<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10 - Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 0-19092
ROSS SYSTEMS, INC.
------------------
(Exact name of registrant as specified in its charter)
California 94-2170198
----------- ------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Two Concourse Parkway, Suite 800, Atlanta, Georgia 30328
-------------------------------------------------- -------
(Address of principal executive offices) (Zip code)
(770) 351-9600
--------------
(Registrant's telephone number, including area code)
Indicate by check mark 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 requirements for the past 90 days. YES X NO__
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date:
<TABLE>
<CAPTION>
Outstanding
Class April 30, 1998
-------------------------- --------------
<S> <C>
Common stock, no par value 20,658,821
</TABLE>
This is page 1 of 22 pages. Index to
exhibits begins on page 21.
<PAGE>
ROSS SYSTEMS, INC.
QUARTERLY REPORT ON FORM 10-Q
QUARTER ENDED MARCH 31, 1998
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
<S> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Statements of Operations Three and nine
months ended March 31, 1998 and 1997 3
Condensed Consolidated Balance Sheets -
March 31, 1998 and June 30, 1997 4
Condensed Consolidated Statements of Cash Flows Nine months
ended March 31, 1998 and 1997 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk 18
PART II OTHER INFORMATION
Item 2. Changes in Securities 19
Item 6. Exhibits and Reports on Form 8-K 19
SIGNATURES 20
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ROSS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
-------------------- --------------------
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Software product licenses.................................................. $ 10,169 $ 6,864 $ 25,721 $ 19,823
Consulting and other services.............................................. 7,632 5,632 19,581 16,594
Maintenance................................................................ 6,513 6,520 18,856 19,224
--------- --------- --------- ---------
Total revenues......................................................... 24,314 19,016 64,158 55,641
--------- --------- --------- ---------
Operating expenses:
Costs of software product licenses......................................... 960 442 2,145 1,771
Costs of consulting, maintenance and other services........................ 9,594 7,765 25,659 21,091
Sales and marketing........................................................ 6,869 6,165 19,352 15,472
Product development........................................................ 2,446 2,512 7,989 8,328
General and administrative................................................. 1,940 2,051 5,634 5,550
Provision for uncollectible accounts....................................... 135 498 941 1,519
Litigation settlement...................................................... -- -- (381) --
Amortization of other assets............................................... 291 211 728 531
--------- --------- --------- ---------
Total operating expenses............................................... 22,235 19,644 62,067 54,262
--------- --------- --------- ---------
Operating earnings (loss).................................................... 2,079 (628) 2,091 1,379
Other expenses, net........................................................ (267) (237) (887) (627)
--------- --------- --------- ---------
Earnings (loss) before income taxes.......................................... 1,812 (865) 1,204 752
Income tax expense......................................................... 134 124 461 438
--------- --------- --------- ---------
Net earnings (loss).......................................................... $ 1,678 $ (989) $ 743 $ 314
--------- --------- --------- ---------
--------- --------- --------- ---------
Net earnings (loss) per share--basic......................................... $ 0.08 $ (0.05) $ 0.04 $ 0.02
--------- --------- --------- ---------
--------- --------- --------- ---------
Net earnings (loss) per share--diluted....................................... $ 0.08 $ (0.05) $ 0.03 $ 0.02
--------- --------- --------- ---------
--------- --------- --------- ---------
Shares used in per share computation--basic.................................. 19,916 18,815 19,468 18,375
--------- --------- --------- ---------
--------- --------- --------- ---------
Shares used in per share computation--diluted................................ 22,318 19,594 21,978 19,159
--------- --------- --------- ---------
--------- --------- --------- ---------
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
3
<PAGE>
ROSS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, JUNE 30,
1998 1997
----------- -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................................................. $ 6,151 $ 4,010
Accounts receivable, less allowance for doubtful accounts and returns..................... 31,237 31,700
Prepaids and other current assets......................................................... 1,631 2,225
----------- -----------
Total current assets.................................................................. 39,019 37,935
Property and equipment...................................................................... 4,194 4,540
Computer software costs..................................................................... 23,692 21,666
Other assets................................................................................ 5,856 5,574
----------- -----------
Total assets.......................................................................... $ 72,761 $ 69,715
----------- -----------
----------- -----------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of debt.............................................................. $ 11,136 $ 12,310
Accounts payable.......................................................................... 6,440 9,188
Accrued expenses.......................................................................... 7,152 8,393
Income taxes payable...................................................................... 678 199
Deferred revenues......................................................................... 15,240 16,118
----------- -----------
Total current liabilities............................................................. 40,646 46,208
----------- -----------
Long-term debt, less current installments................................................... 6,477 394
----------- -----------
Redeemable preferred stock.................................................................. 1,053 1,053
----------- -----------
Shareholders' equity:
Common stock.............................................................................. 75,863 73,756
Accumulated deficit....................................................................... (49,597) (50,340)
Cumulative translation adjustment......................................................... (1,681) (1,356)
----------- -----------
Total shareholders' equity............................................................ 24,585 22,060
----------- -----------
Total liabilities and shareholders' equity............................................ $ 72,761 $ 69,715
----------- -----------
----------- -----------
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
4
<PAGE>
ROSS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
MARCH 31,
--------------------
1998 1997
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net earnings.................................................................................... $ 743 $ 314
Adjustments to reconcile net earnings to net cash provided by operating activities:
Depreciation and amortization of property and equipment....................................... 2,078 1,647
Amortization of computer software costs....................................................... 5,432 4,971
Amortization of other assets.................................................................. 728 531
Provision for uncollectible accounts.......................................................... 941 1,519
Changes in operating assets and liabilities, net of acquisitions:
Accounts receivable......................................................................... 63 (2,175)
Prepaids and other current assets........................................................... 589 (1,341)
Income taxes payable / recoverable.......................................................... 454 168
Accounts payable............................................................................ (2,524) 894
Accrued expenses............................................................................ (1,373) (1,787)
Deferred revenues........................................................................... (894) (4,508)
Other, net.................................................................................... (50) (28)
--------- ---------
Net cash provided by operating activities................................................... 6,187 205
--------- ---------
Cash flows from investing activities:
Purchases of property and equipment............................................................. (740) (1,369)
Computer software costs capitalized............................................................. (7,698) (5,920)
Acquisitions and divestitures................................................................... 69 24
Payment of debt issuance costs.................................................................. (287) --
Other........................................................................................... (119) 83
--------- ---------
Net cash used for investing activities...................................................... (8,775) (7,182)
--------- ---------
Cash flows from financing activities:
Net line of credit activity..................................................................... (1,227) 2,242
Capital lease payments.......................................................................... (42) (25)
Proceeds from issuance of convertible debentures................................................ 6,000 --
Proceeds from issuance of common stock, net..................................................... 50 149
Proceeds from issuance of preferred stock, net.................................................. -- 5,720
--------- ---------
Net cash provided by financing activities................................................... 4,781 8,086
--------- ---------
Effect of exchange rate changes on cash........................................................... (52) (54)
--------- ---------
Net increase in cash and cash equivalents......................................................... 2,141 1,055
Cash and cash equivalents at beginning of period.................................................. 4,010 1,862
--------- ---------
Cash and cash equivalents at end of period........................................................ $ 6,151 $ 2,917
--------- ---------
--------- ---------
Noncash investing and financing activities:
Business acquisitions for common stock & forgiveness of debt.................................... $ 2,057 $ 3,727
--------- ---------
--------- ---------
Conversion of preferred stock................................................................... $ 3,737
---------
---------
Capital lease additions......................................................................... $ 178 $ 29
--------- ---------
--------- ---------
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
5
<PAGE>
ROSS SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
A) Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
of Ross Systems, Inc. (the "Company") reflect all adjustments of a normal
recurring nature which are, in the opinion of management, necessary to present a
fair statement of its financial position as of March 31, 1998, and the results
of its operations and cash flows for the interim periods presented. The
Company's results of operations for the nine months ended March 31, 1998 are not
necessarily indicative of the results to be expected for the full year.
These unaudited condensed financial statements have been prepared in
accordance with the instructions for Form 10-Q and, therefore, certain
information and footnote disclosures normally contained in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted. These financial statements should be read in conjunction
with the Consolidated Financial Statements and notes thereto included in the
Company's Annual Report to Shareholders on Form 10-K for the fiscal year ended
June 30, 1997.
Certain fiscal 1997 amounts have been reclassified to conform to the
fiscal 1998 financial statement presentation.
B) Accounts receivable
As of the dates shown, accounts receivable consisted of the following
(in thousands):
<TABLE>
<CAPTION>
March 31, June 30,
1998 1997
-------- --------
<S> <C> <C>
Trade accounts receivable ............................ $ 33,128 $ 35,195
Less allowance for doubtful accounts and returns ..... (1,891) (3,495)
-------- --------
$ 31,237 $ 31,700
-------- --------
-------- --------
</TABLE>
C) Property and equipment
As of the dates shown, property and equipment consisted of the
following (in thousands):
<TABLE>
<CAPTION>
March 31, June 30,
1998 1997
-------- --------
<S> <C> <C>
Computer equipment ................................. $ 8,971 $ 13,186
Furniture and fixtures ............................. 2,922 3,833
Leasehold improvements ............................. 1,608 1,935
-------- --------
13,501 18,954
Less accumulated depreciation and amortization ..... (9,307) (14,414)
-------- --------
$ 4,194 $ 4,540
-------- --------
-------- --------
</TABLE>
6
<PAGE>
ROSS SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
D) Business Acquired
On January 5, 1998, the Company acquired a 100% ownership interest in
Bizware Corporation, a privately held computer consulting firm based in New
Jersey, in exchange for shares of the Company's common stock valued at
approximately $2,000,000. Bizware Corporation had been a partner on many of the
Company's software implementation and consulting projects over the past several
years. The acquisition has been accounted for as a purchase and, accordingly,
the results of operations of the acquired business have been included in the
Company's results of operations from the date of acquisition. The pro forma
effects on total revenues, net earnings, and net earnings per share of including
this subsidiary in the Company's Consolidated Statement of Operations from the
beginning of fiscal 1998 and 1997 are not significant to the Company as a whole.
E) Convertible Debt
On February 6, 1998, the Company closed a private placement of up to
$10,000,000 of convertible subordinated debentures to certain institutional
investors (the "Investors") pursuant to Regulation D promulgated under the
Securities Act of 1933, as amended. The Investors invested $6,000,000 on
February 6, 1998 and will invest $4,000,000 four months after such date if
certain conditions are met. The material agreements between the Company and each
Investor have been filed as exhibits to the Current Report on Form 8-K filed
with the Securities and Exchange Commission by the Company on February 12, 1998.
F) Subsequent event
On April 23, 1998, the Company issued and sold 353,000 shares of its
Common Stock to a foreign institutional investor upon the exercise of a
warrant to purchase 640,000 shares of the Company's Common Stock. The Company
and the investor also agreed to cancel the remaining 287,000 shares of Common
Stock subject to the warrant. The aggregate exercise price paid by this
investor was $1,141,946, representing a per share exercise price of
$3.234975. The Company and the investor agreed to reduce the exercise price
from that set forth in the warrant certificate, dated July 3, 1996,
representing the warrant in consideration for the cancellation. The proceeds
from this exercise will be used by the Company to fund its current
operations. On April 24, 1998, the Company issued and sold 286,633 shares of
it's Common Stock to this investor upon the conversion of the remaining 107
shares of the Company's Series E Redeemable Preferred Stock. Because this
transaction involved the exchange of one security for another security, no
additional consideration was paid by the investor to the Company. The sales
and issuances of securities in the transactions described above were deemed
to be exempt from registration under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon Regulation S promulgated under the
Securities Act, as offers and sales of equity securities by a domestic issuer
outside the United States. The material agreements between the Company and
the investor have been filed as exhibits to the Current Report on Form 8-K
filed with the Securities and Exchange Commission by the Company on May 6,
1998.
G) New accounting pronouncements
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share"
("Statement 128") and Statement of Financial Accounting Standards No. 129,
"Disclosure of Information About Capital Structure" ("Statement 129"). Statement
128 specifies the computation, presentation and disclosure requirements for
Earnings Per Share ("EPS"), and is designed to improve the EPS information
provided in financial statements by simplifying the existing computational
guidelines, revising the disclosure requirements, and increasing the
comparability of EPS data on an international basis. Per the requirements of
7
<PAGE>
ROSS SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Statement 128, the Company adopted Statement 128 for the three and nine month
periods ending March 31, 1998. Statement 129 consolidates the existing
requirements to disclose certain information about an entity's capital
structure, and its adoption for the three and nine month periods ending March
31, 1998 has not changed the Company's current capital structure disclosures.
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130 "Reporting Comprehensive Income"
("Statement 130") and Statement of Financial Accounting Standards No. 131
"Disclosures about Segments of an Enterprise and Related Information"
("Statement 131"). Statement 130 establishes standards for the reporting and
display of comprehensive income and its components in a full set of
general-purpose financial statements. Statement 131 requires that a public
business enterprise report financial and descriptive information about its
reportable operating segments. Generally, financial information is required to
be reported on the basis that it is used internally for evaluating segment
performance and deciding how to allocate resources to segments. Statements 130
and 131 are required to be adopted in the Company's fiscal year 1999. The
Company has not yet determined the impact of Statements 130 and 131 on its
future financial statement disclosures.
In December 1997, the American Institute of Certified Public
Accountants issued Statement of Position No. 97-2 "Software Revenue Recognition"
("SOP 97-2"). This SOP provides guidance on applying generally accepted
accounting principles in recognizing revenue on software transactions. The
requirements of SOP 97-2 are effective for transactions entered into in the
Company's fiscal year 1999. The Company does not expect there to be a
significant impact on its future Balance Sheets and Statements of Operations
upon the adoption of SOP 97-2.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Overview
Variability of Quarterly Results
The Company's software product license revenues can fluctuate from
quarter to quarter depending upon, among other things, such factors as overall
trends in the United States and international economies, new product
introductions by the Company, hardware vendors and other software vendors, and
customer buying patterns. Because the Company typically ships software products
within a short period after orders are received, and therefore maintains a
relatively small backlog, any weakening in customer demand can have an almost
immediate adverse impact on revenues and operating results. Moreover, a
substantial portion of the revenues for each quarter is attributable to a
limited number of sales and tends to be realized in the latter part of the
quarter. Thus, even short delays or deferrals of sales near the end of a quarter
can cause substantial fluctuations in quarterly revenues and operating results.
Finally, certain agreements signed during a quarter may not meet the Company's
revenue recognition criteria resulting in deferral of such revenue to future
periods. Because the Company's operating expenses are based on anticipated
revenue levels and a high percentage of the Company's expenses are relatively
fixed, a small variation in the timing of the recognition of specific revenues
can cause significant variation in operating results from quarter to quarter.
Results of Operations
Revenues
Total revenues for the quarter ended March 31, 1998 increased 28% to
$24,314,000 from $19,016,000 in the same quarter of fiscal 1997. Software
product license revenues increased 48% and consulting and other services
revenues increased 36%, while maintenance revenues remained relatively unchanged
from the same quarter in the prior year.
For the nine month period ended March 31, 1998, total revenues
increased 15% to $64,158,000 from $55,641,000 in the same period of fiscal 1997.
Software product license revenues increased 30% and services revenues increased
18%, while maintenance revenues decreased 2% from the same period in the prior
year.
Software product license revenues were $10,169,000 during the
quarter ended March 31, 1998, an increase of $3,305,000, or 48%, from the
same period in fiscal 1997. The Company experienced an increase over the same
quarter of fiscal 1997 in the North American market of approximately
$2,660,000, or 52%. This North American increase relates to an increase of
approximately $3,900,000 in U.S. revenues due to a higher volume of contracts
recorded during the quarter than in the same quarter of the prior year,
partially offset by a decrease of approximately $1,240,000 in Canadian
revenues which relates to one significant agreement that was recognized in
the same quarter of the prior year. The Company also experienced a total
increase of
9
<PAGE>
$645,000, or 37%, in the European, Asian and Pacific Rim ("International")
markets over the same quarter in fiscal 1997. The Asia/Pacific Rim markets
experienced a $44,000, or 27% increase in revenues from the same quarter in
the prior year due largely to one large agreement that significantly impacted
revenues in Singapore. European revenues increased 38% over the same quarter
in the prior year due largely to an increase in Spain of $864,000 and an
increase in Germany of $154,000 offset by decreases in the U.K. and Benelux
countries. The Company's Client Server/Open Systems products represented 94%
of total software product license revenues for both the third quarters of
fiscal 1998 and fiscal 1997. Software license revenues for the Company's
Renaissance CS products increased approximately $1,436,000 in the third
quarter of fiscal 1998 as compared to the same quarter of fiscal 1997. This
is largely attributable to the Company's increased marketing focus on its
Client Server/Open Systems products during fiscal 1998. For the nine month
period ended March 31, 1998, software product license revenues increased
$5,898,000, or 30%, from the same period in the prior year. The Company
experienced increases of 42%, or $4,757,000, and 31%, or $1,509,000, in the
North American and European markets, respectively, partially offset by
decreases in the Asia/Pacific Rim markets of $368,000, or 10%. The North
American increase is the result of the general increase in sales activity in
the U.S. and Canada. The European increase was largely the result of the
addition of the Company's Spanish subsidiary and one large agreement that
significantly impacted revenues in Germany. The decrease in the Asia/Pacific
Rim market was due largely to the depressed economic conditions in that area.
The Company's open systems/client-server products represented approximately
95% of total software product license revenues for the nine month periods
ended March 31, 1998 and 1997.
Consulting and other services revenues for the third quarter of
fiscal 1998 increased 36% to $7,632,000 from $5,632,000 in the same quarter
of fiscal 1997. Revenues from consulting and other services (which are
typically recognized as performed) are generally correlated with software
product license revenues (which are typically recognized upon delivery), so
that when software product license revenues fluctuate, future period services
revenues generally show a corresponding fluctuation. For the quarter ended
March 31, 1998, North American services revenues increased by $1,711,000, or
51% which is attributable largely to the increase in software product license
revenues during previous quarters. Additionally, the Company has increased
its capacity by expanding the number of outside consultants used to perform
implementations, consulting and other professional services. These
consultants normally cost more and generate lower gross margins than services
performed by Company employees, but are necessary to meet the growing demand
for consulting services related to the Company's products. International
services revenues increased $289,000 or 13%. This increase was partially
offset by a $92,000 decrease in the Asia/Pacific Rim region. This decrease is
attributable to the corresponding decrease in software product license
revenues due largely to the depressed economic conditions in that area. For
the nine month period ended March 31, 1998, services revenues increased 18%,
or $2,987,000, from the same period in the prior year. The fluctuations for
the North American
10
<PAGE>
and International regions for the nine month period results were similar to
those for quarterly results mentioned above.
Maintenance revenues for the third quarter remained relatively
unchanged at $6,513,000 in fiscal 1998 versus $6,520,000 for the third quarter
in fiscal 1997. For the nine month period ended March 31, 1998, maintenance
revenues declined by 2%, or $368,000, from revenues for the same period in
fiscal 1997. The decreases in maintenance revenues were principally the result
of customers with older products not renewing their maintenance contracts, the
general decline of European currencies against the dollar, and the increased
volume of distributor sales during fiscal 1998. Maintenance contracts sold by
third party distributors are included by the Company in software product license
revenues because the Company has no support obligations to the distributor's
customers. This overall decline was partially offset by maintenance contract
renewals from customers who have licensed the Company's software products during
the previous four fiscal quarters. During the third quarter of fiscal 1998, the
Company experienced a small increase in North American maintenance revenues and
a decrease in International maintenance revenues relative to the third quarter
of fiscal 1997. North American maintenance revenues increased 6%, or
approximately $291,000. International maintenance revenues declined $298,000, or
15%, due largely to decreases in the Asia/Pacific region, U.K., France, Belgium
and the Netherlands totaling $355,000, partially offset by increased activity in
Spain and Germany which accounted for a total increase of $57,000.
