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U.S. Securities and Exchange Commission
Washington, D.C. 20549
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FORM 10-KSB
[X]ANNUAL REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF
1934 (Fee Required) For the fiscal
year ended December 31, 1998
Commission File No.
1-11476
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
(Name of small business issuer in its charter)
California 95-3977501
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
21 West Easy Street, Unit 106
Simi Valley, California 93065
(805) 578-8330
(Address and telephone number of principal executive offices)
Securities registered under Section 12(b) of the Exchange Act:
Title of each class:
Common Stock $.001 stated value
Securities registered under Section 12(g) of the Exchange Act: None
Name of each exchange on which registered: None
Check whether the issuer (l) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for
such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
Yes __X_ No __
Check if there is no disclosure of delinquent filers in response to
Item 405 of Regulation S-K contained in this form, and no disclosure will
be contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-KSB or any amendment to this Form 10-KSB___.
As of March 1, 1999 there were 90,245,360 shares of Voice
Powered Technology International, Inc. Common Stock, $.001 par value,
outstanding. The aggregate market value of the issuer's Common Stock held
by non-affiliates as of March 1, 1999, based on the closing price on that
date, was approximately $486,000.
The registrant's Proxy Statement for its 1999 annual meeting
of stockholders is hereby incorporated by reference into Part III of this
Form 10-KSB.
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VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
FORM 10-K
TABLE OF CONTENTS
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Page
PART I
Item 1 Description of Business 1
Item 2 Description of Property 7
Item 3 Legal Proceedings 7
Item 4 Submission of Matters to a Vote of Security Holders 7
PART II
Item 5 Market for Common Equity and Related Stockholder Matters 8
Item 6 Selected Financial Data 9
Item 7 Management's Discussion and Analysis of Financial
Conditions and Results of Operations 10
Item 8 Financial Statements and Supplementary Data 14
Item 9 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 30
PART III
Item 10 Directors and Executive Officers of the Registrant 30
Item 11 Executive Compensation 30
Item 12 Security Ownership of Certain Beneficial Owners
and Management 30
Item 13 Certain Relationships and Related Transactions 30
Item 14 Exhibits and Reports on Form 8-K 30
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PART I
Item 1. Description of Business
General
Voice Powered Technology International, Inc. (the "Company"),
incorporated in California in June 1985, began active operations in January
1990. The Company was formed to develop, market, and distribute low-cost voice
recognition and voice activated products on a worldwide basis, both directly and
through licensing agreements. From January 1990 until July 1992, the Company
operated as a development stage enterprise.
The Company's voice recognition VoiceLogic(TM) Technology (the
"Technology"), which is now licensed from its major shareholder, is fully
developed and in commercial use and has been included in a variety of consumer
oriented products manufactured for the Company under contract with third
parties. The Technology consists of a combination of rights, developed and
acquired, which are now licensed by the Company. This Technology permits
utilization of the human voice as a replacement for manual controls, such as
buttons, switches, and dials in activating and controlling everyday consumer and
business products and can operate on microprocessors powered by only penlight or
nicad batteries. The Technology can also be licensed for use in a variety of
products with only limited modifications to the application software for
adaptation to the specific product. The core Technology can also be adapted
easily for use in virtually any spoken language in the world, thus enabling it
to be used in virtually any country in the world.
In October 1993, the Company introduced its first voice activated
electronic personal organizer. This product was the first personal organizer to
combine digital recording for data storage with voice recognition for easy input
and retrieval. The IQoVOICE(TM) Organizer has been, since its introduction, the
Company's most successful product generating sales of approximately 600,000
units to date.
Since the calendar quarter ended December 31, 1995, the Company has
experienced sustained significant operating losses. These losses were the result
of multiple factors inclusive of unsuccessful introductions of new models of the
Company's core product line (the IQoVOICE Organizer), failed launches of new
products, increased competition from lower priced digital recorders, and a
general decline in domestic retail sales of the hand-held electronics category.
Through 1996 and the first nine months of 1997, the Company attempted
to improve its financial condition by reducing fixed operating costs,
liquidating inventories, streamlining operating departments, and entering into
two significant transactions in an attempt to strengthen the Company's financial
position. Despite these efforts, the Company was unable to generate sufficient
revenues and gross profit to sustain its ongoing operations, further depleting
cash and working capital.
On September 22, 1997, the Company filed a voluntary petition for
relief with the United States Bankruptcy Court, Central District of California,
under the provisions of Chapter 11 of the Bankruptcy Code (the "Bankruptcy
Proceedings").
On January 21, 1998, the Company, in conjunction with Franklin Electronic
Publishers, Inc. ("Franklin"), the Company's largest secured creditor, filed a
combined Amended Disclosure Statement and Plan of Reorganization (the "Plan")
with the Bankruptcy Court. The Plan included a significant reduction of the
Company's pre-petition obligations, in addition to Franklin's waiving its
pre-petition secured claim in the amount of $1,733,990 in exchange for an
additional 80% interest in the equity of the Company. The Disclosure Statement
was approved as to form by the Bankruptcy Court, and was submitted to all
interested parties for approval. On March 16, 1998, the Company filed a motion
with the Bankruptcy Court for confirmation of the Plan, and at a hearing held on
April 23, 1998, the Company's motion for confirmation of the Plan was granted
and the order confirming the Plan was entered by the Court on April 29, 1998
(the "Order"). The Plan became effective on May 12, 1998 (the "Effective Date").
In accordance with the Plan, on or about the Effective Date, the
following occurred: 1) the Company received a loan of $350,000 from Franklin
(the "Plan Loan") to create a fund dedicated to the payment of creditor claims
and certain administrative expenses (the Plan Loan accrues interest at 8% per
annum, with interest only payable in arrears on a monthly basis and principal
all due and payable in a lump sum payment five years from the
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Effective Date); 2) the 500,000 shares of outstanding convertible preferred
stock were converted into 2,000,000 shares of the Company's common stock; and 3)
the Company's Articles of Incorporation were amended to, among other things,
increase the authorized shares of common stock to 100,000,000. Pursuant to the
Plan Franklin was issued 72,196,288 shares of the Company's common stock, which
equated to an additional 80% equity interest in the Company in exchange for
Franklin's pre-petition secured claim in the amount of $1,733,990.
Since the commencement of the Bankruptcy Proceedings, the Company
discontinued shipments of its IQoVOICE Organizer products, the Company's primary
product line, to many of its major domestic retail customers. For the year ended
December 31, 1998, the Company's domestic business activities have consisted of
sales of IQoVOICE Organizer products to smaller retailers and wholesale accounts
and through various direct marketing programs. Since March 1998, the Company has
expanded its international marketing activities of its IQoVOICE Organizer
products as a result of a successful television direct marketing campaign, which
began in Mexico. As a result of the Company's reduced dependency on sales to
major domestic retailers, the Company has significantly decreased its variable
and fixed operating costs, including the reduction of a number of its officers
and other employees.
Management of the Company is presently focused on the continued
expansion of its international sales of the IQoVOICE Organizer products, the
development of targeted domestic direct marketing channels for its current
products, as well as pursuing licensing opportunities for its Technology.
The VoiceLogic Technology
The Technology is proprietary technology which, since May 1997, has
been licensed by the Company from Franklin. As of February 1996, the Company had
acquired from the inventor of the Technology all right, title, interest, and any
future improvements in and to the Technology, subject to payment of ongoing
royalties, thereby eliminating any and all limitations as to the Company's use
of the Technology. In May 1997, in conjunction with an omnibus transaction with
Franklin which also included sale of a portion of the Company's product line,
licensing of the Company's patent and financing, the Company assigned ownership
of the Technology to Franklin and Franklin granted back to the Company a
non-exclusive license for the Technology, inclusive of the right to sublicense.
The Technology is protected by copyrights and trade secrets. The low-cost,
low-power consumption, portable, and compact features of the Technology were
designed for use in conjunction with everyday mass-marketed consumer and
business electronic products. The Technology incorporates a proprietary voice
recognition algorithm capable of operating on most low-cost eight-bit
microprocessors. Further, the Technology is speaker-dependent technology, which,
though requiring training, is easily adaptable for use in any language.
The Company believes that its Technology provides accurate voice
recognition at lower cost, and with less power required, than can be provided by
alternative technologies suitable for low power, portable applications.
Products Currently Marketed
Prior to the commencement of the Bankruptcy Proceedings, the Company
developed a variety of voice activated consumer products, including the
Company's most successful product line, the IQoVOICE Organizer, as well as
engaged in on-going exploratory development activities of various other voice
activated products which the Company believed would provide enhanced consumer
benefits as a result of the inclusion of voice technologies. To date, nearly all
of the Company's sales are derived from the IQoVOICE Organizer product line. In
addition to the IQoVOICE Organizers, in 1996 the Company marketed the IQoVOICE
Tell-It Phone, the IQoVOICE Message Pad and the IQoVoice Organizer/ Pager, all
of which were subsequently discontinued.
IQoVOICE Organizer. The IQoVOICE Organizer ("Organizer") functions as a
voice-operated, palm-sized, electronic notebook, calendar, message prompter, and
telephone directory. Data entry and retrieval are largely accomplished by voice,
eliminating the need for tedious keypad data entry required by existing
electronic organizer products. The Organizer receives and stores voice messages,
then plays them back at designated dates and times. As an example, a user
wishing to calendarize an important phone call to John Jones at 10 am on the
upcoming Tuesday would say: "Call John Jones, 10 am, Tuesday." The Organizer
would beep at 10 am, Tuesday, and with the press of a button, the user would
hear the user's recorded message, "Call John Jones."
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The Organizer also functions as an appointment calendar. Appointments
are entered by voice and are automatically arranged chronologically by date and
time. The user is then able to review the calendar for a particular day merely
by saying the day or date, and listening to the stored appointments.
Appointments may be stored up to one year in advance.
The Organizer also permits the user to create a telephone directory by
storing names and telephone numbers entirely by voice. Numbers can then be
recalled and displayed on the LCD screen by simply speaking the person's name
into the Organizer. The Organizer also verbally states the person's name to
ensure that the correct number has been recalled. The Organizer is only slightly
larger than a credit card, fits easily into a shirt pocket, purse, notebook, or
briefcase, and weighs three ounces, including batteries.
In September 1997 the Company introduced its current line of the
IQoVOICE Organizer product. This line of products utilizes a state-of-the-art
technology for compression of voice data, which enables the units to store
fifteen (15) minutes of digitally compressed audio data in the same 512 KB Flash
memory that previously allowed only four (4) minutes of audio data. These new
models feature, in addition to all of the features previously contained in the
IQoVOICE Organizer, a proprietary personal computer interface ("PCLink") which
allows the user to archive to a personal computer all of the voice memos,
reminders, and telephone numbers stored in the IQoVOICE Organizer. The computer
interface also permits the user, using a computer keyboard, to add limited text
or numeric labels to selected data stored in the IQoVOICE Organizer such as
names of files, and names and for telephone directory entries, as well as
affording the user the ability to add more detailed text, such as addresses,
which are stored on the user's PC. Further, using the PCLink software, the user
can send voice files over most PC based e-mail systems. These units also feature
a backlit display. During 1997, the Company introduced models within this
product line with recording capacities of 15, 30, and 60 minutes, phone
directories for up to 800 phone numbers for 200 names, and storage of up to 250
memos and reminders. Retail prices for these products range between $99 and
$169. Also, international models of this product line capable of displaying text
information in five languages (English, German, French, Spanish and Italian)
were introduced in the second quarter of 1998. The Company has also
substantially completed development of its PCLink software in each of these five
languages.
Markets for the Company's Products
Domestic. The domestic markets for the Company's products potentially
include all distribution channels where customers are likely to shop for such
electronic products. Prior to the commencement of the Bankruptcy Proceedings the
Company had obtained distribution in many of these channels including specialty
electronic retailers, catalogs, office superstores and department stores. The
Company also utilized direct response marketing to advertise and promote its
products directly to consumers through various media, including magazines,
newspapers, in-flight magazines and other periodicals. Since the commencement of
the Bankruptcy Proceedings, concern on the part of the Company's major retail
customers over the Company's financial stability, the limited cash and working
capital resources available to the Company, and the potential exposure to the
Company which would result from price protection, advertising and stock
balancing commitments required by these major retail customers, the Company
discontinued shipments of its IQoVOICE Organizer products to most of its major
domestic retail customers. At present, the Company is engaged in only limited
domestic sales activities of its IQoVOICE Organizer products consisting of sales
to smaller retailers and wholesale accounts, various targeted direct marketing
programs and internet sales through the Company's web site www.vpti.com. The
Company's ability to reintroduce its products to major domestic retail and
catalogue accounts will depend upon the Company's ability to generate adequate
working capital to support such sales activities.
In June 1998, the Company purchased $457,000 of inventory from
Franklin, which included a variety of models of electronic organizers. The
Company utilized this inventory to generate additional sales and working
capital. As of December 31, 1998, sales which can be attributed to Franklin
products amounted to $370,000. During the fourth quarter of 1998, the Company
had sales to one customer of one item from the foregoing inventory, which
totaled $266,000, exceeding 10% of the Company's total sales for 1998.
In 1997, the Company had one domestic customer whose purchases,
totaling $418,000, exceeded 10% of the Company's net sales.
International. As the Company's VoiceLogic Technology is adaptable to
virtually any language, the Company designs and manufactures its products to be
marketed on a worldwide basis. In March 1998, the Company
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entered into an distribution agreement with a television marketing company
headquartered in Mexico ("Distributor"), granting Distributor exclusive
marketing rights for its IQoVOICE Organizer products within the country of
Mexico contingent upon Distributor's achieving certain minimum sales objectives.
Distributor's primary method of marketing is via direct sales to end users
through television advertising. Distributor, at its sole cost and expense,
produced a thirty (30) minute television program, known as an infomercial,
featuring the IQoVOICE Organizer (the "Infomercial"). This form of direct sales
was successful in Mexico until September 1998, at which time sales decreased
significantly as a result of the declining economic conditions in Mexico and
their related impact on consumer purchasing in that country. In September 1998,
the Company entered into a license agreement with Distributor pursuant to which
the Company was granted the worldwide right (excluding Mexico, Brazil and Chile)
to license to unrelated third parties the right to broadcast the Infomercial,
including the right to reproduce, edit, modify, add voice-overs, prepare
derivative works and otherwise alter the Infomercial. In consideration of the
license granted by Distributor, the Company agreed to pay royalties to
Distributor based upon the Company's sales of its IQoVOICE Organizer products to
licensees of the Infomercial. To date, the Company has entered into agreements
with television marketing companies in Spain, France and Belgium, Italy,
Argentina, Colombia and Peru. The infomercial has aired in Spain and Belgium
with positive results, and the Company anticipates continued airings and sales
in 1999 for these markets. In Peru and Colombia test airings of the infomercial
were not successful potentially due to the highly unstable economic conditions
in those markets. The company is actively pursuing additional licensees in
countries throughout Europe, the Far East and the Middle East with experience in
marketing and distributing products using television marketing.
For the year ended December 31, 1998, sales to the Distributor in Mexico
totaled $659,000, exceeding 10% of the Company's total sales, of which $605,000
occurred after May 12, 1998, the Effective Date of the Plan.
Markets for the VoiceLogic Technology
The Company seeks to obtain licensing arrangements with manufacturers
in product categories for which the Company believes the Technology provides
value-added differentiation with a relatively low incremental manufacturing
cost. These categories have included telecommunications, personal electronics,
video and audio, wireless communications, and toys, as well as semiconductor
manufacturers who manufacture and distribute microprocessors for inclusion in
the above product categories. To date, none of the products for which the
Technology as been licensed has achieved commercial success.
Competition
The consumer electronics industry is highly competitive. Since
commencement of the Bankruptcy Proceedings, the Company has significantly
reduced its research and development activities, and has eliminated all but one
of its full time engineering and development personnel in order to conserve cash
resources. Such reduction will diminish the Company's ability to keep pace with
new technologies and developments, which could impede the Company's ability to
compete. Furthermore, the Company's current products compete with those of
various companies which currently market consumer and business oriented
electronics products. Many of these competitors are larger, have greater and
stronger financial resources, name recognition, and reputation, and have more
established channels of distribution and marketing capabilities than the
Company.
IQoVOICE Organizer. The Company believes its IQoVOICE Organizer is a unique
product that competes indirectly with electronic personal organizers and paper
bound personal organizers, both of which have developed markets of substantial
size. The Company believes that the Organizer's unique voice data entry
distinguishes it from other electronic and paper based organizer products. The
Organizer also competes with lower cost digital recorders and voice managers,
neither of which has the capability to retrieve data by voice command. These
devices are capable of performing only a memo recording function by voice. The
Company believes that its PC compatible product line also competes with pocket
electronic devices designed to exchange data with a PC computer. In order for
the Company to compete successfully in the PC compatible category in the future,
the Company will need to dedicate significant resources to the improvement of
its PCLink software to enable greater flexibility, features, and processing
speed, as well as compatibility with other existing PC based personal
information management software. No assurance can be given that adequate
financial and technical resources will be available to the Company in order to
develop such improvements.
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Technology. The VoiceLogic Technology competes with other voice recognition
technologies currently available, as well as others that are in development.
Among the companies that have developed and are marketing these technologies,
several are larger and have stronger financial resources, name recognition, and
marketing capabilities than the Company. The Company is aware of two voice
recognition technologies that are capable of operating on an eight-bit
microprocessor. These technologies are being offered in the form of chips for
potential licensing applications. Neither technology is believed to be as cost
effective as the Company's VoiceLogic Technology. No assurance can be given that
the Company will be able to compete with new technologies in the future.
Manufacturing
During 1996, the Company had entered into agreements with two new
sources of manufacturing for the Company's products. In February 1996, the
Company entered into an agreement with GSS, a U.S. manufacturer with
manufacturing facilities in the United States, China, and Thailand for the
manufacture of the Company's products on a non-exclusive basis. This agreement
had an initial one-year term and provided for the Company to receive from GSS
30-day payment terms for all goods manufactured and shipped. The Company had not
been current in its payments to GSS. An agreement was reached in May 1997
resolving the outstanding balance with GSS, as well as revised payment terms for
future orders.
In May 1997, the Company began manufacturing at a new factory with
headquarters in Hong Kong and manufacturing facilities in the Peoples Republic
of China. At present, this new factory is manufacturing all of the Company's
products for both domestic and international customers. The Company believes
this source of manufacturing provides higher quality at lower prices than any of
the Company's previous contract manufacturers, and has adequate manufacturing
capacity to meet the Company's needs in the foreseeable future. All goods
purchased from this manufacturer are paid for in cash prior to shipment.
