<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
X Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
- --- Act of 1934 for the quarterly period ended SEPTEMBER 30, 1999 or
Transition report pursuant to Section 13 or 15(d) of the Securities
- --- Exchange Act of 1934
COMMISSION FILE NUMBER 1-10981
SBS TECHNOLOGIES, INC.
New Mexico 85-0359415
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
2400 Louisiana Blvd. NE
AFC Building 5, Suite 600
Albuquerque, New Mexico 87110
(505) 875-0600
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 and (2) has been subject to such filing requirements for
the past 90 days.
YES X NO
---- ----
As of October 31, 1999, the Registrant had 5,880,790 shares of its
common stock outstanding.
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
ASSETS September 30, 1999 June 30, 1999
------------------ -----------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 2,239,922 3,500,556
Receivables, net (note 2) 22,313,849 21,442,108
Inventories (note 3) 17,257,383 15,755,379
Deferred income taxes 2,256,268 2,179,143
Income tax receivable - 31,728
Prepaid expenses 761,599 632,798
Other current assets 252,295 322,511
---------------- -----------------
Total current assets 45,081,316 43,864,223
---------------- -----------------
Property and equipment, net 7,299,682 7,321,717
Intangible assets, net 35,129,764 36,228,105
Deferred income taxes 4,521,961 4,488,059
Other assets 102,751 105,751
---------------- -----------------
Total assets $ 92,135,474 92,007,855
================ =================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ - 3,900,000
Notes payable to related parties 903,996 1,391,216
Accounts payable 3,726,153 3,319,664
Accrued representative commissions 532,982 529,765
Accrued salaries 1,774,127 2,632,993
Accrued compensated absences 1,123,453 1,201,653
Income taxes 1,346,633 -
Other current liabilities 1,987,050 1,804,591
---------------- -----------------
Total current liabilities 11,394,394 14,779,882
---------------- -----------------
Total liabilities 11,394,394 14,779,882
---------------- -----------------
Stockholders' equity:
Common stock, no par value; 100,000,000 shares authorized,
5,849,983 issued and outstanding at September 30, 1999
5,837,483 issued and outstanding at June 30, 1999 50,820,819 50,554,450
Common stock warrants 38,425 38,425
Accumulated other comprehensive loss (1,946,280) (2,059,126)
Retained earnings 31,828,116 28,694,224
---------------- -----------------
Total stockholders' equity 80,741,080 77,227,973
---------------- -----------------
Total liabilities and stockholders' equity $ 92,135,474 92,007,855
================ =================
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 2
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended September 30
-----------------------------------------
1999 1998
------------------- ------------------
<S> <C> <C>
Sales $ 28,023,122 24,552,873
Cost of sales 12,452,627 9,647,440
------------------- ------------------
Gross Profit 15,570,495 14,905,433
Selling, general and administrative expense 5,911,315 5,785,167
Research and development expense 3,668,244 3,156,585
Acquired in-process research and
development charge - 527,514
Amortization of intangible assets 1,113,026 820,046
------------------- ------------------
Operating income 4,877,910 4,616,121
------------------- ------------------
Interest income, net 86,862 112,872
Foreign exchange gains 12,140 -
------------------- ------------------
99,002 112,872
------------------- ------------------
Income before income taxes and minority interest 4,976,912 4,728,993
Income taxes 1,843,020 1,816,129
------------------- ------------------
Income before minority interest 3,133,892 2,912,864
Minority interest - 235,681
------------------- ------------------
Net income $ 3,133,892 2,677,183
=================== ==================
Net income per common share $ 0.54 0.46
=================== ==================
Net income per common share -
assuming dilution $ 0.50 0.43
=================== ==================
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 3
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(UNAUDITED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Common Accumulated Total
stock Common Other stock-
------------------------- stock Retained Comprehensive holders'
Shares Amount warrants earnings Loss equity
----------- ------------- ---------- ------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT JUNE 30, 1999 5,837,483 $50,554,450 $38,425 $28,694,224 $(2,059,126) $77,227,973
Exercise of stock options and warrants 12,500 239,062 - - - 239,062
Stock-based compensation - 7,031 - - - 7,031
Income tax benefit from stock
options exercised - 20,276 - - - 20,276
Net income - - - 3,133,892 - 3,133,892
Other comprehensive income:
Foreign currency translation adjustment - - - - 112,846 112,846
----------- ------------ -------- ------------ ------------- ------------
BALANCE AT SEPTEMBER 30, 1999 5,849,983 $50,820,819 $38,425 $31,828,116 $(1,946,280) $80,741,080
=========== ============ ======== ============ ============= ============
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 4
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended September 30,
-------------------------------------
1999 1998
---------------- ----------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 3,133,892 2,677,183
---------------- ----------------
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 457,472 348,791
Amortization of intangible assets 1,113,026 820,046
Bad debt expense (8,827) 77,156
Deferred income taxes (102,655) (254,000)
Loss on disposition of assets - 27,472
Foreign exchange gains (12,140) -
Stock-based compensation 7,031 -
Acquired in-process research and development charge - 527,514
Minority interest - 235,681
Changes in assets and liabilities, net of effects of acquisitions:
Receivables (782,099) 106,569
Inventories (1,450,426) (1,383,146)
Prepaids and other assets (51,009) 268,512
Accounts payable 435,531 (33,826)
Accrued representative commissions 3,217 150,937
Accrued salaries (871,370) (1,002,706)
Accrued compensated absences (81,396) 30,026
Income taxes 1,377,047 (987,879)
Other current liabilities 168,528 (145,689)
---------------- ----------------
Net adjustments 201,930 (1,214,542)
---------------- ----------------
Net cash provided by operating activities 3,335,822 1,462,641
---------------- ----------------
Cash flows from investing activities:
Cash received from sale of assets - 201
Business acquisitions, net of cash acquired - (13,807,524)
Acquisition of property and equipment (430,043) (686,638)
---------------- ----------------
Net cash used by investing activities (430,043) (14,493,961)
---------------- ----------------
Cash flows from financing activities:
Payments on long-term borrowings and capital leases - (3,000,000)
Payments on notes payable to related parties (538,938) -
Payments on notes payable (3,900,000) -
Proceeds from exercise of stock options and warrants 239,062 1,111,638
Income tax benefit of stock options exercised 20,276 396,000
---------------- ----------------
Net cash used by financing activities (4,179,600) (1,492,362)
---------------- ----------------
</TABLE>
(Continued)
Page 5
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended September 30,
-------------------------------------
1999 1998
---------------- ----------------
<S> <C> <C>
Effect of exchange rate changes on cash 13,187 70,670
---------------- ----------------
Net change in cash and cash equivalents (1,260,634) (14,453,012)
Cash and cash equivalents at beginning of period 3,500,556 22,874,754
---------------- ----------------
Cash and cash equivalents at end of period $ 2,239,922 8,421,742
================ ================
Supplemental disclosure of cash flow information:
Interest paid $ 51,194 7,266
Income taxes paid 449,670 2,408,008
Noncash financing and investing activities:
Accrued acquisition costs - 740,202
Stock issued for acquisition - 713,878
Summary of assets acquired and liabilities assumed
through acquisition:
Cash and cash equivalents $ - 531,475
Receivables - 5,314,703
Inventories - 3,378,652
Deferred income taxes - (105,638)
Prepaid expenses and other current assets - 102,512
Goodwill - 12,717,782
Covenant not to compete - 200,000
Property and equipment - 556,258
Note payable - related party - (2,865,603)
Accounts payable - (851,903)
Accrued salaries - (1,753,948)
Accrued compensated absences - (82,225)
Income taxes - (1,888,522)
Other current liabilities - (771,363)
Minority interest - (143,181)
================ ================
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 6
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1999
(Unaudited)
- --------------------------------------------------------------------------------
1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting policies as set forth in SBS Technologies, Inc.'s (the
"Company") Annual Report on Form 10-K dated September 23, 1999 have been
adhered to in preparing the accompanying interim consolidated financial
statements. These statements are unaudited but include all adjustments,
consisting of normal recurring adjustments, that the Company considers
necessary for a fair presentation of the financial position, results of
operations, and cash flows for such interim periods. Results for such
interim periods are not necessarily indicative of results for a full
year.
2) RECEIVABLES, NET
Receivables, net consist of the following:
<TABLE>
<CAPTION>
September 30, 1999 June 30, 1999
------------------ -------------
<S> <C> <C>
Accounts receivable $23,088,486 22,205,155
Less: allowance for doubtful accounts (774,637) (763,047)
----------- ----------
$22,313,849 21,442,108
=========== ==========
</TABLE>
3) INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
September 30, 1999 June 30, 1999
------------------ -------------
<S> <C> <C>
Raw materials $ 9,143,322 7,598,642
Work in process 4,237,575 4,150,779
Finished goods 3,876,486 4,005,958
----------- ----------
$17,257,383 15,755,379
=========== ==========
</TABLE>
4) EARNINGS PER SHARE
Net income per common share is based on weighted average shares
outstanding. Net income per common share assuming dilution includes the
dilutive effects of potential common shares outstanding during the
period.
A reconciliation of the numerator and denominator of the per share and
per share - assuming dilution calculation follows:
<TABLE>
<CAPTION>
Three Months Ended September 30
----------------------------------------------------------------------------
1999 1998
----------------------------------------------------------------------------
Income Shares Per-Share Income Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
----------- ------------- --------- ----------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C>
NET INCOME PER COMMON SHARE
Net Income $3,133,892 5,839,901 $0.54 $2,677,183 5,811,420 $0.46
===== =====
EFFECT OF DILUTIVE SECURITIES
Dilutive options and warrants - 464,645 - 424,306
---------- ------------ ---------- -----------
NET INCOME PER COMMON SHARE
- ASSUMING DILUTION
Net Income $3,133,892 6,304,546 $0.50 $2,677,183 6,235,726 $0.43
===== =====
</TABLE>
Page 7
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1999 (Continued)
(Unaudited)
- --------------------------------------------------------------------------------
For the three months ended September 30, 1999 and 1998, options to
purchase 821,098 and 463,267 shares of common stock, respectively, were
outstanding but were not included in the computation of net income per
common share - assuming dilution because the options' exercise price was
greater than the average market price of the common shares.
5) COMPREHENSIVE INCOME
Comprehensive income for the three months ended September 30, 1999 and
1998 was $3.2 million and $3.1 million, respectively. The difference
between comprehensive income and net income was related to foreign
currency translation adjustments.
6) SEGMENT FINANCIAL DATA
The Company operates internationally through three operating segments:
the Computer Group, the Aerospace Group, and the European Group. These
segments are based on the markets that are served, the products that are
provided to those markets, the geographic area from which sales are
generated, and are managed by three managers who report directly to the
chief operating decision-maker. In addition, each segment utilizes a
common sales group
The Company measures its segments' results of operations based on income
before income taxes and minority interest and prior to allocation of
corporate overhead expenses, substantially all amortization of goodwill
and intangibles, corporate interest income and expense, and acquired
in-process research and development charges associated with purchase
business combinations. The accounting policies used to measure segment
results of operations are the same as those described in Note 1.
<TABLE>
<CAPTION>
Corporate
Computer Aerospace European and un-
Group Group Group allocated(1) Other(2) Total
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
THREE MONTHS ENDED SEPTEMBER 30
Gross Sales 1999 $17,686,104 8,245,021 2,895,553 - - 28,826,678
Intersegment sales (90,874) (111,454) (601,228) - - (803,556)
---------- ---------- --------- ----------- --------- ----------
Sales from external customers 17,595,230 8,133,567 2,294,325 - - 28,023,122
Gross Sales 1998 12,926,376 9,162,008 2,814,935 - - 24,903,319
Intersegment sales - - (350,446) - - (350,446)
---------- ---------- --------- ----------- --------- ----------
Sales from external customers 12,926,376 9,162,008 2,464,489 - - 24,552,873
Segment profit (Income before 1999 3,551,514 2,803,081 489,334 (1,867,017) - 4,976,912
taxes and minority interest) 1998 2,351,181 3,764,115 861,526 (1,720,315) (527,514) 4,728,993
SEPTEMBER 30
Total assets 1999 27,805,839 11,328,103 7,499,432 45,502,100 - 92,135,474
1998 18,683,921 11,812,251 7,627,731 46,283,338 - 84,407,241
-----------------------------------------------------------------------------------
</TABLE>
(1) Corporate and unallocated includes corporate overhead, substantially
all interest expense, interest income, and amortization expense
associated with goodwill and intangibles not considered in assessing
segment profit. Corporate assets primarily include cash and cash
equivalents, deferred income tax assets and intangible assets.
(2) Acquired in-process research and development associated with purchase
business combinations that management does not consider in assessing
segment profits.
Page 8
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
- -------------------------------------------------------------------------------
THE FOLLOWING DISCUSSION AND ANALYSIS SHOULD BE READ IN CONJUNCTION WITH THE
COMPANY'S FINANCIAL STATEMENTS AND NOTES THERETO. INFORMATION DISCUSSED HEREIN,
OTHER THAN STATEMENTS OF HISTORICAL FACT, THAT ADDRESSES ACTIVITIES, EVENTS OR
DEVELOPMENTS THAT THE COMPANY OR MANAGEMENT INTENDS, EXPECTS, PROJECTS, BELIEVES
OR ANTICIPATES WILL OR MAY OCCUR IN THE FUTURE ARE FORWARD-LOOKING STATEMENTS.
THESE STATEMENTS ARE BASED UPON CERTAIN ASSUMPTIONS AND ASSESSMENTS MADE BY
MANAGEMENT OF THE COMPANY IN LIGHT OF ITS EXPERIENCE AND ITS PERCEPTION OF
HISTORICAL TRENDS, CURRENT CONDITIONS, EXPECTED FUTURE DEVELOPMENTS AND OTHER
FACTORS IT BELIEVES TO BE APPROPRIATE. THE FORWARD-LOOKING STATEMENTS INCLUDED
IN THIS FORM 10-Q ARE ALSO SUBJECT TO A NUMBER OF RISKS AND UNCERTAINTIES,
INCLUDING BUT NOT LIMITED TO ECONOMIC, COMPETITIVE, GOVERNMENTAL AND
TECHNOLOGICAL FACTORS AFFECTING THE COMPANY'S OPERATIONS, MARKETS, PRODUCTS,
SERVICES, PRICES, AND OTHER RISK FACTORS LISTED IN THE COMPANY'S FORM 10-K FOR
THE YEAR ENDED JUNE 30, 1999. THESE FORWARD-LOOKING STATEMENTS ARE NOT
GUARANTEES OF FUTURE PERFORMANCE AND ACTUAL RESULTS; DEVELOPMENTS AND BUSINESS
DECISIONS MAY DIFFER FROM THOSE EXPRESSED OR IMPLIED BY THESE FORWARD-LOOKING
STATEMENTS.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 1998
SALES. For the three-month period ended September 30, 1999, sales increased
14.1%, or $3.4 million, from $24.6 million for the three-month period ended
September 30, 1998, to $28.0 million. Of this 14.1% increase, sales
contributed by Embedded PPC, which was acquired on August 12, 1998, comprised
2.3%, and 11.8% was attributable to the Company's other product lines. During
the three-month period ended September 30, 1999, prices for the Company's
products remained firm. Unit shipments increased within the Computer Group
segment, but declined within the Aerospace Group compared to the three-month
period ended September 30, 1998, primarily due to a decrease in sales of the
Company's telemetry products, which have been impacted in recent months by a
decline in large project bookings. European Group volume was consistent with
the three-month period ended September 30, 1998, but sales were negatively
affected by changes in exchange rates.