International revenues as a percentage of total revenues for the third
quarter of fiscal 1998 decreased to 27% from 32% for the same quarter in fiscal
1997. International revenues as a percentage of total revenues for the nine
months ended March 31, 1998 (33%) also decreased relative to the same period in
fiscal 1997 (36%). The results of the Asia/Pacific region for the three and nine
month periods ended March 31, 1998 were impacted by the adverse economic
conditions in that area. While the Company's Spanish subsidiary accounted for an
increase in total revenues of $763,000 in the third quarter of fiscal 1998 over
the third quarter of fiscal 1997, and an increase of $3,235,000 for the nine
months ended March 31, 1998 versus the nine months ended March 31, 1997, these
increases were offset primarily by decreases in U.K. revenues and increases in
total North American revenues. The majority of the North American increase for
the quarter was the result of a general increase in U.S. revenues. Total U.S.
revenues for the quarter ended March 31, 1998 increased $5,656,000 or 56% over
the same period in fiscal 1997. The majority of the North American increase for
the nine month period ended was largely the result of Canadian activity. Total
Canadian revenues for the nine month period ended March 31, 1998 increased
$1,585,000 or 32% over the same period in fiscal 1997. Several significant
Canadian agreements in the first and second quarters of fiscal 1998 accounted
for this increase.
Operating Expenses
Costs of software product licenses include expenses related to
royalties paid to third parties and product documentation and packaging. Third
party royalty expenses will vary from quarter to quarter based on the mix of
products being sold. Major third party products sold by the Company include
Oracle databases and other optional software including
11
<PAGE>
implementation, reporting and productivity tools. Costs of software product
licenses for the third quarter of fiscal 1998 increased by 117% to $960,000 from
$442,000 in the third quarter of fiscal 1997. For the nine months ended March
31, 1998, the cost of software product licenses increased 21% to $2,145,000 from
$1,771,000 for the same period in fiscal 1997. As a percentage of software
product license revenue, the costs of software product licenses increased to 9%
in the third quarter of fiscal 1998 compared to 6% in the same quarter of fiscal
1997. However, for the nine month periods ended March 31, 1998 and 1997, the
costs as a percentage of revenues remained relatively consistent. The quarterly
increase was due to the large number of agreements entered into in the third
quarter of fiscal 1998 which contained a significant amount of third party
software resulting in third party royalty expenses incurred by the Company. The
results for the nine month period were the result of several significant
agreements entered into in the first two quarters of fiscal 1998 that contained
only a minor amount of third party products, and the licensing of certain
products during those periods which were third party products in the first three
quarters of fiscal 1997 but which were subsequently purchased from such third
parties by the Company.
Costs of consulting, maintenance and other services include expenses
related to consulting and training personnel, personnel providing customer
support pursuant to maintenance agreements, and other costs of sales. The
Company also uses outside consultants to supplement Company personnel in meeting
peak customer consulting demands. Costs of consulting, maintenance and other
services increased by 24% to $9,594,000 in the third quarter of fiscal 1998, as
compared to $7,765,000 in the third quarter of fiscal 1997. For the nine months
ended March 31, 1998, costs of consulting, maintenance and other services
increased 22% to $25,659,000 from $21,091,000 in the same period of fiscal 1997.
The increase in these costs for the three and nine month periods correlates with
the Company's increased software license and services activity. As software
license activity has increased over the prior year, more internal and outside
consultants were required by the Company to service these new customers. The
increase in costs over the periods in the prior year is largely the result of
the additional fiscal 1998 year-to-date expenses related to the Company's
Spanish subsidiary, as well as additional services personnel employed by the
Company as of March 31, 1998 as compared to March 31, 1997. For the nine month
period ended March 31, 1998, the additional expenses attributable to the Spanish
subsidiary were approximately $1,700,000. For the third quarter of fiscal 1998
as compared to the third quarter of fiscal 1997, the increased headcount
resulted in additional personnel-related expenses of approximately $830,000.
Additionally, the costs associated with outside consultants increased
approximately $1,000,000 over the same quarter in the prior year. For the nine
month period ended March 31, 1998 as compared to the same period in fiscal 1997,
the increased headcount (including the increase resulting from the acquisition
of the Spanish subsidiary) resulted in additional personnel-related expenses of
approximately $2,300,000, additional facilities and supplies expenses of
approximately $100,000 and additional business travel expenses of approximately
$350,000. Additionally, the costs associated with the retaining and maintenance
of outside consultants increased approximately $1,820,000 over the same period
in the prior year. The Company's gross profit margin resulting from consulting,
maintenance and other services revenues for the third quarter of fiscal 1998 was
32%, down from 36% in the same quarter of fiscal 1997. For the nine months ended
March 31, 1998, the gross profit margin was
12
<PAGE>
33%, down from 41% for the same period of the prior year. The deterioration
in the gross profit margin for the three and nine month periods was due
largely to the increased retaining and maintenance of outside consultants,
whose work results in lower margins for the Company. Additionally, in order
to meet increasing customer demands and fill services and consulting
personnel vacancies, there were increases in personnel expenses related to
the hiring and training of new services and consulting personnel who must
undergo such training before beginning to generate revenue.
Sales and marketing expenses for the quarter ended March 31, 1998
increased by 11%, to $6,869,000 from $6,165,000 in the same quarter of the
prior year. For the nine month period ended March 31, 1998, sales and
marketing expenses increased by 25% to $19,352,000 from $15,472,000 in the
same period of the prior year. The majority of the increase for the nine
month period was due to the aforementioned Spanish subsidiary acquired at the
end of the second quarter of fiscal 1997. Additionally, the Company
experienced a general increase in personnel related expenses, along with the
additional commission expenses related to the aforementioned increases in
software product license revenue, from fiscal 1997 to 1998. For the quarter
ended March 31, 1998, personnel-related expenses, including salaries and
commissions, increased approximately $1,050,000 over the same quarter of the
prior year, partially offset by a decrease of approximately $370,000 in
expenses incurred for outside consulting. In the third quarter of the fiscal
1997, the Company's subsidiaries in Europe incurred a majority of these
outside consulting costs to staff the operations of these entities until a
suitable number of qualified employees could be hired. There have been no
such costs incurred in the current year. For the nine month period ended
March 31, 1998, the additional expenses attributable to the Spanish
subsidiary were approximately $740,000 over the same period of the prior
year. Also for the nine month period ended March 31, 1998, personnel-related
expenses including salaries and commissions increased approximately
$2,650,000, facilities expenses increased approximately $410,000 and
travel-related expenses increased approximately $290,000 from the same period
in the prior year as a result of increases in sales and marketing personnel,
partially offset by a decrease of approximately $310,000 in expenses incurred
for outside consulting in Europe (as noted above). Additionally, for the nine
month period, there was an increase of approximately $840,000 in marketing
expenses related to the promotion of several of the Company's new products
such as the Windows NT and Polaris versions of Renaissance CS, additional
supply chain functionality such as Transportation Management, and third party
implementation and productivity tools.
Product development expenses decreased by 3%, to $2,446,000, in the
third quarter of fiscal 1998 from $2,512,000 in the same quarter of the prior
year. For the nine month period ended March 31, 1998, these expenses
decreased by 4%, to $7,989,000, from $8,328,000 in the same period last year.
However, total expenditures for product development increased for these three
and nine month periods over the same periods in the prior fiscal year by 4%
and 11%, respectively. The following table summarizes product development
expenditures (in thousands):
13
<PAGE>
<TABLE>
<CAPTION>
Three months ended Nine months ended
March 31, March 31,
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Expenses ................................. $ 2,446 $ 2,512 $ 7,989 $ 8,328
Amortization of previously capitalized
software development costs ........ (1,702) (1,722) (5,432) (4,971)
-------- -------- -------- --------
Expenses, net of amortization ............ $ 744 $ 790 $ 2,557 $ 3,357
Capitalized software development costs ... 2,476 2,308 7,698 5,920
-------- -------- -------- --------
Total expenditures ....................... $ 3,220 $ 3,098 $ 10,255 $ 9,277
-------- -------- -------- --------
-------- -------- -------- --------
Total expenditures as a
percent of total revenues ........... 13.2% 16.3% 16.0% 16.7%
-------- -------- -------- --------
-------- -------- -------- --------
Capitalized software, net of amortization,
as a percent of total expenditures .. 24.0% 18.9% 22.1% 10.2%
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
Product development expenditures during fiscal 1998 have been
primarily focused on continued enhancements to existing products and
developing new products. During the nine months ended March 31, 1998,
software development costs capitalized included amounts attributable to the
development of additional international features for the Company's
Renaissance CS products, developing the 4.x series of Renaissance CS, and
developing year 2000 compliance for the Company's Renaissance Classic
products. The Company does not expect to have any additional expenditures
related to the year 2000 compliance upgrade on its Renaissance Classic
products. The Company's Renaissance CS products have been year 2000 compliant
since their introduction in 1992.
General and administrative expenses for the quarter ended March 31,
1998 decreased by 5%, to $1,940,000 from $2,051,000 in the same quarter of
the prior year. For the nine month period ended March 31, 1998, total general
and administrative expenses increased by 2%, to $5,634,000 from $5,550,000 in
the same period of the prior year. The major reasons for the decrease in
these expenses from the same quarter in the prior year was a decrease in
employee and travel related expenses. In the third quarter of fiscal 1997,
the Company was in the process of moving it's administrative headquarters to
Atlanta from California and therefore incurred an increased level of employee
and travel costs during that period. Employee expenses decreased
approximately $30,000 and travel expenses decreased approximately $75,000
from the same quarter in fiscal 1997.
In the three month period ended March 31, 1998, the Company recorded
a provision for doubtful accounts of $135,000, as compared to $498,000
recorded in the third quarter of fiscal 1997. This decrease in the provision
was due the increased quality of the Company's accounts receivable as
evidenced by a 12% drop in the Company's days sales outstanding.
The litigation settlement amount for the nine month period ended
March 31, 1998 represents a first quarter fiscal 1998 adjustment to the
charge that was recorded during the fourth quarter of fiscal 1997. During
fiscal 1997, the Company settled a dispute with a customer with the
understanding that the settlement and related legal fees would be covered
under the Company's business insurance. The Company subsequently learned that
the insurer took exception to the
14
<PAGE>
Company's settlement with its customer and withheld payment on the claim,
pending arbitration. In June 1997, the Company recorded a charge of $615,000,
pending settlement with its insurer, to cover the potential settlement and legal
fees. In September 1997, the Company received $381,000 in settlement from its
insurer.
Amortization of other assets increased to $291,000 in the third
quarter of fiscal 1998 from $211,000 in the same period last year. For the
nine month period, amortization of other assets was $728,000, compared to
$531,000 in the same period of the prior year. This amortization relates to
the purchase of the Company in 1988 and its subsequent acquisitions of other
products and companies. During fiscal 1998, the Company purchased Bizware
Corporation. The related intangible assets are being amortized over periods
ranging from two to seven years. Also during fiscal 1998, the Company
capitalized approximately $287,000 of debt issuance costs related to the
receipt of $6,000,000 in the first tranche of the $10,000,000 convertible
debenture financing. For a description of the convertible debenture
financing, see Liquidity and Capital Resources. These costs are being
amortized over five years. During fiscal 1997, the Company acquired its
Spanish distributor. The related goodwill of $1,541,000 is being amortized
over seven years.
Other Expense, net
Other expense for the three months ended March 31, 1998 was $267,000,
as compared to $237,000 in the same quarter of fiscal 1997. For the nine month
period ended March 31, 1998, other expense was $887,000, as compared to other
expense of $627,000 in the same period of fiscal 1997. Fiscal 1998 amounts
primarily consisted of interest expense. The increase was due to higher average
debt balances in fiscal 1998 because of the increase in the Company's available
line of credit in March of fiscal 1997 from $10,000,000 to $15,000,000, further
impacted by an increase in the interest rate on the line of credit which
occurred when the availability was increased.
Income Tax Expense
During the third quarter of fiscal 1998, the Company recorded income
tax expense of $134,000 compared with an income tax expense of $124,000 recorded
during the same quarter in fiscal 1997. For the nine months ended March 31,
1998, the Company recorded income tax expense of $461,000 as compared to an
income tax expense of $438,000 in the same period of fiscal 1997. Income tax
expense for both periods include a provision for alternative minimum taxes in
North America and withholding taxes accrued in certain foreign jurisdictions
where the Company had either no available net operating losses or had to pay
treaty-based taxes.
Liquidity and Capital Resources
While the Company required $8,775,000 for investing activities
(primarily capitalized software costs), the Company financed its continuing
operations for the nine months ended March 31, 1998 through cash generated from
operations, the issuance of convertible debentures and available credit
facilities.
15
<PAGE>
At March 31, 1998, the Company had $6,151,000 of cash and cash
equivalents. The Company also has a revolving credit facility with an
asset-based lender with a maximum credit line of $15,000,000, a maturity date
of October 31, 2000, and an interest rate equaling the Prime Rate plus 2%.
Borrowings under the credit facility are collateralized by substantially all
assets of the Company. At March 31, 1998, the Company had $10,360,000
outstanding against the $15,000,000 revolving credit facility, and based on
the eligible accounts receivable at March 31, 1998, the Company's cash and
remaining borrowing capacity under the revolving credit facility totaled
approximately $6,491,000.
On December 29, 1995, the Company entered into a Subscription Agreement
(the "Agreement") with a foreign institutional investor pursuant to which the
investor purchased 500,000 shares of the Company's Series A Preferred Stock for
an aggregate purchase price of $2,000,000. In connection with this transaction,
the investor granted the Company options (the "Options") to require the investor
to purchase shares of the Company's Preferred Stock with an aggregate value of
$4,000,000 during the period from and including July 1, 1996 through and
including December 30, 1998. The Company created and reserved 500,000 shares of
its Series B Preferred Stock and 500,000 shares of its Series C Preferred Stock
for issuance and sale to the investor upon exercise of the Options. In addition,
the Company granted the investor a warrant (the "Warrant") to purchase 400,000
shares of the Company's Common Stock at an exercise price of $5.576 per share
during the period from and including July 1, 1997 through and including December
29, 2000.
Pursuant to the Agreement, the Company exercised its first Option on
July 8, 1996. Concurrently, the investor also agreed to invest an additional
$2,000,000 under terms similar to those in the Agreement. In exchange for the
additional investment, the Company granted the investor a warrant for an
additional 640,000 shares of the Company's Common Stock. This warrant was
exercisable during the period from and including July 1, 1997 through and
including December 29, at a maximum price of $8.00 per share. The gross proceeds
from the July 1996 transactions were $4,000,000. The Company exercised its final
Option to require the investor to invest $2,000,000 on January 6, 1997 when the
investor purchased 200 shares of the Company's newly created Series E Redeemable
Preferred Stock.
During fiscal 1996, the investor converted all of their Series A
Preferred Stock. During fiscal 1997, the investor converted all of their Series
B and Series C Preferred Stock and 93 shares of their Series E Redeemable
Preferred Stock.
On April 23, 1998, the Company issued and sold 353,000 shares of its
Common Stock to this investor upon the exercise of the warrant to purchase
640,000 shares of the Company's Common Stock mentioned above. The Company and
the investor also agreed to cancel the remaining 287,000 shares of Common
Stock subject to the warrant. The aggregate exercise price paid by this
investor was $1,141,946, representing a per share exercise price of
$3.234975. The Company and the investor agreed to reduce the exercise price
from that set forth in the warrant certificate, dated July 3, 1996,
representing the warrant in consideration for the cancellation. The proceeds
from this exercise will be used by the Company to fund its current
operations. On April 24, 1998, the Company issued and sold 286,633 shares of
it's Common Stock to this investor upon the conversion of the remaining 107
shares of the Series E Redeemable Preferred Stock. Because this transaction
involved the exchange of one security for another security, no additional
consideration was paid by the investor to the Company. The sales and
issuances of securities in the transactions described above were deemed
16
<PAGE>
to be exempt from registration under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon Regulation S promulgated under the
Securities Act, as offers and sales of equity securities by a domestic issuer
outside the United States. The material agreements between the Company and
the investor have been filed as exhibits to the Current Report on Form 8-K
filed with the Securities and Exchange Commission by the Company on May 6,
1998.
On February 6, 1998, the Company closed a private placement of up to
$10,000,000 of convertible subordinated debentures to certain institutional
investors (the "Investors") pursuant to Regulation D promulgated under the
Securities Act of 1933, as amended. The Investors invested $6,000,000 on
February 6, 1998 and will invest $4,000,000 four months after such date if
certain conditions are met. The material agreements between the Company and each
Investor have been filed as exhibits to the Current Report on Form 8-K filed
with the Securities and Exchange Commission by the Company on February 12, 1998.
The Company's ability to meet its cash requirements for operations and
recurring capital expenditures will depend upon funds expected to be generated
from operations, the proceeds from the aforementioned convertible debentures,
and amounts available under its line of credit facility.
New accounting pronouncements
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share"
("Statement 128") and Statement of Financial Accounting Standards No. 129,
"Disclosure of Information About Capital Structure" ("Statement 129"). Statement
128 specifies the computation, presentation and disclosure requirements for
Earnings Per Share ("EPS"), and is designed to improve the EPS information
provided in financial statements by simplifying the existing computational
guidelines, revising the disclosure requirements, and increasing the
comparability of EPS data on an international basis. Per the requirements of
Statement 128, the Company adopted Statement 128 for the three and nine month
periods ending March 31, 1998. Statement 129 consolidates the existing
requirements to disclose certain information about an entity's capital
structure, and its adoption for the three and nine month periods ending March
31, 1998 has not changed the Company's current capital structure disclosures.
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130 "Reporting Comprehensive Income"
("Statement 130") and Statement of Financial Accounting Standards No. 131
"Disclosures about Segments of an Enterprise and Related Information"
("Statement 131"). Statement 130 establishes standards for the reporting and
display of comprehensive income and its components in a full set of
general-purpose financial statements. Statement 131 requires that a public
business enterprise report financial and descriptive information about its
reportable operating segments. Generally, financial information is required to
be reported on the basis that it is used internally for evaluating segment
performance and deciding how to allocate resources to segments. Statements 130
and 131 are required to be adopted in the Company's fiscal year 1999. The
Company has not yet determined the impact of Statements 130 and 131 on its
future financial statement disclosures.
17
<PAGE>
In December 1997, the American Institute of Certified Public
Accountants issues Statement of Position No. 97-2 "Software Revenue Recognition"
("SOP 97-2"). This SOP provides guidance on applying generally accepted
accounting principles in recognizing revenue on software transactions. The
requirements of SOP 97-2 are effective for transactions entered into in the
Company's fiscal year 1999. The Company does not expect there to be a
significant impact on its future Balance Sheets and Statements of Operations
upon the adoption of SOP 97-2.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
Not applicable.
18
<PAGE>
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES
On April 23, 1998, the Company issued and sold 353,000 shares of its
Common Stock to a foreign institutional investor upon the exercise of a
warrant to purchase 640,000 shares of the Company's Common Stock. The Company
and the investor also agreed to cancel the remaining 287,000 shares of Common
Stock subject to the warrant. The aggregate exercise price paid by this
investor was $1,141,946, representing a per share exercise price of
$3.234975. The Company and the investor agreed to reduce the exercise price
from that set forth in the warrant certificate, dated July 3, 1996,
representing the warrant in consideration for the cancellation. The proceeds
from this exercise will be used by the Company to fund its current
operations. On April 24, 1998, the Company issued and sold 286,633 shares of
it's Common Stock to this investor upon the conversion of the remaining 107
shares of the Company's Series E Redeemable Preferred Stock. Because this
transaction involved the exchange of one security for another security, no
additional consideration was paid by the investor to the Company. The sales
and issuances of securities in the transactions described above were deemed
to be exempt from registration under the Securities Act of 1993, as amended
(the "Securities Act"), in reliance upon Regulation S promulgated under the
Securities Act, as offers and sales of equity securities by a domestic issuer
outside the United States. The material agreements between the Company and
the investor have been filed as exhibits to the Current Report on Form 8-K
filed with the Securities and Exchange Commission by the Company on May 6,
1998.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
Exhibit 11.1 - Computation of Per Share Earnings
(b) Reports on Form 8-K
The Company filed a Report on Form 8-K with the Securities and Exchange
Commission dated January 28, 1998 which reported under Item 5, that the Company
issued a press release announcing the preliminary results for the second quarter
of fiscal 1998 ending December 31, 1997.