Each of the Company's products typically utilizes a sole source for
certain critical components of such products including the microprocessor and
memory chips. The Company has no agreement with such suppliers of these chips,
and interruption of such source of supply could adversely affect the Company
until an alternative supplier could be found. Alternative sources are available,
and the Company believes it could make alternative arrangements however such
change would result in some increase in component cost as well as delays in
production.
Patents and Copyrights
Prior to February 1996, the Company was the licensee under three
license agreements with respect to the Technology, which together aggregated the
foundation of the Company's exclusive rights to the Technology. One of the
license agreements was with the original inventor ("Inventor") of the
Technology, who was also a director of the Company through May 1998. The other
two license agreements were with a company ("Licensor") to whom the Inventor had
assigned certain rights with respect to the Technology. These agreements also
had annual minimum royalties payable by the Company to retain exclusivity which
varied depending upon the agreement and the product category.
On February 20, 1996, the Company entered into a new agreement with the
Inventor which effectively replaced the three prior licensing agreements, the
result of which was that the Company acquired all right, title, interest, and
any future improvements in and to the Technology, inclusive of an assignment of
all intellectual property rights associated with the Technology. In
consideration of this transfer, the Company agreed to pay $100,000 in two
installments to the Inventor, $50,000 of which was paid at the execution of the
agreement, and $50,000 of which was paid in July 1996. In addition, the Company
granted an option to purchase 33,333 shares of the Company's common stock to the
Inventor of the Technology at an exercise price per share which was cumulatively
$50,000 lower than the then current market value as a means of paying the
balance of the purchase price for the rights. In addition, the agreement
required payment of royalties by the Company to the Inventor equal to: 1) $0.50
per unit for each unit of any product sold by the Company which contains the
Technology; 2) 5% of net proceeds from the sales of computer chips which contain
the Technology; and 3) 15% of licensing revenues (excluding licensing revenues
for computer chips) received by the Company as a result of licensing agreements
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relating to the Technology. The foregoing royalties were subject to a minimum of
$60,000 per year payable quarterly. In May 1997, this agreement with the
Inventor was assigned to Franklin Electronic Publishers, Inc. under the terms of
a Technology Transfer Agreement. Under the Technology Transfer Agreement the
Company transferred to Franklin certain rights evidenced by patent and
copyright, and assigned certain rights to the VoiceLogic Technology in exchange
for a non-refundable royalty advance, with Franklin granting back to the Company
a non-exclusive license to the Technology to utilize in Voice Organizer products
with recording times in excess of four minutes in duration, as well as to use
and/or sublicense the Technology in any other product category. With respect to
the annual minimum royalty due the Inventor by Franklin, the Company remains
obligated to Franklin for the $60,000 per year less royalties due and payable to
the Inventor by Franklin.
The Company has been granted a United States patent related to the
functionality of the Company's Voice Organizer. The Company is currently
prosecuting two trademark applications with the United States Patent and
Trademark Office. No assurance can be made that the patent issued will provide
significant proprietary protection or will be circumvented or invalidated.
Additionally, since issuance of a patent does not guarantee the right to
practice the claimed invention, there can be no assurance that others will not
obtain patents that the Company would need to license or design around in order
to practice its patented technologies, or that licenses that might be required
to practice these technologies due to patents of others would be available on
reasonable terms. Further, there can be no assurance that any unpatented
manufacture, use, or sale of the Company's Technology, processes, or products
will not infringe on patents or proprietary rights of others. The Company also
relies on trade secret laws for the protection of its intellectual property, and
there can be no assurance that others will not independently develop
substantially equivalent proprietary information and techniques or otherwise
gain access to the Company's trade secrets or disclose such technology, or that
the Company can meaningfully protect its rights to unpatented trade secrets.
From time to time the Company receives notices from other companies with
respect to patents. The Company has received such notices during past years and
believed such notices were irrelevant to the Company's products or, to the
extent relevant, the noticed patents were not infringed and/or valid. However,
no assurance can be given that the Company's use or sale of its products will
not result in challenges from other third parties claiming patents, copyrights
or other rights to such products or parts thereof in the future. The Company may
find it advantageous, or may be required, to purchase additional licenses in the
future.
Given the fact that the Company has assigned its rights in the
Technology to Franklin, the Company has no continuing rights to control the
disposition of the Technology. However, the Company has a non-exclusive
perpetual license from Franklin, including the right to sublicense, for the
development, manufacture, sale, and distribution of Voice Organizer products
with recording times in excess of four minutes and any other electronic products
that are not Voice Organizers, subject to the Company's remaining obligated to
pay royalties to Franklin at the same rates for which the Company was obligated
to the inventor of the VoiceLogic Technology prior to its assignment to Franklin
Employees
As of March 1, 1999, the Company had 12 employees, of whom one was
manufacturing/research and development, four were general and administrative,
four were warehousing, and three were customer service. None of the Company's
employees are represented by a labor union, and the Company is not aware of any
current efforts to unionize the employees. Management of the Company considers
the relationship between the Company and its employees to be good.
Research and Development Costs
For the years ended December 31, 1997 and 1996, the Company spent $684,000
and $1,062,000 respectively, on research and development. For the year ended
December 31, 1998, the Company spent $315,004 on research and development of
which $184,678 was spent subsequent to May 12, 1998, the Effective Date of the
Plan. Since the commencement of the Bankruptcy Proceedings, the Company had
suspended development of new products. Subsequent to the Effective Date, the
Company has resumed limited development activities related to potential
improvements to its IQoVOICE Organizer products and the VoiceLogic Technology.
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Item 2. Description of Property
Since August, 1998, the Company has rented facilities for its main
offices and service operations from an unrelated party, consisting of
approximately 6,175 square feet of space in Simi Valley, California, for an
aggregate annual rental of $58,248. The lease expires April 14, 2001. Franklin
has provided a limited guaranty of the Company's performance pursuant to the
foregoing lease.
Item 3. Legal Proceedings
On August 26, 1997, the Company was served with a civil action
initiated by Everen Securities Inc. and filed in the United States District
Court, Northern District of Illinois, asserting a claim against the Company in
the amount of $435,000. Everen Securities Inc. had been retained by the Company
in May 1996 to assist the Company in seeking out strategic alternatives,
inclusive of potential financing and merger candidates. The Company terminated
its agreement with Everen in February 1997. The suit asserted a claim against
the Company of $435,000 for fees allegedly due as a result of the aforementioned
May 1997 Franklin transaction. Although the Company disputed this claim, it did
not have adequate cash resources to defend this suit. In conjunction with the
Bankruptcy Proceedings, the Company entered into an agreement with Everen in
which the Company agreed not to object to an unsecured claim by Everen in the
amount of $300,000, which was resolved in accordance with the Bankruptcy
Proceedings.
Item 4. Submission of Matters to a Vote of Security Holders - None
Executive Officers of the Registrant
Name Age Position
Gregory J. Winsky 48 Chief Executive Officer, Director
Mitchell B. Rubin 44 President, Director
Barry Lipsky 47 Secretary, Director
Mr. Winsky was elected Chief Executive Officer and Chairman of the Board of
the Company on September 3, 1998. Since 1993, Mr. Winsky has served as Senior
Vice President of Franklin. He joined Franklin as Vice President and Secretary
in June 1984.
Mitchell B. Rubin joined the Company as vice president and general
manager in January 1994, and was elected a director in July 1994. In December
1994, Mr. Rubin assumed the newly created position of vice president, finance
and operations, which included the responsibilities of chief financial officer;
and in January 1995 Mr. Rubin was also appointed secretary of the Company. From
May 1997 through the Effective Date of the Plan, Mr. Rubin served as the
Company's president and CEO, and in December 1997, was appointed chairman of the
board of directors. Previously, from July 1991 through 1993, Mr. Rubin held
various positions (including executive vice president and chief operating
officer from April 1992 through 1993) with Regal Group, Inc., a television
direct-response company with which the Company did business.
Barry J. Lipsky was elected Secretary of the Company on September 3, 1998.
He has served as Executive Vice President for Franklin since 1997. He joined
Franklin as Vice President in February 1985.
PART II
Item 5. Market for Common Equity and Related Stockholders Matters
The Company's Common Stock, "VPTI," and Warrants, "VPTIW," had been
quoted on NASDAQ since the Company's initial public offering on October 20,
1992. The Company's Stock and Warrants were delisted from NASDAQ on April 9,
1997 and the Company's Warrants expired in October 1997. The Company's Common
Stock
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continues to be quoted on the OTC Bulletin Board. The following table sets
forth, for the periods indicated, the high and low closing bid prices for the
Company's Common Stock and Warrants, as reported on NASDAQ or the OTC Bulletin
Board, for the quarters presented. Bid prices represent inter-dealer quotations
without adjustments for markups, markdowns, and commissions, and may not
represent actual transactions.
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Bid Prices
High Low
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Calendar 1997
First Quarter
Common Stock 9/16 1/8
Warrants 1/16 1/16
Second Quarter
Common Stock .33 .03
Warrants 1/16 1/16
Third Quarter
Common Stock 3/16 .05
Warrants 1/16 .01
Fourth Quarter
Common Stock .39 .01
Warrants -- --
Calendar 1998
First Quarter
Common Stock .07 .03
Second Quarter
Common Stock .21 .05
Third Quarter
Common Stock .11 .05
Fourth Quarter
Common Stock 1/16 .03
</TABLE>
At March 1, 1999 there were 90,245,360 shares of Common Stock
outstanding, which were held by approximately 6,000 shareholders of record,
including approximately 100 broker/dealers in street name on behalf of
shareholders. As of such date, there were no warrants outstanding to purchase
shares of the Company's common stock.
The Company has never paid any dividends to its common stock
shareholders. Future cash dividends or special payments of cash, stock or other
distributions, if any, will be dependent upon the Company's earnings, financial
condition, and other relevant factors. The Board of Directors does not intend to
pay or declare any dividends in the foreseeable future, but instead intends to
have the Company retain all earnings, if any, for use in the Company's business.
-8-
<PAGE> 11
Item 6. Selected Financial Data
The following tables should be read in conjunction with the
consolidated financial statements of the Company and the notes thereto and the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section appearing elsewhere herein.
STATEMENT OF OPERATIONS DATA
<TABLE>
May 13 to || January 1 to For the years ended
December 31, || May 12, December 31,
1998 || 1998 1997 1996
---- || ---- ---- ----
|| Debtor in Debtor in
|| Possession Possession
--------------- || --------------------------------------------------
<S> <C> || <C> <C> <C>
Net sales $ 1,688,000 || $ 531,000 $ 3,122,277 $ 10,813,447
||
Costs and expenses ||
Cost of goods sold 1,066,806 || 299,231 2,798,344 7,620,465
Discontinued model costs - || - 1,130,295 419,960
Marketing 174,135 || 94,104 1,064,094 2,803,361
General and administrative 574,055 || 408,520 2,650,900 2,567,782
Research and development 184,678 || 130,326 683,732 1,061,885
Warehouse 119,585 || 76,994 541,164 1,005,901
--------------- || ---------------- --------------- ----------------
Total costs and expenses 2,119,259 || 1,009,175 8,868,529 15,479,354
--------------- || ---------------- --------------- ----------------
Operating loss (431,259) || (478,175) (5,746,252) (4,665,907)
||
Other income (expense) (48,633) || (3,314) 687,410 (168,333)
--------------- || ---------------- --------------- ----------------
||
Loss before reorganization and ||
extraordinary items (479,892) || (481,489) (5,058,842) (4,834,240)
||
Reorganization item (3,658) || (69,768) (42,300) -
--------------- || ---------------- --------------- ----------------
||
Loss before extraordinary item (483,550) || (551,257) (5,101,142) (4,834,240)
||
||
Forgiveness of debt - || 1,287,721 1,387,842 -
--------------- || ---------------- ---------------- ----------------
||
Net income (loss) $ (483,550) || $ 736,464 $ (3,713,300) $ (4,834,240)
=============== || ================ ================ ================
||
Net income (loss) per share $ - || $ 0.05 $ (0.24) $ (0.35)
=============== || ================ ================ ================
Weighted average common ||
shares outstanding 90,245,360 || 16,049,072 15,233,523 13,720,414
=============== || ================ ================ ================
||
BALANCE SHEET DATA December 31, || May 12, December 31, December 31,
1998 || 1998 1997 1996
--------------- || ---------------- ---------------- ----------------
Working Capital (Deficit) $ (249,171) || $ (31,225) $ (3,209,210) $ (1,087,447)
Total Assets 909,233 || 877,803 1,132,085 5,775,574
Long Term Liabilities 570,000 || 550,000 - -
Shareholders Equity (Deficit) (496,924) || (13,375) (2,484,129) 576,671
</TABLE>
-9-
<PAGE> 12
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Overview
Since the calendar quarter ended December 31, 1995, the Company has
experienced sustained significant operating losses. These losses were the result
of multiple factors inclusive of unsuccessful introductions of new models of the
Company's core product line (the IQoVOICE(TM) Organizer), failed launches of new
products, increased competition from lower priced digital recorders, and a
general decline in domestic retail sales of the hand-held electronics category.
Through 1996 and the first nine months of 1997, the Company attempted
to improve its financial condition by reducing fixed operating costs,
liquidating inventories, streamlining operating departments, and entering into
two significant transactions in an attempt to strengthen the Company's financial
position. Despite these efforts, the Company was unable to generate sufficient
revenues and gross profit to sustain its ongoing operations, further depleting
cash and working capital.
On September 22, 1997, the Company filed a voluntary petition for
relief with the United States Bankruptcy Court, Central District of California,
under the provisions of Chapter 11 of the Bankruptcy Code (the "Bankruptcy
Proceedings").
On January 21, 1998, the Company, in conjunction with Franklin
Electronic Publishers, Inc. ("Franklin"), the Company's largest secured
creditor, filed a combined Amended Disclosure Statement and Plan of
Reorganization (the "Plan") with the Bankruptcy Court. The Plan included a
significant reduction of the Company's pre-petition obligations, in addition to
Franklin's waiving its pre-petition secured claim in the amount of $1,733,990 in
exchange for an additional 80% interest in the equity of the Company. The Plan
became effective on May 12, 1998 (the "Effective Date").
Since the commencement of the Bankruptcy Proceedings, the Company
discontinued shipments of its IQoVOICE Organizer products, the Company's primary
product line, to many of its major domestic retail customers. For the year ended
December 31, 1998, the Company's domestic business activities have consisted of
sales of IQoVOICE Organizer products to smaller retailers and wholesale accounts
and through various direct marketing programs. Since March 1998, the Company has
expanded its international marketing activities of its IQoVOICE Organizer
products as a result of a successful television direct marketing campaign, which
began in Mexico. As a result of the Company's reduced dependency on sales to
major domestic retailers, the Company has significantly decreased its variable
and fixed operating costs, including the reduction of a number of its officers
and other employees.
Management of the Company is presently focused on the continued
expansion of its international sales of the IQoVOICE Organizer products, the
development of targeted domestic direct marketing channels for its current
products, as well as pursuing licensing opportunities for its Technology.
Results of Operations
The following table summarizes the Company's historical results of
operations as a percentage sales for the post Effective Date seven and one half
month period ended December 31, 1998 and the pre Effective Date period ended May
12, 1998 and calendar years ended December 31, 1997 and 1996.
-10-
<PAGE> 13
<TABLE>
<CAPTION>
May 13 to || January 1 to For the years ended
December 31, || May 12, December 31,
1998 || 1998 1997 1996
|| Debtor in Debtor in
|| Possession Possession
-----------------||-----------------------------------------
<S> <C> || <C> <C> <C>
Net sales 100.0% || 100.0% 100.0% 100.0%
||
Costs and expenses ||
Cost of goods sold 63.2% || 56.4% 89.6% 70.5%
Discontinued model costs 0.0% || 0.0% 36.2% 3.9%
Marketing 10.3% || 17.7% 34.1% 25.9%
General and administrative 34.0% || 76.9% 84.9% 23.7%
Research and development 10.9% || 24.5% 21.9% 9.8%
Warehouse 7.1% || 14.5% 17.3% 9.3%
-----------------|| -------------- ------------- ------------
Total costs and expenses 125.5% || 190.1% 284.0% 143.1%
-----------------|| -------------- ------------- ------------
||
Operating loss (25.5%) || (90.1%) (184.0%) (43.1%)
||
Other income (expense) ||
Gain on sale of assets 0.0% || 0.0% 4.5% 0.0%
Sale of technology license 0.0% || 0.0% 22.4% 0.0%
Interest expense, net (1.9%) || (0.4%) (4.5%) (2.1%)
Other (1.0%) || (0.2%) (0.4%) 0.6%
-----------------|| -------------- ------------- ------------
||
Loss before reorganization and ||
extraordinary items (28.4%) || (90.7%) (162.0%) (44.7%)
||
Reorganization item ||
Professional fees (0.2%) || (13.1%) (1.4%) 0.0%
||
Loss before extraordinary item (28.6%) || (103.8%) (163.4%) (44.7%)
||
Extraordinary item ||
Forgiveness of debt 0.0% || 242.5% 44.4% 0.0%
-----------------|| -------------- ------------- ------------
||
Net income (loss) (28.6%) || 138.7% (118.9%) (44.7%)
=================|| ============== ============= ============
</TABLE>
Seven and one-half months ended December 31, 1998
As of May 12, 1998, the Effective Date of the Amended Plan of
Reorganization and Disclosure Statement, the Company, in accordance with AICPA
Statement of Position 90-7 "Financial Reporting by Entities in Reorganization
Under the Bankruptcy Code", adopted "fresh-start reporting" and has reflected
the effects of such adoption in the financial statements for the seven and one
half months ended December 31, 1998. There was no change to the carrying value
of the assets or liabilities as a result of the adoption of fresh start
reporting, however, the balance of the deficit was offset against paid in
capital, to the extent available.
Sales for this period totaled $1,688,000, which included $817,000 in
international sales, eighty percent (80%) of which is directly attributable to
the infomercial marketing campaign initiated originally in Mexico. Domestic
sales for this period consist primarily of sales of the Company's IQoVOICE
Organizer products to small retailers and through direct marketing programs as
well $370,000 in sales of certain Franklin products.
-11-
<PAGE> 14
Cost of sales for the period were $1,066,806 yielding a gross profit of
36.8%. Cost of sales included non-cash inventory write-downs and adjustments
totaling $114,000. Gross profit margins are subject to variation as a result of
changes in the mix of both products and sales by distribution channel.