GROSS PROFIT. For the three-month period ended September 30, 1999, gross profit
increased 4.5%, or $665,000 from $14.9 million for the three-month period ended
September 30, 1998, to $15.6 million. As expected, for the three-month period
ended September 30, 1999, gross profit as a percentage of sales decreased to
55.6% from 60.7% for the three-month period ended September 30, 1998, primarily
due to a higher percentage of sales of the Company's Computer Group products,
which generally yield lower margins than the Company's other products, and lower
margins experienced by the Aerospace Group and European Group. Gross margins as
a percentage of sales are expected to continue to decrease slightly, as the
Company's lower margin production and systems business continues to be a larger
portion of total sales mix. To date, the recent earthquake in Taiwan has had
little effect on the Company's operations. However, the earthquake may cause
price increases and/or shortages of parts used by the Company, which may
impact the Company's results of operations in future periods. The Company
will continue to assess the potential impact of the earthquake, but
currently, it is difficult to predict the ultimate outcome.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE. For the three-month period ended
September 30, 1999, selling, general and administrative (SG&A) expense
increased 2.2%, or $126,000, from $5.8 million for the three-month period
ended September 30, 1998, to $5.9 million. SG&A was consistent with the
three-month period ended September 30, 1998 as the Company's overhead
infrastructure was adequate to handle the increase in sales. For the same
reason, for the three-month period ended September 30, 1999, SG&A expense as
a percentage of sales decreased to 21.1% from 23.6% in the three-month period
ended September 30, 1998.
RESEARCH AND DEVELOPMENT EXPENSE. For the three-month period ended September
30, 1999, research and development expense (R&D) increased 16.2%, or
$512,000, from $3.2 million for the three-month period ended September 30,
1998, to $3.7 million. This increase resulted from the added expenditures due
to the acquisition of Embedded PPC, and increased investment in product
development in the Company's other product areas. For the same reasons, for
the three-month period ended September 30, 1999, R&D expense as a percentage
of sales increased to 13.1% from 12.8% in the three-month period ended
September 30, 1998.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT CHARGE. For the three-month period
ended September 30, 1998, in connection with the acquisition of the majority
interest in OR completed on July 1, 1998, the Company recorded a $0.5 million
earnings charge based on an assessment by the Company, in conjunction with an
independent valuation firm, of purchased technology of OR. The assessment
determined that $0.5 million of OR's purchase price represented technology that
did not meet the
Page 9
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
(Continued)
- -------------------------------------------------------------------------------
accounting definitions of completed technology, and thus should be charged to
earnings under generally accepted accounting principles. This assessment
analyzed certain VME, CompactPCI, and PC Compact products that were under
development at the time of acquisition. These programs were in various stages of
completion ranging from initial development to 90% of completion, with estimated
completion dates ranging from September 1998 through April 1999. The fair value
of these development programs was determined in accordance with views expressed
by the staff of the Securities and Exchange Commission.
AMORTIZATION OF INTANGIBLE ASSETS. For the three-month period ended September
30, 1999, amortization of intangible assets increased 35.7%, or $293,000, from
$820,000 for the three-month period ended September 30, 1998, to $1.1 million.
This increase was the result of the amortization of goodwill associated with the
acquisition of Embedded PPC, and the acquisition of the minority interest in OR
and ORTEC in December of 1998.
INTEREST INCOME, NET OF INTEREST EXPENSE For the three-month period ended
September 30, 1999, interest income, net of interest expense decreased 23.0%, or
$26,000, from $113,000 for the three-month period ended September 30, 1998, to
$87,000. This decrease was primarily due to an increase in interest expense
associated with borrowings under the Company's line of credit and the note
payable to the former shareholder of OR.
INCOME TAXES. For the three-month period ended September 30, 1999 and the
three-month period ended September 30, 1998, income taxes represented an
effective income tax rate of 37.0% and 38.4%, respectively. The decrease in the
effective income tax rate was due to U.S. tax planning strategies implemented by
the Company, including minimization of the Company's tax liability related to
debt between the Company and its foreign subsidiaries and increased use of the
Company's foreign sales corporation, offset by the elimination of the effect of
the research and experimental tax credit, as the credit had not been extended
through legislation beyond June 30, 1999.
EARNINGS PER SHARE. For the three-month period ended September 30, 1999, net
income per common share was $0.54 compared to $0.46 for the three-month period
ended September 30, 1998. For the three-month period ended September 30, 1999,
net income per common share assuming dilution was $0.50 compared to $0.43 for
the three-month period ended September 30, 1998. Included in net income per
common share and net income per common share assuming dilution for the
three-month period ended September 30, 1998 is $(0.04) related to the acquired
in-process research and development charge.
REVIEW OF BUSINESS SEGMENTS
The Company is managed and operates through three operating segments: the
Computer Group, the Aerospace Group and the European Group. The following is a
discussion of sales from external customers and segment profit for each
reportable segment. The Company does not allocate to these segments costs
associated with its corporate headquarters, substantially all of the
amortization expense associated with acquisitions, substantially all interest
income earned on cash balances, interest expense associated with Company
borrowing facilities, and acquired in-process research and development charges.
This measure of segment profit described above is referred to herein as "Segment
Profit."
COMPUTER GROUP
For the three-month period ended September 30, 1999, Computer Group sales from
external customers increased 36.1%, or $4.7 million, from $12.9 million for the
three-month period ended September 30, 1998 to $17.6 million. Of this 36.1%
increase, sales contributed by the acquisition of Embedded PPC accounted for
4.4% of the increase. The balance of the increase, 31.7%, is attributable to
organic growth primarily resulting from an increase in sales of the Group's
Intel and PowerPC based computer processor products.
For the three-month period ended September 30, 1999, Computer Group segment
profit increased 51.1%, or $1.2 million, from $2.4 million for the three-month
period ended September 30, 1998, to $3.6 million, primarily due to the net
margin contribution from the increase in sales from the Group's computer
processor products and the acquisition of Embedded PPC.
Page 10
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
(Continued)
- -------------------------------------------------------------------------------
Segment profit as a percentage of sales increased from 18.2% for the three-month
period ended September 30, 1998 to 20.2% in 1999. This increase is primarily due
to a decline in selling, general, and administrative and research and
development costs as a percentage of sales, as the Group's overhead
infrastructure was adequate to handle the increase in sales, offset by a shift
in sales mix to lower margin products.
AEROSPACE GROUP
For the three-month period ended September 30, 1999, Aerospace Group sales from
external customers decreased 11.2%, or $1.0 million, from $9.1 million for the
three-month period ended September 30, 1998 to $8.1 million, resulting from a
decrease in sales of the Group's telemetry products, which have been impacted in
recent months by a decline in large project bookings. Sales of the Group's
avionics interface products increased 3.1%, a similar rate of growth compared to
that experienced in fiscal 1999. The Company attributes this low growth rate of
the Group's avionics interface products to its high market share and a decline
in defense electronics research and development expenditures.
For the three-month period ended September 30, 1999, Aerospace Group segment
profit decreased 25.5%, or $961,000, from $3.8 million for the three-month
period ended September 30, 1998 to $2.8 million. This decrease is primarily due
to lower sales of the Group's telemetry products, a shift in sales mix to lower
margin products across the Group's product lines, and an increase in selling,
general, and administrative costs, research and development costs, and direct
overhead costs, as the Company continued to invest in this segment. For the same
reasons, segment profit as a percentage of sales decreased from 41.1% for the
three-month period ended September 30, 1998 to 34.5% in 1999.
EUROPEAN GROUP
For the three-month period ended September 30, 1999, European Group sales from
external customers decreased 6.9%, or $170,000, from $2.5 million for the
three-month period ended September 30, 1998 to $2.3 million. Unit shipments were
consistent with the three-month period ended September 30, 1998, but sales were
negatively impacted by changes in exchange rates.
For the three month period ended September 30, 1999, European Group segment
profit decreased 43.2%, or $372,000, from $862,000 for the three-month period
ended September 30, 1998 to $489,000. This decrease was primarily due to a shift
in sales mix to lower gross margin products.
LIQUIDITY AND CAPITAL RESOURCES
The Company uses a combination of the sale of equity securities, internally
generated funds and bank borrowings to finance its acquisitions, working capital
requirements, capital expenditures and operations.
Cash totaled $2.2 million at September 30, 1999, a decrease of $1.3 million from
June 30, 1999. This decrease was the result of $3.9 million of payments on the
Company's line of credit, a $0.5 million payment to the former shareholder of
OR, and $0.4 million of expenditures for capital equipment. These expenditures
were partially offset by cash flows from operating activities of $3.3 million,
and $0.2 million from the exercise of stock options and warrants. The Company's
growth during the three-month period ended September 30, 1999 caused the Company
to increase accounts receivable and inventory. Liabilities were in line with the
current level of business. The exercise of stock options related to the
Company's stock option plans reduced the Company's tax liability.
On December 1, 1998, the Company entered into a $15.0 million Credit Agreement
("Agreement") with Bank of America, N.A. ("Lender"), formerly NationsBank, N.A.
The Agreement expires on November 30, 1999. Management is in the process of
renewing the agreement. As of September 30, 1999 there were no borrowings drawn
on the Agreement. The Agreement imposes two performance ratios on the Company.
They are a Senior Funded Debt to EBITDA Ratio and a Fixed Charge Coverage Ratio.
The Senior Funded Debt to EBITDA Ratio requires that the Company's total debt
evidenced by promissory
Page 11
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
(Continued)
- -------------------------------------------------------------------------------
notes, loan agreements, bonds or similar instruments, but excluding subordinated
debt, will not be greater than a ratio of 1.25 to 1 when compared to the
Company's profit before tax plus interest, depreciation, and amortization
expense for the preceding four quarters from the time of measurement. The Fixed
Charge Coverage Ratio requires that the ratio of (a) the Company's profit before
tax plus interest, depreciation, amortization expense, and operating lease
expense, minus federal income tax and capital expenditures (all for the
immediately preceding four fiscal quarters from the time of measurement), to (b)
the sum of interest expense plus operating lease expense plus principal payments
on debt, (other than debt incurred from this Agreement and the $3.0 million
payment made on July 1, 1998 to the former owners of Connectivity Products),
plus distributions (including dividends), all for the immediately preceding four
fiscal quarters from the time of measurement, not be less than 5.00 to 1.00. In
addition, the Company is subject to a Tangible Net Worth covenant whereby the
Company shall not permit its total stockholders' equity less the net book value
of intangible assets and unamortized debt discount and expenses, to be less than
the sum of $36.0 million plus 75% of the cumulative consolidated net income for
each calendar quarter commencing on October 1, 1998, through the quarter of
measurement, plus 75% of the amount of any proceeds received from the issuance
of any additional shares of stock or other equity instruments. However, the
required Tangible Net Worth was reduced by $8.0 million after the date that the
Company exercised its option to purchase the minority share of OR and ORTEC. The
Company is also prohibited from disposing of or acquiring certain assets and
businesses, making certain distributions, including dividends, and purchasing or
redeeming or incurring any liability to purchase or redeem any capital stock
without the permission of the Lender. Interest associated with borrowings under
the Agreement is based on the Lender's prime rate or LIBOR. Using the LIBOR
option, if the Company's Senior Funded Debt to EBITDA Ratio is less than 0.50,
the interest rate is LIBOR plus 1.50%, or if the Company's Senior Funded Debt to
EBITDA Ratio is greater than or equal to 0.50 but less than or equal to 1.25,
the interest rate is LIBOR plus 1.75%. Commencing on January 1, 1999, the
Company is assessed a non-refundable fee equal to 0.20% times the average daily
unused portion of the $15.0 million commitment during each calendar quarter. The
Agreement is guaranteed by Guaranty Agreements provided by each of the Company's
subsidiaries except for the Company's German subsidiaries. At September 30,
1999, the Company was in compliance with all of the covenants of the Agreement.
Management believes that its financial resources, including its internally
generated funds and debt capacity will be sufficient to finance the Company's
current operations and capital expenditures, excluding acquisitions, for the
next twelve months. At September 30, 1999, there were no material outstanding
commitments for capital expenditures.
For the three-month period ended September 30, 1999, there was no significant
impact from inflation or changing prices on the Company's sales or income from
operations.
YEAR 2000 ISSUE
DESCRIPTION OF THE ISSUE. The Year 2000 ("Y2K") issue refers to the inability of
certain date-sensitive computer chips, software, and systems to recognize a
two-digit date field as belonging to the 21st century. Mistaking "00" for 1900
or any other incorrect year could result in a system failure or miscalculations
causing disruptions to operations, including manufacturing, a temporary
inability to process transactions, send invoices, or engage in other normal
business activities. This is a significant issue for most, if not all companies,
with far reaching implications, some of which cannot be anticipated or predicted
with any degree of certainty. The Y2K issue may create unforeseen risks to the
Company from its internal computer systems as well as from computer systems of
third parties with which it deals. Failures of the Company's and/or third
parties' computer systems could have a material adverse impact on the Company's
ability to conduct its business.
YEAR 2000 TASK FORCE. The Company assembled, in April 1998, an internal task
force, chaired by the CEO and comprised of senior managers throughout the
Company. The task force has established a comprehensive program to review the
Company's products, business and engineering applications, suppliers and
facilities, and has completed development of contingency plans for Y2K
readiness. These contingency plans include such options as multiple sources of
components and subcontract assembly, increasing inventory levels of selected
critical components, and moving production to alternative locations. The goal of
the task force is to minimize the effect that Y2K issues will have on the
Company and its customers. The CEO of the Company updates the Board of Directors
on its Y2K readiness at each scheduled board meeting.
INTERNAL BUSINESS AND ENGINEERING SYSTEMS. Throughout its operations, the
Company is using 146 internal business and engineering purchased software
packages. The task force has reviewed or tested all of these 146 software
packages and has determined that 91%, or 133 systems, are compliant and 9%, or
13 systems are not compliant. The Company has decided to
Page 12
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
(Continued)
- -------------------------------------------------------------------------------
use all of these 13 non-compliant systems as is, as the date fields are not
critical to their use. The Company has been assured by its vendor that its
business information system, installed in 1998, and utilized at most of its
locations, is Y2K ready as long as the Company adheres to the supplier's Y2K
readiness guidelines. To verify this readiness, the Company completed a
simulation in September 1999 of this business information system, in a Y2K
environment, processing standard monthly transactions from January 1, 2000
through February 29, 2000, and did not discover any Y2K issues. The Company has
565 computer workstations and servers throughout its operations. As of November
1, 1999, 100% of these computer workstations and servers have been tested and
all necessary modifications to ensure compliance have been completed.
SUPPLIERS. The major suppliers to the Company are component parts distributors
and contract manufacturers. Often the Company sources its products and
manufacturing services from multiple, competing vendors. The Company has sent
questionnaires to 327 of its suppliers to determine their Y2K readiness and to
what extent the Company may be vulnerable due to their failure to be Y2K ready.
As of November 1, 1999, 98% of the Company's suppliers have responded. The
Company had originally determined that 185 of these suppliers were critical to
its operations. The Company has modified this determination and now considers
174 of these suppliers as critical to its operations. A critical supplier is
defined as one whose failure to be Y2K compliant would have a material impact on
the Company's operations, possibly shutting down manufacturing or other critical
operations within a short period of time. The Company has made site visits to a
representative sample of its most critical suppliers in order to assess their
degree of readiness. The assessment process of the critical suppliers, including
additional site visits by Company personnel, will be ongoing throughout calendar
1999 to understand, to the highest degree possible, their readiness. As a
contingency, the Company plans to increase inventory levels of critical
components. The Company expects that the increase in inventory will be funded by
cash flows from operating activities. There can be no assurance that the systems
of other companies on which the Company relies will be Y2K ready on a timely
basis and will not have an adverse effect on the operations of the Company. In
the instances where the Company was unable to determine that its vendors have
taken, or will take, appropriate steps to minimize disruption due to non-Y2K
readiness, the Company has moved to alternate sources.
The Company has seven facilities, five in the United States and two in Germany.
Each facility relies on local private or governmental suppliers for electricity,
water, sewer, telephone and other needed services. A disruption in any of these
services could have a material adverse effect on the operations of the affected
location. As a contingency, plans are being prepared that if a prolonged
disruption occurs at any of the Company's facilities, production of that
location's product would be transferred to other Company facilities.
