessee or Lessor shall not be deemed
an offer to lease. This Lease is not intended to be binding until executed and
delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE EXECUTION 0F THIS
LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND
LESSEE WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR ATTORNEY'S
REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS, UNDERGROUND
STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS
BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE.
BROKERS OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS
TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS IN
A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE PROPERTY
IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at Executed at:
-------------------------- ---------------------------
on: on:
---------------------------------- ------------------------------------
By LESSOR: CENTRAL VALLEY LLC By LESSEE: RESTORATION HARDWARE, INC.,
A DELAWARE CORPORATION
- ------------------------------------- ---------------------------------------
- ------------------------------------- ---------------------------------------
By: By:
---------------------------------- ------------------------------------
Name Printed: Marvin L. Oates Name Printed: Thomas A. Christopher
Title: Managing Member Title: President and
Chief Operating Officer
By: By:
---------------------------------- ------------------------------------
Name Printed: Name Printed: Thomas E. Low
Title: Title: Senior Vice President
and Chief Financial officer
Address: 8615 Elder Creek Road Address: 15 Koch Road, Suite J
Sacramento, CA 95828 Corte Madera, CA 94925
Telephone:(916) 381-3600 Telephone:(415) 924-1005
Facsimile:(916) 381-8671 Facsimile:(415) 927-9'133
BROKER: BROKER:
Executed at: Executed at:
------------------------- ---------------------------
on: on:
---------------------------------- ------------------------------------
By: By:
---------------------------------- ------------------------------------
Name Printed: Name Printed:
------------------------ --------------------------
Title: Title:
------------------------------- ---------------------------------
Address: Address:
----------------------------- -------------------------------
Telephone:( ) Telephone:( )
----------------------- -------------------------
Facsimile: ( ) Facsimile: ( )
---------------------- ------------------------
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 345 So. Flgueroa
St., M-1, Los Angeles, CA 90071 (213) 687-8777
<PAGE>
ADDENDUM TO STANDARD INDUSTRIAL COMMERCIAL MULTI-TENANT LEASE-GROSS, DATED
AUGUST 13, 1998 BY AND BETWEEN CENTRAL VALLEY LLC (LESSOR) and RESTORATION
HARDWARE, INC., A DELAWARE CORPORATION (LESSEE). THIS ADDENDUM SHALL GOVERN IN
THE EVENT OF A CONFLICT BETWEEN THIS ADDENDUM AND THE LEASE FORM TO WHICH IT
IS ATTACHED.
1.5 (continued) Schedule for base rent is as follows:
Months 01 - 09 $48,765.43 per month
Months 10 - 21 $58,327.28 per month
Months 22 - 33 $59,283.47 per month
Months 34 - 45 $61,195.84 per month
Months 46 - 60 $63,108.21 per month
3.1 (continued) Lessor shall complete construction of the tenant improvements on
Exhibit "C" on or before the lease commencement date.
4.2 (continued) Lessee portion of Common Area Expenses shah not exceed $.009 psf
per month for the first 12 months of the lease term.
6.2 (continued) Lessor warrants that any new construction by Lessor pursuant to
this Lease shall be in conformity with the building plans and permits, and shall
comply with current interpretations of the Americans With Disabilities Act of
1990 ("ADA") regarding the type of building and/or tenant improvements
constructed by Lessor. However, if any governmental authority should require any
additional improvements, permits or approvals, under ADA or otherwise, due to
Lessee's particular use, or Lessee's employees, customers, or invitees, other
than those which are stated in this Lease, and other than requirements generally
for buildings of this type, including without limitation, additional fire
protection equipment or flow capacity, use permits, or zoning variances, such
improvements or changes to the permitted uses shall be made at Lessee's sole
expense.
50. FLOOD: Lessee expressly acknowledges and assumes the risk that the Premises
and improvements may be subject to flooding due to their location in a 100-year
flood plain. Lessee unconditionally waives any flood-related property damage
claim asserting liability on the part of the Lessor, Lessor's predecessors and
successors-in-interest, the City of Tracy or its officers, agents, or employees
premised on the issuance of a permit for construction of the improvements,
whether or not the issuance of this permit is due to the negligence of Lessor,
Lessor's predecessors or successors, the City or its officers, agents or
employees.
51. OCCUPANCY: If any, governmental authority should require any additional
improvements due to Lessee's occupancy other than those which are stated in this
addendum, such improvement shall be made at Lessee's sole expense.
52. FIRE EXTINGUISHERS: Lessee responsible for supplying fire extinguishers (2A
10:BC) as required per code.
53. FORKLIFT RESTRICTIONS: Asphaltic cement can not withstand hard rubber
forklift tires. In the event the asphalt is damaged by Lessee's use of a
forklift with hard rubber tires, it will be Lessee's obligation to repair the
damaged asphaltic cement at Lessee's sole expense.
54. TENANT IMPROVEMENTS: Lessor at Lessor's sole cost and expense shall provide
the Tenant Improvements as listed on Exhibit C prior to the lease commencement
date.
55. TRAILER PARKING: Lessee shall be allowed to use approximately thirty eight
(38%) percent of the area described as "Trailer Lot" on the Exhibit A. In the
event Lessee elects to separately fence an area exclusively used by Lessee,
Lessee and Lessor must mutually agree upon location of area to be fenced and
Lessee shall be responsible for all maintenance required of this area as well as
removal of the fence upon termination of the lease.
<PAGE>
ADDENDUM TO STANDARD INDUSTRIAL COMMERCIAL MULTI-TENANT LEASE-GROSS, DATED
AUGUST 13, 1998 BY AND BETWEEN CENTRAL VALLEY LLC (LESSOR) and RESTORATION
HARDWARE, INC., A DELAWARE CORPORATION (LESSEE). THIS ADDENDUM SHALL GOVERN IN
THE EVENT OF A CONFLICT BETWEEN THIS ADDENDUM AND THE LEASE FORM TO WHICH IT IS
ATTACHED.