Total operating costs for the period totaled $1,052,453. The Company
has significantly reduced its operating costs in all expense categories
including marketing, general and administrative, research and development and
warehouse expenses as a result of its de-emphasis on domestic retail sales which
requires significant marketing, administrative and warehousing expenditures as
opposed to the Company's international sales where the local distributor bears
the majority of the costs in these categories. The Company intends to continue
to investigate areas where further cost reductions are achievable. Interest
expense for the period totaling $31,739 is primarily interest accrued on the
loans payable to Franklin. Other expenses of $16,894 is the result of losses
recorded on property and equipment sold or abandoned by the Company.
Year ended December 31, 1997 compared with year ended December 31, 1996
Sales for the year ended December 31, 1997 were $3,328,000 while sales
for the year ended December 31, 1996 were $10,813,000. After reduction of price
protection costs of $206,000 charged against sales, net sales in 1997 were
$3,122,000. The decrease in sales, as noted above, related to the decreased
levels of sales to retail customers, increased competition from lower priced
digital recorders, and a general decline in domestic retail sales of the entire
hand-held electronics category. The 1997 price protection costs relate to a
program that the Company instituted to reduce the retail price of two of its
product lines.
Total costs and expenses for the years ended December 31, 1997 and 1996
were $8,869,000 and $15,479,000, respectively. The decrease in expenses in 1997
as compared to 1996 is the result of decreased costs associated with the
Company's decreased sales volume and efforts made by the Company to
significantly reduce its fixed costs. These decreases in costs were partially
offset by costs associated with the discontinuation of certain products in 1997
that were in excess of similar costs required in 1996.
In 1997 the Company charged $1,130,000 to operations relating to
discontinued model costs. The Company elected to discontinue future production
of its IQoVOICE Organizer/Pagers, its low cost line of IQoVOICE Organizers, and
its original battery operated IQoVOICE Organizer. As a result, the Company wrote
down the inventory value of the related finished goods by $828,000 in accordance
with the lower of cost or market methodology, and wrote off $302,000 which was
the book value of tooling and product development costs related to the
discontinued products. In 1996 the Company charged $419,960 to operations
relating to discontinued model costs. The Company elected to discontinue future
production of its IQoVOICE TELL-IT Phone product line as well as write off costs
relating to its Diary/Organizer product, previously capitalized. Due to the high
marketing and start-up manufacturing costs associated with the introduction of
Diary/Organizer, the Company, due to the limitation of cash resources, was
unable to introduce this product in 1996 and did not believe that sufficient
cash resources would be available in the near future. As a result, at December
31, 1996, the Company wrote off $419,960, which was the book value of product
development costs related to the two products.
Included in other income for the year ended December 13, 1997 is
$141,527 in gain on sale of assets and $700,000 in income from sale of
technology license. Both of these items relate to the previously mentioned
agreements entered into with Franklin in May 1997.
Interest expense for the year ended 1997 was $140,000 as compared to
$228,000 in 1996, and was related to the Company's decreased levels of activity
under its accounts receivable transfer and purchase agreement offset by its note
payable and loan payable to Franklin.
For the year ended December 31, 1997, included as a reorganization item
is $42,300 in expenses relating to legal fees incurred as a result of the
Company's Bankruptcy Proceedings. Also included as an extraordinary item is
$1,387,842 in income from forgiveness of debt relating to agreements entered
into with the Company's manufacturers and certain other trade creditors.
-12-
<PAGE> 15
Liquidity and Capital Resources
At the commencement of the Bankruptcy Proceedings, the Company entered
into a revolving $400,000 Loan and Security Agreement with Franklin
collateralized by all of the assets of the Company. This loan was due and
payable on the Effective Date. The agreement carried an interest rate of 12% per
annum on the average daily balance. The December 31, 1997 balance of $185,000
was the highest balance during 1997, and said amount was in excess of the
borrowings allowed under the terms of the agreement. As of the Effective Date,
the Company renegotiated the terms of its post petition, secured revolving Loan
and Security Agreement with Franklin. As of the Effective Date, the Company had
borrowed $250,000 in accordance with the terms of the prior agreement. Under the
terms of the new agreement (the "Revolving Loan"), entered into as of the
Effective Date, interest accrues at 8% per annum payable monthly in arrears and
with the principal balance payable in two installments; 1) $50,000 on or before
May 12, 1999 and; 2) the balance in a lump sum payment five years from the
Effective Date, which is May 12, 2003. As of December 31, 1998, the principal
balance due on this loan was $270,000.
In accordance with the Plan, on or about the Effective Date, the
following occurred: 1) the Company received a loan of $350,000 from Franklin
(the "Plan Loan") to create a fund dedicated to the payment of creditor claims
and certain administrative expenses (the Plan Loan accrues interest at 8% per
annum, with interest only payable in arrears on a monthly basis with principal
all due and payable in a lump sum payment five years from the Effective Date);
2) the 500,000 shares of outstanding convertible preferred stock was converted
into 2,000,000 shares of the Company's common stock; and 3) the Company's
Articles of Incorporation were amended to, among other things, increase the
authorized shares of common stock to 100,000,000. Pursuant to the Plan Franklin
was issued 72,196,288 shares of the Company's common stock, which equated to an
80% equity interest in the Company in exchange for Franklin's pre-petition
secured claim in the amount of $1,733,990. After payment of the administrative
expenses of the reorganization of $133,000, the balance of the proceeds of the
Plan Loan were disbursed in final settlement of the remaining pre-petition
claims resulting in a gain from forgiveness of debt of $1,287,721 for the period
ended May 12, 1998
Included in the 1997 statement of cash flows as adjustments to
reconcile net loss to net cash used in operating activities are gains on the
sale of assets for $141,000 and on forgiveness of debt for $1,387,000. The gain
on sale of assets relates to an agreement entered into with Franklin in May 1997
(see Note 3 of notes to financial statements). The gain from forgiveness of debt
relates to agreements entered into with the Company's manufacturers and certain
other trade creditors (See Note 8(d) of notes to financial statements).
Further included as adjustments to reconcile net loss to net cash used
in operating activities is price protection of $206,000 related to programs that
the Company established during the first three quarters of 1997. The Company
instituted these programs to reduce the retail price of two of its older product
lines. Accordingly, certain established retail accounts were issued credits for
on-hand inventory equal to the difference between the wholesale price at which
they had purchased the products and their new wholesale price which was based on
the reduced retail price.
Finally included in the 1997 statement of cash flows as an adjustment
to reconcile net loss to net cash used in operating activities, are charges of
$1,130,000 relating to discontinued model costs. The Company decided to
discontinue future production of its IQoVOICE Organizer/Pagers, its low cost
line of IQoVOICE Organizers, and its original battery operated IQoVOICE
Organizer. As a result, the Company wrote down the inventory value of the
related finished goods by $828,000 in accordance with the lower of cost or
market methodology, and wrote off $302,000 which was the book value of tooling
and product development costs related to the discontinued products.
The Company evaluates on a continuous basis software enhancements and
updates based on new technologies to improve its information systems. The
Company has finished its assessment of its current systems that support the
Company's operations in conjunction with year 2000 compliance. The Company has
substantially completed remediation of its existing operational software to
ensure functionality and continued operations beyond the year 2000. The Company
expects to complete such remediation by September 30, 1999. The cost of
remediation is estimated to be approximately $25,000, to be expensed as
incurred. The Company does not believe that the failure of any customer to be
year 2000 compliant would have a material adverse effect on the financial
condition of the Company. The Company is in the process of evaluating the
progress of its major suppliers toward year 2000 compliance. The Company is
developing contingency plans in this regard.
-13-
<PAGE> 16
There are no issued but not yet effective accounting standards that will
have a material effect on the Company's financial statements.
Except for the historical information contained herein, the matters
discussed herein are forward looking statements that involve risks to and
uncertainties in the Company's business, including, among other things, the
availability of adequate working capital, changes in technology, the impact of
competitive products, the Company's dependence on third party component supplies
and manufacturers, and other risks and uncertainties that may be detailed from
time to time in this and other of the Company's SEC reports.
Item 8. Financial Statements
<TABLE>
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
INDEX TO FINANCIAL STATEMENTS
<CAPTION>
<S> <C>
Report of Independent Certified Public Accountants 15
Statements of Operations for the years
ended December 31, 1996, 1997 and 1998 16
Balance Sheets at December 31, 1997 and 1998 17
Statements of Stockholders' Equity (Deficit) for
the years ended December 31, 1996, 1997 and 1998 18
Statements of Cash Flows for the years ended
December 31, 1996, 1997 and 1998 19
Summary of Significant Accounting Policies 20
Notes to the Financial Statements 21
</TABLE>
-14-
<PAGE> 17
INDEPENDENT AUDITOR'S REPORT
Board of Directors and Stockholders
Voice Powered Technology International, Inc
We have audited the accompanying balance sheet of Voice Powered Technology
International, Inc (the "Company") as of December 31, 1998, and the related
statements of operations, stockholders' equity (deficit), and cash flows for
each of the periods January 1 to May 12, 1998 (Debtor-in-Possession) and May 13
to December 31, 1998 These financial statements are the responsibility of the
Company's management Our responsibility is to express an opinion on these
financial statements based on our audit, The financial statements of the Company
for the two years ended December 31, 1997 were audited by other auditors, whose
report, dated April 3, 1998 expressed an unqualified opinion with an explanatory
paragraph on the Company's ability to continue as a going concern.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of the Company as of December
31, 1998, and the results of its operations and cash flows for each of the
periods January 1 to May 12, 1998 (Debtor-in-Possession) and May 13 to December
31, 1998 in conformity with generally accepted accounting principles
On May 12, 1998, the Company emerged from bankruptcy As described in the
Summary of Significant Accounting Polices and in Note 2 to the financial
statements, the Company accounted for the reorganization as of May 12, 1998 and
adopted "fresh-start reporting," As a result, the statements of operations and
cash flows of the Company for the periods January 1 to May 12, 1998 and May 13
to December 31, 1998, are not comparable to the statements of operations and
cash flows for the two years ended December 31, 1997,
RADIN, GLASS & CO, LLP
Certified Public Accountants
New York, New York
February 18, 1999
-15-
<PAGE> 18
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
Voice Powered Technology International, Inc.
Simi Valley, California
We have audited the accompanying balance sheet of Voice Powered Technology
International, Inc. (the "Company") (Debtor-in-Possession, as of September 22,
1997), as of December 31, 1997, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the two years then ended.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of the Company, at December 31,
1997, and the results ofiis operations and its cash flows for the two years then
ended, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company has suffered from
recurring losses from operations, including a net loss of $3.713,300 for the
year ended December 31, 1997, and has minimal working capital as of December 31,
1997. The Company filed a voluntary petition for relief under Chapter 11 of the
United States Bankruptcy Code in the United States Bankruptcy Court on September
22, 1997. These factors raise substantial doubt about the Company's ability 10
continue as a going concern. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
BDO Seidman, LLP
Los Angeles, California
April 3, 1998
-16-
<PAGE> 19
<TABLE>
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
STATEMENT OF OPERATIONS
<CAPTION>
May 13 to || January 1 to For the years ended
December 31, || May 12, December 31,
1998 || 1998 1997 1996
|| Debtor in Debtor in
|| Possession Possession
----------------|| ------------------------------------------------
<S> <C> || <C> <C> <C>
Sales (Note 12) $ 1,688,000 || $ 531,000 $ 3,327,777 $10,813,447
Less price protection costs (Note 13) - || - 205,500 -
----------------|| --------------- --------------- ---------------
Net sales 1,688,000 || 531,000 3,122,277 10,813,447
||
Costs and expenses ||
Cost of goods sold 1,066,806 || 299,231 2,798,344
|| 7,620,465
Discontinued model costs (Note 14) - || - 1,130,295
|| 419,960
Marketing 174,135 || 94,104 1,064,094
|| 2,803,361
General and administrative 574,055 || 408,520 2,650,900
|| 2,567,782
Research and development 184,678 || 130,326 683,732
|| 1,061,885
Warehouse 119,585 || 76,994 541,164
|| 1,005,901
----------------|| --------------- --------------- ---------------
Total costs and expenses 2,119,259 || 1,009,175 8,868,529 15,479,354
----------------|| --------------- --------------- ---------------
||
Operating loss (431,259) || (478,175) (5,746,252) (4,665,907)
||
Other income (expense) ||
Gain on sale of assets (Note 3) - || 141,527
|| -
Sale of technology license (Note 3) - || 700,000 -
Interest expense, net (31,739) || (2,076) (140,447) (227,841)
Other (16,894) || (1,238) (13,670)
|| 59,508
----------------|| --------------- --------------- ---------------
||
Loss before reorganization and $ (479,892) || $ (481,489) $ (5,058,842) $ (4,834,240)
extraordinary items ||
||
Reorganization item ||
Professional fees (3,658) || (69,768) (42,300) -
||
Loss before extraordinary item (483,550) || (551,257) (5,101,142) (4,834,240)
||
Extraordinary item ||
Forgiveness of debt (Note 15) - || 1,287,721 1,387,842 -
----------------|| --------------- --------------- ---------------
||
Net income (loss) $ (483,550) || $ 736,464 $ (3,713,300) $ (4,834,240)
================|| =============== =============== ===============
||
Income (loss) per share ||
Before extraordinary item $ - || $ (0.03) $ (0.33) $ (0.35)
Extraordinary item $ - || $ 0.08 $ 0.09 $ -
================|| =============== =============== ===============
Net income (loss) per share $ - || $ 0.05 $ (0.24) $ (0.35)
================|| =============== =============== ===============
Weighted average common ||
shares outstanding 90,245,360 || 16,049,072 15,233,523 13,720,414
================|| =============== =============== ===============
</TABLE>
See the accompanying summary of accounting policies and the notes to the
financial statements.
-17-
<PAGE> 20
<TABLE>
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
BALANCE SHEETS
<CAPTION>
For the years ended
December 31,
1998 1997
---- ----
Debtor in
Possession
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 71,303 $ 34,559
Receivables, net of allowance for doubtful accounts
of $20,079 and $300,000 for 1998 and 1997
respectively (Note 4) 193,881 148,228
Inventory (Note 5)
314,350 213,717
Prepaid expenses
7,452 10,500
----------------- ---------------
Total current assets 586,986 407,004
Property and equipment
Equipment 326,624 404,236
Other 79,450 69,508
----------------- ---------------
406,074 473,744
Less accumulated depreciation 314,002 230,611
----------------- ---------------
Net property and equipment 92,072 243,133
Patents and technology rights, net of amortization 125,760 204,704
Deferred costs, net (Note 6) 80,321 248,361
Other assets 24,094 28,883
----------------- ---------------
Total assets $ 909,233 $ 1,132,085
================= ===============
Liabilities and Stockholders' Equity (Deficit)
Current liabilities not subject to compromise
Current portion of long term debt (Note 8) $ 50,000 $ -
Accounts payable 562,648 63,518
Accrued expenses (Note 7) 159,280 138,320
Deferred income 64,229 -
Loan payable (Note 8) - 185,000
----------------- ---------------
Total current liabilities not subject to compromise 836,157 386,838
Long term debt - Franklin (Note 8) 570,000 -
Liabilities subject to compromise (Note 9) - 3,229,376
Commitments and contingencies (Note 10) - -
----------------- ---------------
Total liabilities 1,406,157 3,616,214
Stockholders' equity (deficit) (Note 11)
Preferred stock, 10,000,000 shares authorized; $1.00
stated value, 0 and 500,000 shares issued and
outstanding; aggregate liquidation preference of
$500,000 - 500,000
Common stock, 100,000,000 shares authorized; $.001
stated value, 90,245,360 and 16,011,572 shares
issued and outstanding 90,246 16,012
Additional paid-in capital 27,897,082
Accumulated deficit (587,170) (30,897,223)
----------------- ---------------
Total stockholders' equity (deficit) (496,924) (2,484,129)
----------------- ---------------
Total liabilities and stockholders' equity (deficit) $ 909,233 $ 1,132,085
================= ===============
</TABLE>
See the accompanying summary of accounting policies and the notes to the
financial statements.
-18-
<PAGE> 21
<TABLE>
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
STATEMENTS OF CASH FLOWS
<CAPTION>
May 13 to || January 1 to For the years ended
December 31, || May 12, December 31,
Increase (Decrease) in Cash and Cash Equivalents 1998 || 1998 1997 1996
---- || ---- ---- ----
|| Debtor in Debtor in
|| Possession Possession
<S> <C> || <C> <C> <C>
Cash flows from operating activities: ||
Net income (loss) $ (483,550) || $ 736,464 $(3,713,300) $(4,834,240)
Adjustments to reconcile net loss ||
to net cash provided by (used in) operating activities: ||
Depreciation and amortization 245,452 || 152,898 741,498 832,415
Compensatory stock options || - 48,000
Loss (Gain) on sale and disposal of assets 16,894 || 1,238 (141,527) -
Gain on forgiveness of debt || (1,287,721) (1,387,842) -
Provision for price protection || 205,500 -
Write-off of tooling related to discontinued models || 87,406 -
Write-off of deferred costs related to ||
discontinued models || 214,676 419,960
Write-down of inventory related to discontinued models || 828,213 150,000
Changes in operating assets and liabilities: ||
(Increase) decrease in restricted cash || 150,000 (150,000)
(Increase) decrease in receivables (71,422) || 25,769 1,448,401 3,260,987
(Increase) decrease in inventory (166,759) || 66,126 632,889 980,613
(Increase) decrease in prepaid expenses (5,852) || 8,900 90,995 37,386
(Increase) decrease in other assets 1,696 || 3,093 98,613 (155,918)
Increase (decrease) in pre-petition accounts payable || (1,868,091) 2,394,383
Increase in post-petition accounts payable 497,318 || 1,812 63,518 -
Increase (decrease) in pre-petition accrued expenses || 80,156 (747,458)
Increase in post-petition accrued expenses 3,432 || 17,528 138,320 -
Increase (decrease) in post-petition deferred income (5,771) || 70,000
Decrease in pre-petition liabilities subject to || (207,664)
compromise ||
---------------|| --------------- -------------- --------------
Net cash provided by (used in) operating activities 31,438 || (411,557) (2,330,575) 2,236,128
---------------|| --------------- -------------- --------------
Cash flows from investing activities: ||
Capital expenditures (18,437) || (165,970) (259,569)
Proceeds from the sale of product line to Franklin || 450,000 -
Proceeds from the sale of property and equipment || 9,677 -
Expenditures for patents and technology rights || - (100,000)
Expenditures for deferred costs || (198,938) (494,509)
---------------|| --------------- -------------- --------------
Net cash provided by (used in) investing activities (18,437) || - 94,769 (854,078)
---------------|| --------------- -------------- --------------
Cash flows from financing activities: ||
Payments on loan payable || - (3,265,439)
Proceeds from the exercise of stock options and warrants || - 15,156
Proceeds from pre-petition note payable || 1,708,750 -
Proceeds from post-petition loans payable 20,000 || 415,000 185,000 -
Proceeds from sale of common stock || 300 150,000 -
----------------|| --------------- -------------- --------------
Net cash provided by (used in) financing activities 20,000 || 415,300 2,043,750 (3,250,283)
----------------|| --------------- -------------- --------------
Net increase (decrease) in cash and cash equivalents 33,001 || 3,743 (192,056) (1,868,233)
Cash and cash equivalents at the beginning of the period 38,302 || 34,559 226,615 2,094,848
----------------|| --------------- -------------- --------------
Cash and cash equivalents at the end of the period $ 71,303 || $ 38,302 $ 34,559 $ 226,615
================|| =============== ============== ==============
</TABLE>
See the accompanying summary of accounting policies and the notes to the
financial statements.