PRODUCTS. The Company has assessed the capability of all of its existing and
legacy products to handle the year 2000. In addition, all products under
development have been reviewed to ensure Y2K readiness prior to release. Certain
of the Company's computer processor board level products and integrated computer
systems utilize computer chips that include built in operating systems ("BIOS")
allowing the computer to initialize and load software. For many users, software
is provided by sources other than the Company. As with the typical PC computer,
the assessment of whether a complete system will operate correctly may depend on
the BIOS capability and software. To the extent that older BIOS or software are
not Y2K ready, they may need to be upgraded or replaced. All of the Company's
existing businesses have sent letters to all of their current and former
customers indicating to them which of the Company's products may not be Y2K
ready, depending on their application, and what steps need to be taken to ensure
Y2K readiness, or the need for replacement. Also, the Company has posted on its
web site (HTTP://WWW.SBS.COM) Y2K readiness information on all of its products.
The Company sold its flight simulation business in April 1995 and sold its
Judgmental Use of Force business in June 1997, maintaining no expertise in
either business. The Company has sent letters to its former customers of both of
these businesses recommending that they test, for Y2K readiness, the products
they purchased from the Company and make any necessary repairs or replacements.
COSTS. The Company expects the cost of its Y2K assessment, including both
incremental spending and reallocated resources, will not be material and will be
absorbed within the normal capital equipment and operating expenditures of the
Company. To date, costs incurred and included in the Company's reported
financial results were approximately $370,000 and were limited to the cost of
existing employees assigned to the task force, or outside consultants hired on a
temporary basis. The Company estimates that it will spend an additional $50,000
through completion of its Y2K program. The current assessment does not
Page 13
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1999
(Continued)
- -------------------------------------------------------------------------------
include potential costs related to any customer or other claims or the cost of
internal software and hardware replaced in the normal course of business. This
assessment is subject to change. Since there is no uniform definition of "Y2K
readiness" and since all customer situations cannot be anticipated, particularly
those involving third party products, the Company may encounter claims as a
result of the Y2K transition. These claims, if successful, could have a material
adverse impact on future results.
CUSTOMERS. Because the Company has no customer which comprises more than 10% of
its sales, the Company believes that the effect of a failure of any single
customer to continue to purchase goods and services from the Company due to
non-Y2K readiness will not be material to the operations of the Company. The
Company sells its products and services to hundreds of customers. Some of the
Company's customers may not become Y2K ready, in which case, the Company cannot
assure that their lack of readiness in the aggregate, will not have a material
effect on the Company's operations.
EURO CONVERSION
On January 1, 1999 eleven of the fifteen member countries of the European Union
adopted the euro as their common legal currency and established fixed conversion
rates between their existing sovereign currencies and the euro. The legacy
currencies of the participating European Union members will remain legal tender
in the participating countries for the transition period from January 1, 1999 to
January 1, 2002. Beginning January 1, 2002, the participating countries will
issue new euro-denominated bills and coins for use in cash transactions. Legacy
currencies will no longer be legal tender for any transactions beginning July 1,
2002, making conversion to the euro complete. The Company has begun to assess
its need to adapt information technology and other systems to accommodate
euro-denominated transactions, any potential impact on terms and enforceability
of legacy denominated contracts, and potential tax consequences of currency
conversion. This assessment is being conducted to determine whether the euro
conversion will have a material adverse effect on the Company's financial
position, results of operations, or liquidity.
NEW ACCOUNTING STANDARDS
SFAS 133, "Accounting for Derivative Instruments and Hedging Activities", was
issued in June 1998. This statement establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, and for hedging activities. The provisions of SFAS
133, as amended, are effective for financial statements for fiscal years
beginning after June 15, 2000, although early adoption is permitted. The Company
has not determined the financial impact of adopting SFAS 133 to date.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There have been no material changes in the information that was provided in the
Company's Form 10-K for the year ended June 30, 1999.
Page 14
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings - None
Item 2. Changes in Securities - None
Item 3. Defaults by the Company upon its Senior Securities - None
Item 4. Submission of Matters to a Vote of Security Holders -None
Item 5. Other Information - None
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits (exhibit reference numbers refer to Item 601 of
Regulation S-K)
03.i (1) Articles of Incorporation, as amended.
03.ii (1) Bylaws, as amended.
10.ao (1) Lease Agreement between 8-L Newark 8371, LLC and
SBS Technologies, Inc.
27. Financial Data Schedule
(b) Reports on Form 8-K - None
(1) See Exhibit Index on Page 17
Page 15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SBS TECHNOLOGIES, INC.
Date: November 12, 1999 /s/ Christopher J. Amenson
----------------------------
Chairman of the Board,
Chief Executive Officer
and President
Date: November 12, 1999 /s/ James E. Dixon, Jr.
-------------------------
Vice President,
Finance and Administration;
Chief Financial Officer and
Treasurer
Page 16
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Method of Filing
- -------------- --------------------------------------------------------- ----------------
<S> <C> <C>
03.i (1) Articles of Incorporation, as amended. - -
03.ii (2) Bylaws, as amended. - -
10.ao Lease Agreement between 8-L Newark, LLC and
SBS Technologies, Inc. Filed herewith electronically
27. Financial Data Schedule Filed herewith electronically
</TABLE>
(1) Incorporated by reference to Exhibit 3.i, of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1997.
(2) Incorporated by reference to Exhibit 3.ii, of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1995.
Page 17
<PAGE>
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE MODIFIED NET
1. BASIC PROVISIONS ("BASIC PROVISION").
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes only,
August 14, 1999, is made by and between B-L Newark 8371, LLC, a Delaware
Limited Liability Company ("LANDLORD") and SBS Technologics, Inc., a New
Mexico Corporation ("TENANT"), (collectively the "PARTIES," or individually a
"PARTY").
1.2(a) PREMISES: That certain portion of the Building, including
all improvements therein or to be provided by Landlord under the terms of
this Lease, commonly known by the street address of 8371 Central Avenue,
Suites B & C, located in the City of Newark, County of Alameda, State of
California, with zip code 94560 as outlined on Exhibit A attached hereto
("PREMISES"). The "BUILDING" is that certain building containing the Premises
and generally described as (describe briefly the nature of the Building): a
multi-tenant industrial building.
In addition to Tenant's rights to use and occupy the Premises as hereinafter
specified, Tenant shall have non-exclusive rights to the Common Areas (as
defined in Paragraph 2.7 below) as hereinafter specified, but shall not have
any rights to the roof, exterior walls or utility raceways of the Building or
to any other buildings in the Industrial Center. The Premises, the Building,
the Common Areas, the land upon which they are located, along with all other
buildings and improvements thereon, are herein collectively referred to as
the "INDUSTRIAL CENTER." (Also see Paragraph 2.)
1.2(b) PARKING: 100 unreserved vehicle parking spaces
("UNRESERVED PARKING SPACES"); and no reserved vehicle parking spaces
("RESERVED PARKING SPACES"). (Also, see Paragraph 2.6)
1.3 TERM: 5 years and 0 months ("ORIGINAL TERM") commencing
December 1, 1999 ("COMMENCEMENT DATE") and ending
November 30, 2004 ("EXPIRATION DATE"). (Also Paragraph 3.)
1.3(b) OPTION TO RENEW: 3 years and 0 months at 95% of the fair
market value of the Premises at the expiration of the
Original Term. ("OPTION") (Also, see Paragraph 39.)
1.4 EARLY POSSESSION: N/A ("EARLY POSSESSION DATE"). (Also
Paragraphs 3.2 and 3.3.)
1.5 BASE RENT: $24,064.20 per month ("BASE RENT"), payable on
the first day of each month commencing December 1, 1999 (Also see Paragraph
4.) Base Rent to be adjusted as follows:
Months 13-24 $26,738.00 per month; Months 25-36 $29,411.80
per month;
Months 37-48 $32,085.60 per month; Months 49-60 $34,759.40
per month.
1.6(a) BASE RENT PAID UPON EXECUTION: $24,064.20 as Base Rent for
the period December 1, 1999 through December 31, 1999.
1.6(b) TENANT'S SHARE OF COMMON AREA OPERATING EXPENSES: 80.44%
("TENANT'S SHARE") as determined by prorata square footage of the Premises as
compared to the total square footage of the Building.
1.7 SECURITY DEPOSIT: $35,000.00 ("SECURITY DEPOSIT"). (Also
see Paragraph 5)
1.8 PERMITTED USE: General office, sales, research and
development, and assembly of electronic components. ("PERMITTED USE") (Also
see Paragraph 5.)
1.9 INSURING PARTY. Landlord is the "INSURING PARTY." (Also
see Paragraph 8)
1.10(a) REAL ESTATE BROKERS. The following real estate broker(s)
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
[X] Cornish & Carey Commercial represents Landlord exclusively
("LANDLORD'S BROKER");
[ ] N/A represents Tenant exclusively ("TENANT'S BROKER"); or
[X] BT Commercial Real Estate represents both Landlord and Tenant ("DUAL
AGENCY"). (/also see Par. 15.)
1.10(b) PAYMENT TO BROKERS. Upon the execution of this Lease by
both Parties, Landlord shall pay to said Broker(s) according to separate
written agreement between Landlord and said Broker(s).
1.11 GUARANTOR. The obligations of the Tenant under this Lease
are to be guaranteed by N/A ("GUARANTOR"). (Also see Paragraph 37.)
1.12 ADDENDS AND EXHIBITS. Attached hereto is an Addendum or
Addenda consisting of Paragraphs N/A through N/A, and Exhibits A and B, all
of which constitute a part of this Lease.
--1-- Initials /s/ MB / JED
------------
<PAGE>
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises, for the term, at the rental, and
upon all of the terms, covenants and conditions set forth in this Lease.
Unless otherwise provided herein, any statement of square footage set forth
in this Lease, or that may have been used in calculating rental and/or Common
Area Operating Expenses, is an approximation which Landlord and Tenant agree
is reasonable and the rental and Tenant's Share (as defined in Paragraph
1.6(b) based thereon is not subject to revision whether or not the actual
square footage is more or less.
2.2 CONDITION. Landlord shall deliver the Premises to Tenant
clean and free of debris on the Commencement Date and warrants to Tenant that
the existing plumbing, electrical systems, fire sprinkler system, lighting,
air conditioning and heating systems and loading doors, if any, in the
Premises, other that those constructed by Tenant, shall be in good operating
condition on the Commencement Date. If a non-compliance with said warranty
exists as of the Commencement Date, Landlord shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Tenant
setting forth with specificity the nature and extent of such non-compliance,
rectify same at Landlord's expense. If Tenant does not give Landlord written
notice of a non-compliance with the warranty within thirty (30) days after
the Commencement Date, correction of that non-compliance shall be the
obligation of Tenant at Tenant's sole cost and expense.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE.
Landlord warrants that any improvements (other than those constructed by
Tenant or at Tenant's direction) on or in the Premises which have been
constructed or installed by Landlord with Landlord's consent or at Landlord's
direction shall comply with all applicable covenants or restrictions of record
and applicable building codes, regulations and ordinances in effect on the
Commencement Date. Landlord further warrants to Tenant that Landlord has no
knowledge of any claim having been made by any governmental agency that a
violation or violations of applicable building codes, relations, or
ordinances exist with regard to the Premises as of the Commencement Date.
Said warranties shall not apply to any Alterations or Utility Installations
(defined in Paragraph 7.3(a)) made or to be made by Tenant. If the Premises
do not comply with said warranties, Landlord shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Tenant
given within six (6) months following the Commencement Date and setting forth
with specificity the nature and extent of such non-compliance, take such
action, at Landlord's expense, as may be reasonable or appropriate to rectify
the non-compliance. Landlord makes no warranty that the Permitted Use in
Paragraph 1.8 is permitted for the Premises under Applicable Laws (as defined
in Paragraph 2.4).
2.4 ACCEPTANCE OF PREMISES. Tenant hereby acknowledges: (a)
that it has been advised by the Broker(s) to satisfy itself with respect to
the condition of the Premises (including but not limited to the electrical
and fire sprinkler system, security, environmental aspects, seismic and
earthquake requirements, and compliance with the American with Disabilities
Act and applicable zoning, municipal, county, state and federal laws,
ordinances and regulations and any covenants or restrictions of record
(collectively, "APPLICABLE LAWS") and the present and future suitability of
the Premises for Tenant's intended use; (b) that Tenant has made such
investigation as it deems necessary with reference to such matters, is
satisfied with reference thereto, and assumes all responsibility therefore as
the same relate to Tenant's occupancy of the Premises and/or the terms of
this Lease; and (c) that neither Landlord, nor any of Landlord's agents, has
made any oral or written representations or warranties with respect to said
matters other than as set forth in this Lease.
2.5 TENANT AS PRIOR OWNER/OCCUPANT. The warranties made by
Landlord in this Paragraph 2 shall be of no force or effect if immediately
prior to the date set forth in Paragraph 1.1 Tenant was the owner or occupant
of the Premises. In such event, Tenant shall, at Tenant's sole cost and
expense, correct any non-compliance of the Premises with said warranties.
2.6 VEHICLE PARKING. Tenant shall be entitled to use the
number of Unreserved Parking Spaces and Reserved Parking Spaces Specified in
Paragraph 1.2(b) on those portions of the Common Areas designated from time
to time by Landlord for parking. Tenant shall not use more parking spaces
than said number. Said parking spaces shall be used for parking by vehicles
no larger than full-size passenger automobiles or pick-up trucks, herein
called "PERMITTED SIZE VEHICLES." Vehicles other than Permitted Size Vehicles
shall be parked and loaded or unloaded as directed by Landlord in the Rules
and Regulations (as defined in Paragraph 40) issued by Landlord. (Also see
Paragraph 2.9.)
(a) Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees, suppliers,
shippers, customers, contractors or invitees to be loaded, unloaded, or
parked in areas other than those designated by Landlord for such activities.
(b) If Tenant permits or allows any of the prohibited
activities described in this Paragraph 2.6, then Landlord shall have the
right, without notice, in addition to such other rights and remedies that it
may have, to remove or tow away the vehicle involved and charge the cost to
Tenant, which cost shall be immediately payable upon demand by Landlord.
(c) Landlord shall at the Commencement Date of this
Lease, provide the parking facilities required by Applicable Law.
2.7 COMMON AREAS - DEFINITION. The term "COMMON AREAS" is
defined as all areas and facilities outside the Premises and within the
exterior boundary line of the Industrial Center and Interior utility raceways
within the Premises that are provided and designated by the Landlord from
time to time for the general non-exclusive use of Landlord, Tenant and other
tenants of the Industrial Center and their respective employees, suppliers,
shippers, customers, contractors and invitees, including parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways and landscaped areas.
--2-- Initials /s/ MB / JED
------------
<PAGE>
2.8 COMMON AREAS - TENANT'S RIGHTS. Landlord hereby grants to Tenant,
for the benefit of Tenant and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers,
and privileges reserved by Landlord under the terms hereof or under the
terms of any rules and regulations or restrictions governing the use of the
Industrial Center. Under no circumstances shall the right herein granted to
use the Common Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas. Only the prior written
consent of Landlord or Landlord's designated agent, which consent may be
revoked at any time, shall permit any such storage. In the event that any
unauthorized storage shall occur then Landlord shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord.
2.9 COMMON AREAS - RULES AND REGULATIONS. Landlord or such other
person(s) as Landlord may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time,
to establish, modify, amend and enforce reasonable Rules and Regulations with
respect thereto. In accordance with Paragraph 40, Tenant agrees to abide by
and conform to all such Rules and Regulations and to cause its employees,
suppliers, shippers, customers, contractors and invitees to so abide and
conform. Landlord shall not be responsible to Tenant for the non-compliance
with said rules and regulations by other tenants of the Industrial Center.
2.10 COMMON AREAS - CHANGES. Landlord shall have the right, in
Landlord's sole discretion and without materially effecting the operation of
Tenant, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas, walkways and utility
raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; and
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Industrial Center as Landlord
may, in the exercise of sound business judgment, deem to be appropriate.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If an Early Possession Date is specified in
Paragraph 1.4 and if Tenant totally or partially occupies the Premises after
the Early Possession Date but prior to the Commencement Date, the obligation
to pay Base Rent shall be abated for the period of such early occupancy. All
other terms of this Lease, however, (including but not limited to the
obligations to pay Tenant's Share of Common Area Operating Expenses and to
carry the insurance required by Paragraph B) shall be in effect during such
period. Any such early possession shall not affect nor advance the Expiration
Date of the Original Term.