The Company filed a Report on Form 8-K with the Securities and Exchange
Commission dated February 12, 1998 which reported under Item 5, that on February
6, 1998, the Company closed a private placement of up to $10,000,000 of
convertible subordinated debentures to certain institutional investors (the
"Investors") pursuant to Regulation D promulgated under the Securities Act of
1933, as amended. The Investors invested $6,000,000 on February 6, 1998 and will
invest $4,000,000 four months after such date if certain conditions are met. The
shares of the Company's Common Stock issuable upon conversion of the debentures
are registered on Form S-3/A filed with the Securities and Exchange Commission
on April 9, 1998.
Items 1, 3, 4 and 5 have been omitted as they are not applicable.
19
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ROSS SYSTEMS, INC.
Date: May 15, 1998 /s/ Stan F. Stoudenmire
----------------------------------------------
Stan F. Stoudenmire
(Principal Financial and Accounting Officer)
/s/ Dennis V. Vohs
----------------------------------------------
Dennis V. Vohs
Chairman of the Board and Chief Executive
Officer
(Duly Authorized Officer)
22
<PAGE>
ROSS SYSTEMS, INC.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
No. Description Page
<S> <C> <C>
3.1 Article of Incorporation, as amended (1) ...................... ---
3.2 Bylaws, as amended (3) ........................................ ---
4.1 Certificate of Determination of Rights,
Preferences and Privileges of Series A
Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock of Ross Systems, Inc. (2) ..................... ---
4.2 Certificate of Determination of Rights,
Preferences and Privileges of Series E
Preferred Stock of Ross Systems, Inc. (4) ..................... ---
4.3 Form of Convertible Securities Agreement
between the Registrant and each Investor (9) .................. ---
4.4 Form of Subordinated Debenture Due February 6,
2003 issued by the Registrant to each Investor (9) ............ ---
4.5 Registration Rights Agreement among the
Registrant and each Investor (9) .............................. ---
10.1 Subscription Agreement dated December 29, 1995
between Registrant and Fletcher International Limited (5) ..... ---
10.2 Subscription Agreement dated June 28, 1996
between Registrant and Fletcher International Limited (6) ..... ---
10.3 Amendment No. 1 dated July 8, 1996 to the
December 29, 1995 Subscription Agreement and
the June 28, 1996 Subscription Agreement
between Registrant and Fletcher International
Limited (6) ................................................... ---
10.4 Amendment No. 2 dated June 10, 1997 to the
December 29, 1995 Subscription Agreement and
the June 28, 1996 Subscription Agreement ...................... ---
10.5 The Ross Systems, Inc. 1998 Incentive Stock
Option Plan (8) ............................................... ---
10.6 Warrant Exercise Notice between Registrant and
Fletcher International Limited dated April 23,
1998 (10) ..................................................... ---
</TABLE>
23
<PAGE>
<TABLE>
<S> <C> <C>
10.7 Series E Preferred Stock Conversion Notice
between Registrant and Fletcher International
Limited dated April 24, 1998 (10) ............................. ---
10.8 Lease Agreement dated January 9, 1998 for
Registrant's facilities at Two Concourse
Parkway, Suite 800, Atlanta, Georgia .......................... ---
11.1 Statement regarding Computation of Per Share Earnings ........ 23
27 Financial Data Schedule ...................................... ---
</TABLE>
- ---------------------------------------------------------
(1) Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the period ended December 31, 1995,
as amended by the exhibits filed with the Registrant's Current Report
on Form 8-K dated February 13, 1996; and as further amended by the
exhibit filed with the Registrant's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997 filed September 29, 1997.
(2) Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the period ended March 31, 1996 filed
May 6, 1996.
(3) Incorporated by reference to the exhibit filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1993
filed September 27, 1993.
(4) Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the period ended December 31, 1996
filed February 13, 1997.
(5) Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the period ended December 31, 1995
filed February 14, 1996.
(6) Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the period ended September 30, 1996
filed November 8, 1996.
(7) Incorporated by reference to the exhibit filed with the Registrant's
Annual Report on Form 10-K for the year ended June 30, 1997 filed
September 29, 1997.
(8) Incorporated by reference to Exhibit D of the Registrant's Definitive
Proxy Statement filed October 8, 1997 for the Annual Meeting of
Shareholders held on November 19, 1997.
(9) Incorporated by reference to the exhibit filed with the Registrant's
Current Report on Form 8-K filed February 12, 1998.
(10) Incorporated by reference to the exhibits filed with the Registrant's
Current Report on Form 8-K filed May 6, 1998.
22
<PAGE>
Exhibit 10.8
LEASE AGREEMENT
CONCOURSE
ATLANTA, GEORGIA
LANDLORD: CONCOURSE II, LTD.
TENANT: ROSS SYSTEMS, INC.
BUILDING: CORPORATE CENTER TWO
SUITE: 850
SQ. FT.: 10,890 RENTABLE SQUARE FEET
TERM: THIRTY-EIGHT AND ONE-HALF (38.5) MONTHS
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Item Page
- ------ ------
<S> <C>
1. PREMISES AND TERM.................................................1
2. RENT .............................................................2
3. OPERATING COSTS...................................................2
4. DELIVERY OF THE PREMISES..........................................6
5. ACCEPTANCE OF THE PREMISES........................................7
6. USE ..............................................................7
7. TENANT'S CARE OF THE PREMISES.....................................7
8. SERVICES..........................................................8
9. DESTRUCTION OR DAMAGE TO PREMISES................................10
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES..........................11
11. ASSIGNMENT AND SUBLETTING.......................................14
12. CONDEMNATION....................................................15
13. INSPECTIONS.....................................................16
14. SUBORDINATION...................................................16
15. INDEMNIFICATION AND HOLD HARMLESS...............................17
16. TENANT'S INSURANCE..............................................17
17. REMEDIES CUMULATIVE.............................................18
18. ENTIRE AGREEMENT - NO WAIVER....................................18
19. HOLDING OVER....................................................19
20. HEADINGS........................................................19
21. NOTICES.........................................................19
22. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES........................19
23. ATTORNEY'S FEES.................................................20
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
24. TIME OF ESSENCE.................................................20
25. NO ESTATE IN LAND...............................................20
26. SECURITY DEPOSIT................................................20
27. COMPLETION OF THE PREMISES......................................20
28. PARKING ARRANGEMENTS............................................21
29. RULES AND REGULATIONS...........................................21
30. RIGHT TO RELOCATE...............................................21
31. LATE PAYMENTS...................................................22
32. ESTOPPEL CERTIFICATE............................................22
33. SEVERABILITY AND INTERPRETATION.................................22
34. MULTIPLE TENANTS................................................22
35. FORCE MAJEURE...................................................23
36. QUIET ENJOYMENT.................................................23
37. BROKERAGE COMMISSION; INDEMNITY.................................23
38. EXCULPATION OF LANDLORD.........................................23
39. ORIGINAL INSTRUMENT.............................................23
40. GEORGIA LAW.....................................................23
41. NO RECORDATION OF LEASE.........................................23
42. HAZARDOUS WASTES................................................23
43. LEASE BINDING UPON DELIVERY.....................................24
44. SPECIAL STIPULATIONS AND LEASE SUMMARY SHEET....................24
SIGNATURE PAGE........................................... 23
</TABLE>
Exhibit "A" - Space Plan of Premises
Exhibit "B" - Location of Premises Within Building
Exhibit "C" - Description of the Property
2
<PAGE>
Exhibit "D" - Work Letter
Exhibit "E" - Acceptance of Premises Agreement
Exhibit "F" - Rules and Regulations
Exhibit "G" - Special Stipulations
3
<PAGE>
DEFINITIONS
<TABLE>
<CAPTION>
Defined Term Paragraph
- ------------- ---------
<S> <C>
Additional Electrical Equipment. . . . . . . . . . . . .8(b)(iv)
Adjusted Monthly Rental. . . . . . . . . . . . . . . . .2(c)
Building . . . . . . . . . . . . . . . . . . . . . . . .1(a)
Commencement Date. . . . . . . . . . . . . . . . . . . .1(b)
Concourse. . . . . . . . . . . . . . . . . . . . . . . .30
Consumer Price Index . . . . . . . . . . . . . . . . . .2(b)(i)
Fairchild Service. . . . . . . . . . . . . . . . . . . .8(e)
Faison . . . . . . . . . . . . . . . . . . . . . . . . .37
Increase Multiplier. . . . . . . . . . . . . . . . . . .2(b)(ii)
Initial Calendar Year. . . . . . . . . . . . . . . . . .3(d)
Initial Monthly Rental . . . . . . . . . . . . . . . . .2(a)
Initial Operating Costs. . . . . . . . . . . . . . . . .3(a)
Landlord . . . . . . . . . . . . . . . . . . . . . . . .Caption
Lease. . . . . . . . . . . . . . . . . . . . . . . . . .Caption
Lease Year . . . . . . . . . . . . . . . . . . . . . . .1(c)
Monthly Rental . . . . . . . . . . . . . . . . . . . . .2(a)
Mortgagee. . . . . . . . . . . . . . . . . . . . . . . .14(a)
Operating Costs. . . . . . . . . . . . . . . . . . . . .3(b)
Premises . . . . . . . . . . . . . . . . . . . . . . . .1(a)
Property . . . . . . . . . . . . . . . . . . . . . . . .1(d) and
Exhibit
"E"
Rent . . . . . . . . . . . . . . . . . . . . . . . . . .2(f)
Rules. . . . . . . . . . . . . . . . . . . . . . . . . .6 and
Exhibit
"D"
Tenant . . . . . . . . . . . . . . . . . . . . . . . . .Caption
Tenant's Share . . . . . . . . . . . . . . . . . . . . .3(c)
Term. . . . . . . . . . . . . . . . . . . . . . . . . .1(b)
</TABLE>
<PAGE>
LEASE AGREEMENT
CONCOURSE
THIS LEASE AGREEMENT (the "Lease"), made this 9th day of January, 1998,
by and between CONCOURSE II, LTD. ("Landlord"), a Georgia limited partnership
which has as its address for all purposes hereunder as follows:
Concourse II, Ltd.
c/o Faison Associates, Inc.
Five Concourse Parkway
Suite 100
Atlanta, Georgia 30328-6111
and ROSS SYSTEMS, INC. ("Tenant"), a corporation of the State of California,
which has as its address:
Two Concourse Parkway
Suite 800
Atlanta, GA 30328
WITNESSETH:
1. PREMISES AND TERM1. PREMISES AND TERM
(a) Landlord hereby rents and leases to Tenant, and Tenant
hereby rents and leases from Landlord, the following described space (the
"Premises"):
Floor: Eighth (8th)
Suite: 850
Square Feet: 10,890 rentable square feet
located at the herein called "Building":
Building: Corporate Center II
Address: Two Concourse Parkway, Fulton County, Georgia
Total Building Rentable Area: 288,816
(b) The Premises are more particularly shown and outlined on
the space plans attached hereto as Exhibit "A", and made a part hereof, and are
located in that portion of the Building shown on Exhibit "B", attached hereto
and by this reference incorporated herein. The term of this Lease (the "Term")
shall commence, subject to the provisions of Paragraph 4 herein, on the 1st day
of March, 1998, (the "Commencement Date"), and end at midnight on the 14th day
of May, 2001, unless sooner terminated as herein provided. This Lease shall be
effective and enforceable upon its execution and delivery, whether such
execution and delivery occurs on, prior to, or after the Commencement Date.
(c) "Lease Year" as used herein shall mean (i) each and every
twelve (12) month period during the Term of this Lease, or (ii) in the event of
Lease expiration or termination, the period between the last twelve (12) month
period and said expiration or termination. The first such twelve (12) month
period shall commence on the Commencement Date.
(d) The Building and the land upon which said Building is
located (which includes certain parking facilities serving the Building), more
particularly described on Exhibit "C", attached hereto and by this reference
incorporated herein, is herein referred to as the "Property".
(e) The Premises shall include the appurtenant right to use,
in common with others, public lobbies, entrances, stairs, corridors, elevators,
and other public portions of the Building. All the windows and outside walls of
the Premises, and any space in the Premises used for shafts, pipes, conduits,
ducts, telephone
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ducts and equipment, electric or other utilities, sinks or other Building
facilities, and the use thereof and access thereto through the Premises for the
purposes of operation, maintenance, inspection, display and repairs are hereby
reserved to Landlord. No easement for light, air or view is granted or implied
hereunder, and the reduction or elimination of Tenant's light, air or view will
not affect this Lease.
2. RENT2. RENT
(a) Tenant shall pay to Landlord at the address of Landlord
indicated herein, or at such other place Landlord designates without demand,
deduction or setoff, an annual rental for the first year of the Term in the
amount of $23.50 per rentable square foot per annum (the "Base Rental") or
$255,915.00, payable in equal monthly installments of $21,326.25 (the "Monthly
Rental") in advance on the first (1st) day of each calendar month during the
Term. Tenant shall pay the first month of the Initial Monthly Rental upon the
execution and delivery of this Lease (with said amount to be applied against the
Initial Monthly Rental first due under the Lease).
(b) Tenant's Base Rental shall increase on an annual basis, on
the anniversary of the Commencement Date, by an amount determined by taking the
then Base Rental, on a per square foot per annum basis, (as may have been
adjusted pursuant to this Paragraph 2(b)), less the "Initial Operating Costs"
(as that term is herein defined), and multiplying said amount by .03. The
resulting product shall then be added to the then Base Rental, to determine the
revised (and increased) Base Rental.
(c) If the Monthly Rental for any given Lease Year cannot be
calculated by the end of the then expiring Lease Year because of the
unavailability of any of the above-mentioned figures, Tenant shall continue to
pay the existing Monthly Rental, and Landlord shall prepare as soon as is
practical a statement reflecting the Monthly Rental for the Lease Year in which
Tenant is then occupying the Premises. Within twenty (20) days following receipt
of Landlord's statement, Tenant shall also pay any amounts due from Tenant
because of such adjustments for months in which Tenant would have paid a greater
Monthly Rental had such figure been calculated earlier. If Tenant's payments
have been in excess of the Monthly Rental actually due, Tenant shall be given a
credit for such amount from the payment of Monthly Rental next due of Tenant.
(d) If the Term commences at any time other than the first day
of a month or terminates at any time other than the last day of a month, the
amount of Rent due from Tenant shall be proportionately adjusted based on that
portion of the month that this Lease is in effect.
(e) The term "Rent", as used herein, shall mean Monthly
Rental, "Adjusted Monthly Rental" (as that term is herein defined), "Tenant's
Share" of "Operating Costs" (as those terms are defined herein) and any other
amounts due of Tenant hereunder.
3. OPERATING COSTS3. OPERATING COSTS
(a) Tenant hereby covenants and agrees and shall be obligated
to pay to Landlord, in addition to and not in lieu of the other amounts
specified herein, the "Operating Costs," as hereinafter defined, of repairing,
maintaining, and operating the Building and Property, in excess of the "Initial
Operating Costs" (as that term is herein defined). These payments shall be in
addition to and not in lieu of any other payments due from Tenant hereunder. The
"Initial Operating Costs" shall be, for the purposes of this Lease, the actual
Operating Costs for calendar year 1998, adjusted pursuant to the terms of this
Lease.
(b) The term "Operating Costs" shall mean all operating
expenses of the Property and Building, except those
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operating expenses solely benefiting and provided at the request or direction of
an individual user or tenant of the Building, computed on an accrual basis and
including all expenses, costs, and disbursements of every kind and nature, which
Landlord (i) shall pay; and/or (ii) become obligated to pay, including, but not
limited to, the following:
(i) Costs, wages and salaries of all persons engaged in
the management, operation, repair, security or
maintenance of the Property and Building, including,
but not limited to, fringe benefits, taxes, insurance
and other benefits relating thereto;
(ii) All supplies and materials used in the operation and
maintenance of the Property and Building;
(iii) Cost of water, sewage, electricity and other
utilities furnished in connection with the operation
of the Building;
(iv) Cost of all service agreements and maintenance for
the Property and Building and the equipment therein,
including, but not limited to, trash removal,
security services, alarm services, window cleaning,
janitorial service, HVAC maintenance, elevator
maintenance, and grounds maintenance;
(v) Cost of all insurance relating to the Property and
Building including, but not limited to, the cost of
casualty and liability insurance applicable to the
Property and Building and Landlord's personal
property used in connection therewith;
(vi) All taxes (ad valorem and otherwise), assessments,
and governmental charges whether federal, state,
county, or municipal, and whether by taxing districts
or authorities presently taxing the Property and
Building or by others, subsequently created or
otherwise, and any other taxes (other than federal
and state income taxes), and assessments attributable
to the Property and Building or its operation and any
reasonable consultants fees incurred with respect to
issues or concerns involving the taxes or the
Building, the Property, or both;
(vii) Cost of repairs and general maintenance of the
interior and exterior of the Property and Building
(including, but not limited to, light bulbs and glass
breakage; the redecorating, repainting, recarpeting
and other such work of any common areas; heating,
ventilation and air conditioning equipment; plumbing
and electrical equipment; and elevators), parking
areas, and landscaping;
(viii) A management fee and other expenses incurred for the
general operation and management of the Property and
Building, not materially in excess of the management
fees paid for the management of other first class
office buildings in the area of the Building;
(ix) An amortization cost due to any capital expenditures
incurred (i) which have the effect of reducing or
limiting Operating Costs of the Property and
Building, if such reduction or limitation inures to
Tenant's benefit (but only to the extent and in the
amount that such Operating Costs of the Property and
Building are reduced), or (ii) which may be required
by governmental authority or by Landlord's insurance
carrier, but
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excluding those capital expenditures required by
codes or regulations in effect on the date hereof to
bring the Building into compliance, unless the
capital expenditures result from Tenant's use of the
Premises;
(x) all assessments made, charged, levied, assessed or
accrued against Landlord by The Concourse Office Park
Association, Inc.
(xi) legal and accounting fees and expenses;
(xii) anything which could be classified as an Operating
Cost under generally accepted accounting principles,
consistently applied, but not specified or expressly
set forth hereunder.
Excluded from "Operating Costs" are:
(i) Capital items (except those expenditures referred to
above);
(ii) Landlord's home office expense;
(iii) Leasing commissions, legal fees and marketing
expenses related to leasing of space in the Building,
or extending, expanding or renewing of leases in the
Building;
(iv) Specific costs billed to and paid by specific tenants
or other third parties;
(v) Depreciation;
(vi) Principal, interest, and other costs directly related
to financing the Building;
(vii) The cost of any repairs or general maintenance paid
by the proceeds of insurance policies carried by
Landlord on the Property and Building;
(viii) The wages and salaries of any supervisory or
management employee of Landlord not involved in the
day-to-day operation and maintenance of the Property
and Building;
(ix) The cost of installations, alterations, changes and
decorations incurred by Landlord in connection with
preparing space for a tenant's occupancy, or in
connection with lease renewals or extensions, whether
such work was pursuant to the terms of any lease
requiring Landlord to perform, pay for or reimburse
the tenant therefor;
(x) Rent under any ground lease or other master or
superior lease;
(xi) Attorneys' fees and disbursements incurred by
Landlord in connection with the preparation of
documents or negotiations of leases in the Building;
(xii) Transfer, stamp, recording fees and other taxes
imposed upon or payable by Landlord as a result of
transfer of a portion of the Property or Landlord's
interest in the Property or any interest in
Landlord's business entity, whether by deed, stock,
partnership interest or by entering into an
assignment of any lease or otherwise;
(xiii) The cost of performing work or furnishing services to
or for any tenant at Landlord's expense, to the
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extent that such work or service is materially in
excess of the work or services generally provided to
other tenants of the Building at Landlord's expense;
(xv) Any fines, penalties or similar impositions incurred
in connection with the violation by Landlord, the
Building or Property of any applicable law in effect
as of the date hereof, unless due to the act or
omission of Tenant;
(xvi) Any costs for which and to the extent Landlord is
reimbursed by condemnation, refund, credit, insurance
reimbursement, or recovery or settlement under
warranty or service contract; and
(xvii)The cost of any work or services performed or other
expense incurred by Landlord in connection with
installing, operating or maintaining any speciality
service or facility other than public or common area
of the Building including but not limited to art
gallery, restaurant, health/fitness club, retail or
convenience facilities.