-19-
<PAGE> 22
<TABLE>
<CAPTION>
Additional
Preferred Stock Common Stock
------------------ -------------------- Paid In Accumulated Stockholders'
Shares Amount Shares Amount Capital Deficit Equity(Deficit)
------- -------- ---------- ------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1996 -- -- 12,486,273 $12,486 $25,679,900 $(22,349,683) $ 3,342,703
Vendors/employees exercised
stock options (Note 9(a)) -- -- 90,833 91 15,065 -- 15,156
Stock options issued to Board
of Directors members (Note 9(a)) -- -- -- -- 48,000 -- 48,000
Stock options issued to
related party (Note 9(a)) -- -- -- -- 50,000 -- 50,000
Shares of common stock issued
to manufacturer (Note 9(c)) -- -- 1,371,966 1,372 1,953,680 --
1,955,052
Net loss -- -- -- -- -- (4,834,240) (4,834,240)
------- -------- ---------- ------- ----------- ------------ -----------
Balance, December 31, 1996 -- -- 13,949,072 $13,949 $27,746,645 $(27,183,923) $ 576,671
Preferred stock issued
to GSS (Note 9(c)) 500,000 500,000 -- -- -- -- 500,000
Stock issued to
Franklin (Note 9(c)) -- -- 2,000,000 2,000 148,000 -- 150,000
Stock issued to
president (Note 9(c)) -- -- 62,500 63 2,437 -- 2,500
Net loss -- -- -- -- -- (3,713,300) (3,713,300)
------- -------- ---------- ------- ----------- ------------ -----------
Balance, December 31, 1997 500,000 $500,000 16,011,572 $16,012 $27,897,082 $(30,897,223) $(2,484,129)
======= ======== ========== ======= =========== ============ ===========
Stock options exercised by
prior officer (Note 9(a))
37,500 38 263 301
Preferred stock converted
to common stock (Note 9(c)) (500,000) (500,000) 2,000,000 2,000 498,000 -
Common stock issued to Franklin
Electronic Publishers Inc.
(Note 9(c)) 72,196,288 72,196 1,661,794 1,733,990
Net income - January 1
to May 12, 1998
736,464 736,464
Reclassification of accumulated
deficit as of May 12, 1998
(30,057,139) 30,057,139
------- -------- ---------- ------- ----------- ------------ -----------
Balance, May 13, 1998 - - 90,245,360 90,246 - (103,620) (13,374)
Net loss - May 13 to
December 31, 1998 - (483,550) (483,550)
Balance, December 31, 1998 - $ - 90,245,360 90,246 - $ (598,170) (496,924)
======= ========= ========== ======= =========== ============= ============
</TABLE>
See the accompanying summary of accounting policies and the notes to the
financial statements.
-20-
<PAGE> 23
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Reorganization and Basis of Presentation
On September 22, 1997, the Company filed a petition for relief with the
United States Bankruptcy Court, Central District of California, under the
provisions of Chapter 11 of the Bankruptcy Code. From September 1997 through May
12, 1998, the Company operated as a "Debtor-In-Possession" under such code. As
of May 12, 1998, in accordance with AICPA Statement of Position 90-7 "Financial
Reporting by Entities in Reorganization Under the Bankruptcy Code", the Company
adopted "fresh-start reporting" and has reflected the effects of such adoption
in the financial statements for the seven and one half months ended December 31,
1998 (see note 2 to the financial statements). There was no change to the
carrying value of the assets or liabilities as a result of the adoption of fresh
start reporting, however, the balance of the deficit was offset against paid in
capital, to the extent available.
Revenue Recognition
The Company recognizes revenue upon shipment of product.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an
original maturity of three months or less to be cash equivalents.
Inventory
Inventory is valued at the lower of cost or market, on a first-in,
first-out (FIFO) basis.
Property and Equipment
Property and equipment are stated at cost and are depreciated on a
straight-line basis using estimated useful lives which range from 2-7 years.
Patents and Technology Rights
Patents are stated at cost less amortization, which is provided on a
straight-line basis over 15 years. Technology rights are stated at cost less
amortization, which is provided on a straight-line basis over 3 years. Patents
and technology rights are expensed when management believes they provide no
future benefit.
Deferred Costs
Deferred costs include capitalized product development, product
improvement, and user manual design and development costs, less amortization,
which is provided on a straight-line basis over 2-3 years. Such costs are
periodically reviewed each year based upon management's estimates of sales of
the related products. Deferred costs are written off when management believes
they provide no future benefit.
Loss Per Share
On March 31, 1997, the FASB issued Statement of Financial Accounting
Standards No. 128, "Earnings per Share" (SFAS 128), during 1997. SFAS No. 128
provides a different method of calculating earnings per share than is currently
used in accordance with APB No. 15, "Earnings Per Share." SFAS No. 128 provides
for the calculation of basic and diluted earnings per share. Basic earnings per
share includes no dilution and is computed by dividing income available to
common shareholders by the weighted average number of common shares outstanding
for the reporting period. Diluted earnings per share reflects the potential
dilution of securities that could share in the earnings of an entity, similar to
fully diluted earnings per share. Due to losses occurring in 1996 and 1997,
dilutive and basic loss per share amounts are same for each year. This
pronouncement is effective for fiscal years and interim periods ending after
December 15, 1997. The Company has adopted this pronouncement and it had no
effect on its loss per share computations.
Loss per share is based on the weighted average number of common shares
outstanding during each period presented. For years ended December 31, 1997 and
1996, outstanding stock options and warrants of 1,386,020 and 2,942,124,
respectively, are not included in the earnings per share calculation since their
effect would be anti-dilutive. There were no outstanding stock options or
warrants for the year ended December 31, 1998.
-21-
<PAGE> 24
Income Taxes
The Company utilizes Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes" (SFAS No. 109). This standard employs an asset and
liability approach in accounting for income taxes, the objective of which is to
recognize the amount of current and deferred taxes payable or receivable at the
date of the financial statements using the provisions of enacted tax laws.
Accounting Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets, liabilities, revenues,
and expenses at the date that the financial statements are prepared. Actual
results could differ from those estimates.
Fair Value of Financial Instruments
The carrying values of cash, cash equivalents, restricted cash,
accounts receivable, accounts payable, and loan payable approximate their fair
values because of the short maturity of these instruments.
Impairment of Long-Lived Assets Statement of Financial Accounting Standards
No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed of" (SFAS No. 121) establishes guidelines regarding when
impairment losses on long-lived assets, which include plant and equipment, and
certain identifiable intangible assets, should be recognized and how impairment
losses should be measured. Long-lived assets are written off when management
believes they provide no future benefit.
Stock Based Compensation
As of January 1, 1996, the Company adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation" (SFAS
123), which establishes a fair value method of accounting for stock-based
compensation plans. In accordance with SFAS 123, the Company has chosen to
continue to account for employee stock-based compensation utilizing the
intrinsic value method prescribed in APB 25. Accordingly, compensation cost for
stock options is measured as the excess, if any, of the fair market price of the
Company's stock at the date of grant over the amount an employee must pay to
acquire the stock.
Also, in accordance with SFAS 123, the Company is to make a footnote
disclosure with respect to stock-based employee compensation. The cost of
stock-based employee compensation is measured at the grant date based on the
value of the award and recognized over the service period. The value of the
stock based award is determined using a pricing model whereby compensation cost
is the excess of the fair value of the stock as determined by the model at grant
date or other measurement date over the amount an employee must pay to acquire
the stock. For the years ended December 31, 1996 and 1997, additional
compensation cost as measured pursuant to SFAS 123 for options granted in 1997,
1996, and 1995 was not material. Accordingly, pro forma net loss and net loss
per share is not applicable. Effective as of May 12, 1998 in conjunction with
the confirmation of the Company's Plan of Reorganization, all outstanding stock
options were cancelled and no new grants had been issued by the Company as of
December 31, 1998.
Reclassification
Reclassification of certain prior year amounts may have been made to
conform to current year classification.
Recent Accounting Pronouncements
There are no issued but not yet effective accounting standards that
will have a material effect on the Company's financial statements.
-22-
<PAGE> 25
VOICE POWERED TECHNOLOGY INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS
1. Business
Voice Powered Technology International, Inc. (the "Company"), incorporated
in California in June 1985, began active operations in January 1990. The Company
was formed to develop, market, and distribute low-cost voice recognition and
voice activated products on a worldwide basis, both directly and through
licensing agreements. From January 1990 until July 1992, the Company operated as
a development stage enterprise.
The Company's licensed voice-recognition VoiceLogic(TM) Technology (the
"Technology") is fully developed and in commercial use and has been included in
a variety of consumer oriented products manufactured for the Company under
contract with third parties. The Technology consists of a combination of rights,
developed and acquired, which are now licensed by the Company (Note 3). This
Technology permits utilization of the human voice as a replacement for manual
controls, such as buttons, switches, and dials in activating and controlling
everyday consumer and business products and can operate on microprocessors
powered by only penlight or nicad batteries. The Technology can also be licensed
for use in a variety of products with only limited modifications to the
application software for adaptation to the specific product. The core Technology
can also be adapted easily for use in virtually any spoken language in the
world, thus enabling it to be used in virtually any country in the world.
The Company does not use business line reporting in its internal financial
reporting.
2. Petition for Relief Under Chapter 11 and Basis of Presentation
On September 22, 1997, the Company filed a voluntary petition for relief
with the United States Bankruptcy Court, Central District of California
("Court"), under the provisions of Chapter 11 of the Bankruptcy Code. On January
21, 1998, the Company, in conjunction with Franklin Electronic Publishers, Inc.
("Franklin"), the Company's largest secured creditor, filed a combined Amended
Disclosure Statement and Plan of Reorganization (the "Plan") with the Bankruptcy
Court which became effective on May 12, 1998 (the "Effective Date"). The Plan
included a significant reduction of the Company's pre-petition obligations, in
addition to Franklin's waiving its pre-petition secured claim in the amount of
$1,733,990 in exchange for an additional 80% interest in the equity of the
Company.
In accordance with the Plan, on or about May 12, 1998, the following
occurred: 1) the Company received a loan of $350,000 from Franklin (the "Plan
Loan") to create a fund to be dedicated to the payment of creditor claims and
certain administrative expenses (Note 6); 2) the 500,000 shares of outstanding
convertible preferred stock of the Company was converted into 2,000,000 shares
of the Company's common stock (Note 11(c)); and 3) the Company's Articles of
Incorporation were amended to, among other things, increase the authorized
shares of common stock to 100,000,000. Pursuant to the Plan, Franklin was issued
72,196,288 shares of the Company's common stock, which equated to an additional
80% equity interest in the Company in exchange for Franklin's pre-petition
secured claim in the amount of $1,733,990.
3. Pre-Petition Agreements with Franklin Electronic Publishers, Inc.
In May 1997, the Company consummated a transaction involving two agreements
with Franklin. The first agreement was a Purchase and Loan Agreement in which
the two companies entered into the following transactions: 1) The Company
transferred and sold to Franklin for $450,000 in cash its inventory, rights to
work in process, manufacturing assets, marketing assets, and software and
hardware design assets for the Company's IQoVOICE(TM) Organizer Models 5150 and
5160 (IQoVOICE Pocket Organizers); 2) the Company sold to Franklin for $150,000
in cash 2,000,000 shares of the Company's common stock, par value $.001 per
share, representing the approximate market price of the Company's common stock
at the time of the transaction; and 3) Franklin loaned the Company cash equal to
$1,200,000, in addition to $500,000 plus accrued interest previously loaned to
the Company in the first quarter of 1997, and restructured the previous payment
terms into a new $1,708,750 promissory note, collateralized by the assets of the
Company, with an interest rate of 10% per year. The second agreement was a
Technology Transfer Agreement in which the two companies entered into the
following transactions: 1) the Company granted to Franklin a non-exclusive
perpetual license for technology rights evidenced by the Company's
-23-
<PAGE> 26
patent related to operation of Voice Organizer products as well as other
technology and software developed by the Company for a non-refundable advance
royalty of $700,000; and 2) the Company assigned the rights to the
VoiceLogic(TM) Technology to Franklin, and Franklin granted back to the Company
a non-exclusive perpetual license of the VoiceLogic Technology, including the
right to sublicense, for the development, manufacture, sale and distribution of
Voice Organizer products with recording times in excess of four minutes and any
other electronic products that are not Voice Organizers, subject to the
Company's remaining obligated to pay royalties to Franklin at the same rates for
which the Company was obligated to the inventor of the VoiceLogic Technology
prior to its assignment to Franklin. As a result of the completion of these
transactions, the Company recognized $141,527 as a gain on the sale of assets,
and $700,000 as income from the sale of the technology license.
4. Accounts Receivable
In August 1996, the Company entered into a $3,000,000 accounts receivable
transfer and purchase agreement with a financial institution. The agreement
expired during 1997, and on December 30, 1997 the Company, after obtaining
authorization from the Bankruptcy Court, made a final payment to the financial
institution with which the Company re-purchased its previously transferred
outstanding receivables, extinguishing all potential obligations to the
institution, in exchange for release of the security interest held by this
institution on the assets of the Company. The December 31, 1996 balance of
$3,367,772 was the largest amount of outstanding receivables sold under the
agreement during 1996 or 1997. The average rate of interest under this agreement
was 21.9% in 1996 and 11% in 1997.
5. Inventories
Inventories consisted of the following:
<TABLE>
For the years ended December 31,
1998 1997
---- ----
<S> <C> <C>
Finished goods $210,082 $ 94,231
Parts and collateral materials 104,168 119,486
--------- --------
Total Inventory $314,350 $213,717
======== ========
</TABLE>
6. Deferred Costs
Deferred costs consisted of the following:
<TABLE>
For the years ended December 31,
1998 1997
---- ----
<S> <C> <C>
Product improvement costs $ -- $117,487
Product development costs 271,869 271,869
-------- --------
271,869 389,356
Less accumulated amortization 191,548 140,995
-------- --------
Deferred costs - net $ 80,321 $248,361
======== ========
</TABLE>
-24-
<PAGE> 27
7. Accrued Expenses
Accrued expenses consisted of the following:
<TABLE>
For the years ended December 31,
1998 1997
---- ----
<S> <C> <C>
Reserve for product returns $11,500 $50,000
Royalties due Franklin 75,000 15,000
Interest due Franklin 44,942 3,325
Legal and accounting 8,000 42,300
Other 19,838 27,695
------- -------
Total accrued expenses $ 159,280 $ 138,320
========= =========
</TABLE>
8. Loans Payable
As of September 22, 1997, in conjunction with the commencement of the
Bankruptcy Proceedings, the Company entered into a revolving $400,000 Loan and
Security Agreement with Franklin collateralized by all of the assets of the
Company. This loan was due and payable on the Effective Date. The agreement
carried an interest rate of 12% per annum on the average daily balance. The
December 31, 1997 balance of $185,000 was the highest balance during 1997, and
said amount was in excess of the borrowings allowed under the terms of the
agreement. As of the Effective Date, the Company renegotiated the terms of its
post petition, secured revolving Loan and Security Agreement with Franklin. As
of the Effective Date, the Company had borrowed $250,000 in accordance with the
terms of the prior agreement. Under the terms of the new agreement (the
"Revolving Loan"), entered into as of the Effective Date, interest accrues at 8%
per annum payable monthly in arrears and with the principal balance payable in
two installments; 1) $50,000 on or before May 12, 1999 and; 2) the balance in a
lump sum payment five years from the Effective Date, which is May 12, 2003. As
of December 31, 1998, the principal balance due on this loan was $270,000.
In accordance with the Plan, on the Effective Date the Company received a
loan of $350,000 from Franklin (the "Plan Loan") to create a fund to be
dedicated to the payment of creditor claims and certain administrative expenses
of the Bankruptcy Proceedings. The Plan Loan accrues interest at 8% per annum,
with interest only payable in arrears on a monthly basis, with principal all due
and payable in a lump sum payment five years from the Effective Date which is
May 12, 2003.
9. Liabilities Subject to Compromise
Liabilities subject to compromise consisted of the following pre-petition
obligations:
<TABLE>
December 31, 1997
-----------------
<S> <C>
Accounts payable $ 585,048
Accrued expenses 935,578
Note payable to Franklin (Note 3) 1,708,750
---------------
$ 3,229,376
===============
</TABLE>
10. Commitments
(a) As of December 31, 1998, the Company has one operating lease that
requires future minimum rental payments with initial or remaining terms in
excess of one year:
<TABLE>
Operating
Lease
-----------
<S> <C>
1999 $ 58,500
2000 58,500
2001 17,062
-----------
Total $ 134,062
===========
</TABLE>
-25-
<PAGE> 28
The operating lease pertains to a lease for the Company's office facilities.
The lease expires April 14, 2001. Franklin has provided a limited guaranty of
the Company's performance under this lease. Rent expense was $73,086, $162,000
and $264,000 for the years ended December 31, 1998, 1997 and 1996 respectively.
(b) In February 1996, the Company entered into an agreement with a related
party ("the Inventor"), inventor of an integral part of the voice recognition
technology used by the Company, which resulted in the Company's obtaining
unrestricted exclusive world wide ownership rights to the technology subject to
ongoing royalties for a total cost of $100,000 in cash and stock options which
were cumulatively $50,000 lower than market value. The royalties are subject to
a minimum of $60,000 per year, payable quarterly. In May 1997, this agreement
with the Inventor was assigned to Franklin (Note 3). However, with respect to
the annual minimum royalty due to the Inventor by Franklin, the Company remains
obligated to Franklin for the $60,000 per year. Royalty expense incurred in
1998, 1997 and 1996 amounted to $60,000, $60,000 and $130,400, respectively.
(c) As of December 31, 1997, the Company had an employment agreement with
one of its officers, which expired in February 1998. In February 1998, the
Company entered into employment agreements with this officer as well as with
another officer. These agreements expired December 31, 1998.