3.3 DELAY IN POSSESSION. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by
the Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease, or the
obligations of Tenant hereunder, or extend the term hereof, but in such case,
Tenant shall not, except as otherwise provided herein, be obligated to pay
rent or perform any other obligation of Tenant under the terms of this Lease
until Landlord delivers possession of the Premises to Tenant. If possession
of the Premises is not delivered to Tenant within sixty (60) days after the
Commencement Date, Tenant may, at its option, by notice in writing to
Landlord within ten (10) days after the end of sixty (60) day period, cancel
this Lease, in which event the parties shall be discharged from all
obligations hereunder; provided further, however, that if such written notice
of Tenant is not received by Landlord within said ten (10) day period,
Tenant's right to cancel this Lease hereunder shall terminate and be of no
further force or effect. Except as may be otherwise provided, and regardless
of when the Original Term actually commences, if possession is not tendered
to Tenant when required by this Lease and Tenant does not terminate this
Lease, as foresaid, the period free of the obligation to pay Base Rent, if
any, that Tenant would otherwise have enjoyed shall run from the date of
delivery of possession and continue for a period equal to the period during
which the Tenant would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Tenant.
4. RENT.
4.1 BASE RENT. Tenant shall pay Base Rent and other rent or charges, as
the same may be adjusted from time to time, to Landlord in lawful money of
the United States, without offset or deduction, on or before the day on which
it is due under the terms of this Lease. Base Rent and all other rent and
charges for any period during the term hereof which is for less than one full
month shall be prorated based upon the actual number of days of the month
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involved. Payment of Base Rent and other charges shall be made to Landlord at
its address stated herein or to such other persons or at such other addresses
as Landlord may from time to time designate in writing to Tenant.
4.2 COMMON AREA OPERATING EXPENSES. Tenant shall pay to Landlord during
the term hereof, in addition to the Base Rent, Tenant's Share (as specified
in Paragraph 1.6(b)) of all Common Area Operating Expenses, as hereinafter
defined, during each calendar year of the term of this Lease, in accordance
with the following provisions:
(a) "COMMON AREA OPERATING EXPENSES" are defined, for purposes of
this Lease, as all costs incurred by Landlord relating to the ownership and
operation of the Industrial Center, including, but not limited to, the
following:
(i) The operation, repair and maintenance, in neat, clean,
good order and condition, of the following:
(aa) The Common Areas, including parking areas, loading
and unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Common
Area lighting facilities, fences and gates, elevators and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to
service the Common Areas.
(iii) Trash disposal, third party property management and
security services and the costs of any environmental inspections.
(iv) Reserves in an amount not to exceed 1% of the gross rent
of the Building set aside for maintenance and repair of Common Areas.
(v) Real Property Taxes (as defined in Paragraph 10.2) to be
paid by Landlord for the Building and the Common Areas under Paragraph 10
hereof.
(vi) The cost of the premiums for the insurance policies
maintained by Landlord under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss concerning the
building or the Common Areas.
(viii) Any other services to be provided by Landlord that are
stated elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any common Area Operating Expenses and Real Property Taxes that
are specifically attributable to the Building or to any other building in the
Industrial Center or to the operation, repair and maintenance thereof, shall
be allocated entirely to the Building or to such other building. However, any
Common Area Operating Expenses and Real Property Taxes that are not
specifically attributable to the Building or to any other building or to the
operation, repair and maintenance thereof, shall be equitably allocated by
Landlord to all buildings in the Industrial Center.
(c) The inclusion of the improvements, facilities and services set
forth in subparagraph 4.2(a) shall not be deemed to impose an obligation upon
Landlord to either have said improvements or facilities or to provide those
services unless the Industrial Center already has the same, Landlord already
provides the services, or Landlord has agreed elsewhere in this Lease to
provide the same or some of them.
(d) Tenant's Share of Common Area Operating Expenses shall be
payable by Tenant within ten (10) days after a reasonably detailed statement
of actual expenses is presented to Tenant by Landlord. At Landlord's option,
however, an amount may be reasonably estimated by Landlord from time to time
of Tenant's Share of annual Common Area Operating Expenses and the same shall
be payable monthly or quarterly, as Landlord shall designate, during each
12-month period of the Lease Term, on the same day as the Base Rent is due
hereunder. Landlord shall deliver to Tenant within sixty (60) days after the
expiration of each calendar year a reasonably detailed statement showing
Tenant's Share of the actual Common Area Operating Expenses incurred during
the preceding year. If Tenant's payments under this Paragraph 4.2(d) during
said preceding year exceed Tenant's Share as indicated on said statement,
Landlord shall be credited the amount of such over-payment against Tenant's
Share of Common Area Operating Expenses next becoming due. If Tenant's
payments under this Paragraph 4.2(d) during said preceding year were less
than Tenant's Share as indicated on said statement, Tenant shall pay to
Landlord the amount of the deficiency within ten (10) days after delivery by
Landlord to Tenant of said statement, Tenant shall have the right to request
an audit of Landlord's Common Area Charges within 30 days from receipt of the
end of year settlement statement from Landlord. The audit shall be paid for
by Tenant. The audit shall be conducted at Landlord's office or at a location
designated by Landlord. The date and time of the audit will be determined by
mutual agreement between the Tenant and Landlord.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon Tenant's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security
for Tenant's faithful performance of Tenant's obligations under this
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Lease. If Tenant fails to pay Base Rent or other rent or charges due
hereunder, or otherwise Defaults under this Lease (as defined in Paragraph
13.1), Landlord may use, apply or retain all or any portion of said Security
Deposit, Tenant shall within ten (10) days after written request therefore
deposit monies with Landlord sufficient to restore said Security Deposit to
the full amount required by this Lease. Any time the Base Rent increases
during the term of this Lease, Tenant shall, upon written request from
Landlord, deposit additional monies with Landlord as an addition to the
Security Deposit so that the total amount of the Security Deposit shall at
all times bear the same proportion to the then current Base Rent as the
initial Security Deposit bears to the initial Base Rent set forth in
Paragraph 1.5. Landlord shall not be required to keep all or any part of the
Security Deposit separate from its general accounts. Landlord shall, at the
expiration or earlier termination of the term hereof and after Tenant has
vacated the Premises, return to Tenant (or, at Landlord's option, to the last
assignee, if any, of Tenant's interest herein), that portion of the Security
Deposit not used or applied by Landlord. Unless otherwise expressly agreed in
writing by Landlord, no part of the Security Deposit shall be considered to
be held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Tenant under this Lease.
6. USE.
6.1 PERMITTED USE.
(a) Tenant shall use and occupy the Premises only for the Permitted
Use set forth in Paragraph 1.8. or any other legal use, which is reasonably
comparable thereto, and for no other purpose. Tenant shall not use or permit
the use of the Premises in a manner that is unlawful, creates waste or a
nuisance, or that disturbs owners and/or occupants of, or causes damage to
the Premises or neighboring premises or properties.
(b) Landlord hereby agrees to not unreasonably withhold or delay
its consent to any written request by Tenant, Tenant's assignees or
subtenants, and by prospective assignees and subtenants of Tenant, its
assignees and subtenants, for a modification of said Permitted Use, so long
as the same will not impair the structural integrity of the improvements on
the Premises or in the Building or the mechanical or electrical systems
therein, does not conflict with uses by other Tenants, is not significantly
more burdensome to the Premises or the Building and the Improvements thereon,
and is otherwise permissible pursuant to this Paragraph 6. If Landlord elects
to withhold such consent, Landlord shall within five (5) business days after
such request give a written notification of same, which notice shall include
an explanation of Landlord's reasonable objections to the change in use.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCE"
as used in this Lease shall mean any product, substance, chemical, material
or waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises,
is either: (i) potentially injurious to the public health, safety or welfare,
the environment, or the Premises; (ii) regulated or monitored by any
governmental authority; or (iii) a legitimate basis for potential liability
of Landlord to any governmental agency or third party under any applicable
statute or common law theory. Hazardous Substance shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or any products or
by-products thereof. Tenant shall not engage in any activity in or about the
Premises which constitutes a Reportable Use (as hereinafter defined) of
Hazardous Substances without the express prior written consent of Landlord
and compliance in a timely manner (at Tenant's solo cost and expense) with
all Applicable Requirements (as defined in Paragraph 6.3). "REPORTABLE USE"
shall mean (i) the installation or use of any above or below ground storage
tank, (ii) the generation, possession, storage, use, transportation, or
disposal of a Hazardous Substance that requires a permit from, or with
respect to which a report, notice, registration or business plan is required
to be filed with, any governmental authority, and (iii) the presence in, on
or about the Premises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Tenant may, without Landlord's prior consent, but upon notice to
Landlord and in compliance with all Applicable requirements, use any ordinary
and customary materials reasonably required to be used by Tenant in the
normal course of the Permitted Use, so long as such use is not a Reportable
Use and does not expose the Premises or neighboring properties to any
meaningful risk of contamination or damage or expose Landlord to any
liability therefor. In addition, Landlord may (but without any obligation to
do so) condition its consent to any Reportable Use of any Hazardous Substance
by Tenant upon Tenant's giving Landlord such additional assurances as
Landlord, in its reasonable discretion, deems necessary to protect itself,
the public, the Premises and the environment against damage, contamination or
injury and/or liability therefor, including but not limited to the
installation (and, at Landlord's option, removal on or before Lease expiration
or earlier termination) of reasonably necessary protective modifications to
the Premises (such as concrete encasements) and/or the deposit of an
additional Security Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LANDLORD. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises or the Building, other than as previously
consented to by Landlord, Tenant shall immediately give Landlord written
notice thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim, action, or
proceeding given to, or received from, any governmental authority or private
party concerning the presence, spill, release, discharge of, or exposure to,
such Hazardous Substance including but not limited to all such documents as
may be involved in any Reportable Use involving the Premises. Tenant shall
not cause or permit any Hazardous Substance to be spilled or released in, on,
under or about the Premises (including, without limitation, through the
prompting or sanitary sewer system).
(c) INDEMNIFICATION. Tenant shall indemnify, protect, defend and
hold Landlord, its agents, employees, lenders and ground lessor, if any, and
the Premises, harmless from and against any and all
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damages, liabilities, judgments, costs, claims, liens, expenses, penalties,
loss of permits and attorneys' and consultants' fees arising out of or
involving any Hazardous Substance brought onto the Premises by or for Tenant
or by anyone under Tenant's control. Tenant's obligations under this
paragraph 6.2(c) shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Tenant, and the cost of investigation (including consultants' and
attorneys' fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Landlord and Tenant shall
release Tenant from its obligations under this Lease with respect to
Hazardous Substances, unless specifically so agreed by Landlord in writing at
the time of such agreement.
(d) Landlord represents to Tenant that to the best of Landlord's
knowledge, there are no Hazardous Substances as defined by Paragraph 6.2(a)
located in, under or upon the Premises as of the date of this Lease.
6.3 TENANT'S COMPLIANCE WITH REQUIREMENTS. Tenant shall, at Tenant's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "APPLICABLE REQUIREMENTS," which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Landlord's
engineers and/or consultants, relating in any manner to Tenant's use of the
Premises (including but not limited to matters pertaining to (i) industrial
hygiene, (ii) environmental conditions on, in, under or about the Premises,
including soil and ground water conditions, and (iii) the use, generation,
manufacture, production, installation, maintenance, removal, transportation,
storage, spill, or release of any Hazardous Substance), now in effect or
which may hereafter come into effect. Tenant shall, within five (5) days after
receipt of Landlord's written request, provide Landlord with copies of all
documents and information, including but not limited to permits,
registrations, manifests, applications, reports and certificates, evidencing
Tenant's compliance with any applicable Requirements specified by Landlord,
and shall immediately upon receipt, notify Landlord in writing (with copies
of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving failure by
Tenant or the Premises to comply with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE WITH LAW. Landlord, Landlord's agents,
employees, contractors and designated representatives, and the holders of
any mortgages, deeds of trust or ground leases on the Premises ("LENDERS")
shall have the right to enter the Premises at any time in the case of an
emergency, and otherwise at reasonable times with at least a 48 hour notice,
for the purpose of inspecting the condition of the Premises and for verifying
compliance by Tenant with this Lease and all Applicable Requirements (as
defined in Paragraph 6.3), and Landlord shall be entitled to employ experts
and/or consultants in connection therewith to advise Landlord with respect to
Tenant's activities, including but not limited to Tenant's installation,
operation, use, monitoring, maintenance, or removal of any Hazardous
Substance on or from the Premises. The costs and expenses of any such
inspections shall be paid by the party requesting same, unless a Default or
Breach of this Lease by Tenant or a violation of Applicable Requirements or a
contamination, caused or materially contributed to by Tenant, is found to
exist or to be imminent, or unless the inspection is requested or ordered by
a governmental authority as the result of any such existing or imminent
violation or contamination. In such case, Tenant shall upon request reimburse
Landlord or Landlord's Lender, as the case may be, for the costs and expenses
of such inspections.
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND
ALTERATIONS.
7.1 TENANT'S OBLIGATIONS.
(a) Subject to the provision of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Landlord's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Tenant shall,
at Tenant's sole cost and expense and at all times, keep the Premises and
every part thereof in good order, condition and repair (whether or not such
portion of the Premises requiring repair, or the means of repairing the same,
are reasonably or readily accessible to Tenant, and whether or not the need
for such repairs occurs as a result of Tenant's use, any prior use, the
elements or the age of such portion of the Premises), including, without
limiting the generality of the foregoing, all equipment or facilities
specifically serving the Premises, such as plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities, boilers, fired or
unfired pressure vessels, fire hose connections if within the Premises,
fixtures, interior walls, interior surfaces of exterior walls, ceilings,
floors, windows, doors, plate glass, and skylights, but excluding any items
which are the responsibility of Landlord pursuant to Paragraph 7.2 below.
Tenant, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices. Tenant's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order,
condition and state of repair.
(b) Tenant shall, at Tenant's sole cost and expense, procure and
maintain a contract, with copies to Landlord, in customary form and substance
for and with a contractor specializing and experienced in the inspection,
maintenance and service of the heating, air conditioning and ventilation
system for the Premises. However, Landlord reserves the right, upon notice to
Tenant, to procure and maintain the contract for the heating, air
conditioning and ventilating systems, and if Landlord so elects, Tenant shall
reimburse Landlord, upon demand, for the cost thereof.
(c) If Tenant fails to perform Tenant's obligations under this
Paragraph 7.1, Landlord may enter upon the Premises after ten (10) days'
prior written notice to Tenant (except in the case of an emergency, in which
case no notice shall be required), perform such obligations on Tenant's
behalf, and put the Premises in good order, condition and repair, in
accordance with Paragraph 13.2 below.
7.2 LANDLORD'S OBLIGATIONS. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3
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(Compliance with Covenants, Restrictions and Building Code). 4.2 (Common Area
Operating Expenses), 7 (Use), 7.1 (Tenant's Obligations), 9 (Damage or
Destruction) and 14 (Condemnation), Landlord, subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good order, condition and repair the
foundations, exterior walls, structural condition of interior bearing walls,
exterior roof, fire sprinkler and/or standpipe and hose (if located in the
Common Areas) or other automatic fire extinguishing system including fire
alarm and/or smoke detection systems and equipment, fire hydrants, parking
lots, walkways, parkways, driveways, landscaping, fences, signs and utility
systems serving the Common Areas, the Premises and all parts thereof, as well
as providing the services for which there is a Common Area Operating Expense
pursuant to Paragraph 4.2. Landlord shall not be obligated to paint the
exterior or interior surfaces of exterior walls nor shall Landlord be
obligated to maintain, repair or replace windows, doors or plate glass of the
Premises. Tenant expressly waives the benefit of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or terminate this Lease because of Landlord's
failure to keep the Building, Industrial Center or Common Areas in good
order, condition and repair.