Any insurance proceeds, condemnation award, tax refund, warranty,
recovery or settlement under warranty or service contract, received by
Landlord with respect to any item previously included as an Operating
Cost shall be deducted from Operating Costs for the Lease Year in which
such proceeds are received; provided, however, that if any such
proceeds are received after the Term of this Lease shall have expired,
Tenant's Share shall be promptly refunded to Tenant.
(c) The term "Tenant's Share" shall mean the proportion that
the Square Feet in the Premises bears to ninety-five percent (95%) of the Total
Building Rentable Area, or the average percentage of the Total Building Rentable
Area actually leased in the Building for any calendar year, if such average is
greater than ninety-five percent (95%) of the Total Building Rentable Area. The
average shall be determined by adding together the total leased space on the
last day of each month during the calendar year in question and dividing by
twelve (12). Tenant's Share is used in this Lease to determine the portion of
Operating Costs payable by Tenant, on a per square foot per annum basis.
Notwithstanding anything to the contrary contained herein, if the Building is
not fully occupied during any calendar year, appropriate adjustments shall be
made to determine Operating Costs as though the Building had been fully occupied
in such calendar year for the entire calendar year, but Tenant shall not be
required to pay more than Tenant's Share of Operating Costs.
(d) On January 15 of each calendar year after the calendar
year in which this Lease is executed (or as soon thereafter as practical),
Landlord shall provide Tenant with the projected Operating Costs for such
current calendar year, and Tenant shall thereafter pay Tenant's Share of
projected Operating Costs for operating the Property and Building in excess of
the Initial Operating Costs. Such projected Operating Costs in excess of Initial
Operating Costs shall be payable in advance on a monthly basis by paying
one-twelfth (1/12th) of such amount during each month of such respective
calendar year. If Landlord has not furnished Tenant such comparison by January
15, Tenant shall continue to pay on the basis of the prior year's estimate until
the month after such comparison is given. Landlord shall, within one hundred
twenty (120) days (or as soon thereafter as practical) after each calendar year
during the Term provide Tenant an unaudited statement of such year's actual
Operating Costs. If actual Operating Costs are greater than projected Operating
Costs, Tenant shall pay Landlord, within thirty (30) days of such statement's
receipt, Tenant's Share of the difference thereof. If such year's projected
Operating Costs are greater than the actual Operating Costs, Landlord shall
credit Tenant, within thirty (30)
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days of such statement issuance, Tenant's Share of the difference between
projected Operating Costs and actual Operating Costs.
(e) If this Lease commences at any time other than the first
day of a calendar year or terminates at any time other than the last day of a
calendar year the amount of Operating Costs due from Tenant shall be
proportionately adjusted based on that portion of the year that this Lease was
in effect.
(f) Tenant's payments of Operating Costs shall not be deemed
payments of base rental under any governmental wage and price controls or
analogous governmental actions affecting the amount of Rent which Landlord may
charge Tenant for the Premises.
(g) (i) Within thirty (30) days after its receipt of the
operating statement, Tenant, at its sole cost and expense, shall have the right
to review in Landlord's offices and during normal business hours Landlord's
records of Operating Costs. If within such thirty (30)-day period, Tenant does
not give notice stating in detail reasonable objections to such additional Rent
calculations, Tenant shall be deemed to have given approval of such
calculations. Failure to pay such additional Rent, whether or not under protest,
within said thirty (30)-day period shall constitute a default hereunder. Tenant
or its representative (which shall be a "Big 6" accounting firm) shall have the
right to examine Landlord's books and records showing Operating Costs upon
reasonable prior notice and during normal business hours at any time within
sixty (60) days following the furnishing by Landlord to Tenant of any final
invoice or reconciliation statement for any given year. Any information obtained
by Tenant and its auditors and examiners from such examination will be treated
as confidential unless and until such information has been publicly disclosed by
Landlord, and Tenant shall execute and cause its outside auditor or examiner to
execute such confidentiality agreement as Landlord shall request, to reflect and
effectuate the confidentiality provisions of this Paragraph. However, nothing
herein contained shall limit or impair the right or obligation of Tenant to
disclose such information when required by law or to appropriate regulatory
authorities having jurisdiction over its affairs, or to use the same in
connection with the enforcement of the terms and conditions of this Lease.
Unless Tenant takes written exception to any item within sixty (60) days after
the furnishing of Landlord's invoice or statements, then such invoices or
statements shall be considered as final and accepted by Tenant.
(ii) Tenant shall furnish Landlord with a copy of all
information and material generated for or on behalf of Tenant with respect to
such audit, whether or not Tenant disputes the calculations or charges from
Landlord. If Tenant does dispute such charges, then Tenant shall submit to
Landlord, as a part of the notice of such dispute, a precise and detailed
narrative account of the exact nature of the dispute, with specific reference to
the differences found by Tenant. Such statement shall be certified as true,
correct and accurate by the auditor or examiner making such findings. If
Tenant's audit reveals an underpayment of Operating Costs by Tenant, then Tenant
shall pay the same within thirty (30) days after receipt of the audit results.
4. DELIVERY OF THE PREMISES4.DELIVERY OF THE PREMISES
Landlord shall deliver possession of the Premises to Tenant,
with the improvements to be constructed pursuant to Exhibit "D", attached hereto
and by this reference incorporated herein, substantially complete on the
Commencement Date. If Landlord for any reason whatsoever cannot deliver
possession of the Premises, with the improvements to be constructed pursuant to
Exhibit "D" substantially complete to Tenant at the Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom. If the delay is not due to any of the
reasons set forth in
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Article IV of Exhibit "D", Monthly Rental shall be waived for the period between
the Commencement Date and the date which Landlord delivers possession of the
Premises to Tenant. If the delay is due to any of said reasons in Article 4 of
Exhibit "D", Monthly Rental shall commence as of the Commencement Date.
5. ACCEPTANCE OF THE PREMISES5. ACCEPTANCE OF THE PREMISES
The taking of possession of Premises by Tenant shall be
conclusive evidence that Tenant accepts the same "as is" and that said Premises
and the Building were in good and satisfactory condition for the use intended at
the time such possession was taken, subject to "punch-list" items which must be
remedied after Tenant's acceptance of the Premises. Tenant shall execute and
deliver an "Acceptance of Premises" agreement upon the taking of possession of
the Premises, in the form attached as Exhibit "E", by this reference
incorporated herein.
6. USE6. USE
Tenant shall use the Premises only for professional, executive
office purposes, generally in accordance with the manner of use by other tenants
in the Building. Tenant's use of the Premises shall not violate any ordinance,
law or regulation of any governmental body or the "Rules and Regulations" of
Landlord (the "Rules") as set forth in Exhibit "F" attached hereto and made a
part hereof, or cause an unreasonable amount of use of any of the services
provided in the Building. Tenant shall conduct its business in the manner and
according to the generally accepted business principles of the business or
profession in which Tenant is engaged.
7. TENANT'S CARE OF THE PREMISES7. TENANT'S CARE OF THE
PREMISES
(a) Tenant will maintain the Premises and the fixtures and
appurtenances therein in a first-class condition, and will not commit or permit
waste therein. Any repair work, maintenance and any alterations permitted by
Landlord in the Premises (i) shall be done at Tenant's sole cost and expense
(except as set forth in Paragraph 8 and Exhibit "D"); (ii) shall be done by
Landlord's employees or agents or, with Landlord's consent, by persons requested
by Tenant; and (iii) shall first be consented to by Landlord. Tenant shall, at
Tenant's expense, but under the direction of Landlord and performed by
Landlord's employees or agents, or with Landlord's consent, by persons requested
by Tenant and consented to by Landlord, promptly repair any injury or damage to
the Premises or Building caused by the misuse or neglect thereof by Tenant, by
Tenant's contractors, subcontractors, customers, employees, licensees, agents,
or invitees.
(b) Tenant will not, without Landlord's prior consent, make
alterations, additions or improvements (including, but not limited to,
structural alterations, additions or improvements) in or about Premises and will
not do anything to or on the Premises which will increase the rate of insurance
on the Building or the Property. All alterations, additions or improvements of a
permanent nature made or installed by Tenant to the Premises shall become the
property of Landlord at the expiration or early termination of this Lease.
Landlord reserves the right to require Tenant to remove any improvements or
additions made to the Premises by Tenant and to repair and restore the Premises
to their condition prior to such alteration, addition or improvement, reasonable
wear and tear, unrepaired casualty and condemnation excepted, unless Landlord
has agreed at or prior to the time Tenant requests the right to make such
alteration, addition or improvement that such item need not be removed by Tenant
at the expiration or early termination of the Term; provided that any alteration
or improvement not identified by Landlord at the time of approval as requiring
removal by Tenant may be removed at
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Tenant's sole option, subject to the provisions to restore as set forth herein;
(c) No later than the last day of the Term, Tenant will remove
Tenant's personal property and repair injury done by or in connection with
installation or removal of said property and surrender the Premises (together
with all keys, access cards or entrance passes to the Premises and/or the
Building) in as good a condition at the beginning of the Term, reasonable wear
and tear, unrepaired casualty and condemnation excepted. All property of Tenant
remaining in the Premises after expiration or early termination of the Term
shall be deemed conclusively abandoned and may be removed by Landlord, and
Tenant shall reimburse Landlord for the cost of removing the same, subject
however, to Landlord's right to require Tenant to remove any improvements or
additions made to the Premises by Tenant pursuant to the preceding Paragraph.
(d) In doing any work on the installation of Tenant's
furnishings, fixtures, or equipment in the Premises, Tenant will use only
contractors or workers consented to by Landlord prior to the time such work is
commenced. Landlord may condition its consent upon its receipt from such
contractors or workers of acceptable (i) lien waivers; and (ii) evidence of
liability and personal property insurance coverage in amounts and with insurance
carriers satisfactory to Landlord. Tenant shall promptly remove any lien or
claim of lien for material or labor claimed against the Premises or Building, or
both, by such contractors or workers if such claim should arise, and hereby
indemnifies and holds Landlord harmless from and against any and all loss, cost,
damage, expense or liabilities including, but not limited to, attorney's fees,
incurred by Landlord, as a result of or in any way related to such claims or
liens.
(e) All personal property brought into the Premises by Tenant,
its employees, licensees and invitees shall be at the sole risk of Tenant, and
Landlord shall not be liable for theft thereof or of money deposited therein or
for any damages thereto, such theft or damage being the sole responsibility of
Tenant, unless arising out of Landlord's gross negligence or willful misconduct.
8. SERVICES8. SERVICES
(a) Provided Tenant is in compliance with the terms and
conditions of this Lease, Landlord shall cause to be furnished the following
services (the cost of which services shall be reimbursed to Landlord in
accordance with Paragraph 3 herein):
(i) Elevator service for passenger and delivery needs.
(ii) Air conditioning during summer operations and heat
during winter operations at temperature levels similar
to other first class office buildings in the Atlanta
area, but consistent with and subject to all Federal
and local energy conservation regulations.
(iii) Public restrooms, including the furnishing of soap,
paper towels, and toilet tissue.
(iv) Either hot and cold or tempered running water for all
restrooms and lavatories.
(v) Janitorial service, including sanitizing, dusting,
cleaning, mopping, vacuuming, and trash removal, each
Monday through Friday, and floor waxing and polishing,
window washing, smudge removal and venetian blind
cleaning as appropriate.
(vi) The replacement of building standard fluorescent
lamps and ballasts as needed.
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(vii) Repairs and maintenance, for maintaining in good order
at all times the exterior walls, exterior windows,
exterior doors and roof of the Building, public
corridors, stairs, elevators, storage rooms, restrooms,
the heating, ventilating and air conditioning systems,
electrical and plumbing systems of the Building, and
the walks, paving and landscaping surrounding the
Building.
(viii) General grounds care.
(ix) General management, including supervision,
inspections and management functions.
(x) Electricity for the Premises, Building and Property.
(b) The services provided in Paragraph 8(a) are predicated on
and are in anticipation the use of the Premises as follows:
(i) Services shall be provided for the Building during
normal business hours as described in the Rules.
(ii) HVAC design is based on sustained outside temperatures
being no higher than 95 degrees Fahrenheit and no lower
than 14 degrees Fahrenheit with sustained occupancy of
the Premises by no more than one person per 150 square
feet of floor area and heat generated by electrical
lighting and fixtures not to exceed 3.0 watts per
square foot.
(iii) Electric power usage and consumption for the Premises
shall be based on lighting of the Premises during
normal business hours on a level suitable for normal
office use and power for small desk-top machines and
devices using no more than 110 volt, 20 amp circuits
(allowable load of 15 amps). Heavier use items shall
not be used or installed, unless expressly permitted
elsewhere herein or by consent of Landlord.
(iv) Should Tenant's total rated electrical design load
per square foot in the Premises exceed the Building
standard rated electrical design load, on a per
square foot basis, as determined by Landlord from
time to time, for either low or high voltage
electrical consumption, or if Tenant's electrical
design requires low voltage or high voltage circuits
in excess of Tenant's share of the Building standard
circuits, as such share is determined by Landlord in
Landlord's reasonable judgment, Landlord may (at
Tenant's expense), if reasonably possible, install
within the Building one (1) additional high voltage
panel and/or one (1) additional low voltage panel
with associated transformer (the "Additional
Electrical Equipment") as necessary to accommodate
the aforesaid requirements. If the Additional
Electrical Equipment is installed because Tenant's
low or high voltage rated electrical design load
exceeds the applicable Building standard rated
electrical design load (on a per square foot basis),
then a meter may also be added by Landlord (at
Tenant's expense) to measure the electricity provided
through the Additional Electrical Equipment.
(c) If Tenant uses any services in an amount or for a period
in excess of that provided for herein, Landlord also reserves the right to
charge Tenant reimbursement for the cost of such added services. Landlord
reserves the right to install separate metering devices to determine such
excessive periods
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and/or amounts, at Tenant's sole cost and expense. If there is disagreement as
to such additional charge, the opinion of the appropriate local utility company
or an independent professional engineering firm shall prevail.
(d) Landlord shall not be liable for any damages directly or
indirectly, and Tenant shall have no right of set-off or reduction in Rent,
resulting from the installation, use, malfunction, or interruption of use of any
equipment in connection with the furnishing of services referred to herein,
including, but not limited to, any interruption in services by any cause beyond
the immediate control of Landlord; provided however, Landlord shall exercise due
care in furnishing adequate and uninterrupted services. Without limitation on
the foregoing, under no circumstances shall Landlord incur liability for damages
caused directly or indirectly by any malfunction of Tenant's computer systems
resulting from or arising out of the failure or malfunction of any electrical,
air conditioning or other system serving the Building, and Tenant hereby
expressly waives the right to make any such claim against Landlord.
(e) There may be available in the Building a shared
communications systems service (the "Shared Service"), upon terms, conditions
and fees to be agreed upon by Tenant and the party providing such Shared
Service. Neither Landlord nor any manager of the Building shall be liable to
Tenant for damages if the furnishing of any of such Shared Service is disrupted,
terminated or diminished in any manner, nor shall any disruption, diminution, or
cessation relieve Tenant from the performance of Tenant's covenants, conditions
and agreements under this Lease, nor shall any disruption, diminution or
cessation constitute constructive eviction or entitle Tenant to an abatement of
Rent. Tenant holds Landlord and any such manager harmless from any claims Tenant
may have arising out of or connected with such cessation or interruption. If
Tenant elects not to use the Shared Service, and Tenant has telephone or other
such equipment installed at Tenant's own direction, such system shall not (i)
cause the Building to violate any municipal safety codes or ordinances,
including, but not limited to, fire safety codes; (ii) cause damage to the
Building; (iii) require an amount of electrical or other services unreasonably
in excess of the requirements for customary business-telephone systems; or (iv)
impact upon the normal use, function and operation of the Shared Service. If
Tenant elects not to use or be a part of the Shared Service, Tenant shall not
use any wiring or other equipment which is a part of the Shared Service without
the prior, written consent of the provider of such Shared Service. If Tenant
uses any such wiring or equipment without such consent, Tenant shall be liable
for, and shall pay to the provider of such services on demand, (i) the cost of
such use; (ii) the cost of repairing or replacing any wiring or equipment
damaged or altered by such use; and (iii) any other damages caused by such use.
9. DESTRUCTION OR DAMAGE TO PREMISES9.DESTRUCTION OR DAMAGE TO
PREMISES
(a) If the Premises or the Building are totally destroyed (or
so substantially damaged as to be untenantable in the determination of the
Architect of the Building) by storm, fire, earthquake or other casualty,
Landlord shall have the option to:
(i) Terminate this Lease as of the date of the occurrence
of the storm, earthquake, fire or other casualty by
giving notice to Tenant within sixty (60) days from the
date of such damage or destruction; or
(ii) Commence the process of restoration of the Premises to
a tenantable condition within sixty (60) days from the
date of receipt by Landlord of all of the insurance
proceeds paid with respect to such
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casualty, and proceed with due diligence to complete
said restoration of the Premises. If Landlord chooses
to restore the Premises, Rent shall abate with
respect to the untenantable portion of the Premises
from the date of such casualty until the date of
substantial restoration thereof.
If Landlord fails to complete such restoration within one hundred eighty (180)
days of the date of the casualty, this Lease may be terminated as of the date of
the casualty upon notice from either party to the other, given not more than ten
(10) days following the expiration of said one hundred eighty (180) day period.
If such notice is not given, this Lease shall remain in force and effect and
Rent shall commence upon delivery of the Premises to Tenant in a tenantable
condition (evidenced by notice to Tenant that the Premises are substantially
completed). If damage or destruction of a material nature occurs to the Premises
within twelve (12) months of the expiration of the Term, Tenant may, at its
option upon written notice to Landlord within thirty (30) days after such damage
or destruction, terminate this Lease as of the date of the damage or
destruction.
(b) If the Premises are damaged but not rendered wholly
untenantable by any event set forth in Paragraph 9(a) above, Rent shall abate in
the proportion the Premises have been made untenantable. Landlord shall commence
efforts to restore the Premises (or Building) within sixty (60) days after
Landlord's receipt of all of the insurance proceeds paid with respect to such
casualty, and proceed with due diligence to restore the Premises (or Building).
Upon the date of restoration (or in the event of damage to the Building, the
date the Premises becomes fully tenantable), full Rent shall commence. If
Landlord fails to complete such restoration within one hundred eighty (180) days
of the date of the casualty, this Lease may be terminated as of the date of the
casualty upon notice from either party, given not more than ten (10) days
following the expiration of the one hundred eighty (180) day period.
(c) Rent shall not abate if the damage or destruction of the
Premises, whether total or partial, is the result of the negligence of Tenant,
its contractors, subcontractors, agents, employees, guests or invitees.