11. Capital Stock
(a) Stock options
The Company's 1992 Stock Option Plan (the "1992 Plan") provided for the
granting of non-statutory stock options or incentive stock options to employees
to purchase up to an aggregate of 700,000 shares of common stock, subject to
anti-dilution provisions. The Company's 1994 Stock Option Plan (the "1994 Plan")
provided for the granting of non-statutory stock options or incentive stock
options to employees to purchase up to an aggregate of 700,000 shares of common
stock, subject to anti-dilution provisions. Pursuant to the terms of the Plan of
Reorganization, all options unexercised as of the Effective Date of the Plan of
Reorganization were canceled.
Under the terms of a May 1997 termination agreement with the Company's
previous CEO, who, at the time, was Chairman of the Company's Board of
Directors, the Company granted 75,000 stock options at an exercise price of
$.008 per share (which was 20% of the fair market value per share at the time of
the grant in accordance with previous options granted by the Company for
non-employee directors). In April 1998, 37,500 of these stock options were
exercised.
(b) Warrants
With respect to warrants, the Company had a balance of 1,098,817 outstanding
and exercisable at December 31, 1996 with a weighted average exercise price of
$6.38. All of the warrants expired during 1997.
(c) Stock issuance
In February 1996, the Company executed an agreement with its prior contract
manufacturer which established the terms and conditions pursuant to which the
Company wound down its affairs with this manufacturer. The terms of this
agreement included the issuance to the manufacturer of 1,371,966 shares of the
Company's common stock at market value, valued at $1,955,052, which amount was
applied to the Company's outstanding debt to the manufacturer.
Included in a May 1997 agreement with Franklin (Note 3), the Company sold to
Franklin for $150,000 in cash 2,000,000 shares of the Company's common stock,
par value $.001 per share, representing the approximate market price of the
Company's common stock at the time of the transaction.
Also in May 1997, the Company issued to its president 62,500 shares of the
Company's common stock at market value, valued at $2,500, which was applied to
accrued salaries due to the president.
-26-
<PAGE> 29
Also in May 1997, the Company entered into an agreement with a manufacturer
of the Company's products under which the Company paid cash and issued 500,000
shares of non-voting, non-cumulative, convertible preferred stock, with a $0.06
per share mandatory dividend payable annually in cash or common stock at the
option of the Company on the anniversary date of issuance, as full and final
settlement of outstanding liabilities. The preferred stock had a $1.00 per share
liquidation preference and each share was convertible into four (4) shares of
the Company's common stock. Pursuant to the Plan of Reorganization, these
500,000 shares of outstanding preferred stock were converted into 2,000,000
shares of the Company's common stock.
Finally, in May 1998, in accordance with the Plan of Reorganization, the
Company's Articles of Incorporation were amended to increase, among other
things, the authorized shares of common stock to 100,000,000. Pursuant to the
Plan, Franklin was issued 72,196,288 shares of the Company's common stock, which
equated to an additional 80% equity interest in the Company in exchange for
Franklin's pre-petition secured claim in the amount of $1,733,990.
12. Major Customers and International Sales
In 1996, the Company had two domestic customers whose purchases, totaling
$3,100,000, each exceeded 10% of the Company's net sales. In 1997, the Company
had one domestic customer whose purchases, totaling $418,000, exceeded 10% of
the Company's net sales. For the seven and one half months ended December 31,
1998, the Company had sales to one domestic customer of $266,000 and had sales
to one international customer of $605,000, representing 16% and 36% of the
Company's sales for this period respectively.
During 1996 and 1997, approximately 15% of the Company's net sales were
international sales, primarily in Europe. For the seven and one half months
ended December 31, 1998, the Company's international sales totaled $817,000,
equal to 48% of total sales. Inasmuch as all international sales are in US
dollars, the Company does not incur any gains or losses on foreign currency
fluctuations. Further, the Company does not maintain any material inventory or
other assets in foreign countries and requires payment at the time of sale on
the majority of export sales. Accordingly, there are no material identifiable
assets attributable to international sales activities.
13. Price Protection
During the first three quarters of 1997, the Company instituted programs to
reduce the retail price of two of its older product lines. Accordingly,
established retail accounts were issued credits for on-hand inventory equal to
the difference between the wholesale price at which they had purchased the
products and their new wholesale price, which was based on the reduced retail
price.
The total cost to the Company for this 1997 program was $206,000.
14. Discontinued Model Costs
As of December 31, 1996, the Company discontinued future production of its
IQoVOICE Tell-It Phone as well as writing off costs relating to its
Diary/Organizer product, previously capitalized. The Diary/Organizer was
designed for girls between the ages of seven to thirteen, and featured games and
activities which utilized the Company's VoiceLogic technology. Due to the high
marketing and start-up manufacturing costs associated with the introduction of
this product, the Company, due to the limitation of cash resources, was unable
to introduce this product and did not believe that sufficient cash resources
would be available. As a result, at December 31, 1996, the Company wrote off
$419,960, which was the book value of product development costs related to the
discontinued products.
As of December 31, 1997, the Company discontinued future production of its
IQoVOICE Organizer/Pagers, its low cost line of IQoVOICE Organizers, and its
original battery operated IQoVOICE Organizer. As a result, the Company wrote
down the inventory value of the related finished goods by $828,213 in accordance
with the lower of cost or market methodology. Also, the Company wrote off
$302,082, which was the book value of tooling
-27-
<PAGE> 30
and product development costs related to the discontinued products. As such, the
total cost charged to operations in 1997 related to discontinued products was
$1,130,295.
15. Forgiveness of Debt
In May 1997, the Company entered into agreements with the prior contract
manufacturers of the Company's products, relating to the resolution of
outstanding liabilities and commitments. Also, in May 1997, the Company entered
into agreements with many of its other trade creditors in which the trade
creditors agreed to accept discounted lump sum payments in full consideration of
current obligations of the Company. As a result of these agreements, the Company
recognized a gain from forgiveness of debt of $1,387,842 for the year ended
December 31, 1997.
In May 1998, The Company's Amended Plan of Reorganization and Disclosure
Statement became effective and the Company received the Plan Loan of $350,000
from Franklin to create a fund to be dedicated to the payment of creditor claims
and certain administrative expenses. After payment of the administrative
expenses of $133,000, the balance of the funds were disbursed in final
settlement of the remaining pre-petition claims resulting in a gain from
forgiveness of debt of $1,287,721.
16. Supplemental Cash Flow Information
During the years ended December 31, 1997 and 1996, the Company paid $140,000
and $228,000 in interest expense. For the year ended December 31, 1998, interest
expense due Franklin totaling $44,943 is accrued and unpaid.
Supplemental non-cash financing and investing activities were as follows:
<TABLE>
Years ended December 31,
1998 1997 1996
----------- --------- -----------
<S> <C> <C> <C>
Issuance of common stock in consideration of pre-petition loan payable $1,733,990 $ -- $ --
Conversion of preferred stock to common stock 500,000 -- --
Issuance of common stock to president (Note 9(c)) -- 2,500 --
Issuance of preferred stock to vendor (Note 9(c)) (500,000) 500,000 --
Issuance of compensatory stock options (Note 9(a)) -- -- 48,000
Issuance of compensatory stock options to related party (Notes 8(b) and 9(a)) -- -- 50,000
Issuance of common stock to vendor (Note 9(c)) -- -- 1,955,052
</TABLE>
17. Income Taxes
Unused net operating losses of approximately $27,000,000 are available as of
December 31, 1998 to offset future years' federal taxable income, and expire
through 2012. Unused California net operating losses of approximately
$12,000,000 are available as of December 31, 1998 to offset future years'
California taxable income and expire through 2002. Under federal tax law IRC
Section 382, certain significant changes in ownership of the Company may
restrict future utilization of these carry-forwards. In the event the loss
carry-forwards are fully utilizable, the Company has a deferred tax asset of
approximately $10,000,000 as of December 31, 1998. In addition, the Company has
research and development tax credits of approximately $250,000 and $123,000 for
Federal and California tax purposes respectively. They will begin to expire in
2007. The Company has a valuation allowance equal to, and which offsets, the net
deferred tax asset as the Company cannot conclude that it is more likely than
not the net deferred tax asset will be realized.
-28-
<PAGE> 31
18. Related Party Transactions
During 1996 and 1997 the Company paid royalties of $98,000 and $82,000,
respectively, to a director of the Company. Further, during 1996 the Company
granted stock options which were cumulatively $50,000 lower than market value to
the same director.
Also during 1997, the Company paid $31,000 to its former president/CEO
relating to agreements entered into in May 1997 and issued to its current
president 62,500 shares of the Company's common stock at market value, valued at
$2,500, which was applied to accrued salaries due.
As of the Effective Date, the Company became an 82% subsidiary of Franklin.
During 1998, the Company incurred interest expense on loans from Franklin in the
amount of $38,419 . In addition, during 1998 the Company incurred royalties
expenses in the amount of $60,000. Lastly, the Company purchased inventory from
Franklin for resale in the amount of $457,088. As of December 31, 1998, amounts
due Franklin included in accounts payable of the Company is $457,088 for
inventory purchases and, amounts due Franklin included in accrued expenses of
the Company is $75,000 in royalties payable and $44,943 in interest payable.
-29-
<PAGE> 32
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
On September 3, 1998, the Company replaced BDO Seidman LLP as the principal
accountant to audit the Company's financials statements and engaged Radin, Glass
& Co., LLP as the principal accountant to audit the Company's financial
statements.
BDO's reports on the Company's financial statements for the two most recent
fiscal years did not contain an adverse opinion or disclaimer of opinion, nor
were such reports modified as to audit scope or accounting principles. However,
BDO's reports on the Company's financial statements for the two most recent
fiscal years did contain a modification as to uncertainty relating to the
Company's ability to continue as a going concern.
The decision to replace BDO as the principal accountant to audit the
Company's financial statements was recommended and approved by the Company's
Board of Directors.
During the Company's two most recent fiscal years and in the subsequent
interim period preceding the date of BDO's replacement, there were no
disagreements between the Company and BDO on any matters of accounting
principles or practices, financial statement disclosure, or auditing scope or
procedure which, if not resolved to the satisfaction of BDO, would have caused
BDO to make a reference to the subject matter of the disagreement in connection
with BDO's reports on the Company's financial statements for such periods.
During the Company's two most recent fiscal years and the subsequent
interim period preceding the date of Radin's engagement, neither the Company nor
any person on the Company's behalf consulted Radin regarding the application of
accounting principles to a specific completed or contemplated transaction or the
type of audit opinion that might be rendered on the Company's financial
statements.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information called for by Item 10 is set forth under the heading
"Election of Directors" in the Company's Proxy Statement for its 1999 annual
meeting of stockholders (the "1999 Proxy Statement"), which is incorporated
herein by this reference.
Item 11. Executive Compensation
Information called for by Item 11 is set forth under the heading
"Executive Compensation" in the 1999 Proxy Statement, which is incorporated
herein by this reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information called for by Item 12 is set forth under the heading
"Security Ownership of Certain Beneficial Owners and Management" in the 1999
Proxy Statement, which is incorporated herein by this reference.
Item 13. Certain Relationships and Related Transactions
Information called for by Item 13 is set forth under the heading
"Certain Relationships and Related Transactions" in the 1999 Proxy Statement,
which is incorporated herein by this reference.
Item 14. Exhibits and Reports on Form 8-K
(a) Exhibits:
See Exhibit Index
(b) Reports on Form 8-K.
-30-
<PAGE> 33
Form 8-K filed with the SEC on September 3, 1998 under Item 4 and Item 7
-31-
<PAGE> 34
EXHIBIT INDEX
* 3(a) Articles of Incorporation, as amended
3(aa) Certificate of Amendment of Articles of Incorporation
dated May 12, 1998
* 3(b) Bylaws, as amended
* 4(a) Form of Warrant Agreement with U.S. Stock Transfer Corp.
* 4(b) Form of Representative's Unit Purchase Option
* 4(c) Specimen of Common Stock Certificate of Registrant
* 4(d) Form of Warrant Certificate
* 10(a) 1992 Stock Option Plan
*** 10(aa) 1994 Stock Option Plan
* 10(b) Employment Agreement with Michael Bissonnette
* 10(c) Employment Agreement with Edward M. Krakauer
* 10(d) Employment Agreement with Jerry Gutterman
**** 10(dd) 1994 Consulting Agreement between Registrant and Jerry
Gutterman
* 10(e) Non-Qualified Stock Option Agreement with Edward M.
Krakauer
* 10(f) Non-Qualified Stock Option Agreement with Jerry Gutterman
* 10(g) Agreement and Stock Option Agreement with Jerry Gutterman
* 10(h) Leases for Canoga Park, California
* 10(hh) Additional Leases for Canoga Park, California
*** 10(hhh) Additional Leases for Canoga Park and Chatsworth,
California
**** 10(hhhh) Lease for Executive Offices, Sherman Oaks, California
* 10(i) License Agreement with ESSO Development, Inc.
* 10(j) Manufacturing and Warrant Agreements with Flextronics
(Malaysia) SDN, BHD
* 10(l) Agreements with Regal Communications Corporation
**+/- 10(m) Stock Option Agreement between Michael Bissonnette and
Edward Krakauer
**+/- 10(n) Escrow Agreement among Michael Bissonnette, Edward
Krakauer and U.S. Stock Transfer Corporation
**+/- 10(o) Registration Rights Agreement between Registrant and
Edward Krakauer
**+/- 10(p) 1993 Employment Agreement between Registrant and Edward
Krakauer
**+/- 10(pp) Indemnity Agreement between Registrant and Edward Krakauer
(1)+ 10(ppp) Amendment to Employment Agreement with Edward M. Krakauer
-
+ 10(pppp) Amendment to Employment Agreement with Edward M. Krakauer
- -
+ 10(ppppp) Termination Agreement with Edward M. Krakauer
- -
+ 10(pppppp) Consulting Agreement with Edward M. Krakauer
- -
**+/- 10(q) Amendment to Employment Agreement between Michael
Bissonnette and Registrant
***+/- 10(qq) Indemnity Agreement between Registrant and Michael
Bissonnette
***+/- 10(qqq) 1994 Consulting Agreement between Registrant and Michael
Bissonnette
***+/- 10(r) Indemnity Agreement between Registrant and Jerry Gutterman
***+/- 10(s) Employment Agreement between Registrant and Mitchell Rubin
***+/- 10(ss) Indemnity Agreement between Registrant and Mitchell Rubin
**** 10(sss) Registration Rights Agreement and Amendment thereto
between Registrant
and Mitchell Rubin
(1)+ 10(ssss) Amendment to Employment Agreement with Mitchell B. Rubin
+ 10(sssss) Amendment to Employment Agreement with Mitchell B. Rubin
10(s.6) Amended Employment Agreement with Mitchell B. Rubin
****+ 10(t) Employment Agreement with Mark L. Frankel
-
(1)+ 10(tt) Amendment to Employment Agreement with Mark L. Frankel
-
**** 10(u) Employment Agreement with George H. Fischer
+ 10(uu) Amendment to Employment Agreement with George H. Fischer
- -
***** 10(v) Flextronics Termination Agreement
(2) 10(vv) Settlement Agreement with Flextronics
(1)+ 10(w) Employment Agreement with Kenneth I. DeWitt
-
(1)+ 10(ww) Amendment to Employment Agreement with Kenneth I. DeWitt
-
+ 10(www) Amendment to Employment Agreement with Kenneth I. DeWitt
- -
10(w.4) Amended Employment Agreement with Kenneth I. DeWitt
(1) 10(x) Business Cooperation Agreement with Hansol Electronics,
Inc.
(2) 10(xx) Termination Agreement with Hansol Electronics, Inc.
(1) 10(y) Assignment Agreement for Technology with Myron Hitchcock
(1) 10(yy) Stock Option Agreement regarding Assignment Agreement for
Technology with Myron Hitchcock
<PAGE> 35
(1) 10(z) Loan Agreement with Manufacturers Bank
(1) 10(zz) Amendment to Loan Agreement with Manufacturers Bank
(2) 10.1 MobileComm Joint Purchase and Marketing Agreement
(2) 10.1.1 MobileComm Settlement Agreement
(2) 10.1.2 MobileComm Amended Settlement Agreement
(2) 10.2 Employment Agreement with Larry Kloman
(2) 10.3 Manufacturing Agreement with GSS/Array
(2) 10.3.1 Agreement for Discounted Payment and Adequate Assurance
of Performance with GSS/Array
(2) 10.4 Loan Agreement with KBK Financial
(2) 10.5 Letter of Intent from Voice It Worldwide, Inc.
(2) 10.5.1 Termination Letter from Voice It Worldwide, Inc.
(2) 10.6 Letter of Intent from Franklin Electronic Publishers, Inc.
(2) 10.6.1 Security Agreement with Franklin Electronic Publishers,
Inc.
(2)@ 10.6.2 Purchase and Loan Agreement with Franklin Electronic
Publishers, Inc.
(2)@ 10.6.3 Technology Transfer Agreement with Franklin Electronic
Publishers, Inc.
10.6.4 Revised Loan and Security Agreement with Franklin
Electronic Publishers, Inc. dated September 22, 1997
10.6.5 Letter Agreement of October 7, 1997 Regarding Post
Petition Financing Agreement and Loan and Security
Agreement
10.6.6 Amendment to Loan and Security Agreement with Franklin
Electronic Publishers, Inc. dated September 22, 1997
(2) 10.7 Lease for Executive Offices, Tarzana, California
(3) 10.7.1 Amendment Number One to Lease for Executive Officers,
Tarzana, California
(3) 10.7.2 Amendment Number Two to Lease for Executive Officers,
Tarzana, California
(3) 10.8 Disclosure Statement and Plan of Reorganization for
Voice Powered Technology International, Inc. dated
as of January 21, 1998
(3) 10.8.1 Order confirming Amended Disclosure Statement and
Plan of Reorganization for Voice Powered
Technology International, Inc. dated as of April 29,
1998
(4) 16 Letter, dated September 8, 1998, from BDO Seidman LLP to
SEC re Form 8-K Statements.
21 Subsidiaries: None
(2) 23 Consent of BDO Seidman, LLP
(4) 99 Voice Powered Technology International, Inc. Press
Release, dated September 11, 1998.
- ---------------
* Previously filed with, and incorporated herein by reference from,
Registrant's Registration Statement on Form SB-2, File No. 33-50506,
effective October 20, 1993.
** Previously filed with, and incorporated herein by reference from,
Registrant's Form 8-K/A filed with the Commission and dated December 22,
1993.
*** Previously filed with, and incorporated herein by reference from
Registrant's Form 10-KSB for the year ended December 31, 1993.
**** Previously filed with, and incorporated herein by reference from
Registrant's Form 10-KSB for the year ended December 31, 1994.