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY
INSTALLATIONS" is used in this Lease to refer to all air lines, power panels,
electrical distribution, security, fire protections systems, communications
systems, lighting fixtures, heating, ventilating and air conditioning
equipment, plumbing, and fencing in, on or about the Premises. The term
"TRADE FIXTURES" shall mean Tenant's machinery and equipment which can be
removed without doing material damage to the Premises. The term
"ALTERATIONS" shall mean any modification of the improvements on the Premises
which are provided by Landlord under the terms of this Lease, other than
Utility Installations or Trade Fixtures. "TENANT-OWNED ALTERATIONS AND/OR
UTILITY INSTALLATIONS" are defined as Alterations and/or Utility Installations
made by Tenant that are not yet owned by Landlord pursuant to Paragraph
7.4(a). Tenant shall not make nor cause to be made any Alterations or Utility
Installations in, on, under or about the Premises without Landlord's prior
written consent which shall not be unreasonably withheld or delayed. Tenant
may, however, make non-structural Utility Installations to the interior of
the Premises (excluding the roof) without Landlord's consent but upon notice
to Landlord, so long as they are not visible from the outside of the
Premises, do not involve puncturing, relocating or removing the roof or any
existing walls, or changing or interfering with the fire sprinkler or fire
detection systems and the cumulative cost thereof during the term of this
Lease as extended does not exceed $2,500.00.
(b) CONSENT. Any Alterations or Utility Installations that
Tenant shall desire to make and which require the consent of the Landlord
shall be presented to Landlord in written form with detailed plans. All
consents given by Landlord, whether by virtue of Paragraph 7.3(a) or by
subsequent specific consent, shall be deemed conditioned upon: (i) Tenant's
acquiring all applicable permits required by governmental authorities; (ii)
the furnishing of copies of such permits together with a copy of the plans
and specifications for the Alteration or Utility Installation to Landlord
prior to commencement of the work thereon; and (iii) the compliance by Tenant
with all conditions of said permits in a prompt and expeditious manner. Any
Alterations of Utility Installations by Tenant during the term of this Lease
shall be done in a good and workmanlike manner, with good and sufficient
materials, and be in compliance with all Applicable Requirements. Tenant
shall promptly upon completion thereof furnish Landlord with as-built plans
and specifications therefor. Landlord may (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation
that costs $2,500.00 10,000.00 or more upon Tenant's providing Landlord with
a lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) LIEN PROTECTION. Tenant shall pay when due all claims
for labor or materials furnished or alleged to have been furnished to or for
Tenant at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises or any interest
therein. Tenant shall give Landlord not less than ten (10) days' notice
prior to the commencement of any work in, on, or about the Premises, and
Landlord shall have the right to post notices of non-responsibility in or on
the Premises as provided by law. If Tenant shall, in good faith, contest the
validity of any such lien, claim or demand, then Tenant shall, at its sole
expense, defend and protect itself, Landlord and the Premises against the
same and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Landlord or the Premises.
If Landlord shall require, Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to one and one-half times the
amount of such contested lien claim or demand, indemnifying Landlord against
liability for the same, as required by law for the holding of the Premises
free from the effect of such lien or claim. In addition, Landlord may
require Tenant to pay Landlord's attorneys' fees and costs in participating
in such action if Landlord shall decide it is to its best interest to do so.
7.4 OWNERSHIP, REMOVAL, SURRENDER, AND RESTORATION.
(a) OWNERSHIP. Subject to Landlord's right to require their
removal and to cause Tenant to become the owner thereof as hereinafter
provided in this Paragraph 7.4, all Alterations and Utility Installations
made to the Premises by Tenant shall be the property of and owned by Tenant,
but considered a part of the Premises. Landlord may, at any time and at its
option, elect in writing to Tenant to be the owner of all or any specified
part of the Tenant-Owned Alterations and Utility Installations. Unless
otherwise instructed per Subparagraph 7.4(b) hereof, all Tenant-Owned
Alterations and Utility Installations shall, at the expiration or earlier
termination of this Lease, become the property of Landlord and remain upon
the Premises and be surrendered with the Premises by Tenant.
(b) REMOVAL. Unless otherwise agreed in writing, Landlord
may require that any or all Tenant-Owned Alterations or Utility Installations
be removed by the expiration or earlier termination of this Lease,
notwithstanding that their installation may have been consented to by
Landlord. Landlord may require the removal at any time of all or any part of
any Alterations or Utility Installations made without the required consent of
Landlord.
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(c) SURRENDER/RESTORATION. Tenant shall surrender the
Premises by the end of the last day of the Lease term or any earlier
termination date, clean and free of debris and in good operating order,
condition and state of repair, ordinary wear and tear excepted. Ordinary
wear and tear shall not include any damage or deterioration that would have
been prevented by good maintenance practice or by Tenant performing all of
its obligations under this Lease. Except as otherwise agreed or specified
herein, the Premises, as surrendered, shall include the Alterations and
Utility Installations. The obligation of Tenant shall include the repair of
any damage occasioned by the installation, maintenance or removal of Tenant's
Trade Fixtures, furnishings, equipment, and Tenant-Owned Alterations and
Utility Installations, as well as the removal of any storage tank installed
by or for Tenant and the removal, replacement, or remediation of any soil,
material or ground water contaminated by Tenant, all as may then be required
by Applicable Requirements and/or good practice. Tenant's Trade Fixtures
shall remain the property of Tenant and shall be removed by Tenant subject to
its obligation to repair and restore the Premises per this Lease.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT OF PREMIUMS. The cost of the premiums for the insurance
policies maintained by Landlord under this Paragraph 8 shall be a Common Area
Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy
periods commencing prior to, or extending beyond, the term of this Lease
shall be prorated to coincide with the corresponding Commencement Date or
Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY TENANT. Tenant shall obtain and keep in
force during the term of this Lease a Commercial General Liability policy of
insurance protecting Tenant, Landlord and any Lender(s) whose names have been
provided to Tenant in writing (as additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $1,000,000
per occurrence with an "Additional Insured-Managers or Landlords of Premises:
endorsement and contain the "Amendment of the Pollution Exclusion"
endorsement for damage caused by heat, smoke or fumes from a hostile fire.
The policy shall not contain any intra-insured exclusion as between insured
persons or organizations, but shall include coverage for liability assumed
under this Lease as an "INSURED CONTRACT" for the performance of Tenant's
indemnity obligations under this Lease. The limits of said insurance
required by this Lease or as carried by Tenant shall not, however, limit the
liability of Tenant nor relieve Tenant of any obligation hereunder. All
insurance to be required by this Lease or as carried by Tenant shall not,
however, limit the liability of Tenant nor relieve Tenant of any obligation
hereunder. All insurance to be carried by Tenant shall be primary to and not
contributory with any similar insurance carried by Landlord, whose insurance
shall be considered excess insurance only.
(b) CARRIED BY LANDLORD. Landlord shall also maintain
liability insurance described in Paragraph 8.2(a) above, in addition to and
not in lieu of, the insurance required to be maintained by Tenant. Tenant
shall not be named as an additional insured therein.
8.3 PROPERTY INSURANCE-BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Landlord shall obtain and
keep in force during the term of this Lease a policy or policies in the name
of Landlord, with loss payable to Landlord and to any Lender(s), insuring
against loss or damage to the Premises. Such insurance shall be for full
replacement cost, as the same shall exist from time to time or the amount
required by any Lender(s), but in no event more than the commercially
reasonable and available insurable value thereof if, by reason of the unique
nature or age of the improvements involved, such latter amount is less than
full replacement cost. Tenant pursuant to Paragraph 8.4 shall insure
tenant-Owned Alterations and Utility Installations, Trade Fixtures and
Tenant's personal property. If the coverage is available and commercially
appropriate, Landlord's policy or policies shall insure against all risks of
direct physical loss or damage (except the perils of flood and/or earthquake
unless required by a Lender), including coverage for any additional costs
resulting from debris removal and reasonable amounts of coverage for the
enforcement of any ordinance or law regulating the reconstruction or
replacement of any undamaged sections of the Building required to be
demolished or removed by reason of the enforcement of any building, zoning,
safety or land use laws as the result of a covered loss, but not including
plate glass insurance. Said policy or policies shall also contain an agreed
valuation provision in lieu of any co-insurance clause, waiver of
subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located.
(b) RENTAL VALUE. Landlord shall also obtain and keep in
force during the term of this Lease a policy or policies in the name of
Landlord, with loss payable to Landlord and any Lender(s), insuring the loss
of the full rental and other charges payable by all tenants of the Building
to Landlord for one year (including all Real Property Taxes, insurance costs,
all Common Area Operating Expenses and any scheduled rental increases). Said
insurance may provide that in the event the Lease is terminated by reason of
an insured loss, the period of indemnity for such coverage shall be extended
beyond the date of the completion of repairs or replacement of the Premises,
to provide for one full year's loss of rental revenues from the date of any
such loss. Said insurance shall contain an agreed valuation provision in
lieu of any co-insurance clause, and the amount of coverage shall be adjusted
annually to reflect the projected rental income, Real Property Taxes,
insurance premium costs and other expenses, if any, otherwise payable, for
the next 12-month period. Common Area Operating Expenses shall include any
deductible amount in the event of such loss.
(c) ADJACENT PREMISES. Tenant shall pay for any increase in
the premiums for the
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property insurance of the Building and for the Common Areas or other
buildings in the Industrial Center if said increase is caused by Tenant's
acts, omissions, use or occupancy of the Premises.
(d) TENANT'S IMPROVEMENTS. Since Landlord is the Insuring
Party, Landlord shall not be required to insure Tenant-Owned Alterations and
Utility Installations unless the item in question has become the property of
Landlord under the terms of this Lease.
8.4 TENANT'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5, Tenant at its cost shall either by separate policy or, at
Landlord's option, by endorsement to a policy already carried, maintain
insurance coverage on all of Tenant's personal property, Trade Fixtures and
Tenant-Owned Alterations and Utility Installations in, on, or about the
Premises similar in coverage to that carried by Landlord as the Insuring
Party under Paragraph 8.3(a). Such insurance shall be full replacement cost
coverage with a deductible not to exceed $1,000 per occurrence. Tenant shall
use the proceeds from any such insurance for the replacement of personal
property and the restoration of Trade Fixtures and Tenant-Owned Alterations
and Utility Installations. Upon request from Landlord, Tenant shall provide
Landlord with written evidence that such insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, or such other rating as may be required by a
Lender, as set forth in the most current issue of "Best's Insurance Guide."
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in this Paragraph 8. Tenant shall cause to be
delivered to Landlord, within seven (7) days after the earlier of the Early
Possession Date or the Commencement Date, certified copies of, or certificates
evidencing the existence and amounts of, the insurance required under
Paragraph 8.2(a) and 8.4. No such policy shall be cancelable or subject to
modification except after thirty (30) days' prior written notice to Landlord.
Tenant shall at least thirty (30) days prior to the expiration of such
policies, furnish Landlord with evidence of renewals or "insurance binders"
evidencing renewal thereof, or Landlord may order such insurance and charge
the cost thereof to Tenant, which amount shall be payable by Tenant to
Landlord upon demand.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Tenant and Landlord each hereby release and relieve the other, and
waive their entire right to recover damages (whether in contract or in tort)
against the other, for loss or damage to their property arising out of or
incident to the perils required to be insured against under Paragraph 8. The
effect of such releases and waivers of the right to recover damages shall not
be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto. Landlord and Tenant agree to have their
respective insurance companies issuing property damage insurance waive any
right to subrogation that such companies may have against Landlord or Tenant,
as the case may be, so long as the Insurance is not invalidated thereby.
8.7 INDEMNITY. Except for Landlord's negligence, willful misconduct
and/or breach of express warranties, Tenant shall indemnify, protect, defend
and hold harmless the Premises, Landlord and its agents, Landlord's master or
ground lessor, partners and Lenders, from and against any and all claims,
loss of rents and/or damages, costs, liens, judgments, penalties, loss of
permits, attorneys' and consultants' fees, expense and/or liabilities arising
out of, involving, or in connection with, the occupancy of the Premises by
Tenant, the conduct of Tenant's business, any act, omission or neglect of
Tenant, its agents, contractors, employees or invitees, and out of any
Default or Breach by Tenant in the performance in a timely manner of any
obligation on Tenant's part to be performed under this Lease. The foregoing
shall include, but not be limited to, the defense or pursuit of any claim or
any action or proceeding involved therein, and whether or not (in the case of
claims made against Landlord) litigated and/or reduced to judgment. In case
any action or proceeding be brought against Landlord by reason of any of the
foregoing matters. Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel reasonably satisfactory to Landlord and Landlord
shall cooperate with Tenant in such defense. Landlord need not have first
paid any such claim in order to be so indemnified.
8.8 EXEMPTION OF LANDLORD FROM LIABILITY. Except for Landlord's
negligence, willful misconduct and/or breach of express warranties, Landlord
shall not be liable for injury or damage to the person or goods, wares,
merchandise or other property of Tenant, Tenant's employees, contractors,
invitees, customers, or any other person in or about the Premises, whether
such damage or injury is caused by or results from fire, steam, electricity,
gas, water or rain, or from the breakage, leakage, obstruction or other
defects of pipes, fire sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether said
injury or damage results from conditions arising upon the Premises or upon
other portions of the Building of which the Premises are a part, from other
sources or places, and regardless of whether the cause of such damage or
injury or the means of preparing the same is accessible or not. Landlord
shall not be liable for any damages arising from any act or neglect of any
other tenant of Landlord nor from the failure by Landlord to enforce the
provisions of any other lease in the Industrial Center. Notwithstanding
Landlord's negligence or breach of this Lease, Landlord shall under no
circumstances be liable for injury to Tenant's business or for any loss of
income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or
destruction to the Premises, other than Tenant-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less than
fifty percent (50%) of the then Replacement Cost (as defined in Paragraph
9.1(d) of the Premises (excluding the Tenant-Owned Alterations and Utility
Installations and Trade Fixtures) immediately prior to such damage or
destruction.
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(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Tenant-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost of the Premises (excluding
Tenant-Owned Alterations and Utility Installations and Trade Fixtures)
immediately prior to such damage or destruction. In addition, damage or
destruction to the Building, other than Tenant-Owned Alterations and Utility
Installations and Trade Fixtures of any tenants of the Building, the cost of
which damage or destruction is fifty percent (50%) or more of the then
Replacement Cost (excluding Tenant-Owned Alterations and Utility installations
and Trade Fixtures of any Tenants of the Building) of the Building shall, at
the option of Landlord, be deemed to be Premises total Destruction.
(c) "INSURED LOSS" shall mean damage or destruction to the
Premises, other than Tenant-Owned Alterations and Utility Installations and
Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a) irrespective of any deductible
amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvements owned by Landlord at the time of the occurrence to
their condition existing immediately prior thereto, including demolition,
debris removal and upgrading required by the operation of applicable building
codes, ordinances or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the
occurrence or discovery of a condition involving the presence of, or a
contamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in,
on, or under the Premises.