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES10. DEFAULT BY TENANT;
LANDLORD'S REMEDIES
(a) The occurrence of any of the following shall constitute an
Event of Default hereunder by Tenant:
(i) The Rent or any other sum of money due of Tenant
hereunder is not paid within five (5) days of the date
notice of such late payment is received by Tenant;
provided, however, if more than two (2) payments due of
Tenant hereunder in any one (1) calendar year are not
made until after notice of such late payment is
received by Tenant, then it shall be an event of
default hereunder by Tenant if any subsequent payment
due of Tenant hereunder in the same calendar year is
not made within ten (10) days of the date when due;
(ii) The Premises are abandoned or vacated; provided,
however, if Tenant deserts or vacates the Premises,
Landlord's sole remedy for such default shall be to
terminate this Lease effective on such date as Landlord
specifies to Tenant by notice, and without further
liability on the part of Landlord or Tenant. The
preceding sentence is not intended and shall not be
deemed to waive or limit any of Landlord's rights or
remedies in connection with or
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based on any default other than vacation or
desertion;
(iii) Any petition is filed by or against Tenant under any
section or chapter of the National or Federal
Bankruptcy Act or any other applicable Federal or State
bankruptcy, insolvency or other similar law, and, in
the case of a petition filed against Tenant, such
petition is not dismissed within thirty (30) days after
the date of such filing; if Tenant shall become
insolvent or transfer property to defraud creditors; if
Tenant shall make an assignment for the benefit of
creditors; or if receiver is appointed for any of
Tenant's assets;
(iv) Tenant fails to bond off or otherwise remove any lien
filed against the Premises or the Building by reason of
Tenant's actions, within ten (10) days after Tenant has
notice of the filing of such lien;
(v) Tenant fails to observe, perform and keep the
covenants, agreements, provisions, stipulations,
conditions and Rules herein contained to be observed,
performed and kept by Tenant (other than the failure
to pay when due any Rent or any other sum of money
becoming due Landlord hereunder, which under all
circumstances is governed by and subject to Paragraph
10(a)(i) herein), and persists in such failure after
ten (10) days written notice by Landlord requiring
that Tenant remedy, correct, desist or comply (or if
any such failure to comply on the part of Tenant
would reasonably require more than ten (10) days to
rectify, unless Tenant commences rectification within
the ten (10) day notice period and thereafter
promptly, effectively and continuously proceeds with
the rectification of the failure to comply on the
part of Tenant and, in all such events, cures such
failure to comply on the part of Tenant no later than
thirty (30) days after such notice).
(b) Upon the occurrence of an Event of Default, Landlord shall
have the option to do and perform any one or more of the following:
(i) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If
Tenant shall fail to do so, Landlord may, without
further notice and without prejudice to any other
remedy Landlord may have, enter upon the Premises
without the requirement of resorting to the
dispossessory procedures set forth in O.C.G.A.
Sections 44-7-50 et seq. and expel or remove Tenant
and Tenant's effects without being liable for any
claim for trespass or damages therefor. Upon any such
termination, Tenant shall remain liable to Landlord
for damages, due and payable monthly on the day Rent
would have been payable hereunder, in an amount equal
to the Rent and any other amounts which would have
been owing by Tenant for the balance of the Term, had
this Lease not been terminated, less the net
proceeds, if any, of any reletting of the Premises by
Landlord, after deducting all of Landlord's costs and
expenses (including, without limitation, advertising
expenses and professional fees) incurred in
connection with or in any way related to the
termination of this Lease, eviction of Tenant and
such reletting; and/or
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(ii) Declare the entire amount of Rent calculated on the
current rate being paid by Tenant, and other sums
which in Landlord's reasonable determination would
become due and payable during the remainder of the
Term (including, but not limited to, increases in
Rent pursuant to Paragraph 2(b) and 3(e) herein),
discounted to present value by using a reasonable
discount rate selected by Landlord, to be due and
payable immediately. Upon such acceleration of such
amounts, Tenant agrees to pay the same at once,
together with all Rent and other amounts theretofore
due, less the market value of the Premises for the
remainder of the Term, as determined by Landlord
(taking into consideration the probable costs of
marketing and reletting the Premises, then-current
rental rates, probable rental rates for the remainder
of the Term, probable concession packages, the
probability of reletting the Premises and the
probable amount of time which will elapse before the
Premises are relet), at Landlord's address as
provided herein; provided however, that such payment
shall not constitute a penalty or forfeiture but
shall constitute liquidated damages for Tenant's
failure to comply with the terms and provisions of
this Lease (Landlord and Tenant agreeing that
Landlord's actual damages in such an event are
impossible to ascertain and that the amount set forth
above is a reasonable estimate thereof). The
acceptance of such payment by Landlord shall not
constitute a waiver of rights or remedies to Landlord
for any failure of Tenant thereafter occurring to
comply with any term, provision, condition or
covenant of this Lease; and/or
(iii) Enter the Premises as the agent of Tenant without the
requirement of resorting to the dispossessory
procedures set forth in O.C.G.A. Sections 44-7-50 et
seq. and without being liable for any claim for
trespass or damages therefor, and, in connection
therewith, rekey the Premises, remove Tenant's
effects therefrom and store the same at Tenant's
expense, without being liable for any damage thereto,
and relet the Premises as the agent of Tenant,
without advertisement, by private negotiations, for
any term Landlord deems proper, and receive the rent
therefor. Tenant shall pay Landlord on demand any
deficiency that may arise by reason of such
reletting, but Tenant shall not be entitled to any
surplus so arising. Tenant shall reimburse Landlord
for all costs and expenses (including, without
limitation, advertising expenses and professional
fees) incurred in connection with or in any way
related to the eviction of Tenant and reletting the
Premises, and for the amount of any other Rent which
would have been due of Tenant to Landlord hereunder
if not for certain concessions granted by Landlord to
Tenant. Landlord, in addition to but not in lieu of
or in limitation of any other right or remedy
provided to Landlord under the terms of this Lease or
otherwise (but only to the extent such sum is not
reimbursed to Landlord in conjunction with any other
payment made by Tenant to Landlord), shall have the
right to be immediately repaid by Tenant the amount
of all sums expended by Landlord and not repaid by
Tenant in connection with preparing or improving the
Premises to Tenant's specifications and any and all
costs and expenses incurred in renovating or altering
the Premises to make it suitable for reletting;
and/or
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(iv) As agent of Tenant, do whatever Tenant is obligated to
do under this Lease, including, but not limited to,
entering the Premises, without being liable to
prosecution or any claims for damages, in order to
accomplish this purpose. Tenant agrees to reimburse
Landlord immediately upon demand for any expenses which
Landlord may incur in thus effecting compliance with
this Lease on behalf of Tenant. Landlord shall not be
liable for any damages resulting to Tenant from such
action, whether caused by the negligence of Landlord or
otherwise.
(c) Pursuit by Landlord of any of the foregoing remedies shall
not preclude the pursuit of general or special damages incurred, or of any of
the other remedies provided herein, at law or in equity.
(d) No act or thing done by Landlord or Landlord's employees
or agents during the Term shall be deemed an acceptance of a surrender of the
Premises. Neither the mention in this Lease of any particular remedy, nor the
exercise by Landlord of any particular remedy hereunder, at law or in equity,
shall preclude Landlord from any other remedy Landlord might have under this
Lease, at law or in equity. Any waiver of or redress for any violation of any
covenant or condition contained in this Lease or any of the Rules now or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of Rent with knowledge of the
breach of any covenant in this Lease shall not be deemed a waiver of such
breach.
11. ASSIGNMENT AND SUBLETTING11. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublet any part of the Premises, nor
assign this Lease or any interest herein, without the prior consent of Landlord,
which consent shall not be unreasonably withheld or delayed. In no event shall
Tenant be permitted to sublease space or assign its interest in the Lease to any
existing occupant of the Building (whether as a tenant under a lease or
otherwise), or to any subsidiary or affiliate thereof or related party thereto.
In any event, no assignee or sublessee (or Tenant, on behalf or for the benefit
of an assignee or sublessee) shall have the right to exercise any extension or
renewal of Term, or any right to expand or otherwise increase the size of the
Premises. Landlord may deny consent to an assignment or sublease if, by way of
illustration but not limitation, the rate of compensation, including, but not
limited to, all rent, requested by Tenant for the portion of the Premises to be
subleased or for the assignment of the Lease would impact upon or impair
Landlord's ability to rent space in the Building at the then market rate as
offered by Landlord (unless at least ninety-five percent (95%) or more of the
rentable square feet in the Building are leased to third parties at the time of
the request for consent by Tenant, in which event this provision shall not be
considered by Landlord in assessing whether or not to consent to a sublease or
assignment proposed by Tenant) or if the financial statements of the proposed
assignee or sublessee are unsatisfactory. Additionally, neither Tenant nor any
other person having an interest in the possession, use, occupancy or utilization
of the Premises shall enter into any lease, sublease, license, concession,
assignment or other agreement for use, occupancy or utilization of space in the
Premises which provides for rental or other payment for such use, occupancy or
utilization based, in whole or in part, on the net income or profits derived by
any person or entity from the Premises leased, used, occupied or utilized. Any
such purported lease, sublease, license, concession, assignment or other
agreement shall be absolutely void and ineffective as a conveyance of any right
or interest in the possession, use, occupancy or utilization of any part of the
Premises. If such a sublease is entered into, neither the rental payable
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thereunder nor the amount thereof passed on to any person or entity shall have
deducted therefrom any expenses or costs related in any way to the subleasing of
such space.
(b) Consent by Landlord to one assignment or sublease shall
not destroy or waive this provision, and all later assignments and subleases
shall likewise be made only upon prior consent of Landlord. If a sublease or
assignment is consented to by Landlord, any sublessees or assignees shall become
liable directly to Landlord for all obligations of Tenant hereunder without
relieving or in any way modifying Tenant's liability hereunder. If Tenant
notifies Landlord of Tenant's intent to sublease or assign this Lease, Landlord
shall within thirty (30) days from such notice (a) consent to such proposed
subletting; (b) deny such consent, giving reasons for denying such consent at
the time of the denial; (c) elect to cancel this Lease, or to reduce the
Premises by the area requested to be subleased or assigned if the area is less
than the entire Premises; or (d) elect to sublease the space, or take the
assignment, as applicable, on the same terms and conditions as offered by the
third-party. If Landlord elects to cancel or to reduce the area of the Premises,
Tenant shall have ten (10) days from such notice to notify Landlord of Tenant's
acceptance of such cancellation or reduction or Tenant's desire to remain in
possession of Premises for the Term. If Tenant fails to so notify Landlord of
Tenant's election to accept termination or reduction or to continue as Tenant
hereunder, such failure shall be deemed an election to terminate or have the
area of Premises reduced, as the case may be, and such termination or reduction
shall be effective as of the end of the ten (10) day period provided for in
Landlord's notice as hereinabove provided. If Landlord gives its consent to any
such assignment or sublease, any rent or other cost to the assignee or subtenant
for all or any portion of the Premises over and above the Rent payable by Tenant
for such space shall be due and payable, and shall be paid, to Landlord. If this
Lease is cancelled, the area of Premises is reduced or a sublease or assignment
is made as herein provided, Tenant shall pay Landlord a charge equal to the
actual costs incurred by Landlord, in Landlord's reasonable judgment (including,
but not limited to, the use and time of Landlord's personnel), for all of the
necessary legal and accounting services required to accomplish such
cancellation, reduction of area of the Premises, assignment or subletting, as
the case may be.
(c) Tenant shall have the right to assign the Lease or sublet
the Premises, or any part thereof, without Landlord's consent, but subject to
Landlord's rights to notice and prohibition contained herein, to any parent,
subsidiary, affiliate or controlled corporation or to corporation which Tenant
may be converted or which it may merge. Tenant shall have the obligation to
notify Landlord of its intent of any such arrangement, and if Landlord
reasonably determines that the proposed assignee or sublessee is engaged in a
business which would materially interfere with the operation of the Property or
that permitting the assignment or subletting would cause a violation by Landlord
of its obligations under any lease covering a portion of the Property, Landlord
shall have the right to prohibit such arrangement based upon the issue of the
business of the proposed assignee or sublessee or the compatibility of the
proposed assignee or sublessee with the businesses in the Building.
12. CONDEMNATION12. CONDEMNATION
If the Premises, or a part of such Premises such that the
Premises in the judgment of the Architect for the Building are untenantable, are
taken by eminent domain or other similar proceeding or are conveyed in lieu of
such taking, this Lease shall expire on the date when title or right of
possession vests, and Rent paid for any period beyond said date shall be repaid
to Tenant. If there is a partial taking where this Lease is not terminated, the
Rent shall be adjusted in proportion to the square feet of Premises taken,
determined by the Architect for the
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Building. In either event, Landlord shall be entitled, and Tenant shall not have
any right, to claim any award made in any condemnation proceeding, action or
ruling relating to the Building or the Property; provided, however, Tenant shall
be entitled to make a claim in any condemnation proceeding, action or ruling
relating to the Building for Tenant's moving expenses and the unamortized value
of leasehold improvements in the Premises actually paid for by Tenant, to the
extent such claim does not in any manner impact upon or reduce Landlord's claim
or award in such condemnation proceeding, action or ruling. Landlord shall have,
in Landlord's sole discretion, the option of terminating this Lease if any such
condemnation, action, ruling or conveyance in lieu thereof makes continuation of
Landlord's use of the Building economically unfeasible.
13. INSPECTIONS13. INSPECTIONS
Landlord, its agents or employees may enter the Premises at
reasonable hours to (a) exhibit the Premises to prospective purchasers or
tenants of the Premises or the Building; (b) inspect the Premises to see that
Tenant is complying with its obligations hereunder; and (c) make repairs (i)
required of Landlord under the terms hereof; (ii) to any adjoining space in the
Building; or (iii) to any systems serving the Building which run through the
Premises.
14. SUBORDINATION14. SUBORDINATION
(a) This Lease shall be subject and subordinate to any
underlying land leases or deeds to secure debt which may now or hereafter affect
this Lease, the Building or the Property and also to all renewals,
modifications, extensions, consolidations, and replacements of such underlying
land leases and such deeds to secure debt. In confirmation of the subordination
set forth in this Paragraph 14, Tenant shall, at Landlord's request, execute and
deliver such further instruments as may be desired by the holder of the deed to
secure debt (a "Mortgagee") or by any lessor under any such underlying land
leases. Notwithstanding the foregoing, Landlord or such Mortgagee shall have the
right to subordinate or cause to be subordinated, in whole or in part, any such
underlying land leases or deeds to secure debt to this Lease (but not in respect
to priority of entitlement of insurance or condemnation proceeds). If any such
underlying land leases or deeds to secure debt terminate for any reason or any
such deeds to secure debt are foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, deliver
to Mortgagee within ten (10) days of written request an attornment agreement,
providing that such Tenant shall continue to abide by and comply with the terms
and conditions of this Lease.
(b) If any proceedings are brought for the foreclosure of, or
in the event of exercise of the power of sale or conveyance in lieu of
foreclosure under any deed to secure debt, Tenant shall at the option of the
purchaser at such foreclosure or other sale, attorn to such purchaser and
recognize such person as Landlord under this Lease. The institution of any suit,
action or other proceeding by a Mortgagee or a sale of the Property pursuant to
the powers granted to a Mortgagee under its deed to secure debt, shall not, by
operation of law or otherwise, result in the cancellation or the termination of
this Lease or of the obligations of Tenant hereunder.
(c) If such purchaser requests and accepts such attornment,
from and after such attornment, Tenant shall have the same remedies against such
purchaser for the breach of an agreement contained in this Lease that Tenant
might have had against Landlord if the deed to secure debt had not been
terminated or foreclosed, except such purchaser shall not be (i) liable for any
act or omission of the prior Landlord; (ii) subject to any offsets or defenses
which Tenant might have against the prior Landlord; or (iii) bound by any Rent
or security
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deposit which Tenant might have paid in advance to the prior Landlord.
15. INDEMNIFICATION AND HOLD HARMLESS 15. INDEMNIFICATION AND HOLD
HARMLESS
(a) Tenant hereby indemnifies and holds Landlord and
Landlord's property manager harmless from and against any injury, expense,
damage, liability or claim, imposed on Landlord by any person whomsoever,
whether due to damage to the Premises, claims for injuries to the person or
property of any other tenant of the Building or of any other person in or about
the Building for any purpose whatsoever, or administrative or criminal action by
a governmental authority, whether such injury, expense, damage, liability or
claim results either directly or indirectly from the act, omission, negligence,
misconduct or breach of any provisions of this Lease by Tenant, the agents,
servants, or employees of Tenant. Tenant further agrees to reimburse Landlord or
Landlord's property manager for any costs or expenses, including, but not
limited to, court costs and reasonable attorney's fees, which Landlord or
Landlord's property manager may incur in investigating, handling or litigating
any such claim or any action by a governmental authority.
(b) Landlord hereby agrees to indemnify and hold Tenant
harmless from and against any and all loss, cost or damage, or claim thereof,
suffered or incurred by Tenant arising out of or resulting from the willful
misconduct or gross negligence of Landlord, its agents, employees, licensees or
contractors.
(c) Tenant shall give notice to Landlord of any defective
condition in or about the Premises known to Tenant, and further agrees to
attempt to contact Landlord by telephone immediately in such instance.
16. TENANT'S INSURANCE16.TENANT'S INSURANCE
Tenant shall carry (at its sole expense during the Term):
(i) all-risk property insurance, insuring Tenant's interest in
its improvements to the Premises and any and all furniture, fixtures, equipment,
supplies, inventory, contents and other property owned, leased, held or
possessed by Tenant and contained therein, such insurance coverage to include
business interruption insurance for one hundred percent (100%) of Tenant's gross
revenues for a period of twelve (12) months. Such insurance shall be in an
amount equal to the full replacement cost of such improvements and property, as
such may increase from time to time, without deduction for depreciation,
providing protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, special extended peril
(all risk), boiler and machinery, flood, glass breakage and sprinkler leakage,
and naming Landlord as loss payee as its interest may appear;
(ii) worker's compensation insurance as required by applicable
law;
(iii) comprehensive or commercial general liability insurance
on an occurrence basis for injury to or death of a person or persons and for
damage to property occasioned by or arising out of any construction work being
done on the Premises, or arising out of the condition, use, or occupancy of the
Premises, or other portions of the Building or Property, and covering Tenant's
indemnification obligations imposed by Paragraph 15 of this Lease, the limits of
such policy or policies to be in amounts not less than One Million and No/100
Dollars ($1,000,000) in primary liability coverage and Five Million and No/100
Dollars ($5,000,000) in excess liability coverage; and
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(iv) primary automobile liability insurance with limits of not
less than One Million and No/100 Dollars ($1,000,000) per occurrence, covering
owned and non-owned vehicles used by Tenant.
Landlord retains the right, in its sole discretion, to increase the
amount of insurance required to be carried by Tenant not more frequently than
annually based on such factors as inflation, Tenant's insurance claims history,
the advice of Landlord's insurance advisors and any other relevant factors.
Landlord and Tenant shall each have included in all policies of insurance
respectively obtained by them with respect to the Building or Premises a waiver
by the insurer of all right of subrogation against the other (and, with respect
to Tenant's insurance, against Landlord's property manager) in connection with
any loss or damage insured against. To the full extent permitted by law,
Landlord and Tenant each waives all right of recovery against the other (and,
with respect to Tenant, against Landlord's property manager), and agrees to
release the other from liability for loss or damage to the extent such loss or
damage is covered by valid and collectible insurance in effect at the time of
such loss or damage; provided, however, that the foregoing release by each party
is conditioned upon the other party's carrying insurance with the above
described waiver of subrogation, and if such coverage is not obtained or
maintained by either party, then the other party's foregoing release shall be
deemed to be rescinded until such waiver is either obtained or reinstated. All
said insurance policies shall be carried with companies licensed to do business
in the State of Georgia reasonably satisfactory to Landlord and shall be
noncancellable except after thirty (30) days written notice to Landlord. Each
policy shall name Landlord, Landlord's property manager and any other person
designated by Landlord as additional insureds and provide that it is primary to,
and not contributing with, any policy carried by Landlord, Landlord's property
manager, or other designated person covering the same loss. Tenant shall deliver
duly executed certificates of such insurance to Landlord with the execution and
delivery of this Lease, and at least thirty (30) days prior to the expiration of
each respective policy term. No insurance policy or policies required to be
carried by Tenant will be subject to more than a $25,000.00 deductible limit
without Landlord's prior written consent. Landlord reserves the right to require
Tenant to carry such other insurance (including, without limitation and as
applicable, plate glass insurance, automobile liability insurance, builder's
risk insurance and liquor liability insurance) and endorsements in such amounts
as Landlord in its sole discretion may deem necessary or appropriate. If Tenant
fails to take out or keep in force any insurance required to be carried by
Tenant, or to provide evidence of the same as required herein, Landlord shall
have the right, but shall not be obligated, to obtain such insurance at the sole
cost and expense of Tenant, and Tenant shall reimburse Landlord for the cost
thereof upon demand as additional Rent.