*****Previously filed with, and incorporated herein by reference from
Registrant's Form 8-K filed with the Commission and dated March 15, 1996.
+/- Management contract or compensatory plan or arrangement.
(1) Previously filed with, and incorporated herein by reference from
Registrant's Form 10-KSB for the year ended December 31, 1995.
@ Filed separately with the Securities and Exchange Commission with a request
for confidential treatment.
(2) Previously filed with, and incorporated herein by reference from
Registrant's Form 10-KSB for the year ended December 31, 1996.
(3) Previously filed with, and incorporated herein by reference from
Registrant's Form 10-KSB for the year ended December 31, 1997.
(4) Previously filed with, and incorporated herein by reference from
Registrant's Form 8-K filed on September 11, 1998
<PAGE> 36
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
Registrant caused this report to be signed on its behalf by the undersigned,
there and to duly authorized.
VOICE POWER TECHNOLOGY
INTERNATIONAL, INC.
/s/ Mitchell B. Rubin
-----------------------------------
DATE: March 30, 1999 By: Mitchell B. Rubin
President
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of the Registrant and in the capacities and
on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- ----------- ----- ----
<S> <C> <C>
/s/ Gregory J. Winsky
- -------------------------
Gregory J. Winsky Chief Executive Officer March 30, 1999
and Director
/s/ Mitchell B. Rubin
- -------------------------
Mitchell B. Rubin President and Director March 30, 1999
/s/ Barry Lipsky
- -------------------------
Barry Lipsky Secretary and Director March 30, 1999
</TABLE>
<PAGE> 1
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE -- GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Provisions ("Basic Provisions").
1.1 Parties: This Lease ("Lease"), dated for reference purposes only, July
6, 1998, is made by and between EASE SIMI INVESTORS, LTD., A CALIFORNIA LIMITED
PARTNERSHIP ("Lessor") and VOICE POWERED TECHNOLOGY INTERNATIONAL. INC. A
CALIFORNIA CORPORATION("Lessee"), (collectively the "Parties," or individually a
"Party").
1.2(a) Premises: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this Lease,
commonly known by the street address of 21 W. EASY STREET. UNIT 108, located in
the City of SIMI VALLEY, County of VENTURA, State of CALIFORNIA, with zip code
93065, as outlined on Exhibit attached hereto ("Premises"). The "Building" is
that certain building containing the Premises and generally described as
(describe briefly the nature of the Building): AN INDUSTRIAL UNIT OF
APPROXIMATELY 6,175 (+/- ) SQUARE.FEET. PART OF A LARGER INDUSTRIAL COMPLEX
In addition to Lessee's rights to use and occupy the Premises as hereinafter
specified, Lessee shall have non-exclusive rights to the Common Areas (as
defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any
rights to the roof, exterior walls or utility raceways of the Building or to any
other buildings in the Industrial Center. The Premises, the Building, the Common
Areas, the land upon which they are located, along with all other buildings and
improvements thereon, are herein collectively referred to as the "Industrial
Center." (Also see Paragraph 2.)
1 2(b) Parking: 8 unreserved vehicle parking spaces ("Unreserved Parking
Spaces"): and 10 reserved vehicle parking spaces ("Reserved Parking Spaces").
(Also see Paragraph 2.6.)
1.3 Term: 2 years and 8 1/2 months ("Original Term") commencing AUGUST 1,
1998 ("Commencement Date") and ending APRIL 14, 2001 ("Expiration Date"). (Also
see Paragraph 3.)
1.4 Early Possession: ON OR ABOUT JULY 15. 1998 ("Early Possession Date").
(Also see Paragraphs 3.2 and 3.3.)
1.5 Base Rent: $$4,754.25 per month ("Base Rent"), payable on the FIRST
(1ST) day of each month commencing AUGUST 1. 1998 (Also see Paragraph 4.)
[X] If this box is checked, this Lease provides for the Base Rent to be adjusted
per Addendum 49, attached hereto.
1.6(a) Base Rent Paid Upon Execution: SS4,754 . 25 as Base Rent for the
period AUGUST 1998
1.6(b) Lessee's Share of Common Area Operating Expenses: SIX PERCENT
percent (6% %) ("Lessee's Share") as determined by [X] prorata square footage of
the Premises as compared to the total square footage of the Building or [ ]
other criteria as described in Addendum
1.7 Security Deposit: S$4,754 . 25 ("Security Deposit"). (Also see
Paragraph 5.)
1.8 Permitted Use: OFFICES, SALES ASSEMBLY AND DISTRIBUTION OF ELECTRICAL
COMPONENTS AND RELATED ACTIVIES THERETO. ("Permitted Use") (Also see Paragraph
6.)
1.9 Insuring Party. Lessor is the "Insuring Party." (Also see Paragraph 8.)
1.10(a) Real Estate Brokers. The following real estate broker(s)
(collectively, the "Brokers") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes): [X]
THE CARDINAL COMPANY represents Lessor exclusively ("Lessor's Broker"); [X] CB/
RICHARD ELLIS represents Lessee exclusively ("Lessee's Broker"); or
____________________________________ represents both Lessor and Lessee ("Dual
Agency"). (Also see Paragraph 15.)
1.10(b) Payment to Brokers. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s) jointly, or in such separate shares
as they may mutually designate in writing, a fee as set forth in a separate
written agreement between Lessor and said Broker(s) (or in the event there is no
separate written agreement between Lessor and said Broker(s), the sum of $SEE
PPG 50.) for brokerage services rendered by said Broker(s) in connection with
this transaction.
1.11 Guarantor. The obligations of the Lessee under this Lease are to be
guaranteed by FRANKLIN ELECTRONIC PUBLISHERS, INC. ("Guarantor") (Also see
Paragraph 37.)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 49 though 60 Exhibits A through , all of which
constitute a part of this Lease.
2 Premises, Parking and Common Areas.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon all of the terms,
covenants and conditions set forth in this Lease. Unless otherwise provided
herein, any statement of square footage set forth in this Lease, or that may
have been used in calculating rental and/or Common Area Operating Expenses, is
an approximation which Lessor and Lessee agree is reasonable and the rental and
Lessee's Share (as defined in Paragraph 1.6(b)) based thereon is not subject to
revision whether or not the actual square footage is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee clean and free
of debris on the Commencement Date and warrants to Lessee that the existing
plumbing, electrical systems, fire sprinkler system, lighting, air conditioning
and heating systems and loading doors, if any, in the Premises, other than those
constructed by Lessee, shall be in good operating condition on the Commencement
Date. If a non-compliance with said warranty exists as of the commencement Date,
Lessor shall, except as otherwise provided in this Lease, promptly after receipt
of written notice from Lessee setting forth with specificity the nature and
extent of such non-compliance, rectify same at Lessor's expense. If Lessee does
not give Lessor written notice of a non-compliance with this warranty within
thirty (30) days after the Commencement Date, correction of that non-compliance
shall be the obligation of Lessee at
<PAGE> 2
Lessee's sole cost and expense.
2.3 Compliance with Covenants, Restrictions and Building Code. Lessor
warrants that any improvements (other than those constructed by Lessee or at
Lessee's direction) on or in the Premises which have been constructed or
installed by Lessor or with Lessor's consent or at Lessor's direction shall
comply with all applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances in effect on the Commencement Date.
Lessor further warrants to Lessee that Lessor has no knowledge of any claim
having been made by any governmental agency that a violation or violations of
applicable building codes, regulations, or ordinances exist with regard to the
Premises as of the Commencement Date. Said warranties shall not apply to any
Alterations or Utility Installations (defined in Paragraph 7.3(a)) made or to
be made by Lessee. If the Premises do not comply with said warranties, Lessor
shall, except as otherwise provided in this Lease, promptly after receipt of
written notice from Lessee 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 Lessor's expense, as may be
reasonable or appropriate to rectify the non-compliance. Lessor makes no
warranty that the Permitted Use in Paragraph 1.8 is permitted for the Premises
under Applicable Laws (as defined in Paragraph 2.4).
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has
been advised by the Broker(s) to satisfy itself with respect to the condition
of the Premises (including, but not limited to, the electrical and fire
sprinkler systems, security, environmental aspects, seismic and earthquake
requirements, and compliance with the Americans with Disabilities Act and
applicable zoning, municipal, county, state and federal laws, ordinances and
regulations and any covenants or restrictions of record (collectively,
"Applicable Laws") and the present and future suitability of the Premises for
Lessee's intended use; (b) that Lessee has made such investigation as it deems
necessary with reference to such matters, is satisfied with reference thereto,
and assumes all responsibility therefore as the same relate to Lessee's
occupancy of the Premises and/or the terms of this Lease; and (c) that neither
Lessor, nor any of Lessor's agents, has made any oral or written
representations or warranties with respect to said matters other than as set
forth in this Lease.
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises. In
such event, Lessee shall, at Lessee's sole cost and expense, correct any
non-compliance of the Premises with said warranties.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no larger than
full-size passenger automobiles or pick-up trucks, herein called "Permitted
Size Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor.
(Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
(c) Lessor shall 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 Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other lessees of the Industrial Center
and their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor hereby grants to Lessee, for the
benefit of Lessee and its employees, suppliers, shippers, contractors, customers
and invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by Lessor
under the terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Industrial Center. Under no circumstances
shall the right herein granted to use the Common Areas be deemed to include the
right to store any property, temporarily or permanently, in the Common Areas.
Any such storage shall be permitted only by the prior written consent of Lessor
or Lessor's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other person(s) as
Lessor may appoint shall have the exclusive control and management of the Common
Areas and shall have the right, from time to time, to establish, modify, amend
and enforce reasonable Rules and Regulations with respect thereto in accordance
with Paragraph 40. Lessee agrees to abide by and conform to all such Rules and
Regulations, and to cause its employees, suppliers, shippers, customers,
contractors and invitees to so abide and conform. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees of the Industrial Center.
2.10 Common Areas -Changes. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the Industrial Center
to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; and
(f) To do and perform such other acts and make such other changes in, to 01
with respect to the Common Areas and Industrial Center as Lessor 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 Lessee 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
Lessee's Share of Common Area Operating Expenses and to carry the insurance
required by Paragraph 8) shall be in effect during such period. Any such early
possession shall not affect nor advance the Expiration Date of the Original
Term.
3.3 Delay in Possession. If for any reason Lessor cannot deliver possession
of the Premises to Lessee by the Early Possession Date, if one is specified in
Paragraph 1.4, or if no Early Possession Date is specified, by the Commencement
Date, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease, or the obligations of Lessee
hereunder, or extend the term hereof, but in such case, Lessee shall not, except
as otherwise provided herein, be obligated to pay rent or perform any other
obligation of Lessee under the terms of this Lease until Lessor delivers
possession of the Premises to Lessee. If possession of the Premises is not
delivered to Lessee within sixty (60) days after the Commencement Date, Lessee
may, at its option by notice in writing to Lessor within ten (10) days after the
end of said sixty (60) day period, cancel this Lease, in which event the Parties
shall be discharged from all obligations hereunder; provided further, however,
that if such written notice of Lessee is not received by Lessor within said ten
(10) day period, Lessee's right to cancel this Lease hereunder shall terminate
and be of no further force or effect. Except as may be otherwise provided, and
regardless of when the Original Term actually commences, if possession is not
tendered to Lessee when required by this Lease and Lessee does not terminate
this Lease, as aforesaid, the period free of the obligation to pay Base Rent, if
any, that Lessee would otherwise have enjoyed shall run from the date of
delivery of possession and continue for a period equal to the period during
which the Lessee would have otherwise enjoyed under the terms hereof, but minus
any days of delay caused by the acts, changes or omissions of Lessee.
4. Rent
4.1 Base Rent. Lessee shall pay Base Rent and other rent or charges, as the
same may be adjusted from time to time, to Lessor in lawful money of the United
States, without offset or deduction, on or before the day on which it is due
under the terms of this Lease. Base Rent and all other rent and charges for any
period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designated in writing to Lessee.
<PAGE> 3
4.2 Common Area Operating Expenses. Lessee shall pay to Lessor during the
term hereof, in addition tot he Base Rent, Lessee's Share (as specified in
Paragraph 1.6(b)) of all Common Area Operating Expenses, as hereinafter
defined, during each calendar year of the term of this Lease, in accordance
with the following provisions:
(a) "Common Area Operating Expenses" are defined, for purposes of
this Lease, as all costs incurred by Lessor relating to the ownership and
operation of the Industrial Center, including, but not limited to, the
following:
(i) The operation, repair and maintenance, in neat, clean, good order
and condition, of the following:
(aa) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems,
Common Area lighting facilities, fences and gates, elevators 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, property management and security services and
the costs of any environmental inspections.
(iv) Reserves set aside for maintenance and repair of Common Areas.
(v) Any increase above the Base Real Property Taxes (as defined in
Paragraph 10.2(b)) for the Building and the Common Areas.
(vi) Any "Insurance Cost Increase" (as defined in Paragraph 8.1).
(vii) The cost of insurance carried by Lessor with respect to the
Common Areas.
(viii) Any deductible portion of an insured loss concerning the
Building or the Common Areas.
(ix) Any other services to be provided by Lessor that are stated
elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes that are
specifically 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 (he Building or to any other building or to the operation,
repair and maintenance thereof, shall be equitably allocated by Lessor to all
buildings in the Industrial Center.
(c) The inclusion of the improvements, facilities and services set forth in
Subparagraph 4.2(a) shall not be deemed to impose an obligation upon Lessor to
either have said improvements or facilities or to provide those services unless
the Industrial Center already has the same, Lessor already provides the
services, or Lessor has agreed elsewhere in this Lease to provide the same or
some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be payable by
Lessee within ten (10) days after a reasonably detailed statement of actual
expenses is presented to Lessee by Lessor. At Lessor's option, however, an
amount may be estimated by Lessor from time to time of Lessee's Share of annual
Common Area Operating Expenses and the same shall be payable monthly or
quarterly, as Lessor shall designate, during each 12-month period of the Lease
term, on the same day as the Base Rent is due hereunder. Lessor shall deliver to
Lessee within sixty (60) days after the expiration of each calendar year a
reasonably detailed statement showing Lessee's Share of the actual Common Area
Operating Expenses incurred during the preceding year. If Lessee's payments
under this Paragraph 4.2(d) during said preceding year exceed Lessee's Share as
indicated on said statement, Lessee shall be credited the amount of such
overpayment against Lessee's Share of Common Area Operating Expenses next
becoming due. If Lessee's payments under this Paragraph 4.2(d) during said
preceding year were less than Lessee's Share as indicated on said statement.
Lessee shall pay to Lessor the amount of the deficiency within ten (10) days
after delivery by Lessor to Lessee of said statement.
5. Security Deposit. Lessee shall deposit with Lessor upon Lessee's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults
under this Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorneys' fees) which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefore
deposit monies with Lessor sufficient to restore said Security Deposit to the
full amount required by this Lease. Any time the Base Rent increases during the
term of this Lease, Lessee shall, upon written request from Lessor, deposit
additional monies with Lessor 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. Lessor shall not be required to
keep all or any part of the Security Deposit separate from its general accounts.
Lessor shall, at the expiration or earlier termination of the term hereof and
after Lessee has vacated the Premises, return to Lessee (or, at Lessor's option,
to the last assignee, if any, of Lessee's interest herein), that portion of the
Security Deposit not used or applied by Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall be considered
to be held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease.
6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the Permitted Use set
forth in Paragraph 1.8, or any other legal use which is reasonably comparable
thereto, and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful, creates waste or a nuisance, or that
disturbs owners and/or occupants of, or causes damage to the Premises or
neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay its consent
to any written request by Lessee, Lessee's assignees or subtenants, and by
prospective assignees and subtenants of Lessee, its assignees and subtenants,
for a modification of said Permitted Use, so long as the same will not impair
the structural integrity of the improvements on the Premises or in the Building
or the mechanical or electrical systems therein, does not conflict with uses by
other lessees, is not significantly more burdensome to the Premises or the
Building and the improvements thereon, and is otherwise permissible pursuant to
this Paragraph 6. If Lessor elects to withhold such consent, Lessor shall within
five (5) business days after such request give a written notification of same,
which notice shall include an explanation of Lessor'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 basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Lessee
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Requirements (as defined in
Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority, and (iii) the presence
in, on-or about the 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, Lessee
may, without Lessor's prior consent, but upon notice to Lessor and in compliance
with a". Applicable Requirements, use any ordinary and customary materials
reasonably required to be used by Lessee in the normal course of the Permitted
Use, so long as such use is not a Reportable Use and does not expose the
Premises, or neighboring properties to any meaningful risk of contamination or
damage or expose Lessor to any liability therefor. In addition, Lessor may (but
without any obligation to do so) condition its consent to any Reportable Use of
any Hazardous Substance by Lessee upon Lessee's giving Lessor such additional
assurances as Lessor, in its reasonable discretion, deems necessary to protect
itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefor, including, but not limited
to. the installation (and, at Lessor's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the deposit
of an additional Security Deposit under Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee 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 be
Lessor, Lessee shall immediately give Lessor written notice thereof, together
with a copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action, or proceeding given to, or received from,
any governmental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance including but
not limited to all such documents as may be involved in any Reporting Use
involving the Premises. Lessee 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 plumbing or sanitary sewer system). '
(c) Indemnification. Lessee shall indemnify, protect, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, and the
<PAGE> 4
Premises, harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance brought
onto the Premises by or for Lessee or by anyone under Lessee's control. Lessee's
obligations under this Paragraph 6.2(c) shall include, but not be limited to,
the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and Lessee
shall release Lessee from its obligations under this Lease with respect to
Hazardous Substances, unless specifically so agreed by Lessor in writing at the
time of such agreement.
6.3 Lessee's Compliance with Requirements. Lessee shall, at Lessee's sole
cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises (including,
but not limited to, matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill, or release
of any Hazardous Substance), now in effect or which may hereafter come into
effect. Lessee shall, within five (5) days after receipt of Lessor's written
request, provide Lessor with copies of all documents and information, including,
but not limited to, permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify Lessor in
writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or involving
failure by Lessee or the Premises to comply with any Applicable Requirements.
6.4 Inspection; Compliance with Law. Lessor, Lessor's agents, employees,
contractors and designated representatives, and the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lenders") shall have the right
to enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Lessee with this Lease and all Applicable
Requirements (as defined in Paragraph 6.3), and Lessor shall be entitled to
employ experts and/or consultants in connection therewith to advise Lessor with
respect to Lessee's activities, including, but not limited to, Lessee's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The costs and expenses of any such
inspections shall be paid by the party requesting same, unless a Default or
Breach of this Lease by Lessee or a violation of Applicable Requirements or a
contamination, caused or materially contributed to by Lessee, is found to exist
or to be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In such case, Lessee shall upon request reimburse Lessor or
Lessor's Lender, as the case may be, for the costs and expenses of such
inspections.
7. Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at
Lessee's sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition and repair (whether or not such portion of
the Premises requiring repair, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's use, any prior use, the elements or the
age of such portion of the Premises), including, without limiting the generality
of the foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities, boilers, fired or unfired pressure vessels, fire hose connections if
within the Premises, fixtures, interior walls, interior surfaces of exterior
walls, ceilings, floors, windows, doors, plate glass, and skylights, but
excluding any items which are the responsibility of Lessor pursuant to Paragraph
7.2 below. Lessee, in keeping the Premises in good order, condition and repair,
shall exercise and perform good maintenance practices. Lessee's obligations
shall include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order, condition
and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure and maintain a
contract, with copies to Lessor, in customary form and substance for and with a
contractor specializing and experienced in the inspection, maintenance and
service of the heating, air conditioning and ventilation system for the
Premises. However, Lessor reserves the right, upon notice to Lessee, to procure
and maintain the contract for the heating, air conditioning and ventilating
systems, and if Lessor so elects, Lessee shall reimburse Lessor, upon demand,
for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this Paragraph
7.1, Lessor may enter upon the Premises after ten (10) days' prior written
notice to Lessee (except in the case of an emergency, in which case no notice
shall be required), perform such obligations on Lessee's behalf, and put the
Premises in good order, condition and repair, in accordance with Paragraph 13.2
below.
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants, Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation). Lessor, 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 and all parts thereof, as well as providing the
services for which there is a Common Area Operating Expense pursuant to
Paragraph 4.2. Lessor shall not be obligated to paint the exterior or interior
surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or
replace windows, doors or plate glass of the Premises. Lessee expressly waives
the benefit of any statute now or hereafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate this
Lease because of Lessor's failure to keep the Building. Industrial Center or
Common Areas in good order, condition and repair.
7.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions; Consent Required. The term "Utility Installations" is used
in this Lease to refer to all air lines, power panels, electrical distribution,
security, fire protection systems, communications systems, lighting fixtures,
heating, ventilating and air conditioning equipment, plumbing, and fencing in,
on or about the Premises. The term "Trade Fixtures" shall mean Lessee's
machinery and equipment which can be removed without doing material damage to
the Premises. The term "Alterations" shall mean any modification of the
improvements on the Premises which are provided by Lessor under the terms of
this Lease, other than Utility Installations or Trade Fixtures. "Lessee-Owned
Alterations and/or Utility Installations" are defined as Alterations and/or
Utility Installations made by Lessee that are not yet owned by Lessor pursuant
to Paragraph 7.4(a). Lessee shall not make nor cause to be made any Alterations
or Utility Installations in, on, under or about the Premises without Lessor's
prior written consent. Lessee may. however, make non-structural Utility
Installations to the interior of the Premises (excluding the roof) without
Lessor's consent but upon notice to Lessor, so long as they are 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 Lessee shall
desire to make and which require the consent of the Lessor shall be presented to
Lessor in written form with detailed plans. All consents given by Lessor,
whether by virtue of Paragraph 7.3(a) or by subsequent specific consent, shall
be deemed conditioned upon: (i) Lessee's acquiring all applicable permits
required by governmental authorities; (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the Alteration
or Utility Installation to Lessor prior to commencement; work thereon: and (iii)
the compliance by Lessee with all conditions of said permits in a prompt and
expeditious manner. Any Alterations or Utility Installations by Lessee during
the term of this Lease shall be done in a good and workmanlike manner, with good
and sufficient materials, and be in compliance with all Applicable requirements.
Lessee shall promptly upon completion thereof furnish Lessor with as-built plans
and specifications therefor. Lessor may (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation that
costs $2,500.00 or more upon Lessee's providing Lessor 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. Lessee shall pay when due all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use on the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in, on, or about the Premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises as provided by law. If
Lessee shall, in good faith, contest the validity of any such lien, claim or
adverse demand, then Lessee shall, at its sole expense, defend and protect
itself, Lessor and the Premises against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises. If Lessor shall require, Lessee
shall furnish to Lessor a surety bond satisfactory to Lessor, in an amount equal
to one and one-half times the amount of such contested lien claim or demand,
indemnifying Lessor against liability for the same, as required by law for the
holding of the Premises free from the effect of such lien or claim. In addition,
Lessor may require Lessee to pay Lessor's attorney's fees and costs in
participating in such action if Lessor shall decide it is to its best interest
to do so.
<PAGE> 5
7.4 Ownership, Removal, Surrender, and Restoration
(a) Ownership. Subject to Lessor's right to require their removal and to
cause Lessee to become the owner thereof as hereinafter provided in this
Paragraph 7.4, all Alterations and Utility Installations made to the Premises by
Lessee shall be the property of and owned by Lessee, but considered a part of
the Premises. Lessor may, at any time and at its option, elect in writing to
Lessee to be the owner of all or any specified part of the Lessee-Owned
Alterations and Utility Installations. Unless otherwise instructed per
Subparagraph 7.4(b) hereof, all Lessee-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee.
(b) Removal. Unless otherwise agreed in writing, Lessor may require that
any or all Lessee-Owned Alterations or Utility Installations be removed by the
expiration or earlier termination of this Lease, notwithstanding that their
installation may have been consented to be Lessor. Lessor may require the
removal at any time of all or any part of any Alterations or Utility
Installations made without the required consent of Lessor.
(c) Surrender/Restoration. Lessee shall surrender the Premises by the end
of the last day of the Lease term or any earlier termination date, clean 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
Lessee performing all of its obligations under this Lease. Except as otherwise
specified herein, the Premises, as surrendered, shall include the Alterations
and Utility Installations. The obligation of Lessee shall include the repair of
any damage occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and Lessee-Owned Alterations and
Utility Installations, as well as the removal of any storage tank installed by
or for Lessee, and the removal, replacement, or remediation of any soil,
material or ground water contaminated by Lessee, all as may then be required by
Applicable Requirements and/or good practice. Lessee's Trade Fixtures shall
remain the property of Lessee and shall be removed by Lessee subject to its
obligation to repair and restore the Premises per this Lease.
8. Insurance; Indemnity.
8.1 Payment of Premium Increases.
(a) As used herein, the term "Insurance Cost Increase" is defined as any
increase in the actual cost of the insurance applicable to the Building and
required to be carried by Lessor pursuant to Paragraphs 8.2(b), 8.3(a) and
8.3(b), ("Required Insurance"), over and above the Base Premium, as hereinafter
defined, calculated on an annual basis. "Insurance Cost Increase" shall include,
but not be limited to, requirements of the holder of a mortgage or deed of trust
covering the Premises, increased valuation of the Premises, and/or a general
premium rate increase. The term "Insurance Cost Increase" shall not, however,
include any premium increases resulting from the nature of the occupancy of any
other lessee of the Building. If the Parties insert a dollar amount in Paragraph
1.9, such amount shall be considered the "Base Premium." If a dollar amount has
not been inserted in Paragraph 1.9 and if the Building has been previously
occupied during the twelve (12) month period immediately preceding the
Commencement Date, the "Base Premium" shall be the annual premium applicable to
such twelve (12) month period. If the Building was not fully occupied during
such twelve (12) month period, the "Base Premium" shall be the lowest annual
premium reasonably obtainable for the Required Insurance as of the Commencement
Date, assuming the most nominal use possible of the Building. In no event,
however, shall Lessee be responsible for any portion of the premium cost
attributable to liability insurance coverage in excess of $1,000,000 procured
under Paragraph 8.2(b).
(b) Lessee shall pay any Insurance Cost Increase to Lessor pursuant to
Paragraph 4.2. Premiums for policy periods commencing prior to, or extending
beyond, the term of this Lease shall be prorated to coincide with the
corresponding Commencement Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force during the
term of this Lease a Commercial General Liability policy of insurance protecting
Lessee, Lessor and any Lender(s) whose names have been provided to Lessee in
writing (as additional insureds) 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 Lessors of Premises" endorsement and contain
the "Amendment of the Pollution Exclusion" endorsement for damage caused by
heat, smoke or fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed under this Lease as an "insured contract"
for the performance of Lessee's indemnity obligations under this Lease. The
limits of said insurance required by this Lease or as carried by Lessee shall
not, however, limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall
be considered excess insurance only.
(b) Carried by Lessor. Lessor shall also maintain liability insurance
described in Paragraph 8.2(a) above, in addition to and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies in the name of Lessor, with loss
payable to Lessor and to any Lender(s), insuring against loss or damage to the
Premises. Such insurance shall be for full replacement cost, as the same shall
exist from time to time, or the amount required by any Lender(s), but in no
event more than the commercially reasonable and available insurable value
thereof if, by reason of the unique nature or age of the improvements involved,
such latter amount is less than full replacement cost. Lessee-Owned Alterations
and Utility Installations, Trade Fixtures and Lessee's personal property shall
be insured by Lessee pursuant to Paragraph 8.4. If the coverage is available and
commercially appropriate, Lessor's policy or policies shall insure against all
risks of direct physical loss or damage (except the perils of flood and/or
earthquake unless required by a Lender or included in the Base Premium),
including coverage for any additional costs resulting from debris removal and
reasonable amounts of coverage for the enforcement of any ordinance or law
regulating the reconstruction or replacement of any undamaged sections of the
Building required to be demolished or removed by reason of the enforcement of
any building, zoning, safety or land use laws as the result of a covered loss.
but not including plate glass insurance. Said policy or policies shall also
contain an agreed valuation provision in lieu of any co-insurance clause, waiver
of subrogation, 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. Lessor shall also obtain and keep in force during the
term of this Lease a policy or policies in the name of Lessor, with loss payable
to Lessor and any Lender(s), insuring the loss of the full rental and other
charges payable by all lessees of the Building to Lessor for one year (including
all Real Property Taxes, insurance costs, all Common Area Operating Expenses and
any scheduled rental increases). Said insurance may provide that in the event
the Lease is terminated by reason of an insured loss, the period of indemnity
for such coverage shall be extended beyond the date of the completion of repairs
or replacement of the Premises, to provide for one full year's loss of rental
revenues from the date of any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any co-insurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected rental income, Real
Property Taxes, insurance premium costs and other expenses, if any, otherwise
payable, for the next 12-month period. Common Area Operating Expenses shall
include any deductible amount in the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums
for the property insurance of the Building and for the Common Areas or other
buildings in the Industrial Center if said increase is caused by Lessee's acts,
omissions, use or occupancy of the Premises. (d) Lessee's Improvements. Since
Lessor is the Insuring Party, Lessor shall not be required to insure
Lessee-Owned Alterations and Utility Installations unless the item in question
has become the property of Lessor under the terms of this Lease.
8.4 Lessee's Property Insurance. Subject to the requirements of Paragraph
8,5, Lessee at its cost shall either by separate policy or, at Lessor's option,
by endorsement to a policy already carried, maintain insurance coverage on all
of Lessee's personal property, Trade Fixtures and Lessee-Owned Alterations and
Utility Installations in, on, or about the Premises similar in coverage to that
carried by Lessor 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. The proceeds from any such insurance shall be used by Lessee for
the replacement of personal property and the restoration of Trade Fixtures and
Lessee-Owned Alterations and Utility Installations. Upon request from Lessor,
Lessee shall provide Lessor with written evidence that such insurance is in
force.
8.5 Insurance Policies. Insurance required hereunder shall be in companies
duly licensed to transact business in the state where the Premises are located,
and maintaining during the policy term a "General 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." Lessee shall not do or
permit to be done anything which shall invalidate the insurance policies
referred to in this Paragraph 8. Lessee shall cause to be delivered to Lessor,
within seven (7) days after the earlier of the Early Possession Date or the
Commencement; Date, certified copies of, or certificates evidencing the
existence and amounts of, the insurance required under Paragraphs 8.2(a) and
8.4. No such policy shall be cancelable or subject to modification except after
thirty (30) days' prior written notice to Lessor. Lessee shall at least thirty
(30) days prior to the expiration of such policies, furnish Lessor with evidence
of renewals or "insurance binders" evidencing renewal thereof, or Lessor may
order such
<PAGE> 6
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies,
Lessee and Lessor each hereby release and relieve the other, and waive their
entire right to recover damages (whether in contract or in tort) against the
other, for loss or damage to their property arising out of or incident to the
perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's negligence, willful misconduct, and/or
breach, its obligations pursuant to this Agreement Lessee shall indemnify,
protect, defend and hold harmless the Premises, Lessor and its agents, Lessor'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, expenses and/or liabilities
arising out of, involving, or in connection with, the occupancy of the Premises
by Lessee, the conduct of Lessee's business, any act, omission or neglect of
Lessee, its agents, contractors, employees or invitees, and out of any Default
or Breach by Lessee in the performance in a timely manner of any obligation on
Lessee's part to be performed under this Lease. The foregoing shall include, but
not be limited to, the defense or pursuit of any claim or any action or
proceeding involved therein, and whether or not (in the case of claims made
against Lessor) litigated and/or reduced to judgment. In case any action or
proceeding be brought against Lessor by reason of any of the foregoing matters,
Lessee, upon notice from Lessor, shall defend the same at Lessee's expense by
counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee
in such defense. Lessor need not have first paid any such claim in order to be
so indemnified.
8.8 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, 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. Lessor shall not be liable for any damages arising from any act or
neglect of an' other lessee of Lessor nor from the failure by Lessor to enforce
the provisions of any other lease in the Industrial Center. Notwithstanding
Lessor': negligence or breach of this Lease, Lessor shall under no circumstances
be liable for injury to Lessee's business or for any loss of income or profit
therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the
Premises, other than Lessee-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 Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations, the
repair cost of which damage or destruction is fifty percent (50%) or more of the
then Replacement Cost of the Premises (excluding Lessee-Owned Alterations and
Utility Installations and Trade Fixtures) immediately prior to such damage or
destruction. In addition, damage or destruction to the Building, other than
Lessee-Owned Alterations and Utility Installations and Trade Fixtures of any
lessees of the Building, the cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees of the
Building) of the Building shall, at the option of Lessor, be deemed to be
Premises Total Destruction.
(c) "Insured Loss" shall mean damage or destruction to the Premises, other
than Lessee-Owned Alterations and Utility Installations and Trade Fixtures,
which was caused by an event required to be covered by the insurance described
in Paragraph 8.3(a) irrespective of any deductible amounts or coverage limits
involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or discovery
of a condition involving the presence of, or a contamination by, a Hazardous
Substance as defined in Paragraph 6.2(a), in, on, or under the Premises.
9.2 Premises Partial Damage - Insured Loss. If Premises Partial Damage that
is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect. 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, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to fully
restore the unique aspects of the Premises unless Lessee provides Lessor with
the funds to cover same, or adequate assurance thereof, within ten (10) days
following receipt of written notice of such shortage and request therefor. If
Lessor receives said funds or adequate assurance thereof within said ten (10)
day period, Lessor shall complete them as soon as reasonably possible and this
Lease shall remain in full force and effect. If Lessor does not receive such
funds or assurance within said period, Lessor may nevertheless elect by written
notice to Lessee within ten (10) days thereafter to make such restoration and
repair as is commercially reasonable with Lessor paying any shortage in
proceeds, in which case this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within such ten (10) day period,
and if Lessor 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, Lessee shall in no event have any right to
reimbursement from Lessor for any funds contributed by Lessee 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 by 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 Lessee
(in which event Lessee shall make the repairs at Lessee's expense and this Lease
shall continue in full force and effect), Lessor may, at Lessor's option, either
(i) repair such damage as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) give
written notice to Lessee within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such damage of Lessor's desire to terminate this
Lease as of the date sixty (60) days following the date of such notice. In the
event Lessor elects to give such notice of Lessor's intention to terminate this
Lease, Lessee shall have the right within ten (10) days after the receipt of
such notice to give written notice to Lessor of Lessee's commitment to pay for
the repair of such damage totally at Lessee's expense and without reimbursement
from Lessor. Lessee shall provide Lessor with the required funds or satisfactory
assurance thereof within thirty (30) days following such commitment from Lessee.
In such event this Lease shall continue in full force and effect, and Lessor
shall proceed to make such repairs as soon as reasonably possible after the
required funds are available. If Lessee does not give such notice and provide
the funds or assurance thereof within the times specified above, this Lease
shall terminate as of the date specified in Lessor's notice of 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 sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
expect as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6) months
of the term of this Lease there is damage for which the cost to repair exceeds
one month's Base Rent, whether or not an Insured Loss, Lessor may, at Lessor's
option, terminate this Lease effective sixty (60) days following the date of
occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense, repair such damage as soon as reasonably possible
and this Lease shall continue in full force and effect. If Lessee fails to
exercise such option and provide such funds or assurance during such period,
then this Lease shall terminate as of the date set forth in the first sentence
of this Paragraph 9.5.
9.6. Abatement of Rent; Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii) Hazardous Substance
Condition for which Lessee is not legally responsible, the Base Rent,
<PAGE> 7
Common Area Operating Expenses and other charges, if any, payable by Lessee
hereunder for the period during which such damage or condition, its repair,
remediation or restoration continues, shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired, 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 Lessee hereunder shall be performed
by Lessee, and Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Lessee may, at any
time prior to the commencement of such repair or restoration, give written
notice to Lessor and to any Lenders of which Lessee has actual notice of
Lessee's election to terminate this Lease on a date not less than sixty (60)
days following the giving of such notice. If Lessee gives such notice to Lessor
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 Lessor or a Lender commences the repair or
restoration of the Premises within thirty (30) days after the receipt of such
notice, this Lease shall continue in full force and effect. "Commence" as used
in this Paragraph 9.6 shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on the
Premises, whichever occurs first.
9.7 Hazardous Substance Conditions. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and this Lease shall continue in full force and effect, but
subject to Lessor's rights under Paragraph 6.2(c) and Paragraph 13), Lessor may
at Lessor's option either (i) investigate and remediate such Hazardous
Substance Condition, if required, as soon as reasonably possible at Lessor'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 Lessee within thirty (30) days after receipt by Lessor
of knowledge of the occurrence of such Hazardous Substance Condition of
Lessor's desire to terminate this Lease as of the date sixty (60) days
following the date of such notice. In the event Lessor elects to give such
notice of Lessor's intention to terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Lessor of Lessee's commitment to pay for the 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. Lessee
shall provide Lessor with the funds required of Lessee or satisfactory
assurance thereof within thirty (30) days following said commitment by Lessee.
In such event this Lease shall continue in full force and effect, and Lessor
shall proceed to make such investigation and remediation as soon as reasonably
possible after the required funds are available. If Lessee 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
Lessor's notice of termination.