9.2 PREMISES PARTIAL DAMAGE - INSURED LOSS. If Premises Partial
Damage that is an Insured Loss occurs, then Landlord shall, at Landlord's
expense, repair such damage (but not Tenant's Trade Fixtures or Tenant-Owned
Alterations and Utility installations) as soon as reasonably possible and
this Lease shall continue in full force and effect. In the event, however,
that there is a shortage of insurance proceeds and such shortage is due to
the fact that, by reason of the unique nature of the improvements in the
Premises, full replacement cost insurance coverage was not commercially
reasonable and available, Landlord shall have no obligation to pay for the
shortage in insurance proceeds or to fully restore the unique aspects
of the Premises unless Tenant provides Landlord with the funds to cover same,
or adequate assurance thereof, within ten (10) days following receipt of
written notice of such shortage and request therefore. If Landlord receives
said funds or adequate assurance thereof within said ten (10) day period,
Landlord shall complete them as soon as reasonably possible and this Lease
shall remain in full force and effect. If Landlord does not receive such
funds or assurance within said period, Landlord may nevertheless elect by
written notice to Tenant within ten (10) days thereafter to make such
restoration and repair as is commercially reasonable with Landlord paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect. If Landlord does not receive such funds or assurance within such ten
(10) day period, and if Landlord does not so elect to restore and repair,
then this Lease shall terminate sixty (60) days following the occurrence of
the damage or destruction. Unless otherwise agreed, Tenant shall in no event
have any right to reimbursement from Landlord for any funds contributed by
Tenant to repair any such damage or destruction. Premises Partial Damage due
to flood or earthquake shall be subject to Paragraph 9.3 rather than
Paragraph 9.2, notwithstanding that there may be some insurance coverage, but
the net proceeds of any such insurance shall be made available for the
repairs if made either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If Premises Partial Damage
that is not an insured Loss occurs, unless caused by a negligent or willful
act of Tenant (in which event Tenant shall make the repairs at Tenant's
expense and this Lease shall continue in full force and effect), Landlord may
at Landlord's option, either (i) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in
full force and effect, or (ii) give written notice to Tenant within thirty
(30) days after receipt by Landlord of knowledge of the occurrence of such
damage of Landlord's desire to terminate this Lease as of the date sixty (60)
days following the date of such notice. In the event Landlord elects to give
such notice of Landlord's intention to terminate this Lease, Tenant shall
have the right within ten (10) days after the receipt of such notice give
written notice to Landlord of Tenant's commitment to pay for the repair of
such damage totally at Tenant's expense and without reimbursement from
Landlord. Tenant shall provide Landlord with the required funds or
satisfactory assurance thereof within thirty (30) days following such
commitment from Tenant. In such event this Lease shall continue in full
force and effect, and Landlord shall proceed to make such repairs as soon as
reasonably possible after the required funds are available. If Tenant does
not give such notice and provide the funds or assurance thereof within the
times specified above, this Lease shall terminate as of the date specified in
Landlord's notice of termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof,
if Premises Total Destruction occurs (including any destruction required by
any authorized public authority), this Lease shall terminate as of the date
of such Premises Total Destruction, whether or not the damage or destruction
is an insured Loss or was caused by a negligent or willful act of Tenant. In
the event, however, that the damage or destruction was caused by Tenant,
Landlord shall have the right to recover Landlord's damages from Tenant
except as released and waived in Paragraph 9.7.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to repair
exceeds one month's Base Rent, whether or not an insured Loss, Landlord may,
at Landlord's option, terminate this Lease effective sixty (60) days
following the date of occurrence of such damage by giving written notice to
Tenant of Landlord's election to do so within thirty (30) days after the date
of occurrence of such damage. Provided, however, if Tenant at that time has
an exercisable option to extend this Lease or to purchase the Premises, then
Tenant may preserve this Lease by (a) exercising such option, and (b)
providing Landlord with any shortage in insurance proceeds (or adequate
assurance thereof) needed to make the repairs on or before the earlier of (i)
the date which is ten (10) days after Tenant's receipt of Landlord's written
notice purporting to terminate this Lease, or (ii) the day prior to the date
upon which such option expires. If Tenant duly
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exercises such option during such period and provides Landlord with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds,
Landlord shall, at Landlord's expense repair such damage as soon as
reasonably possible and this Lease shall continue in full force and effect.
If Tenant fails to exercise such option and provide such funds or assurance
during such period, then this Lease shall terminate as of the date set forth
in the first sentence of this Paragraph 9.5.
9.6 ABATEMENT OF RENT; TENANT'S REMEDIES.
(a) In the event of (i) Premises Partial Damage or (ii)
Hazardous Substance Condition for which Tenant is not legally responsible,
the Base Rent, Common Area Operating Expenses and other charges, if any,
payable by Tenant hereunder for the period during which such damage or
condition, its repair, remediation or restoration continues, shall be abated
in proportion to the degree to which Tenant's use of the Premises is
impaired, but not in excess of proceeds from insurance required to be carried
under Paragraph 8.3(b). Except for abatement of Base Rent, Common Area
Operating Expenses and other charges, if any, as aforesaid, all other
obligations of Tenant hereunder shall be performed by Tenant, and Tenant
shall have no claim against Landlord for any damage suffered by reason of any
such damage, destruction, repair, remediation or restoration.
(b) If Landlord shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence, in
a substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Tenant may, at
any time prior to the commencement of such repair or restoration, give
written notice to Landlord and to any Lenders of which Tenant has actual
notice of Tenant's election to terminate this Lease on a date not less than
sixty (60) days following the giving of such notice. If Tenant gives such
notice to Landlord and such Lenders and such repair or restoration is not
commenced within thirty (30) days after receipt of such notice, this Lease
shall terminate as of the date specified in said notice. If Landlord or a
Lender commences the repair or restoration of the Premises within thirty (30)
days after the receipt of such notice, this Lease shall continue in full
force and effect. "COMMENCE" as used in this Paragraph 9.6 shall mean either
the unconditional authorization of the preparation of the required plans, or
the beginning of the actual work on the Premises, whichever occurs first.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance
Condition occurs, unless Tenant is legally responsible therefor (in which
case Tenant shall make the investigation and remediation thereof required by
Applicable Requirements and this Lease shall continue in full force and
effect, but subject to Landlord's rights under Paragraph 6.2(c) and Paragraph
13), Landlord may at Landlord's option either (i) investigate and remediate
such Hazardous Substance Condition, if required, as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in
full force and effect, or (ii) if the estimated cost to investigate and
remediate such condition exceeds twelve (12) times the then monthly Base Rent
or $100,000, whichever is greater, give written notice to Tenant within
thirty (30) days after receipt by Landlord of knowledge of the occurence of
such Hazardous Substance Condition of Landlord's desire to terminate this
Lease as of the date sixty (60) days following the date of such notice. In
the event Landlord elects to give such notice of Landlord's intention to
terminate this Lease, Tenant shall have the right within ten (10) days after
receipt of such notice to give written notice to Landlord of Tenant's
commitment to pay for the excess costs of (a) investigation and remediation
of such Hazardous Substance Condition to the extent required by Applicable
Requirements, over (B) an amount equal to twelve (12) times the then monthly
Base Rent or $100,000, whichever is greater. Tenant shall provide Landlord
with the funds required of Tenant or satisfactory assurance thereof within
thirty (30) days following said commitment by Tenant. In such event this
Lease shall continue in full force and effect, and Landlord shall proceed to
make such investigation and remediation as soon as reasonable possible after
the required funds are available. If Tenant does not give such notice and
provide the required funds or assurance thereof within the time period
specified above, this Lease shall terminate as of the date specified in
Landlord's notice of termination.
9.8 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, Landlord shall return to Tenant any advance
payment made by Tenant to Landlord and so much of Tenant's Security Deposit
as has not been, or is not then required to be, used by Landlord under the
terms of this Lease.
9.9 WAIVER OF STATUTES. Landlord and Tenant agree that the terms of
this Lease shall govern the effect of any damage to or destruction of the
Premises and the Building with respect to the termination of this Lease and
hereby waive the provisions of any present or future statute to the extent it
is inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Landlord shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in
the calculation of Common Area Operating Expenses in accordance with the
provisions of Paragraph 4.2.
10.2 REAL PROPERTY TAX DEFINITION. As used herein, the term "REAL
PROPERTY TAXES" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Industrial Center by any
authority having the direct or indirect power to tax, including any city,
state or federal government, or any school, agricultural, sanitary, fire,
street, drainage, or other improvement district thereof, levied against any
legal or equitable interest of Landlord in the Industrial Center or any
portion thereof, Landlord's right to rent or other income therefrom, and/or
Landlord's business of leasing the Premises. The term "REAL PROPERTY TAXES"
shall also include any tax, fee, levy, assessment or charge, or any increase
therein, imposed by reason of events occurring, or changes in Applicable Law
taking effect, during the term of this Lease, including but not limited to a
change in the ownership of the Industrial Center or in the improvements
thereon, the
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execution of this Lease, or any modification, amendment or transfer thereof,
and whether or not contemplated by the Parties. In calculating Real Property
Taxes for any calendar year, the Real Property Taxes for any real estate tax
year shall be included in the calculation of Real Property Taxes for such
calendar year based upon the number of days which such calendar year and tax
year have in common.
10.3 ADDITIONAL IMPROVEMENTS. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other tenants or by Landlord for the exclusive enjoyment of such
other Tenants. Notwithstanding Paragraph 10.1 hereof, Tenant shall, however,
pay to Landlord at the time Common Area Operating Expenses are payable under
Paragraph 4.2, the entirety of any increase in Real Property Taxes if
assessed solely by reason of Alterations, Trade Fixtures or Utility
Installations placed upon the Premises by Tenant or at Tenant's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable
proportion of the Real Property Taxes for all of the land and improvements
included within the tax parcel assessed, such proportion to be determined by
Landlord from the respective valuations assigned in the assessor's work
sheets or such other information as may be reasonably available. Landlord's
reasonable determination thereof, in good faith, shall be conclusive.
10.5 TENANT'S PROPERTY TAXES. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon the Tenant-Owned Alterations and
Utility Installations, Trade Fixtures, furnishings, equipment and all
personal property of Tenant contained in the Premises or stored within the
Industrial Center. When possible, Tenant shall cause its Tenant-Owned
Alterations and Utility Installations, Trade Fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real property of Landlord. If any of Tenant's said property shall be assessed
with Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant's property within ten (10) days after receipt of a
written statement setting forth the taxes applicable to Tenant's property.
11. UTILITIES. Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity,
telephone, security, gas and cleaning of the Premises, together with any
taxes thereon. If any such utilities or services are not separately metered
to the Premises or separately billed to the Premises, Tenant shall pay to
Landlord a reasonable proportion to be determined by Landlord of all such
charges jointly metered or billed with other premises in the Building, in the
manner and within the time periods set forth in Paragraph 4.2(d).
12. ASSIGNMENT AND SUBLETTING.
12.1 LANDLORD'S CONSENT REQUIRED.
(a) Tenant shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively, "assign")
or sublet all or any part of Tenant's interest in this Lease or in the
Premises without Landlord's prior written consent given under and subject to
the terms of Paragraph 36. Not withstanding the above, no consent shall be
required if the Lease is transferred to a wholly owned subsidiary, parent
corporation, a corporation under common control of Tenant, or resulting from
merger of Tenant with another entity as long as the use of the premises is
the same and the financial position of the transferee is equal to or greater
than Tenant's.
(b) A change in the control of Tenant shall constitute an
assignment requiring Landlord's consent. The transfer, on a cumulative basis,
of fifty percent (50%) or more of the voting control of Tenant shall
constitute a change in control for this purpose.
(c) The involvement of Tenant or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a
formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result in a reduction of the Net Worth of Tenant, as
hereinafter defined, by an amount equal to or greater than twenty-five
percent (25%) of such Net Worth of Tenant as it was represented to Landlord
at the time of full execution and delivery of this Lease or at the time of
the most recent assignment to which Landlord has consented, or as it exists
immediately prior to said transaction or transactions consulting such
reduction, at whichever time said Net Worth of Tenant was or is greater,
shall be considered an assignment of this Lease by Tenant to which Landlord
may reasonably withhold its consent. "NET WORTH OF TENANT" for purposes of this
Lease shall be the net worth of Tenant (excluding any Guarantors) established
under generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Tenant's interest in this
Lease without Landlord's specific prior written consent shall, at Landlord's
option, be a Default curable after notice per Paragraph 13.1, or a
non-curable Breach without the necessity of any notice and grace period. If
Landlord elects to treat such unconsented to assignment or subletting as a
non-curable Breach, Landlord shall have the right to either: (i) terminate
this Lease, or (ii) upon thirty (30) days' written notice ("LANDLORD'S
NOTICE"), increase the monthly Base Rent for the Premises to the greater of
the then fair market rental value of the Premises, as reasonably determined
by Landlord, or one hundred ten percent (110%) of the Base Rent then in
effect. Pending determination of the new fair market rental value, if
disputed by Tenant, Tenant shall pay the amount set forth in Landlord's
Notice, with any overpayment credited against the next installment(s) of Base
Rent coming due, and any underpayment for the period retroactively to the
effective date of the adjustment being due and payable immediately upon the
determination thereof. Further, in the event of such Breach and rental
adjustment, (i) the purchase price of any option to purchase the Premises
held by Tenant shall be subject to similar adjustment to the then fair market
value as reasonably determined by Landlord (without the Lease being
considered an encumbrance or any deduction for depreciation or obsolescence,
and
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considering the Premises at its highest and best use and in good condition)
or one hundred ten percent (110%) of the price previously in effect, (ii) any
index-oriented rental or price adjustment formulas contained in this Lease
shall be adjusted to require that the base index be determined with reference
to the index applicable to the time of such adjustment, and (iii) any
fixed rental adjustments scheduled during the remainder of the Lease term
shall be increased in the same ratio as the new rental bears to the Base Rent
in effect immediately prior to the adjustment specified in Landlord's Notice.
(e) Tenant's remedy for any breach of this Paragraph 12.1 by
Landlord shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Landlord's consent, any assignment or
subletting shall not (i) be effective without the express written assumption
by such assignee or subtenant of the obligations of Tenant under this Lease,
(ii) release Tenant of any obligations hereunder, nor (iii) alter the primary
liability of Tenant for the payment of Base Rent and other sums due Landlord
hereunder or for the performance of any other obligations to be performed by
Tenant under this Lease.
(b) Landlord may accept any rent or performance of Tenant's
obligations from any person other than Tenant pending approval or disapproval
of an assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of any rent for performance shall constitute a
waiver or estoppel of Landlord's right to exercise its remedies for the
Default or Breach by Tenant of any of the terms, covenants or conditions of
this Lease.
(c) The consent of Landlord to any assignment or subletting
shall not constitute a consent to any subsequent assignment or subletting by
Tenant or to any subsequent or successive assignment or subletting by the
assignee or subtenant. However, Landlord may consent to subsequent or
successive assignment or subletting by the assignee or subtenant. However,
Landlord may consent to subsequent subletting and assignments of the sublease
or any amendments or modifications thereto without notifying Tenant or anyone
else liable under this Lease or the sublease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease or the sublease.
(d) In the event of any Default or Breach of Tenant's obligation
under this Lease, Landlord may proceed directly against Tenant, any
guarantors or anyone else responsible for the performance of the Tenant's
obligations under this Lease, including any subtenant, without first
exhausting Landlord's remedies against any other person or entity responsible
therefor to Landlord, or any security held by Landlord.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Landlord's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or subtenant, including but not
limited to the intended use and/or required modification of the Premises, if
any, together with a non-refundable deposit of $1,000, as reasonable
consideration for Landlord's considering and processing the request for
consent. Tenant agrees to provide Landlord with such other or additional
information and/or documentation as may be reasonably requested by Landlord.
(f) Any assignee of, or subtenant under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be
deemed, for the benefit of Landlord, to have assumed and agreed to conform
and comply with each and every term, covenant, condition and obligation
herein to be observed or performed by Tenant during the term of said
assignment or sublease, other than such obligations as are contrary to or
inconsistent with provisions of an assignment or sublease to which Landlord
has specifically consented in writing.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Tenant of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Tenant hereby assigns and transfers to Landlord all of
Tenant's interest in all rentals and income arising from any sublease of all
or a portion of the Premises heretofore or hereafter made by Tenant, and
Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a Breach (as
defined in Paragraph 13.1) shall occur in the performance of Tenant's
obligations under this Lease, Tenant may, except as otherwise provided in
this Lease, receive, collect and enjoy the rents accruing under such
sublease. Landlord shall not, by reason of the foregoing provision or any
other assignment of such sublease to Landlord, nor by reason of the
collection of the rents from a subtenant, be deemed liable to the subtenant
for any failure of Tenant to perform and comply with any of Tenant's
obligations to such subtenant under
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such Sublease. Tenant hereby irrevocably authorizes and directs any such
subtenant, upon receipt of a written notice from Landlord stating that a
Breach exists in the performance of Tenant's obligations under this Lease, to
pay to Landlord the rents and other charges due and to become due under the
sublease. Subtenant shall rely upon any such statement and request from
Landlord and shall pay such rents and other charges to Landlord without any
obligation or right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Tenant to the contrary. Tenant
shall have no right or claim against such subtenant, or, until the Breach has
been cured, against Landlord, for any such rents and other charges so paid by
said subtenant to Landlord.
(b) In the event of a Breach by Tenant in the performance of its
obligations under this Lease, Landlord, at its option and without any
obligation to do so, may require any subtenant to attorn to Landlord, in
which event Landlord shall undertake the obligations of the sub landlord
under such sublease from the time of the exercise of said option to the
expiration of such sublease; provided, however, Landlord shall not be liable
for any prepaid rents or security deposit paid by such subtenant to such sub
landlord or for any other prior defaults or breaches of such sub landlord
under such sublease.