17. REMEDIES CUMULATIVE17. REMEDIES CUMULATIVE
The rights given to Landlord and Tenant herein are in addition
to any rights that may be given to Landlord or Tenant by any statute or under
law.
18. ENTIRE AGREEMENT - NO WAIVER 18. ENTIRE AGREEMENT - NO WAIVER
---------------------------- ----------------------------
This Lease contains the entire agreement of the parties hereto
and no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect. The
failure of either party to insist in any instance on strict performance of any
covenant or condition hereof, or to exercise any option herein contained, shall
not be construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally, and can be modified
only in writing, executed by each party hereto.
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19. HOLDING OVER19. HOLDING OVER
If Tenant remains in possession of the Premises after
expiration of the Term, or after any termination of the Lease by Landlord, with
Landlord's acquiescence and without any written agreement between the parties,
Tenant shall be a tenant at sufferance and such tenancy shall be subject to all
the provisions hereof, except that the Monthly Rental for said holdover period
shall be one hundred fifty percent (150%) of the amount of Rent due in the last
month of the Term, for the first three (3) months of any such holdover, and then
double the amount of such Rent thereafter. There shall be no renewal of this
Lease by operation of law. Nothing in this Paragraph shall be construed as a
consent by Landlord to the possession of the Premises by Tenant after the
expiration of the Term or any termination of the Lease by Landlord.
20. HEADINGS20. HEADINGS
The headings in this Lease are included for convenience only
and shall not be taken into consideration in any construction or interpretation
of any part of this Lease.
21. NOTICES21. NOTICES
(a) Any notice, request or consent by either party to the
other hereunder shall be valid only if in writing and shall be deemed to be duly
given only if hand-delivered, or sent by certified mail or by a recognized
national overnight delivery service which has a receipt of notice as a part of
its delivery function. Such notices shall be addressed (i) if to Tenant, at the
Premises, to the attention of the Facilities Manager, and (ii) if to Landlord,
at Landlord's address set forth above, or at such other address for either party
as that party may designate by notice to the other. Notice shall be deemed
given, if delivered personally, upon delivery thereof, and if mailed, upon the
mailing thereof.
(b) Tenant hereby appoints as its agent to receive service of
all dispossessory or distraint proceedings an employee of Tenant in the Premises
at the time of such service.
22. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES22. HEIRS, SUCCESSORS, AND
ASSIGNS - PARTIES
(a) This Lease shall bind and inure to the benefit of Landlord
and Tenant, and their respective successors, heirs, legal representatives and
assigns. The term "Landlord" as used in this Lease means only the owner (or the
ground lessee) for the time being of the Property and Building of which the
Premises are a part, so that in the event of any sale or sales of said Property
(or of any lease thereof), Landlord named herein shall be and hereby is entirely
released of all covenants and obligations of Landlord hereunder accruing
thereafter, and it shall be deemed without further agreement that the purchaser,
or the lessee, as the case may be, has assumed and agreed to carry out any and
all covenants and obligations of Landlord hereunder during the period such party
has possession of the Property and Building. If the Property and Building are
severed as to ownership by sale and/or lease, the owner of the entire Building
or lessee of the entire Building that has the right to lease space in the
Building to tenants shall be deemed "Landlord". Tenant shall be bound to any
such succeeding party for performance by Tenant of all the terms, covenants, and
conditions of this Lease and agrees to execute any attornment agreement not in
conflict with the terms and provisions of this Lease at the request of any such
party.
(b) The parties "Landlord" and "Tenant" and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
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23. ATTORNEY'S FEES23. ATTORNEY'S FEES
If Landlord has to engage or consult with an attorney as a
result of or in connection with a failure by Tenant to pay any Rent as and when
due under the Lease, then Tenant shall owe to Landlord, in addition to and not
in lieu of any other amounts due hereunder, and shall pay within ten (10) days
after demand for payment therefor is made, all such attorneys fees incurred by
Landlord. Also, if any law suit or court action between Landlord and Tenant
arises out of or under this Lease, the prevailing party in such law suit or
court action shall be entitled to and shall collect from the non-prevailing
party the reasonable attorney's fees and court costs actually incurred by the
prevailing party with respect to said lawsuit or court action.
24. TIME OF ESSENCE24. TIME OF ESSENCE
TIME IS OF THE ESSENCE OF THIS LEASE.
25. NO ESTATE IN LAND25. NO ESTATE IN LAND
Tenant has only a usufruct under this Lease, not subject to
levy or sale. No estate shall pass out of Landlord by this Lease.
26. SECURITY DEPOSIT26. SECURITY DEPOSIT
(a) Tenant has deposited with Landlord $63,978.75 as a
security deposit for the performance by Tenant of all the terms, covenants and
conditions of this Lease upon Tenant's part to be performed. Landlord shall have
no obligation to segregate such security deposit from any other funds of
Landlord, and interest earned on such security deposit, if any, shall belong to
Landlord. The security deposit shall be returned to Tenant within thirty (30)
days after the expiration of the Term, if Tenant has fully performed its
obligations hereunder. Landlord shall have the right to apply any part of said
security deposit to cure any default of Tenant and if Landlord does so, Tenant
shall upon demand deposit with Landlord the amount so applied so that Landlord
shall have the full security deposit on hand at all times during the Term of
this Lease. If there is a sale or lease of the Building subject to this Lease,
Landlord shall transfer the security deposit to the vendee or lessee, and
Landlord shall be released from all liability for the return of such security
deposit. Tenant shall look solely to the successor Landlord for the return of
said security deposit. This provision shall apply to every transfer or
assignment made of the security deposit to a successor Landlord. The security
deposit shall not be assigned or encumbered by Tenant without the prior consent
of Landlord and any such unapproved assignment or encumbrance shall be void.
(b) If Tenant is then in full compliance with this Lease, and
has made all payments under the Lease as and when due, and Landlord has not
previously applied any portion of such security deposit to cure any default of
Tenant, then within thirty (30) days after the date which is twelve (12) months
after the Commencement Date Landlord shall return one-third of said security
deposit, being the amount of $21,326.25, to Tenant. If Tenant is then in full
compliance with this Lease, and has made all payments under the Lease as and
when due, and Landlord has not previously applied any portion of such security
deposit to cure any default of Tenant, then within thirty (30) days after the
date which is twenty-four (24) months after the Commencement Date, Landlord
shall return one-third of said security deposit, being the amount of $21,326.25,
to Tenant.
27. COMPLETION OF THE PREMISES27. COMPLETION OF THE PREMISES
Landlord shall supervise completion of the work described in
Exhibit "D" subject to payments which may be required
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of Tenant thereunder. Any work required by Tenant as provided for in said
Exhibit "D" shall be performed within the provisions and according to all
standards of said Exhibit "D".
28. PARKING ARRANGEMENTS28. PARKING ARRANGEMENTS
Landlord shall maintain unreserved parking spaces for use by
Tenant and Tenant's invitees and employees, in a ratio of 2.75 parking spaces
per 1,000 rentable square feet leased. Such parking shall be available subject
to the limitations and conditions from time to time imposed by Landlord, but at
no additional out-of-pocket charge due from Tenant. Said parking shall be
maintained on the Property or on areas located in the vicinity of the Property.
29. RULES AND REGULATIONS29. RULES AND REGULATIONS
The Rules on Exhibit "F" are a part of this Lease. Landlord
may from time to time amend, modify, delete or add additional Rules for the use,
operation, safety, cleanliness and care of the Premises and the Building. Such
new or modified Rules shall be effective upon notice to Tenant. Tenant will
cause its employees and agents, or any others permitted by Tenant to occupy or
enter the Premises to at all times abide by the Rules. If there is a breach of
any Rules, Landlord shall have all remedies in this Lease provided for in an
Event of Default by Tenant and shall, in addition, have any remedies available
at law or in equity, including but not limited to, the right to enjoin any
breach of such Rules. Landlord shall not be responsible to Tenant for the
nonobservance by any other tenant or person of any such Rules.
30. RIGHT TO RELOCATE30. RIGHT TO RELOCATE
At any time or from time to time during the Lease Term,
Landlord shall have the right to relocate Tenant from the Premises to any other
office space in either the Building or in that certain building adjacent to the
Building and known as "Concourse Corporate Center I", so long as, with such
relocation, Landlord also relocates to an adjacent location the space occupied
by Tenant under a sublease, if any, adjacent to the Premises; provided however,
unless Tenant otherwise agrees, (i) Landlord may not relocate Tenant more than
once during the Term, and (ii) if such relocation is during the last year of the
Term, Tenant may terminate this Lease, effective as of the proposed date of such
relocation, by giving Landlord written notice thereof within fifteen (15) days
after Landlord delivers to Tenant notice of Landlord's desire to relocate Tenant
(provided, however, if Tenant gives such notice of termination, Landlord may
keep this Lease in full force and effect by, within fifteen (15) days after its
receipt of such notice, notifying Tenant that Landlord has elected not to
relocate Tenant). Landlord shall deliver notice to Tenant of Landlord's desire
to relocate Tenant, together with a proposal for the area to which such Premises
shall be relocated. Should Landlord exercise its right to relocate Tenant under
this Paragraph 30 then (i) expenses of said relocation or of any necessary
renovation or alteration, including, without limitation, Tenant's
"out-of-pocket" expenses for items such as replacement of business cards and
stationery made obsolete by such relocation, and recabling, shall be billed to
and paid by Landlord as calculated by Landlord prior to any relocation, shall be
paid by Landlord, and (ii) following such relocation, the substituted space
shall for all purposes thereinafter constitute the Premises and all terms and
conditions of this Lease shall apply with full force and effect to the Premises
as so relocated. Any such relocation shall be scheduled on a weekend, or other
time reasonably acceptable to Tenant so as to minimize the interruption of
Tenant's business operation. If Tenant has not relocated its premises within
sixty (60) days after Landlord first notifies Tenant of Landlord's desire to
relocate Tenant, then it shall be an event of default on the part of Tenant, and
Landlord shall have, as a part of its remedies, the right to terminate this
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Lease. Such termination shall be effective upon any date selected by Landlord in
the Termination Notice which is at least ten (10) days after the Termination
Notice is given by Landlord to Tenant. Tenant hereby further covenants and
agrees to promptly execute and deliver to Landlord any lease amendment or other
such document appropriate to reflect the changes in the Lease described or
contemplated above.
31. LATE PAYMENTS31. LATE PAYMENTS
Any payment due of Tenant hereunder not received by Landlord
within five (5) days of the date when due shall be assessed a five percent (5%)
charge for Landlord's administrative and other costs in processing and pursuing
the payment of such late payment, and shall be assessed an additional five
percent (5%) charge for the aforesaid costs of Landlord for each month
thereafter until paid in full. Acceptance by Landlord of a payment, and the
cashing of a check, in an amount less than that which is currently due shall in
no way affect Landlord's rights under this Lease and in no way be an accord and
satisfaction. This provision does not prevent Landlord from declaring the
non-payment of Rent when due an event of default hereunder.
32. ESTOPPEL CERTIFICATE32. ESTOPPEL CERTIFICATE
Tenant shall, within ten (10) days of the request by Landlord,
execute, acknowledge and deliver to Landlord, any Mortgagee, prospective
Mortgagee or any prospective purchaser or transferee of the Property, the
Building, or both (as designated by Landlord), an Estoppel Certificate in
recordable form, or in such other form as Landlord may from time to time
require, evidencing whether or not (a) this Lease is in full force and effect;
(b) this Lease has been amended in any way; (c) Tenant has accepted and is
occupying the Premises; (d) there are any existing defaults on the part of
Landlord hereunder or defenses or offsets against the enforcement of this Lease
to the knowledge of Tenant (specifying the nature of such defaults, defenses or
offsets, if any); (e) the date to which Rent and other amounts due hereunder, if
any, have been paid; and (f) any such other information as may be reasonably
requested by Landlord. Each certificate delivered pursuant to this Paragraph may
be relied on by Landlord, any prospective purchaser or transferee of Landlord's
interest hereunder, or any Mortgagee or prospective Mortgagee.
33. SEVERABILITY AND INTERPRETATION33. SEVERABILITY AND
INTERPRETATION
(a) If any clause or provision of this Lease shall be deemed
illegal, invalid or unenforceable under present or future laws effective during
the Term, the remainder of this Lease shall not be affected by such illegality,
invalidity or unenforce- ability, and in lieu of each clause or provision of
this Lease that is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
(b) If any provisions of this Lease require judicial
interpretation, the court interpreting or construing the same shall not apply a
presumption that the terms of any such provision shall be more strictly
construed against one party or the other by reason of the rule of construction
that a document is to be construed most strictly against the party who itself or
through its agent prepared the same, as all parties hereto have participated in
the preparation of this Lease.
34. MULTIPLE TENANTS34. MULTIPLE TENANTS
If more than one individual or entity comprises and
constitutes Tenant, then all individuals and entities comprising Tenant are and
shall be jointly and severally liable for the due
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and proper performance of Tenant's duties and obligations arising under or in
connection with this Lease.
35. FORCE MAJEURE35. FORCE MAJEURE
Landlord shall be excused for the period of any delay and
shall not be deemed in default with respect to the performance of any of the
terms, covenants, and conditions of this Lease when prevented from so doing by
causes beyond Landlord's control, which shall include, but not be limited to,
all labor disputes, governmental regulations or controls, fire or other
casualty, inability to obtain any material or services, or acts of God.
36. QUIET ENJOYMENT36. QUIET ENJOYMENT
So long as Tenant is in full compliance with the terms and
conditions of this Lease, Landlord shall warrant and defend Tenant in the quiet
enjoyment and possession of the Premises during the Term against any and all
claims made by, through or under Landlord, subject to the terms of this Lease.
37. BROKERAGE COMMISSION; INDEMNITY37. BROKERAGE COMMISSION;
INDEMNITY
FAISON & ASSOCIATES ("FAISON") HAS ACTED AS AGENT FOR LANDLORD
IN THIS TRANSACTION AND COLLIERS, CAUBLE & COMPANY ("CAUBLE") HAS ACTED AS AGENT
FOR TENANT IN THIS TRANSACTION. BOTH FAISON AND CAUBLE ARE TO BE PAID A
COMMISSION BY LANDLORD. Tenant warrants that there are no other claims for
broker's commissions or finder's fees in connection with its execution of this
Lease. Tenant hereby indemnifies Landlord and holds Landlord harmless from and
against all loss, cost, damage or expense, including, but not limited to,
attorney's fees and court costs, incurred by Landlord as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Tenant. Landlord hereby indemnifies Tenant and holds Tenant harmless
from and against all loss, cost, damage or expense, including, but not limited
to, attorney's fees and court costs, incurred by Tenant as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Landlord.
38. EXCULPATION OF LANDLORD38.EXCULPATION OF LANDLORD
Landlord's liability to Tenant with respect to this Lease
shall be limited solely to Landlord's interest in the Building. Neither
Landlord, any of the partners of Landlord, any officer, director, or shareholder
of Landlord nor any of the partners of Landlord shall have any personal
liability whatsoever with respect to this Lease.
39. ORIGINAL INSTRUMENT39. ORIGINAL INSTRUMENT
Any number of counterparts of this Lease may be executed, and
each such counterpart shall be deemed to be an original instrument.
40. GEORGIA LAW40. GEORGIA LAW
This Lease has been made under and shall be construed and
interpreted under and in accordance with the laws of the State of Georgia.
41. NO RECORDATION OF LEASE41.NO RECORDATION OF LEASE
Without the prior consent of Landlord, neither this Lease nor
any memorandum hereof shall be recorded or placed on public record.
42. HAZARDOUS WASTES42. HAZARDOUS WASTES
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(a) Tenant shall not (either with or without negligence) cause
or permit the escape, disposal or release of any biologically or chemically
active or other hazardous substances or materials. Tenant shall not allow the
storage or use of such substances or materials in any manner not sanctioned by
law or by the highest standards prevailing in the industry for the storage and
use of such substances or materials, nor allow to be brought into the Building,
the Premises or the Property, any such materials or substances except to use in
the ordinary course of Tenant's business, and then only after notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of the
Lease Term.
(b) To the best of Landlord's knowledge and belief, but
without any independent investigation or inquiry of any kind or nature
whatsoever, there are no Hazardous Substances in the Demised Premises other than
"Permitted Hazardous Substances", as that term is defined below. Landlord
covenants and agrees that if any Hazardous Substances other than Permitted
Hazardous Substances are found in the Project in such amounts and locations as
would require Landlord to remove such materials as a matter of law, then
Landlord shall remove or cause to be removed such Hazardous Substances. Such
removal shall be accomplished in a manner that does not cause an unreasonable
disruption to Tenant's operations in the Demised Premises.
(c) The term "Permitted Hazardous Substances" shall mean such
Hazardous Substances as are commonly and legally used or stored as a consequence
of using, maintaining or operating the Project, but only so long as the
quantities thereof do not pose a threat to public health or to the environment
or would necessitate a "response action" as that term is defined in CERCLA, and
so long as Landlord strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances.
43. LEASE BINDING UPON DELIVERY43. LEASE BINDING UPON DELIVERY
This Lease shall not be binding until and unless all parties
have duly executed said Lease and a fully executed counterpart of said Lease has
been delivered to Tenant.
44. SPECIAL STIPULATIONS44. SPECIAL STIPULATIONS AND LEASE
SUMMARY SHEET
The special stipulations attached hereto as Exhibit "G", by
this reference made a part hereof, shall control if in conflict with any of the
foregoing provisions of this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal, on the day and year first above written.
TENANT:
ROSS SYSTEMS, INC.
/s/ James Patrick Tinley (SEAL)
Authorized Signature
James Patrick Tinley, President
Type Name of Signatory
/s/ Stan F. Stoudenmire (SEAL)
Date executed by Authorized Signature
Tenant: 1/9/98 Stan F. Stoudenmire, CFO
Type Name of Signatory
(CORPORATE SEAL)
*Note: If Tenant is a corporation, two authorized corporate officers
must execute this Lease in their appropriate capacities for
Tenant, affixing the corporate seal.
By the execution and delivery of this Lease Tenant has made and shall
be deemed to have made a continuous and irrevocable offer to lease the Premises,
on the terms contained in this Lease, subject only to acceptance by Landlord (as
evidenced by Landlord's signature hereon), which Landlord may accept in its sole
and absolute discretion.
Tenant's Federal Employer Identification Number: 94-2170198
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"LANDLORD"
CONCOURSE II, LTD., a Georgia limited partnership
By: State of California Public Employees'
Retirement System, as general partner of
Concourse II, Ltd.