(continued)
56. OPTION TO RENEW: Provided Lessee is not in default of any terms and
conditions of the lease, Lessor shall grant Lessee the option to renew the lease
for one (1) additional three (3) year period. Lessee shall notify Lessor in
writing at lease six (6) months prior to the expiration of the lease term. The
rent for the option period shall be $.345 psf/month.
AGREED AND ACCEPTED
LESSOR: LESSEE:
CENTRAL VALLEY LLC RESTORATION HARDWARE, INC., A DELAWARE
CORPORATION
- ------------------------------------- ---------------------------------------
Marvin L. Oates Thomas A. Christopher
Managing Member President and COO
Date: Date:
Thomas E. Low
Senior V.P. and CFO
Date:
-----------------------------------
<PAGE>
EXHIBIT A
STONEBRIDGE INDUSTRIAL PARK
MAP
<PAGE>
EXHIBIT B
STONEBRIDGE INDUSTRIAL PARK
MAP
<PAGE>
EXHIBIT C
Lessor shall provide the following Tenant Improvements prior to the lease
commencement;
OFFICE:
- -------
* Refurbish and modify the existing office and restroom
improvements including paint, floor covering, ceiling tile and
relocation and/or removal of walls.
WAREHOUSE:
- ----------
* Install two (2) full height metal demising walls with white
siding on interior side.
* Paint interior warehouse walls white.
* Provide separate electrical meter and service sufficient to
operate Lessee's lights, offices and battery charging area.
* Provide three (3) 480 volt electrical outlets for battery
charging area. (If City of Tracy requires additional
improvements, it shall be at Lessee's sole cost and expense.)
* Improve approximately 75,000 square feet of designated
warehouse area with 400 watt metal halide lights at one (1)
per 600 square feet (approximately 125 lights). Balance of
the warehouse to maintain one (1) light per 1,000 square
feet.
* Install edge of dock levelers and seals on all non-equipped
dock doors. Levelers shall be edge of dock, 25,000 lbs.
EXTERIOR:
- ---------
* Lessor shall paint the exterior of the building with colors of
Lessor's choice.
Lessee may decide to have Lessor provide other improvements in lieu of the above
listed items. If so, the parties will agree to the changes per a separate
agreement.
Lessor's Initials
______________________
Date:
_________________________
Lessee's Initials:
__________
Date: 10/16/98
<PAGE>
BROKER DISCLOSURE
The United States Congress has recently enacted the Americans with Disabilities
Act. Among other things, this act is intended to make many business
establishments equally accessible to persons with a variety of disabilities;
modifications to real property may be required. State and local laws also may
mandate changes. The real estate brokers in this transaction are not qualified
to advise you as to what, if any, changes may be required now, or in the future.
Owners and Lessees should consult the attorneys and qualified design
professionals of their choice for information regarding these matters. Real
estate brokers cannot determine which attorneys or design professionals have the
appropriate expertise in this area.
Various construction materials may contain items that have been or may be in the
future be determined to be hazardous (toxic) or undesirable and may need to be
specifically treated/handled or removed. For example, some transformers and
other electrical components contain PCB's and asbestos has been used in
components such as fireproofing, heating, and cooling systems, air duct
insulation, spray-on and tile acoustical materials, linoleum, floor tiles,
roofing dry wall and plaster. Due to prior or current uses of the Property or in
the area, the Property may have hazardous or undesirable metals, minerals,
chemicals, hydrocarbons, or biological or radioactive items (including electric
and magnetic fields) in soils, water, building components, above or below-ground
containers or elsewhere in areas that may or may not be accessible or
noticeable. Such items may not leak or otherwise be released. Real estate agents
have no expertise in the detection or correction of hazardous or undesirable
items. Expert inspections are necessary. Current or future laws may require
clean up by past, present and/or future owners and/or operators. It is the
responsibility of the Seller/Lessor and Buyer/Lessee to retain qualified experts
to detect and correct such matters and to consult with legal counsel of their
choice to determine what provision, if any, they may wish to include in
transaction documents regarding the Property. To the best of Seller/Lessor's
knowledge, Seller/Lessor has attached to this Disclosure copies of all existing
surveys and reports blown to Seller/Lessor regarding asbestos and other
hazardous materials and undesirable substances related to the Property.
Sellers/Lessors are required under California Health and Safety Code Section
25915 at seq. to disclose reports and surveys regarding asbestos to certain
persons, including their employees, contractors, co-owners, purchasers and
Lessees. Buyers/Lessees have similar disclosure obligations. Sellers/Lessors and
Buyers/Lessees have additional hazardous materials disclosure responsibilities
to each other under California Health and Safety Code Section 25359.7 and other
California laws. Consult your attorney regarding this matter.
INITIALS INITIALS
INITIALS INITIALS
<TABLE> <S> <C>
<PAGE>
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<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-29-2000
<PERIOD-START> JAN-31-1999
<PERIOD-END> MAY-01-1999
<CASH> 131
<SECURITIES> 0
<RECEIVABLES> 5,361
<ALLOWANCES> 0
<INVENTORY> 65,773
<CURRENT-ASSETS> 79,859
<PP&E> 92,111
<DEPRECIATION> 14,871
<TOTAL-ASSETS> 164,415
<CURRENT-LIABILITIES> 50,123
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0
0
<COMMON> 2
<OTHER-SE> 82,187
<TOTAL-LIABILITY-AND-EQUITY> 164,415
<SALES> 60,049
<TOTAL-REVENUES> 60,049
<CGS> 46,000
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<OTHER-EXPENSES> 18,497
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