(c) Any matter or thing requiring the consent of the sub landlord
under a sublease shall also require the consent of Landlord herein.
(d) No subtenant under a sublease approved by Landlord shall
further assign or sublet all or any part of the Premises without Landlord's
prior written consent.
(e) Landlord shall deliver a copy of any notice of Default or
Breach by Tenant to the subtenant, who shall have the right to cure the
Default of Tenant within the grace period, if any, specified in such notice.
The subtenant shall have a right of reimbursement and offset from and against
Tenant for any such Defaults cured by the subtenant.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Landlord and Tenant agree that if any attorney
is consulted by Landlord in connection with a Tenant Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Landlord may include the cost of such services and costs in
said notice as rent due and payable to cure said default, a "DEFAULT" by
Tenant is defined as a failure by Tenant to observe, comply with or perform
any of the terms, covenants, conditions or rules applicable to Tenant under
this Lease. A "BREACH" by Tenant is defined as the occurrence of any one or
more of the following Defaults, and, where a grace period for cure after
notice is specified herein, the failure by Tenant to cure such Default prior
to the expiration of the applicable grace period, and shall entitle Landlord
to pursue the remedies set forth in Paragraphs 13.2 and/or 13.3.
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Tenant to make any payment of Base Rent, Tenant's Share of Common
Area Operating Expenses, or any other monetary payment required to be made by
Tenant hereunder as and when due, the failure by Tenant to provide Landlord
with reasonable evidence of insurance or surety bond required under this
Lease, or the failure of Tenant to fulfill any obligation under this Lease
which endangers or threatens life or property, where such failure continues
for a period of three (3) days following written notice thereof by or on
behalf of Landlord to Tenant.
(c) Except as expressly otherwise provided in this Lease, the
failure by Tenant to provide Landlord with reasonable written evidence (in
duly executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination
of this Lease per Paragraph 30, (vi) the guaranty of the performance of
Tenant's obligations under this Lease if required under Paragraphs 1.11 and
37, (vii) the execution of any document requested under Paragraph 42
(easements), or (viii) any other documentation or information which Landlord
may reasonably require of Tenant under the terms of this lease, where any
such failure continues for a period of ten (10) days following written notice
by or on behalf of Landlord to Tenant.
(d) A Default by Tenant as to the terms covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof
that are to be observed, complied with or performed by Tenant, other than
those described in Subparagraphs 13.1(a), (b), or (c), above, where such
Default continues for a period of thirty (30) days after written notice
thereof by or on behalf of Landlord to Tenant; provided however, that if the
nature of Tenant's Default is such that more than thirty (30) days are
reasonably required for its cure, then it shall not be deemed to be a Breach
of this Lease by Tenant if Tenant commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making
by Tenant of any general arrangement or assignment for the benefit of
creditors; (ii) Tenant's becoming a "debtor" as defined in 11 U.S. Code
Section 101 or any successor statute thereto (unless, in the case of
a petition filed against Tenant, the same is dismissed within sixty (60)
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
thirty (30) days; provided, however, in the event that any provision of this
Subparagraph 13.1(e) is contrary to
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<PAGE>
any applicable law, such provision shall be of no force or effect, and shall
not affect the validity of the remaining provisions.
(f) The discovery by Landlord that any financial statement of
Tenant or of any Guarantor, given to Landlord by Tenant or any Guarantor, was
materially false.
(g) If the performance of Tenant's obligations under this Lease
is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance with
the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the
subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the
guaranty, or (v) a Guarantor's breach of the guaranty obligation on an
anticipatory breach basis, and Tenant's failure, within sixty (60) days
following written notice by or on behalf of Landlord to Tenant of any such
event, to provide Landlord with written alternative assurances of security,
which, when coupled with the then existing resources of Tenant, equals or
exceeds the combined financial resources of Tenant and the Guarantors that
existed at the time of the execution of this Lease.
13.2 REMEDIES. If Tenant fails to perform any affirmative duty or
obligation of Tenant under this Lease, within ten (10) days after written
notice to Tenant (or in case of an emergency, without notice), Landlord may
at its option (but without obligation to do so), perform such duty or
obligation on Tenant's behalf, including but not limited to the obtaining of
reasonably required bonds, insurance policies, or governmental licenses,
permits or approvals. The costs and expenses of any such performance by
Landlord shall be due and payable by Tenant to Landlord upon invoice
therefor. If any check given to Landlord by Tenant shall not be honored by
the bank upon which it is drawn, Landlord, at its own option, may require all
future payments to be made under this Lease by Tenant to be made only by
cashier's check. In the event of a Breach of this Lease by Tenant (as defined
in Paragraph 13.1), with or without further notice or demand, and without
limiting Landlord in the exercise of any right or remedy which Landlord may
have by reason of such Breach, Landlord may:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate
and Tenant shall immediately surrender possession of the Premises to
Landlord. In such event Landlord shall be entitled to recover from Tenant:
(i) the worth at the time of the award of the unpaid rent which had been
earned at the time of termination; (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss
that the Tenant proves could have been reasonably avoided; (iii) the worth at
the time of award of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of such rental loss that
the Tenant proves could be reasonably avoided; and (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
the Tenant's failure to perform its obligations under this Lease or which in
the ordinary course of things would be likely to result therefrom, including
but not limited to the cost of recovering possession of the Premises,
expenses of reletting, including necessary renovation and alteration of the
Premises, reasonable attorneys' fees, and that portion of any leasing
commission paid by Landlord in connection with this Lease applicable to the
unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco or the Federal Reserve Bank District in which
the Premises are located at the time of award plus one percent (1%). Efforts
by Landlord to mitigate damages caused by Tenant's Default or Breach of this
Lease shall not waive Landlord's right to recover damages under this
Paragraph 13.2. If termination of this Lease is obtained through the
provisional remedy of unlawful detainer, Landlord shall have the right to
recover in such proceeding the unpaid rent and damages as are recoverable
therein, or Landlord may reserve the right to recover all or any part thereof
in a separate suit for such rent and/or damages. If a notice and grace period
required under Subparagraph 13.1 (b), (c) or (d) was not previously given, a
notice to pay rent or quit, or to perform or quit, as the case may be, given
to Tenant under any statute authorizing the forfeiture of leases for unlawful
detainer shall also constitute the applicable notice for grace period
purposes required by Subparagraph 13.1 (b), (c) or (d). In such case, the
applicable grace period under the unlawful detainer statute shall run
concurrently after the one such statutory notice, and the failure of Tenant
to cure the Default within the greater of the two (2) such grace periods
shall constitute both an unlawful detainer and a Breach of this Lease
entitling Landlord to the remedies provided for in this Lease and/or by said
statute.
(b) Continue the Lease and Tenant's right to possession in effect
(in California under California Civil Code Section 1951.4) after Tenant's
Breach and recover the rent as it becomes due, provided Tenant has the right
to sublet or assign, subject only to reasonably limitations. Landlord and
Tenant agree that the limitations on assignment and subletting in this Lease
are reasonable. Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver to protect the Landlord's interest
under this Lease, shall not constitute a termination of the Tenant's right to
possession.
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state wherein the Premises are
located.
(d) The expiration or termination of this Lease and/or the
termination of Tenant's right to possession shall not relieve Tenant from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Tenant's occupancy of the
Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Landlord
for free or abated rent or other charges applicable to the Premises, or for
the giving or paying by Landlord to or for Tenant of any cash or other bonus,
inducement or consideration for Tenant's entering into this Lease, all of
which concessions are hereinafter referred to as "INDUCEMENT PROVISIONS"
shall be deemed conditioned upon Tenant's full and faithful performance of
all of the terms, covenants and conditions of this Lease to be performed or
observed by Tenant, any such Inducement Provision shall automatically be
deemed deleted from this Lease and of no further force or effect,
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and any rent, other charge, bonus, inducement or consideration theretofore
abated, given or paid by Landlord under such an Inducement Provision shall be
immediately due and payable by Tenant to Landlord, and recoverable by
Landlord, as additional rent due under this Lease, notwithstanding any
subsequent cure of said Breach by Tenant. The acceptance by Landlord of rent
or the cure of the Breach which initiated the operation of this Paragraph
13.3 shall not be deemed a waiver by Landlord of the provisions of this
Paragraph 13.3 unless specifically so stated in writing by Landlord at the
time of such acceptance. LANDLORD AND TENANT ACKNOWLEDGE THAT THERE WAS NO
INDUCEMENT OR CONSIDERATION GIVEN TO TENANT TO ENTER THIS LEASE.
13.4 LATE CHARGES. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which will
be extremely difficult to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges which may be imposed
upon Landlord by the terms of any ground lease, mortgage or deed of trust
covering the Premises. Accordingly, if any installment of rent or other sum
due from Tenant shall not be received by Landlord or Landlord's designee
within ten (10) days after such amount shall be due, then, without any
requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
equal to six percent (6%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the costs
Landlord will incur by reason of late payment by Tenant. Acceptance of such
late charge be Landlord shall in no event constitute a waiver of Tenant's
Default or Breach with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder. In
the event that a late charge is payable hereunder, whether or not collected,
for three (3) consecutive installments of Base Rent, then notwithstanding
Paragraph 4.1 or any other provision of this Lease to the contrary, Base Rent
shall, at Landlord's option, become due and payable quarterly in advance.
13.5 BREACH BY LANDLORD. Landlord shall not be deemed in breach of this
Lease unless Landlord fails within a reasonable time to perform an obligation
required to be performed by Landlord. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt
by Landlord, and by any Lender(s) whose name and address shall have been
furnished to Tenant in writing for such purpose, of written notice specifying
wherein such obligation of Landlord has not been performed; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days after such notice are reasonably required for its
performance, then Landlord shall not be in breach of this Lease if
performance is commenced within such thirty (30) day period and thereafter
diligently pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises, or more than twenty-five percent
(25%) of the portion of the Common Areas designated for Tenant's parking, is
rendered unusable or taken by condemnation, Tenant may, at Tenant's option,
to be exercised in writing within ten (10) days after Landlord shall have
given Tenant written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority
takes such possession. If Tenant does not terminate this Lease in accordance
with the foregoing, this Lease shall remain in full force and effect as to
the portion of the Premises remaining, except that the Base Rent shall be
reduced in the same proportion as the rentable floor area of the Premises
taken bears to the total rentable floor area of the Premises. No reduction of
the Base Rent shall occur if the condemnation does not apply to any portion
of the Premises or reduce the amount of parking allocated by this Lease to
Tenant. Any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of
such power shall be the property of Landlord, whether such award shall be
made as compensation for diminution of value of the leasehold or for the
taking of the fee, or as severance damages; provided, however, that Tenant
shall be entitled to any compensation, separately awarded to Tenant for
Tenant's relocation expenses and/or loss of Tenant's Trade Fixtures. In the
event that this Lease is not terminated by reason of such condemnation,
Landlord shall to the extent of its net severance damages received, over and
above Tenant's Share of the legal and other expenses incurred by Landlord in
the condemnation matter, repair any damage to the Premises caused by such
condemnation authority. Tenant shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such
repair.
15. BROKER'S FEES.
15.1 PROCURING CAUSE. The Broker(s) named in Paragraph 1.10 is/are the
procuring cause of this Lease.
15.2 ADDITIONAL TERMS. Unless Landlord and Broker(s) have otherwise
agreed in writing, Landlord agrees that: (a) if Tenant exercises any Option
(as defined in Paragraph 39.1) granted under this Lease or any Option
subsequently granted, or (b) if Tenant acquires any rights to the Premises or
other premises in which Landlord has an interest, or (c) if Tenant remains in
possession of the Premises with the consent of Landlord after the expiration
of the term of this Lease after having failed to exercise an Option, or (d)
if said Brokers are the procuring cause of any other lease or sale entered
into between the Parties pertaining to the Premises and/or any adjacent
property in which Landlord has an interest, or (e) if Base Rent is increased,
whether by agreement or operation of an escalation clause herein, then as to
any of said transactions, Landlord shall pay said Broker(s) a fee in
accordance with the schedule of said Broker(s) in effect at the time of the
execution of this Lease.
15.3 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Landlord's
interest in this Lease, whether such transfer is by agreement or by operation
of law, shall be deemed to have assumed Landlord's obligation under this
Paragraph 15. Each Broker shall be an intended third party beneficiary of the
provisions of Paragraph 1.10 and of this Paragraph 15 to the extent of its
interest in any commission arising from this Lease and may enforce that right
directly against Landlord and its successors.
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15.4 REPRESENTATIONS AND WARRANTIES. Tenant and Landlord each
represent and warrant to the other that it has had no dealings with any
person, firm, broker or finder other than as named in Paragraph 1.10(a) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and that no broker or other person, firm or
entity other than said named Broker(s) is entitled to any commission or
finder's fee in connection with said transaction. Tenant and Landlord do each
hereby agree to indemnify, protect, defend and hold the other harmless from
and against liability for compensation or charges which may be claimed by any
such unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying Party, including any costs, expenses, and/or
attorneys' fees reasonably incurred with respect thereto.
16. TENANCY AND FINANCIAL STATEMENT.
16.1 TENANCY STATEMENT. Each Party (as "RESPONDING PARTY") shall
within ten (10) days after written notice from the other Party (the
"REQUESTING PARTY") execute, acknowledge and deliver to the Requesting Party
a statement in writing in a form similar to the then most current "TENANCY
STATEMENT" form published by the American Industrial Real Estate Association,
plus such additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party.
16.2 FINANCIAL STATEMENT. If Landlord desires to finance, refinance,
or sell the Premises or the Building, or any part thereof, Tenant and all the
Guarantors shall deliver to any potential lender or purchaser designated by
Landlord such financial statements of Tenant and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Tenant's financial statements for the past three (3) years. All such
financial statements shall be received by Landlord and such lender or
purchaser in confidence and shall be used only for the purposes herein set
forth.
17. LANDLORD'S LIABILITY. The term "LANDLORD" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises. In
the event of a transfer of Landlord's title or interest in the Premises or in
this Lease, Landlord shall deliver to the transferee or assignee (in cash or
by credit) any unused Security Deposit held by Landlord at the time of such
transfer or assignment. Except as provided in Paragraph 15.3, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid,
the prior Landlord shall be relieved of all liability with respect to the
obligations and/or covenants under this Lease thereafter to be performed by
Landlord. Subject to the foregoing, the obligations and/or covenants in this
Lease to be performed by the Landlord shall be binding only upon the Landlord
as herein above defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Landlord
hereunder, other than late charges, not received by Landlord within ten (10)
days following the date on which it was due, shall bear interest from ten
(10) days after the date due at the prime rate charged by the largest state
chartered bank in the state in which the Premises are located plus four
percent (4%) per annum, but not exceeding the maximum rate allowed by law, in
addition to the potential late charge provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this
Lease.
21. RENT DEFINED. All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding
shall be effective. Landlord and Tenant each represents and warrants to the
Brokers that it has made, and is relying solely upon, its own investigation as
to the nature, quality, character and financial responsibility of the other
Party to this Lease and as to the nature, quality and character of the
Premises. Brokers have no responsibility with respect thereto or with respect
to any default or breach hereof by either Party. Each Broker shall be an
intended third party beneficiary of the provisions of this Paragraph 22.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or
registered mail or U.S. Postal Service Express Mail, with postage prepaid, or
by facsimile transmission during normal business hours, and shall be deemed
sufficiently given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may
by written notice to the other specify a different address for notice
purposes, except that upon Tenant's taking possession of the Premises, the
Premises shall constitute Tenant's address for the purpose of mailing or
delivering notices to Tenant. A copy of all notices required or permitted to
be given to Landlord hereunder shall be concurrently transmitted to such
party or parties at such addresses as Landlord may from time to time
hereafter designate by written notice to Tenant.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown
on the receipt card, or if no delivery date is shown, the postmark thereon.