By: LaSalle Advisors Limited Capital Management,
Inc., as duly authorized agent of State of
California Public Employees' Retirement
System Date Executed by Landlord: 19
January, 1998 By: ________________________
John Levy Principal
By: ________________________
Rebecca Smith
Vice President
Initials:
Landlord: _______
Tenant: _______
May 11, 19983:29 PM0158305.DOC
<PAGE>
EXHIBIT "A"
Location of Premises Within Building
[To Be Attached]
<PAGE>
EXHIBIT "B"
Space Plan of Premises
<PAGE>
Initials:
Landlord: _______
Tenant: _______
<PAGE>
EXHIBIT "C"
LEGAL DESCRIPTION - CORPORATE CENTER II
All that tract or parcel of land lying and being in Land Lot 17 of the 17th
District, Fulton County, Georgia, and being more particularly described as
follows:
To reach the TRUE POINT OF BEGINNING, begin at a point located at the
intersection of the former southerly Right-of-Way line of Hammond Drive if
extended (which Right-of-Way varies, but was 47.9 feet from the centerline) and
the former westerly Right-of-Way line of Peachtree-Dunwoody Road if extended
(which Right-of-Way varies, but was 41.7 feet from the centerline); running
thence South 02DEG 14'39" East, along the former westerly Right-of-Way line of
Peachtree-Dunwoody Road, a distance of 301.51 feet to a point; thence continuing
along said former Right-of-Way line South 00DEG 04'42" West a distance of 128.30
feet to a point; thence continuing along said former Right-of-Way line South
02DEG 51'09" West a distance of 320.44 feet to a point; thence continuing along
said former Right-of-Way line South 04DEG 20'05" West a distance of 103.34 feet
to a point; thence continuing along said former Right-of-Way line South 06DEG
25'12" West a distance of 104.00 feet to a point; thence continuing along said
former Right-of-Way line South 82DEG 23'06" East a distance of 12.00 feet to a
point; thence continuing along said former Right-of-Way line South 07DEG 36'54"
West a distance of 141.66 feet to a point; thence continuing along said former
Right-of-Way line South 19DEG 17'25" West a distance of 365.03 feet to a point
located on the northerly Right-of-Way line of Interstate 285 (which Right-of-Way
varies); thence along the Right-of-Way line of Interstate 285 South 60DEG 30'32"
West a distance of 147.38 feet to the TRUE POINT OF BEGINNING; thence continuing
along said Right-of-Way line South 60DEG 30'32" West a distance of 543.05 feet
to a point; thence continuing along said Right-of-Way line along a curve to the
right an arc distance of 348.08 feet to a point (said curve having a radius of
941.74 feet, a chord distance of 346.11 feet and a chord bearing of North 84DEG
02'25" West); thence leaving said Right-of-Way line and running North 17DEG
25'43" East a distance of 169.03 feet to a point; thence along a curve to the
right an arc distance of 46.09 feet to a point (said curve having a radius of
567.11 feet, a chord distance of 46.08 feet and a chord bearing of North 66DEG
51'40" West); thence North 02DEG 42'14" East a distance of 160.36 feet to a
point; thence South 87DEG 17'47" East a distance of 15.00 feet to a point;
thence North 02DEG 42'14" East a distance of 71.84 feet to a point; thence South
87DEG 17'47" East a distance of 306.00 feet to a point; thence North 02DEG
42'14" East a distance of 125.49 feet to a point; thence South 87DEG 18'03" East
a distance of 157.13 feet to a point; thence North 47DEG 35'58" East a distance
of 32.58 feet to a point; thence North 02DEG 39'32" East a distance of 146.02
feet to a point; thence North 42DEG 11'23" West a distance of 15.25 feet to a
point; thence North 02DEG 41'25" East a distance of 42.42 feet to a point;
thence North 41DEG 31'43" West a distance of 15.32 feet to a point; thence North
02DEG 39'32" East a distance of 76.13 feet to a point; thence South 87DEG 17'14"
East a distance of 67.30 feet to a point; thence South 42DEG 24'02" East a
distance of 290.00 feet to a point; thence South 05DEG 24'46" East a distance of
376.07 feet to a point being the TRUE POINT OF BEGINNING, said tract containing
9.000 acres per As-Built Survey of Concourse Corporate Center II, prepared for
Concourse II, Ltd. and Lawyers Title Insurance and Chicago Title Insurance
Company, prepared by Thomas A. Kohn (Georgia Registered Land Surveyor No. 2208)
of Benchmark Engineering Corporation, dated January 6, 1986, last revised July
21, 1986.
<PAGE>
EXHIBIT "D"
WORK AGREEMENT FOR
COMPLETION OF THE PREMISES
Landlord and Tenant executed a Lease for Premises on the 8th floor(s) of the
Building and hereby attach this Work Agreement to said Lease as Exhibit "C"
thereto. To induce Tenant to enter into the Lease and in consideration of the
mutual covenants herein contained, Landlord and Tenant agree as follows:
ARTICLE 1 - DEFINITIONS
The following terms shall have the meanings described below. Terms not defined
herein shall have the meaning given in the Lease:
Allowance shall mean Ten and No/100 Dollars ($10.00) multiplied by the
rentable square feet in the Premises.
Base Building Improvements shall mean Building Standard improvements to
be constructed or installed in the Building.
BOMA shall mean the standards and practices for measurement of office
buildings, set forth in the American National Standard Method of
Measuring Floor Area in Office Buildings of the Building Owners and
Managers Association International (ANSI Z65.1 - 1980 [approved July 1,
1980, as modified]).
Building Plans and Specifications shall mean the final drawings and
specifications for Base Building Improvements.
Building Standard Materials shall mean such materials described in the
Building Plans and Specifications, or materials of comparable quality
as may be substituted therefor by Landlord. Except for Building
Standard Hardware and items pre-installed by Landlord, Tenant may, but
is not obligated to, purchase Building Standard Materials. Tenant shall
be obligated to buy Building Standard Hardware and all items
pre-installed by Landlord. Tenant may also be obligated to utilize and
pay for certain other Building Standard Materials in accordance with
Section 3.01(c) herein.
Contractor shall mean the party selected in accordance with Article 6
herein to do the Tenant Improvements.
Change Order shall mean any alteration, substitution, addition or
change to or in the Tenant Space Plans or Tenant Improvement
Construction Documents requested by Tenant after the same have been
consented to by Landlord.
Completion Date shall mean the date of Substantial Completion of Tenant
Improvements under the Tenant Improvement Construction Documents
(except Punchlist Items).
Construction Contract shall mean the agreement to be entered between
Landlord and Contractor for the construction of the Tenant
Improvements.
Landlord's Architect shall mean Smith/Herrin Architects.
Punchlist Items shall mean those items not completed in the Premises at
the time of the Substantial Completion, as identified in a written
list, which do not substantially interfere with Tenant's use or
enjoyment of the Premises.
Substantial Completion or Substantially Complete shall be as described
in Section 4.04 hereof.
<PAGE>
Tenant's Costs shall mean the aggregate of (a) all costs and expenses
of constructing the Tenant Improvements that are in excess of the
Allowance, and (b) all costs and expenses related to the design
(including any revision and redesign costs) of the Tenant Improvements.
Tenant Improvements shall mean all improvements constructed or
installed in or on the Premises in accordance with the Tenant
Improvement Construction Documents.
Tenant Improvement Costs shall mean the aggregate cost for the Tenant
Improvements, approved by Tenant in accordance with Section 3.01
hereof, together with the cost of any Change Orders as provided in
Section 3.05 hereof.
Tenant Improvement Construction Documents shall mean the working
drawings, specifications and finish schedules for the Tenant
Improvements prepared by Landlord's Architect and consented to by
Tenant in accordance herewith.
Tenant Space Plans shall mean the schematic presentation of the
Premises prepared by Landlord's Architect and consented to by Tenant in
accordance herewith.
Tenant's Work shall mean all work in or about the Premises not within
the scope of the work necessary to construct the Tenant Improvements,
such as (by way of illustration and not limitation) delivering and
installing furniture, telephone equipment and wiring and office
equipment.
Working Day shall mean the period from 9:00 A.M. until 5:00 P.M. on any
Monday through Friday, excluding federal and Georgia state holidays. By
way of illustration, any period described in this Work Letter as
expiring at the end of the third (3rd) Working Day after receipt of a
document, then: (i) if receipt occurs at 9:01 A.M. on Monday, said
period shall expire at 5:00 P.M. on the following Thursday; and (ii) if
receipt occurs at 4:59 P.M. on Wednesday, the period shall expire at
5:00 P.M. on the following Monday.
ARTICLE 2. TENANT SPACE PLANS AND TENANT
IMPROVEMENT PLANS AND SPECIFICATIONS
Section 2.01 Schedule for Preparation
Landlord shall contract with Landlord's Architect for the preparation of the
Tenant Space Plans and Tenant Improvement Construction Documents. Tenant Space
Plans and Tenant Improvement Construction Documents for the Tenant Improvements
shall be prepared by Landlord's Architect and consented to by Tenant as provided
hereinbelow. Tenant Space Plans shall be prepared and sealed by an architect
licensed in Georgia.
1. As soon as reasonably possible (but in no event later than December 16,
1997 Tenant shall provide Landlord's Architect all specifications,
information and documents necessary to enable Landlord's Architect to
prepare the Tenant Space Plans.
2. Within Five (5) Working Days after receipt of all items described in
Section 2.01(1) above, Landlord's Architect shall prepare and deliver
to Tenant the Tenant Space Plans.
3. By the end of the third (3rd) full Working Day after receipt of the
Tenant Space Plans, Tenant shall review and resubmit the same to
Landlord's Architect, either with Tenant's consent or with Tenant's
comments thereto.
4. By the end of the third (3rd) full Working Day after receipt of
Tenant's comments to the Tenant Space Plans, Landlord's Architect shall
resubmit to Tenant the Tenant Space Plans with such changes or
information as requested by Tenant.
2
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5. This process described in Section 2.01(2),(3) and (4) shall continue
until Tenant has satisfied itself that such proposed Tenant Space Plans
are acceptable, but once Tenant Space Plans have been resubmitted to
Tenant, Tenant shall confine Tenant's comments thereupon only to the
changes made by Landlord's Architect or changes requested by Tenant to
the prior submission of Tenant Space Plans, but not made by Landlord's
Architect. Once Tenant has satisfied itself that such proposed Tenant
Space Plans are acceptable Tenant shall notify Landlord, and the Tenant
Space Plans as so consented to by Tenant shall constitute the final
Tenant Space Plans. When Tenant gives such final consent, Landlord
shall notify Tenant of the amount of time Landlord estimates, in
Landlord's reasonable judgment, Substantial Completion of Tenant
Improvements within the portion of the Premises shown on such Tenant
Space Plans will require.
6. After final consent to the Tenant Space Plans, Landlord's Architect
shall prepare and deliver to Tenant the prepared Tenant Improvement
Construction Documents.
7. By the end of the third (3rd) full Working Day after receipt of the
Tenant Improvement Construction Documents, Tenant shall review and
resubmit the same to Landlord's Architect, either with Tenant's consent
or comments thereto.
8. By the end of the third (3rd) full Working Day after receipt of
Tenant's comments to the Tenant Improvement Construction Documents,
Landlord's Architect shall resubmit to Tenant the Tenant Improvement
Construction Documents with such changes or information as requested by
Tenant.
9. The process described in Section 2.01(6), (7) and (8) shall continue
until Tenant is satisfied that such proposed Tenant Improvement
Construction Documents are acceptable, but once Tenant Improvement
Construction Documents have been resubmitted to Tenant, Tenant shall
confine Tenant's comments thereupon only to changes made by Landlord's
Architect or the changes requested by Tenant to the prior submission of
Tenant Improvement Construction Documents, but not made by Landlord's
Architect. Once Tenant is satisfied that such proposed Tenant
Improvement Construction Documents are acceptable, Tenant shall notify
Landlord, and the Tenant Improvement Construction Documents consented
to by Tenant shall constitute the final Tenant Improvement Construction
Documents.
10. Any approval or consent by Landlord of any items submitted by Tenant to
and/or reviewed by Landlord pursuant to this Work Letter shall be
deemed to be strictly limited to an acknowledgment of approval or
consent by Landlord thereto and shall not imply or be deemed to imply
any representation or warranty by Landlord that the design is safe or
structurally sound or will comply with any legal or governmental
requirements. Any deficiency, mistake or error in design (expressly
excluding the engineering drawings), although the same has the consent
or approval of Landlord, shall be the sole responsibility of Tenant,
and Tenant shall be liable for all costs and expenses which may be
incurred and all delays suffered in connection with or resulting from
any such deficiency, mistake or error in design.
ARTICLE 3. CONSTRUCTION OF TENANT IMPROVEMENTS
Section 3.01 Pricing of Tenant Improvements
(a) Within __ Working Days after final approval of the Tenant Improvement
Construction Documents, Landlord shall obtain a price proposal for the Tenant
Improvements from Contractor. Such price proposal shall be subject to Tenant's
review and approval, which approval by Tenant shall not be unreasonably withheld
or delayed.
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Should Tenant desire to seek adjustments of such price proposal, Tenant shall
work promptly with Landlord's Architect and Contractor to alter the Tenant
Improvement Construction Documents to cause the price quotation to be acceptable
to Tenant and to establish the Tenant Improvement Costs. Upon determination of
the Tenant Improvement Costs and the written approval of the Tenant Improvement
Construction Documents by Tenant, Tenant shall have given final approval of the
same, and Landlord shall be authorized to proceed with contracting with
Contractor for the construction and installation of the Tenant Improvements in
accordance with the Tenant Improvement Construction Documents.
(b) Included in the pricing for the Tenant Improvements shall be the cost of
those Building Standard Materials which Tenant is obligated to purchase under
this Work Letter, which shall be purchased by Tenant in appropriate quantities
for the Premises. The cost of such Building Standard Materials shall be charged
against the Allowance, to the extent available.
(c) If Tenant has, as a part of any specifications for the Tenant Improvements,
designated Building Standard Materials or a standard that allows for equivalent
quality items and would permit the use of Building Standard Materials, Landlord
shall have the right, at Landlord's option and in Landlord's sole discretion, to
sell those Building Standard Materials to Tenant at the price given for such
item (on a unit cost basis) by the bidder selected to perform that portion of
the work which will be using the Building Standard Materials in question.
Any such costs shall be charged against the Allowance, to the extent available.
Section 3.02 Construction of Tenant Improvements.
Landlord will enter into a Construction Contract with Contractor to
construct the Tenant Improvements.
Section 3.03 Tenant Delay
If there is delay in achieving Substantial Completion of Tenant's Improvements
as a result of or in connection with:
A. Tenant's failure to furnish any information or documents in
accordance with this Work Letter;
B. Tenant's request for materials, finishes or installations
other than Building Standard Materials, finishes or
installations;
C. Any Change Order, including any change in the Tenant
Improvement Construction Documents made pursuant to Section
3.01 hereof and any failure by Tenant to respond to a "Change
Order Effect Notice" (as herein defined) within the time
period required hereunder;
D. Tenant's failure to respond within any of the time periods
specified herein; or
E. If in the performance or prosecution of Tenant's Work,
Tenant's employees or agents interfere with or in any manner
hinder Contractor from prosecuting to the fullest extent
possible the Tenant Improvements work;
then such shall be a "Tenant Delay", and for each of such day of Tenant
Delay, Landlord shall have an additional day to complete the work
required hereunder.
Section 3.04 Completion of Premises
A. The Premises shall be substantially completed, as to any
floor, and Substantial Completion shall have occurred, as to
any floor, upon the following:
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(i) the Tenant Improvements shall have been completed as
to the floor in substantial compliance with the
Construction Contract, except for Punch List Items
and otherwise sufficient so that Landlord's Architect
can execute the most recently published version of
AIA form G704, titled "Certificate of Substantial
Completion"; and
(ii) Landlord shall have obtained a certificate of
occupancy (or evidence reasonable satisfactory to
Tenant that upon completion of the Tenant's Work, a
certificate of occupancy will be issued) for the
Premises in question, permitting use of the floor of
the Premises in question for the purpose permitted in
this Lease;
provided however, that, if and to the extent compliance with any of the
conditions set forth in clauses (i) and (ii) above would have occurred earlier
but for any days of Tenant Delay, then compliance with such condition shall be
deemed to have occurred on the date it would have occurred but for the days of
Tenant Delay.
Section 3.05 Changes in Plans and Specifications
A. If at any time after the Tenant Improvement Costs are determined, Tenant
desires to make Change Orders, Tenant shall submit to Landlord for pricing by
Contractor working drawings and specifications for any and all such desired
Change Order. Landlord shall respond to Tenant, within five (5) Working Days of
such request by Tenant, with an estimate of the effect of such desired Change
Order on Tenant Improvement Costs and the schedule of anticipated Substantial
Completion (the "Change Order Effect Notice"). Tenant shall have three (3)
Working Days to respond to such Change Order Effect Notice, with the
authorization required hereunder, although Tenant may, within said three (3)
Working Day period, request more time to finally respond to the Change Order
Effect Notice. A failure by Tenant to respond to any such Change Order Effect
Notice shall be denial of consent, and, upon denial of a proposed Change Order,
Contractor shall proceed with its work in accordance with the Tenant Improvement
Construction Documents. Once the cost and the schedule change, if any, for such
Change Order has been approved by Tenant, all references in this Work Agreement
to the "Tenant Improvement Construction Documents" shall be to the Tenant
Improvement Construction Documents, as changed pursuant to this Section 3.05,
and all references to "Tenant Improvement Costs" shall include the net aggregate
approved cost for the Change Orders determined in this Section 3.05 (after
taking into account any savings affected by such Change Order), except that
there may be a fee charged by the Tenant Improvement Contractor for any Change
Order which reduces Tenant Improvement Costs.
B. Once the Change Order, the costs therefor and the schedule change associated
therewith have been approved and a form evidencing such approval executed by
Tenant, reasonably satisfactory to Landlord, is delivered to Landlord, Tenant
shall have given full authorization to Landlord to cause Contractor to proceed
with the work of constructing the Tenant Improvements in accordance with the
Tenant Improvement Construction Documents as so modified; provided that any
changes required by Tenant which constitute a material deviation from the
previously approved Tenant Improvement Construction Documents shall be effective
only after the approval of Landlord, which approval shall not be unreasonably
withheld or delayed unless such change would result in a material delay in the
completion of the work being done by Contractor.
Section 3.06 General Provisions Applicable to Tenant's Work
1. Landlord will require a high grade, first-class operation to be
conducted in the Premises. Tenant's Work shall be performed in a
first-class manner, using new and first-class,
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quality materials. Tenant's Work shall be constructed and installed in
accordance with all applicable laws, ordinances, codes and rules and
regulations of governmental authorities. Tenant shall promptly correct
any of Tenant's Work which is not in conformance therewith.
2. Landlord shall use reasonable efforts to give notice to Tenant of the
projected date by which Landlord shall have completed the Tenant
Improvements on any full floor at least seven (7) days prior to said
date, so Tenant has access to the Premises for the performance of
Tenant's Work and Tenant shall proceed forthwith to commence the
performance of such work and shall diligently pursue such work to
completion. Tenant's contract parties and subcontractors shall be
subject to administrative supervisions by Landlord in their use of the
Building and their relationship with Contractor, or contractors of
other tenants in the Building. The entry by Tenant and/or its contract
parties into the Premises for the performance of Tenant's Work shall be
subject to all of the terms and conditions of the Lease except the
payment of Rent. If Landlord allows Tenant and/or its contract parties
to enter the Premises and to commence the performance of Tenant's Work
prior to the Completion Date, such entry by Tenant shall be at Tenant's
sole risk.
3. Tenant's Work shall be coordinated and conducted to maintain harmonious
labor relations and not (a) to interfere unreason-ably with or to delay
the completion of any work being per-formed by Contractor or by any
other tenant in the Building; or (b) to interfere with or disrupt the
use and peaceful enjoyment of other retail or office tenants in the
Building. Contractor shall have priority over Tenant's Work.
4. Tenant and Tenant's contract parties shall perform their work,
including any storage for construction purposes, within the Premises
only. Tenant shall be responsible for removal, as needed, from the
Premises and the Building of all trash, rubbish, and surplus materials
resulting from any work being performed in the Premises. Tenant shall
exercise extreme care and diligence in removing such trash, rubbish, or
surplus materials from the Premises to avoid littering, marring, or
damaging any portion of the Building. If any such trash, rubbish, or
surplus materials are not promptly removed from the Building in
accordance with the provisions hereof or if any portion of the Building
is littered, marred, or damaged, Landlord may cause same to be removed
or repaired, as the case may be, at Tenant's cost and expense. If
Landlord incurs any costs or expenses in performing the above, Tenant
shall pay Landlord the amount of any such cost and expenses within
twenty (20) days after notice of such cost is given to Tenant.
ARTICLE 4. PAYMENT OF COSTS
Section 4.01 Allowance for Tenant Improvement Costs
Landlord shall pay the Tenant Improvement Costs, up to, but not in excess of the
Allowance. The Allowance is applicable to Tenant Improvements.
Section 4.02 Tenant's Costs
Tenant shall pay Tenant's Costs to Landlord, including the following:
1. Tenant Improvement Costs (if any) in excess of the Allowance;
2. A construction supervision fee equal to three percent (3%) of the total
cost of all work associated with the Tenant Improvements. Such fee
shall be paid to Landlord or Landlord's designated agent, and may be
funded out of the Allowance, to the extent available.