If sent by regular mail, the notice shall be deemed given forty-eight (48)
hours after the same is addressed as required herein and mailed with postage
prepaid. Notices delivered by United States Express Mail or overnight
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courier that guarantees next day delivery shall be deemed given twenty-four
(24) hours after delivery of the same to the United States Postal Service or
courier. If any notice is transmitted by facsimile transmission or similar
means, the same shall be deemed served or delivered upon telephone or
facsimile confirmation of receipt of the transmission thereof, provided a
copy is also delivered via delivery or mail. If notice is received on a
Saturday or a Sunday or a legal holiday, it shall be deemed received on the
next business day.
24. WAIVERS. No waiver by Landlord of the Default or Breach of any term
covenant or condition hereof by Tenant, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Tenant of the same or any other term, covenant or condition hereof.
Landlord's consent to, or approval of, any such act shall not be deemed to
render unnecessary the obtaining of Landlord's consent to, or approval of,
any subsequent or similar act by Tenant, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such
consent. Regardless of Landlord's knowledge of a Default or Breach at the
time of accepting rent, the acceptance of rent by Landlord shall not be a
waiver of any Default or Breach by Tenant of any provision hereof. Any
payment given Landlord by Tenant may be accepted by Landlord on account of
moneys or damages due Landlord, notwithstanding any qualifying statements or
conditions made by Tenant in connection therewith, which statements and/or
conditions shall be of no force or effect whatsoever unless specifically
agreed to in writing by Landlord at or before the time of deposit of such
payment.
25. RECORDING. Either Landlord or Tenant shall, upon request of the other,
execute, acknowledge and deliver to the other a short term memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Tenant has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Tenant holds over in violation of this
Paragraph 26 then the Base Rent payable from and after the time of the
expiration or earlier termination of this Lease shall be increased to one
hundred fifty percent (150%) of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination. Nothing
contained herein shall be construed as a consent by Landlord to any holding
over by Tenant.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Tenant are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "SECURITY DEVICE"), now
or hereafter placed by Landlord upon the real property of which the Premises
are a part, to any and all advances made on the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Tenant agrees that the Lenders holding such Security Device shall have no
duty, liability or obligation to perform any of the obligations of Landlord
under this Lease, but that in the event of Landlord's default with respect to
any such obligation, Tenant will give any Lender whose name and address have
been furnished Tenant in writing for such purpose notice of Landlord's
default pursuant to Paragraph 13.5. If any Lender shall elect to have this
Lease and/or any Option granted hereby superior to the lien of its Security
Device and shall give written notice thereof to Tenant, this Lease and such
Options shall be deemed prior to such Security Device, notwithstanding the
relative dates of the documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, Tenant agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not:
(i) be liable for any act or omission of any prior Landlord or with respect
to events occurring prior to acquisition of ownership, (ii) be subject to any
offsets or defenses which Tenant might have against any prior Landlord, or
(iii) be bound by prepayment of more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Landlord after the execution of this lease, Tenant's subordination of this
Lease shall be subject to receiving assurance (a "non-disturbance agreement")
from the Lender that Tenant's possession and this Lease, including any
options to extend the term hereof, will not be disturbed so long as Tenant is
not in Breach hereof and attorn to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that upon written request from Landlord or a Lender in connection
with a sale, financing or refinancing of Premises, Tenant and Landlord shall
execute such further writings as may be reasonably required to separately
document any such subordination or non-subordination, attornment and/or
non-disturbance agreement as is provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
to enforce the terms hereof or
--18-- Initials /s/ MB / JED
------------
<PAGE>
declare rights hereunder, the Prevailing Party (as hereafter defined) in any
such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered in a
separate suit, whether or not such action or proceeding is pursued to
decision or judgment. The term "PREVAILING PARTY" shall include, without
limitation, a Party or Broker who substantially obtains or defeats the relief
sought, as the case may be whether by compromise, settlement, judgment, or
the abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to full reimburse all attorneys fees
reasonably incurred. Landlord shall be entitled to attorneys' fees, costs and
expenses incurred in preparation and service of notices of Default and
consultations in connection therewith, whether or not a legal action is
subsequently commenced in connection with such Default or resulting Breach.
Broker(s) shall be intended third party beneficiaries of this Paragraph 31.
32. LANDLORD'S ACCESS; SHOWING PREMISES; REPAIRS. Landlord and Landlord's
agents shall have the right to enter the Premises at any time, in the case of
an emergency, and otherwise at reasonable times for the purpose of showing
the same to prospective purchasers, lenders, or tenants, and make such
alterations, repairs, improvements or additions to the Premises or to the
Building, as Landlord may reasonably deem necessary. Landlord may at any time
place on or about the Premises or Building any ordinary "For Sale" signs and
Landlord may at any time during the last one hundred eighty (180) days of the
term hereof place on or about the Premises any ordinary "For Lease" signs.
All such activities of Landlord shall be without abatement of rent or
liability to Tenant.
33. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Landlord's prior written consent. Notwithstanding anything to
the contrary in this Lease, Landlord shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
34. SIGNS. Tenant shall not place any sign upon the exterior of the
Premises or the Building, except that Tenant may, with Landlord's prior
written consent, install (but not on the roof) such signs as are reasonably
required to advertise Tenant's own business so long as such signs are in a
location designated by Landlord and comply with Applicable Requirements and
the signage criteria established for the Industrial Center by Landlord. The
installation of any sign on the Premises by or for Tenant shall be subject to
the provisions of Paragraph 7 (Maintenance, Repairs, Utility Installations,
Trade Fixtures and Alterations). Unless otherwise expressly agreed herein,
Landlord reserves all rights to the use of the roof of the Building and the
right to install advertising signs on the Building, including the roof, which
do not unreasonably interfere with the conduct of Tenant's business; Landlord
shall be entitled to all revenues from such advertising signs.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Landlord, the voluntary or other surrender of this lease by Tenant, the
mutual termination or cancellation hereof, or a termination hereof by
Landlord for Breach by Tenant, shall automatically terminate any sublease or
lesser estate in the Premises; provided, however, Landlord shall, in the
event of any such surrender, termination or cancellation, have the option to
continue any one or all of any existing subtenancies. Landlord's failure
within ten (10) days of following any such event to make a written election
to the contrary by written notice to the holder of any such lesser interest,
shall constitute Landlord's election to have such event constitute the
termination of such interest.
36. CONSENTS.
(a) Except for Paragraph 33 (Auctions) or as otherwise provided herein,
wherever in this Lease the consent of a Party is required to an act by or for
the other Party, such consent shall not be unreasonably withheld or delayed.
Landlord's actual reasonable costs and expenses (including but not limited to
architects', attorneys', engineers' and other consultants' fees) incurred in
the consideration of, or response to, a request by Tenant for any Landlord
consent pertaining to this Lease or the Premises, including but not limited
to consents to an assignment a subletting or the presence or use of a Hazardous
Substance, shall be paid by Tenant to Landlord upon receipt of an invoice and
supporting documentation therefor. In addition to the deposit described in
Paragraph 12.2(e), Landlord may, as condition to considering any such request
by Tenant, require that Tenant deposit with Landlord an amount of money (in
addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Landlord to represent the cost Landlord will incur in
considering and responding to Tenant's request. Any unused portion of said
deposit shall be refunded to Tenant without interest. Landlord's consent to
any act, assignment of this Lease or subletting of the Premises by Tenant
shall not constitute an acknowledgement that no Default or Breach by Tenant
of this Lease exists, nor shall such consent be deemed a waiver of any then
existing Default or Breach, except as may be otherwise specifically stated in
writing by Landlord at the time of such consent.
(b) All conditions to Landlord's consent authorized by this Lease are
acknowledged by Tenant as being reasonable. The failure to specify herein any
particular condition to Landlord's consent shall not preclude the impositions
by Landlord at the time of consent of such further or other conditions as are
then reasonable with reference to the particular matter for which consent is
being given.
37. GUARANTOR.
37.1 FORM OF GUARANTY. If there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have the
same obligations as Tenant under this lease, including but not limited to
the obligation to provide the Tenancy Statement and information required in
Paragraph 16.
37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. It shall constitute a
Default of the Tenant under this Lease if any such Guarantor fails or refuses,
upon reasonable request by Landlord to give: (a) evidence of the due
--19-- Initials /s/ MB / JED
------------
<PAGE>
execution of the guaranty called for by this Lease, including the authority
of the Guarantor (and of the party signing on Guarantor's behalf) to
obligate such Guarantor on said guaranty, and resolution of its board of
directors authorizing the making of such guaranty, together with a
certificate of incumbency showing the signatures of the persons authorized to
sign on its behalf, (b) current financial statements of Guarantor as may from
time to time be requested by Landlord, (c) a Tenancy Statement, or (d)
written confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by Tenant of the rent for the Premises
and the performance of all of the covenants, conditions and provisions on
Tenant's part to be observed and performed under this Lease, Tenant shall
have quiet possession of the Premises for the entire term hereof subject to
all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Lease, the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Tenant has on other property
of Landlord or the right of first offer to lease the Premises, or the right
of first refusal to lease other property of Landlord or the right of first
offer to lease other property of Landlord; (c) the right to purchase the
Premises, or the right of first refusal to purchase the Premises, or the
right of first offer to purchase the Premises, or the right to purchase other
property of Landlord, or the right of first refusal to purchase other
property of Landlord, or the right of first offer to purchase other property
of Landlord.
39.2 OPTIONS PERSONAL TO ORIGINAL TENANT. Each Option granted to
Tenant in this Lease is personal to the original Tenant named in Paragraph
1.1 hereof, and cannot be voluntarily or involuntarily assigned or exercised
by any person or entity other than said original Tenant while the original
Tenant is in full and actual possession of the Premises and without the
intention of thereafter assigning or subletting. The Options, if any, herein
granted to Tenant are not assignable, either as a part of an assignment of
this Lease or separately or apart therefrom, and no Option may be
separated from this Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Tenant has any multiple
Options to extend or renew this Lease, a later option cannot be exercised
unless the prior Options to extend or renew this Lease have been validly
exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Tenant shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i)
during the period commencing with the giving of any notice of Default under
Paragraph 13.1 and continuing until the noticed Default is cured, or (ii)
during the period of time any monetary obligation due Landlord from Tenant is
unpaid (without regard to whether notice thereof is given Tenant), or (iii)
during the time Tenant is in Breach of this Lease, or (iv) in the event that
Landlord has given to Tenant three (3) or more notices of separate Defaults
under Paragraph 13.1 during the twelve (12) month period immediately
preceding the exercise of the Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Tenant's inability to
exercise an Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Tenant under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Tenant's due
and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Tenant fails to pay to Landlord a monetary obligation
of Tenant for a period of thirty (30) days after such obligation becomes due
(without any necessity of Landlord to give notice thereof to Tenant), or (ii)
Landlord gives to Tenant three (3) or more notices of separate Defaults
under Paragraph 13.1 during any twelve (12) month period, whether or not the
Defaults are cured, or (iii) if Tenant commits a Breach of this Lease.
40. RULES AND REGULATIONS. Tenant agrees that it will abide by, and keep
and observe all reasonable rules and regulations ("Rules and Regulations")
which Landlord may make from time to time for the management, safety, care,
and cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants
or tenants of the Building and the Industrial Center and their invitees.
41. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of the
Premises, Tenant, its agents and invitees and their property from the acts of
third parties.
42. RESERVATIONS. Landlord reserves the right, from time to time, to grant,
without the consent or joinder of Tenant, such easements, rights of way,
utility raceways, and dedications that Landlord deems necessary, and to cause
the recordation of parcel maps and restrictions, so long as such easements,
rights of way, utility raceways, dedications, maps and restrictions do not
materially interfere with the use of the Premises by Tenant. Tenant agrees to
sign any documents reasonably requested by Landlord to effectuate any such
easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the
--20-- Initials /s/ MB / JED
------------
<PAGE>
provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, limited
liability company, or general or limited partnership, each individual
executing this Lease on behalf of such entity represents and warrants that he
or she is duly authorized to execute and deliver this Lease on it behalf. If
Tenant is a corporation, limited liability company, trust or partnership,
Tenant shall, within thirty (30 days after request by Landlord, deliver to
Landlord evidence satisfactory to Landlord of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisioins shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by either Landlord or Tenant or
Landlord's agent or Tenant's agent and submission of same to Tenant or
Landlord shall not be deemed an offer to lease. This Lease is not intended to
be binding until executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Tenant's obligations or RIGHTS hereunder, Tenant agrees to
make such reasonable non-monetary modification to this Lease as may be
reasonably required by an institutional insurance company or pension plan
Lender in connection with the obtaining of normal financing or refinancing of
the property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Landlord or Tenant,
the obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Landlord
or Tenant.
49. TENANT IMPROVEMENTS. Landlord, at Landlord's sole cost, shall construct
tenant improvements based on a mutually agreeable floorplan which shall
be attached hereto as Exhibit B and shall consist of the following: 100%
HVAC with 2/3 office and 1/3 open manufacturing area. The office shall
have 15 private offices, 2 conference rooms, 1 lunchroom and an open
office area. The balance of the premises shall be open manufacturing
area. Standard office HVAC and electrical distribution are assumed. Any
specialty electrical requirements of HVAC needs will be the
responsibility of Tenant.
50. EXPANSION OPTION. Lessee shall have the first right to offer on any
expansion space in the building.
51. SQUARE FOOTAGE ADJUSTMENT. Landlord and Tenant agree that the exact
square footage of the Premises will be determined during the design
process. The rent shall be adjusted accordingly when the floorplan is
agreed upon and this Lease shall be amended, in writing, to reflect the
actual square footage.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PREMISES.
THIS LEASE PREPARED FOR YOUR ATTORNEY'S REVIEW AND
APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO THE
PRESENCE OF ASBESTOS, UNDERGROUND STORAGE TANKS OR
HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL
REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKERS
OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES
OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES;
THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF
THEIR OWN COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY
IS IN A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM
THE STATE WHERE THE PROPERTY IS LOCATED SHOULD BE
CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Fremont, CA Executed at: ALBUQUERQUE, NM
----------------------- -----------------
--21-- Initials /s/ MB / JED
------------
<PAGE>
on: 9/22/99 on: SEPTEMBER 17, 1999
------------------------- -------------------------------
By Landlord: By Tenant: SBS TECHNOLOGIES, INC.
B-L NEWARK 3175, LLC
By: /s/ MB By: /s/ J.E. Dixon
-------------------------- --------------------------------
Name Printed: Marc Barkdull Name Printed: J.E. Dixon
----------------------
Title: Manager Title: V.P. FINANCE & ADMINISTRATION
------------------------------
Address: 4175 Business Center Drive Address: 2400 LOUISIANA BLVD. NE
Fremont, CA 94538 AFC 5, SUITE 600
ALBUQUERQUE, NM 87110
Telephone: (510) 226-6957 Telephone: (505) 875-0600
-------------------
Facsimile: (510) 226-6905 Facsimile: (505) 875-0404
-------------------
--22-- Initials /s/ MB / JED
------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND CONSOLIDATED STATEMENTS OF OPERATIONS FOUND IN
THE COMPANY'S 10-Q FOR THE YEAR-TO-DATE, AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 2,239,922
<SECURITIES> 0
<RECEIVABLES> 23,088,486
<ALLOWANCES> 774,637
<INVENTORY> 17,257,383
<CURRENT-ASSETS> 45,081,316
<PP&E> 7,299,682
<DEPRECIATION> 3,905,344
<TOTAL-ASSETS> 92,135,474
<CURRENT-LIABILITIES> 11,394,394
<BONDS> 0
0
0
<COMMON> 50,820,819
<OTHER-SE> 29,920,261
<TOTAL-LIABILITY-AND-EQUITY> 92,135,474
<SALES> 28,023,122
<TOTAL-REVENUES> 28,023,122
<CGS> 12,452,627
<TOTAL-COSTS> 23,145,212
<OTHER-EXPENSES> 0
<LOSS-PROVISION> (8,827)
<INTEREST-EXPENSE> 59,914
<INCOME-PRETAX> 4,976,912
<INCOME-TAX> 1,843,020
<INCOME-CONTINUING> 3,133,892
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,133,892
<EPS-BASIC> 0.54
<EPS-DILUTED> 0.50
</TABLE>