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Section 4.03 Payment of Tenant's Costs
Tenant shall pay Tenant's Costs to Landlord within thirty (30) days of Tenant's
receipt from Landlord of an invoice for such costs.
Section 4.04 Failure to Pay Tenant's Costs
Failure by Tenant to pay Tenant's Costs in accordance with this Article 4 will
constitute a failure by Tenant to pay Rent when due under the Lease.
ARTICLE 5. CONTRACTOR REQUIREMENTS
A. The prospective bidders for the engagement as "Contractor"
shall be three (3), including:
(i) Genoa Construction
(ii) Warren Hanks Construction
(iii) Ordner Construction
Landlord and Tenant shall in their respective reasonable
judgment, agree on the remaining list of Contractors not
filled in above as authorized to be a prospective bidder.
B. Landlord shall be responsible for preparing bid instructions
to the three prospective contractors enumerated above, and
Landlord shall receive and qualify all bids, and shall
determine the responsiveness of all bids received. However,
Tenant may elect to perform any of those bid related functions
in lieu of Landlord or elect to review Landlord's preparation
of same. If Tenant elects to perform such services, then
Landlord shall have the right to review such work and
services.
C. All bids from such potential Contractors shall be required to
be submitted on or before ten (10) business days after such
potential Contractors receipt from Landlord of Tenant Space
Plans or Building Plans and Specifications sufficient to
generate a bid with a maximum price quoted.
From such bids, Tenant shall select the Contractor.
ARTICLE 6. DESIGNATION OF REPRESENTATIVES
Section 6.01 Landlord's Agent
For purposes of this Work Agreement, Landlord hereby designates Amy Hilscher to
act as its authorized representative on all matters relating to this Work
Agreement, and any response from Amy Hilscher as to matters contemplated under
this Work Agreement shall be the response of Landlord hereunder.
Section 6.02 Tenant's Agent
For purposes of this Work Agreement, Tenant hereby designates ____________ to
act as its authorized representative on all matters relating to this Work
Agreement, and any response from _____________________ as to matters
contemplated under this Work Agreement shall be the response of Tenant
hereunder.
Section 6.03 Mutual Cooperation
Landlord's Agent and Tenant's Agent shall cooperate with one another in
coordinating Substantial Completion of Tenant's Work, and in controlling and
minimizing the time and costs of the Tenant Improvements and Tenant Work.
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ARTICLE 7. ADA COMPLIANCE
Section 7.01 Building
Tenant shall not be obligated to pay for Base Building compliance with the
American's with Disability Act ("ADA"), unless such compliance arises out of
Tenant's specific use of the Premises and Building.
Section 7.02 Tenant Improvements
Landlord shall endeavor to cause Landlord's Architect to prepare the Tenant
Space Plan so that the Tenant Improvements, once constructed, shall be in
compliance with the ADA.
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CONCOURSE
EXHIBIT "F"
RULES AND REGULATIONS
The rules and regulations set forth in this Exhibit shall be and hereby
are made a part of the Lease to which they are attached. Whenever the term
"Tenant" is used in these rules and regulations, it shall be deemed to include
Tenant, its employees or agents and any other persons permitted by Tenant to
occupy or enter the Premises. The following rules and regulations may from time
to time be modified by Landlord in the manner set forth in Paragraph 29 of the
Lease.
1. Obstruction. The sidewalks, entries, passages, corridors, halls,
lobbies, stairways, elevators and other common facilities of the Building shall
be controlled by Landlord and shall not be obstructed by Tenant or used for any
purposes other than ingress or egress to and from the Premises. Tenant shall not
place any item in any of such locations, whether or not any such item
constitutes an obstruction, without the prior written consent of Landlord.
Landlord shall have the right to remove any obstruction or any such item without
notice to Tenant and at the expense of Tenant. The floors, skylights and windows
that reflect or admit light into any place in said Building shall not be covered
or obstructed by Tenant.
2. Ordinary Business Hours. Whenever used in the Lease or in these rules
and regulations, the ordinary business hours of the Building shall be from 8:00
A.M. to 6:00 P.M. Monday through Friday and 8:00 A.M. to 1:00 P.M. Saturday of
each week, excluding the legal holidays of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other
holidays observed by owners of comparable buildings.
3. Deliveries. Tenant shall insure that all deliveries of supplies to the
Premises shall be made only upon the elevator designated by Landlord for
deliveries and only during the ordinary business hours of the Building. If any
person delivering supplies to Tenant damages the elevator or any other part of
the Building, Tenant shall pay to Landlord upon demand the amount required to
repair such damage.
4. Moving. Furniture and equipment shall be moved in or out of the
Building only upon the elevator designated by Landlord for deliveries and then
only during such reasonable hours and in such manner as may be prescribed by
Landlord. Landlord shall have the right to approve or disapprove the movers or
moving company employed by Tenant and Tenant shall cause such movers to use only
the loading facilities and elevator designated by Landlord. If Tenant's movers
damage the elevator or any other part of the Building, Tenant shall pay to
Landlord upon demand the amount required to repair such damage.
5. Heavy Articles. No safe or article the weight of which may, in the
reasonable opinion of Landlord, constitute a hazard or damage to the Building or
its equipment, shall be moved into the Premises. Landlord shall have the right
to designate the location of such articles in the Premises. Safes and other
heavy equipment, the weight of which will not constitute a hazard or damage the
Building or its equipment shall be moved into, from or about the Building only
during such hours and in such manner as shall be reasonably prescribed by
Landlord.
6. Nuisance. Tenant shall not do or permit anything to be done in the
Premises, or bring or keep anything therein which would in any way constitute a
nuisance or waste, or obstruct or interfere with the rights of other tenants of
the Building, or in any way injure or annoy them, or conflict with the laws
relating to fire, or with any regulations of the fire department or with
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any insurance policy upon the Building or any part thereof, or conflict with any
of the rules or ordinances of any governmental authority having jurisdiction
over the Building.
7. Building Security. Landlord may restrict access to and from the
Premises and the Building outside of the ordinary business hours of the
Building. Landlord may require identification of persons entering and leaving
the Building during this period and, for this purpose, may issue Building passes
to tenants of the Building.
8. Pass Key. The janitor of the Building may at all times keep a pass key
to the Premises, and he and other agents of Landlord shall at all reasonable
times be allowed admittance to the Premises.
9. Locks and Keys for Premises. No additional lock or locks shall be
placed by Tenant on any door in the Building and no existing lock shall be
changed unless the written consent of Landlord shall first have been obtained. A
reasonable number of keys to the Premises and to the toilet rooms, if locked by
Landlord, will be furnished by Landlord, and Tenant shall not have any duplicate
key made. At the termination of this tenancy Tenant shall promptly return to
Landlord all keys to the Building, Premises and toilet rooms.
10. Signs. Signs on Tenant's entrance doors will be provided for Tenant by
Landlord, the cost of the signs to be charged to and paid for by Tenant. No
advertisement, sign or other notice shall be inscribed, painted or affixed on
any part of the outside or inside of the Building, except upon the interior
doors as permitted by Landlord, which advertisement, signs, or other notices
shall be of Building standard order, size and style, and at such places as shall
be designated by Landlord.
11. Use of Water Fixtures. Water closets and other water fixtures shall
not be used for any purpose other than that for which the same are intended, and
any damage resulting to the same from misuse on the part of Tenant shall be paid
for by Tenant. No person shall waste water by tying back or wedging the faucets
or in any other manner.
12. No Animals, Excessive Noise. No animals shall be allowed in the
offices, halls, corridors and elevators in the Building. No person shall disturb
the tenants of this or adjoining buildings or space by the use of any radio or
musical instrument or by the making of loud or improper noises.
13. Bicycles. Bicycles or other vehicles shall not be permitted anywhere
inside or on the sidewalks outside of the Building, except in those areas
designated by Landlord for bicycle parking.
14. Trash. Tenant shall not allow anything to be placed on the outside of
the Building, nor shall anything be thrown by Tenant out of the windows or
doors, or down the corridors, elevator shafts, or ventilating ducts or shafts of
the Building. All trash shall be placed in receptacles provided by Tenant on the
Premises or in any receptacles provided by Landlord for the Building.
15. Windows and Entrance Doors. Window shades, blinds or curtains of a
uniform Building standard, color and pattern only shall be used throughout the
Building to give uniform color exposure through exterior windows. Exterior
blinds shall remain in the lowered position at all times to provide uniform
exposure from the outside. Tenant entrance doors should be kept closed at all
times in accordance with the fire code.
16. Hazardous Operations and Items. Tenant shall not install or operate
any steam or gas engine or boiler, or carry on any hazardous business in the
Premises without Landlord's prior
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written consent, which consent may be withheld in Landlord's absolute
discretion. The use of oil, gas or inflammable liquids for heating, lighting or
any other purpose is expressly prohibited. Explosives or other articles deemed
extra hazardous shall not be brought into the Building.
17. Hours for Repairs, Maintenance and Alterations. Any repairs,
maintenance and alterations required or permitted to be done by Tenant under the
Lease shall be done only during the ordinary business hours of the Building
unless Landlord shall have first consented in writing to such work being done
outside of such times. If Tenant desires to have such work done by Landlord's
employees on Saturdays, Sundays, holidays or weekdays outside of ordinary
business hours, Tenant shall pay the extra cost of such labor.
18. No Defacing of Premises. Except as permitted by Landlord, Tenant shall
not mark upon, cut, drill into, drive nails or screws into, or in any way deface
the doors, walls, ceilings, or floors of the Premises or of the Building, nor
shall any connection be made to the electric wires or electric fixtures without
the consent in writing on each occasion of Landlord or its agents. Any
defacement, damage or injury to the Premises or Building caused by Tenant shall
be paid for by Tenant. Nothing contained in this Paragraph shall prohibit Tenant
from decorating the walls of the Premises with such items as are normally found
in first-class, commercial office buildings, so long as such items are no
heavier than twenty (20) pounds.
19. Limit on Equipment. Tenant shall not, without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed, install or
operate any equipment which will consume in conjunction with Tenant's other
equipment throughout the Premises, an amount of electricity which exceeds that
provided for under the Lease. If Tenant requires any interior wiring such as for
a business machine, intercom, printing equipment or copying equipment, such
wiring shall be done by the electrician of the Building only at Tenant's
expense, and no outside wiring persons shall be allowed to do work of this kind
unless by the written consent of Landlord or its representatives. If telegraphic
or telephonic service is desired, the wiring for same shall be done as directed
by the electrician of the Building or by some other employee of Landlord who may
be instructed by the superintendent of the Building to supervise same, and no
boring or cutting for wiring shall be done unless approved by Landlord or its
representatives, as stated.
20. Solicitation. Landlord reserves the right to restrict, control or
prohibit canvassing, soliciting and peddling within the Building. Tenant shall
not grant any concessions, licenses or permission for the sale or taking of
orders for food or services or merchandise in the Premises, nor install or
permit the installation or use of any machine or equipment for dispensing goods
or foods or beverages in the Building, nor permit the preparation, serving,
distribution or delivery of food or beverages in the Premises without the
approval of Landlord and in compliance with arrangements prescribed by Landlord.
Only persons approved in writing by Landlord shall be permitted to serve,
distribute, or deliver food and beverages within the Building, or to use the
elevators or public areas of the Building for that purpose.
21. Doors. Doors for entrance to and exit from the Premises shall be kept
closed at all times, except when in use for entering or exiting the Premises.
22. Captions. The caption for each of these rules and regulations is added
as a matter of convenience only and shall be considered of no effect in the
construction of any provision or provisions of these rules and regulations.
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23. No Smoking. Landlord shall prohibit smoking in any area other than
certain designated smoking areas in the Building. Landlord shall notify Tenant
of such designated areas from time to time.
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EXHIBIT "G"
SPECIAL STIPULATIONS
1. (A) Right of First Offer 7. (A) Right of First Offer. Provided this
Lease is then in full force and effect and as Tenant is in full compliance with
the terms and conditions of this Lease, and there is no sublease of any portion
of the Premises or assignment of any of Tenant's interest in the Lease, Tenant
shall have a right of first offer on the approximately 4,712 rentable square
feet shown on Exhibit "H" attached hereto and by this reference incorporated
herein (the "Expansion Space"), on the following terms and conditions:
(a) Landlord shall give notice to Tenant of Landlord's desire
to lease the Expansion Space.
(b) Tenant shall have five (5) days after Landlord's notice to
respond as to whether or not Tenant desires to lease the Expansion Space. If
Tenant elects not to lease the Expansion Space or fails to respond within the
five (5) day period, then Tenant shall have no further right to lease the
Expansion Space.
(c) If Tenant elects to lease the Expansion Space, the base
rent for the Expansion Space shall be at the same rate of Monthly Rental (on a
per square foot per annum basis) then being paid by Tenant for the Premises,
which rate of Monthly Rental shall increase as provided in the Lease.
(d) The Rent for the Expansion Space shall commence on the
earlier to occur of (i) thirty (30) days after Tenant's notice of election to
lease the Expansion Space, or (ii) the date Tenant first occupies the Expansion
Space.
(e) If Tenant elects to lease the Expansion Space, then Tenant
shall take such space "as is, where is", with no obligation on the part of
Landlord to provide any work therein or any allowance therefor.
(f) Except as expressly set forth to the contrary herein, all
other terms and conditions of this Lease shall apply to the Expansion Space, and
from and after the date Tenant elects to lease the Expansion Space, the
Expansion Space shall be and shall be deemed to be a part of the Premises.
2. Renewal of Lease. (a) Provided this Lease is then in full force and
effect and Tenant is in full compliance with the terms and conditions of this
Lease, and there is no sublease of any portion of the Premises or assignment of
any of Tenant's interest in the Lease, Landlord hereby grants to Tenant an
option to renew this Lease for one (1) period of five (5) years, at a rental
rate equal to the rental rate then being offered by Landlord to tenants desiring
to lease comparable space in the Building or in other buildings comparable to
the Building located in projects comparable to the project in which the Building
is located, with comparable on-site amenities and services and comparable
parking rights and privileges, as such rate is established by Landlord in its
reasonable judgment. Tenant shall notify Landlord no more than fourteen (14)
months and no less than twelve (12) months prior to the end of the Term if
Tenant desires to renew this Lease under the terms of this Special Stipulation
No. 2. If Tenant does give such notice, Landlord shall indicate to Tenant at
least nine (9) months prior to the end of the Term the rental rate which shall
be in effect for the Term as extended, on the basis as above-described. Tenant
shall have thirty (30) days from the date Landlord makes such offer to either
accept or reject such offer. If Tenant rejects such offer or fails to respond
within such thirty (30) day period, then this Lease shall terminate as of the
end of the Term as established herein. If Tenant accepts such offer, then the
Term shall be extended by said five (5) year period, upon the same terms and
conditions as contained in this Lease, and the rent for such
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period shall be the rent as offered by Landlord and accepted by Tenant pursuant
to the terms and conditions of this Special Stipulation No. 2.
(b) Notwithstanding anything to the contrary contained herein,
any right or option to extend the Term of the Lease or expand the Premises is
expressly contingent upon Landlord consenting to such extension or expansion,
with such consent by Landlord to be granted or withheld solely upon the credit
issues described below. Landlord shall not be obligated to consent to Tenant's
exercise of any right or option for an extension or expansion, and such exercise
by Tenant shall be of no force or effect if, at the time of the exercise in
question by Tenant, the creditworthiness of Tenant (taking into account net
worth, cash on hand and cash available and net cash flow from operations) would
not be acceptable to Landlord, in Landlord's reasonable judgement, if Tenant
desired to lease space from Landlord in the Building as a new tenant. As a
condition to the consent by Landlord to the exercise of any such right or option
by Tenant, Landlord may request current financial statements from Tenant
certified by an officer or partner of Tenant, or, if available, an outside
independent auditor, to be true and correct. Tenant shall provide such
information to Landlord upon request, and Landlord shall have a reasonable time
to review and assess such information prior to granting consent to any such
exercise by Tenant.
3. Late Delivery of the Premises.
If the Premises are not available for occupancy by Tenant on
or before July 1, 1998 (as such date shall be extended by one (1) day for every
day Landlord is delayed due to causes created by, through or under Tenant or due
to an item of force majeure) (the "Target Completion Date"), then Tenant shall
be entitled to a day of abatement of Base Rent for each day after said Target
Completion Date that the Premises are not so available. If such occurs, then the
Term shall also be extended by a like number of days, so there is a full
thirty-eight and one half (38.5) months of Base Rent paid by Tenant under the
Lease.
4. Reserved Parking.
Landlord hereby agrees that during the initial Term of the
Lease, but not thereafter, and as long as Tenant occupies the Premises in
accordance with the terms and conditions of the Lease, Tenant shall have the
right to use two (2) reserved parking spaces in the area of the parking deck
designated for such reserved parking (as such area may be relocated by Landlord
from time to time), at no additional charge to Tenant. Such spaces shall be used
by Tenant subject to and in accordance with the rules and regulations for the
reserved parking spaces as are in existence from time to time, and shall be a
part of and not in addition to the number of parking spaces available to Tenant
under the Lease.
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EXHIBIT 11.1
ROSS SYSTEMS, INC. AND SUBSIDIARIES
STATEMENT REGARDING COMPUTATION
OF NET EARNINGS PER SHARE
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
March 31, March 31,
----------------------------------- ------------------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Basic earnings per share computation:
Net earnings (loss) $ 1,678 $ (989) $ 743 $ 314
---------- ----------- ---------- -----------
---------- ----------- ---------- -----------
Common shares outstanding at
the beginning of the period 19,256 18,772 19,245 17,847
Weighted average common shares
added during the period 660 43 223 528
---------- ----------- ---------- -----------
Weighted average common shares
outstanding at the end of the period 19,916 18,815 19,468 18,375
---------- ----------- ---------- -----------
---------- ----------- ---------- -----------
Basic earnings (loss) per share $ 0.08 $ (0.05) $ 0.04 $ 0.02
Diluted earnings per share computation:
Net earnings (loss) $ 1,678 $ (989) $ 743 $ 314
Common shares outstanding at
the beginning of the period 19,256 18,772 19,245 17,847
Weighted average common shares
added during the period 660 43 223 528
Weighted average common shares
outstanding at the end of the period 19,916 18,815 19,468 18,375
Effect of dilutive securities and common
stock equivalents 2,402 779 2,510 784
---------- ----------- ---------- -----------
Adjusted weighted average common shares
outstanding at the end of the period 22,318 19,594 21,978 19,159
---------- ----------- ---------- -----------
---------- ----------- ---------- -----------
Diluted earnings (loss) per share $ 0.08 $ (0.05) $ 0.03 $ 0.02
---------- ----------- ---------- -----------
---------- ----------- ---------- -----------
</TABLE>
22
<PAGE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMMARY FINANCIAL INFORMATION EXTRACTED FROM THE MARCH
31, 1998 FINANCIAL STATEMENTS FOUND ON PAGES 3 AND 4 OF THE COMPANY'S FORM 10-Q
FOR THE YEAR TO DATE, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-START> JUL-01-1997
<PERIOD-END> MAR-31-1998
<CASH> 6,151
<SECURITIES> 0
<RECEIVABLES> 33,128
<ALLOWANCES> 1,891
<INVENTORY> 0
<CURRENT-ASSETS> 39,019
<PP&E> 13,501
<DEPRECIATION> 9,307
<TOTAL-ASSETS> 72,761
<CURRENT-LIABILITIES> 40,646
<BONDS> 6,000
1,053
0
<COMMON> 75,863
<OTHER-SE> (51,278)
<TOTAL-LIABILITY-AND-EQUITY> 72,761
<SALES> 25,721
<TOTAL-REVENUES> 64,158
<CGS> 2,145
<TOTAL-COSTS> 27,804
<OTHER-EXPENSES> 33,322
<LOSS-PROVISION> 941
<INTEREST-EXPENSE> 887
<INCOME-PRETAX> 1,204
<INCOME-TAX> 461
<INCOME-CONTINUING> 743
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 743
<EPS-PRIMARY> .04
<EPS-DILUTED> .03
</TABLE>