9.8 Termination - Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been, or is not then required to be, used by Lessor under the terms of this
Lease.
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
and the Building with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent it is
inconsistent herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as defined
in Paragraph 10.2(a), applicable to the Industrial Center, and except as
otherwise provided in Paragraph 10.3, any increases in such amounts over the
Base Real Property Taxes shall be included in the calculation of Common Area
Operating Expenses in accordance with the provisions of Paragraph 4.2.
10.2 Real Property Tax Definitions.
(a) As used herein, the term "Real Property Taxes" shall include any form
of real estate tax or assessment, general, special, ordinary or extraordinary,
and any license fee, commercial rental tax, improvement bond or bonds, levy or
tax (other 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 Lessor in the Industrial Center or
any portion thereof, Lessor's right to rent or other income therefrom, and/or
Lessor'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
execution of this Lease, or any modification, amendment or transfer thereof, and
whether or not contemplated by the Parties.
(b) As used herein, the term "Base Real Property Taxes" shall be the amount
of Real Property Taxes which are assessed against the Premises, Building or
Common Areas in the calendar year during which the Lease is executed. In
calculating Real Property Taxes for any calendar year, the Real Property Taxes
for any real estate tax year shall be included in the calculation of Real
Property Taxes for such calendar year based upon the number of days which such
calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees or by Lessor for the exclusive enjoyment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center. When
possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. Utilities. Lessee shall pay directly for all utilities and services supplied
to the Premises, including, but not limited to, electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes thereon. If
any such utilities or services are not separately metered to the Premises or
separately billed to the Premises, Lessee shall pay to Lessor a reasonable
proportion to be determined by Lessor of all such charges jointly metered or
billed with other premises in the Building, in the manner and within the time
periods set forth in Paragraph 4.2(d).
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage or otherwise transfer or encumber (collectively "assign") or sublet all
or any part of Lessee's interest in this Lease or In the Premises without
Lessor's prior written consent given under and subject to the terms of Paragraph
36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of twenty-five
percent (25%) or more of the voting control of Lessee shall constitute a change
in control for this purpose.
(c) The involvement of Lessee 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 Lessee's assets occurs, which results or will
result in a reduction of the Net Worth of Lessee, as hereinafter defined, by an
amount equal to or greater than twenty-five percent (25%) of such Net Worth of
Lessee as it was represented to Lessor at the time of full execution and
delivery of this Lease or at the time of the most recent assignment to which
Lessor has consented, or as it exists immediately prior to said transaction or
transactions constituting such reduction, at whichever times said Net Worth of
Lessee was or is greater, shall be considered an assignment of this Lease by
Lessee to which Lessor may reasonably withhold its consent. "Net Worth of
Lessee" for purposes of this Lease shall be the net worth of Lessee (excluding
any Guarantors) established under generally accepted accounting principles
consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease without
Lessor's specific prior written consent shall, at Lessor's option, be a
<PAGE> 8
Default curable after notice per Paragraph 13.1, or a non-curable Breach without
the necessity of any notice and grace period. If Lessor elects to treat such
unconsented to assignment or subletting as a non-curable Breach, Lessor shall
have the right to either: (i) terminate this Lease, or (ii) upon thirty (30)
days' written notice ("Lessor'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 Lessor, 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 Lessee, Lessee shall pay the amount set forth in Lessor's Notice,
with any overpayment credited against the next installments) 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 Lessee shall be subject to
similar adjustment to the then fair market value as reasonably determined by
Lessor (without the Lease being considered an encumbrance or any deduction for
depreciation or obsolescence, and 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 the adjustment
specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by Lessor shall
be limited to compensatory damages and/or injunctive relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting shall not
(i) be effective without the express written assumption by such assignee or
sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of
any obligations hereunder, nor (iii) alter the primary liability of Lessee for
the payment at Base Rent and other sums due Lessor hereunder or for the
performance of any other obligations to be performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations from
any person other than Lessee pending approval or disapproval of an assignment.
Neither a delay in the approval or disapproval of such assignment nor the
acceptance of any rent for performance shall constitute a waiver or estoppel of
Lessor's right to exercise its remedies for the Default or Breach by Lessee of
any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable under this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation under this
Lease, Lessor may proceed directly against Lessee, any Guarantors or anyone else
responsible for the performance of the Lessee's obligations under this Lease,
including any sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any security held by
Lessor.
(e) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessor's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including, but not limited to, the intended use and/or
required modification of the Premises, if any, together with a non-refundable
deposit of $1-000 or ten percent (10%) of the monthly Base Rent applicable to
the portion of the Premises which is the subject of the proposed assignment or
sublease, whichever is greater, as reasonable consideration to Lessor's
considering and processing the request for consent. Lessee agrees to provide
Lessor with such other or additional information and/o documentation as may be
reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
(g) [deleted]
(h) Lessor, as a condition to giving its consent to any assignment or
subletting, may require that the amount and adjustment schedule of the rent
payable under this Lease be adjusted to what is then the market value and/or
adjustment schedule for property similar to the Premises as then constituted, as
determined by Lessor.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee 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) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a
portion of the Premises heretofore or hereafter made by Lessee, and Lessor may
collect such rent and income and apply same toward Lessee's obligations under
this Lease; provided, however, that until a Breach (as defined in Paragraph
13.1) shall occur in the performance of Lessee's obligations under this Lease,
Lessee may, except as otherwise provided in this Lease, receive, collect and
enjoy the rents accruing under such sublease. Lessor shall not, by reason of
the foregoing provision or any other assignment of such sublease to Lessor, nor
by reason of the collection of the rents from a sublessee, be deemed liable to
the sublessee for any failure of Lessee to perform and comply with any of
Lessee's obligations to such sublessee under such Sublease. Lessee hereby
irrevocably authorizes and directs any such sublessee, upon receipt of a
written notice from Lessor stating that a Breach exists in the performance of
Lessee's obligations under this Lease, to pay to Lessor the rents and other
charges due and to become due under the sublease. Sublessee shall rely upon any
such statement and request from Lessor and shall pay such rents and other
charges to Lessor without any obligation or right to inquire as to whether such
Breach exists and notwithstanding any notice from or claim from Lessee to the
contrary. Lessee shall have no right or claim against such sublessee, or, until
the Breach has been cured, against Lessor, for any such rents and other charges
so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorney to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior defaults
or breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall further assign
or sublet all or any part of the Premises without Lessor's prior written
consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the Default of Lessee
within the grace period, if any, specified in such notice. The sublessee shall
have a right of reimbursement and offset from and against Lessee for any such
Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee 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 Lessor may include the cost of such services and costs in said
notice as rent due and payable to cure said default. A "Default" by Lessee is
defined as a failure by Lessee to observe, comply with or perform any of the
terms, covenants, conditions or rules applicable to Lessee under this Lease. A
"Breach" by Lessee is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is specified
herein, the failure by Lessee to cure such Default prior to the expiration of
the applicable grace period, and shall entitle Lessor to pursue the remedies set
forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy same, or
the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the failure by
Lessee to make any payment of Base Rent, Lessee's Share of Common Area Operating
Expenses, or any other monetary payment required to be made by Lessee hereunder
as and when due, the failure by Lessee to provide Lessor with reasonable
evidence of insurance or surety bond required under this Lease, or the failure
of Lessee to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) days following written notice thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the failure by
Lessee to provide Lessor with reasonable written evidence (in duly executed
original form, if applicable) of (i) 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
<PAGE> 9
Paragraphs 16 or 37, (v) the subordination or non-subordination of this Lease
per Paragraph 30, (vi) the guaranty of the performance of Lessee'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 Lessor may reasonably require of Lessee 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 Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof
that are to be observed, complied with or performed by Lessee, other than those
described in Subparagraphs 13.1 (a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or
on behalf of Lessor to Lessee; provided, however, that if the nature of
Lessee's Default is such that more than thirty (30) days are reasonably
required for its cure, then it shall not be deemed to be a Breach of this Lease
by Lessee if Lessee commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by Lessee
of any general arrangement or assignment for the benefit of creditors; (ii)
Lessee's becoming a "debtor" as defined in 11 U.S. Code Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of Lessee or of
any Guarantor, given to Lessor by Lessee or any Guarantor, was materially false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's
liability with 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 its guaranty obligation on an anticipatory breach basis,
and Lessee's failure, within sixty (60) days following written notice by or on
behalf of Lessor to Lessee of any such event, to provide Lessor with written
alternative assurances of security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources of
Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice), Lessor may, at its
option (but without obligation to do so), perform such duty or obligation on
Lessee's behalf, including, but not limited to, the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be due
and payable by Lessee to Lessor upon invoice therefor. If any check given to
Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its own option, may require all future payments to be made under this
Lease by Lessee to be made only by cashier's check. In the event of a Breach of
this Lease by Lessee (as defined in paragraph 13.1), with or without further
notice or demand, and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall terminate and Lessee
shall immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee: (i) the worth at the time of
the award of the unpaid rent which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have been reasonably
avoided; (iii) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that the Lessee proves could be reasonably avoided; and (iv)
any other amount necessary to compensate Lessor for all the detriment
proximately caused by the Lessee's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, the cost of recovering possession of
the Premises, expenses of reletting, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and that portion of any
leasing commission paid by Lessor in connection with this Lease applicable to
the unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco or the Federal Reserve Bank District in which the Premises
are located at the time of award plus one percent (1%). Efforts by Lessor to
mitigate damages caused by Lessee's Default or Breach of this Lease shall not
waive Lessor's right to recover damages under this Paragraph 13.2. If
termination of this Lease is obtained through the provisional remedy of unlawful
detainer, Lessor shall have the right to recover in such proceeding the unpaid
rent and damages as are recoverable therein, or Lessor 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 Lessee under any statute authorizing the forfeiture of
leases for unlawful detainer shall also constitute the applicable notice for
grace period purposes required by Subparagraph 13.1(b), (c) or (d). In such
case, the applicable grace period under the unlawful detainer statute shall run
concurrently after the one such statutory notice, and the failure of Lessee to
cure the Default within the greater of the two (2) such grace periods shall
constitute both an unlawful detainer and a Breach of this Lease entitling Lessor
to the remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect (in
California under California Civil Code Section 1951.4) after Lessee's Breach and
recover the rent as it becomes due, provided Lessee has the right to sublet or
assign, subject only to reasonable limitations. Lessor and Lessee agree that the
limitations on assignment and subletting in this Lease are reasonable. Acts of
maintenance or preservation, efforts to relet the Premises, or the appointment
of a receiver to protect the Lessor's interest under this Lease, shall not
constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the state wherein the Premises are located.
(d) The expiration or termination of this Lease and/or the termination of
Lessee's right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during
the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture in Event of Breach. Any agreement by Lessor for
free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions" shall be
deemed conditioned upon Lessee's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach (as defined in Paragraph 13.1) of this Lease by Lessee, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor, as additional rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which initiated the operation of this
Paragraph 13.3 shall not be deemed a waiver by Lessor of the provisions of this
Paragraph 13.3 unless specifically so stated in writing by Lessor at the time of
such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include but are not limited to processing and
accounting charges, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or deed of trust covering the Premises.
Accordingly, if any installment of rent or other sum due from Lessee shall not
be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, or
prevent Lessor 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 Lessor's option become due and payable quarterly
in advance.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.5, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and by any Lenders(s) whose name and address shall have been furnished to Lessee
in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed, then Lessor shall not be in breach
of this Lease if performance is commenced within such thirty (30) day period and
thereafter diligently pursued to completion.
<PAGE> 10
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 Lessee's parking, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing within
ten (10) days after Lessor shall have given Lessee written notice of such
taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession) terminate this Lease as of
the date the condemning authority takes such possession. If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall remain
in full force and effect as to the portion of the Premises remaining, except
that the Base Rent shall be reduced in the same proportion as the rentable
floor area of the Premises taken bears to the total rentable floor area of the
Premises. No reduction of Base Rent shall occur if the condemnation does not
apply to any portion of the Premises. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Lessor,
whether such award shall be made as compensation for diminution of value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any compensation, separately awarded
to Lessee for Lessee's relocation expenses and/or loss of Lessee's Trade
Fixtures. In the event that this Lease is not terminated by reason of such
condemnation, Lessor shall to the extent of its net severance damages received,
over and above Lessee's share of the legal and other expenses incurred by
Lessor in the condemnation matter, repair any damage to the Premises caused by
such condemnation authority. Lessee shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such
repair.
15. Brokers' 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 Lessor and Broker(s) have otherwise agreed in
writing, Lessor agrees that: (a) if Lessee exercises any Option (as defined in
Paragraph 39.1) granted under this Lease or any Option subsequently granted, or
(b) if Lessee acquires any rights to the Premises or other premises in which
Lessor has an interest, or (c) if Lessee remains in possession of the Premises
with the consent of Lessor 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 Lessor 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, Lessor 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 Lessor's
interest in this Lease, whether such transfer is by agreement or by operation of
law, shall be deemed to have assumed Lessor'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
Lessor and its successors.
15.4 Representations and Warranties. Lessee and Lessor each represent and
warrant to the other that it has had no dealings with any person, firm, broker
or finder other than as named in Paragraph 1.10(a) in connection with the
negotiation of 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. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by any such unnamed
broker finder or other similar party by reason of any dealings or actions of the
indemnifying Party, including any costs, expenses, and/or attorneys' fees
reasonably incurred with respect thereto.
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party") shall within ten
(10) 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 Lessor desires to finance, refinance, or sell
the Premises or the Building, or any part thereof, Lessee and all Guarantors
shall deliver to any potential lender or purchaser designated by Lessor such
financial statements of Lessee and such Guarantors as may be reasonably required
by such lender or purchaser, including, but not limited to, Lessee's financial
statements for the past three (3) years. All such financial statements shall be
received by Lessor and such lender or purchaser in confidence and shall be used
only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises. In the event of
a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severabllity. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within ten (10) days following
the date on which it was due, shall bear interest from the date due at the prime
rate 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 Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or other Agreements; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have 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 Lessee's
taking possession of the Premises, the Premises shall constitute Lessee's
address for the purpose of mailing or delivering notices to Lessee. A copy of
all notices required or permitted to be given to Lessor hereunder shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to Lessee.
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 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 Sunday or a legal
holiday, it shall be deemed received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any such act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or by construed as the basis of an estoppel to enforce the provision
or provision of this Lease requiring such consent. Regardless of Lessor's
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor shall not be a waiver of any Default or Breach by Lessee of
any provision hereof. Any payment given Lessor by Lessee may be accepted by
Lessor on account of monies or damages due Lessor's knowledge of a Default or
Breach at the time of accepting rent, the acceptance of rent by Lessor shall not
be a waiver of any Default or Breach by Lessee of any provision hereof. Any
payment given Lessor by Lessee may be accepted by Lessor on account of monies or
damages due Lessor, notwithstanding any qualifying statements or conditions made
by Lessee in connection therewith, which such statements and/or conditions shall
be of no
<PAGE> 11
force or effect whatsoever unless specifically agreed to in writing by Lessor at
or before the time of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. No Right to Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and after the time of the expiration or
earlier termination of this Lease shall be increased to two hundred percent
(200%) of the Base Rent applicable during the month immediately preceding such
expiration or earlier termination. Nothing contained herein shall be construed
as a consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the state in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.5. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall give
written notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (Hi) be bound by prepayment
of more than one (1) month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall be
effective without the execution of any further documents; provided, however,
that upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non-subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment, the term "Prevailing Party" shall include,
without limitation, a Party or Broker who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise, settlement, judgment,
or the abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred. Lessor shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting Breach. Broker(s) shall be intended
third party beneficiaries of this Paragraph 31.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may reasonably deem necessary. Lessor may at any time place on or about the
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or
about the Premises any ordinary "For Lease" signs. All such activities of Lessor
shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the exterior of the Premises or
the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business so long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. The installation of any sign on
the Premises by or for Lessee shall be subject to the provisions of Paragraph 7
(Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Lessor 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 Lessee's business; Lessor shall be entitled to all revenues from such
advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessor'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 Lessee for any
Lessor 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 Lessee to Lessor upon receipt of an
invoice and supporting documentation therefor. In addition to the deposit
described in Paragraph 12.2(e), Lessor may, as a condition to considering any
such request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering and
responding to Lessee's request. Any unused portion of said deposit shall be
refunded to Lessee without interest. Lessor's consent to any act, assignment of
this Lease or subletting of the Premises by Lessee shall not constitute an
acknowledgement that no Default or Breach by Lessee 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 Lessor at the time
of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. Guarantor.
37.1 Form of Guaranty. If there are to be any Guarantors of this Lease per
Paragraph 1.11, the form of the guaranty to be executed by each such Guarantor
shall be in the form most recently published by the American Industrial Real
Estate Association, and each such Guarantor shall have the same obligations as
Lessee under this Lease, including, but not limited to, the obligation to
provide the Tenancy Statement and information required in Paragraph 16.
37.2 Additional Obligations of Guarantor. It shall constitute a Default of
the Lessee under this Lease if any such Guarantor fails or refuses, upon
reasonable request by Lessor to give: (a) evidence of the due execution of the
guaranty called for by this Lease, including the authority of the Guarantor (and
of the party signing on Guarantor's behalf) to obligate such Guarantor on said
guaranty, and resolution of this 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
<PAGE> 12
Guarantor as may from time to time be requested by Lessor, (c) a Tenancy
Statement, or (d) written confirmation that the guaranty is still in effect.
37.3 Guarantor's guaranty of this Lease shall be limited to a total of six
(6) months rent and CAM payments from the start of any uncured default.
38. Quiet Possession. Upon payment by Lessee of the rent for the Premises and
the performance of all of the covenants, conditions and provisions on Lessee's
part to be observed and performed under this Lease, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease.
39. Options.
39.1 Definition. As used in this Lease, the word "Option" has the following
meaning: (a) the right to extend the term of this Lease or to renew this Lease
or to extend or renew any lease that Lessee has on other property of Lessor; (b)
the right of first refusal to lease the Premises or the right of first offer to
lease the Premises or the right of first refusal to lease other property of
Lessor or the right of first offer to lease other property of Lessor; (c) the
right to purchase the Premises, or the right of first refusal to purchase the
Premises, or the right of first offer to purchase the Premises, or the right to
purchase other property of Lessor, or the right of first refusal to purchase
other property of Lessor, or the right of first offer to purchase other property
of Lessor.
39.2 Options Personal to Original Lessee. Each Option granted to Lessee in
this Lease is personal to the original Lessee named in Paragraph 1.1 hereof, and
cannot be voluntarily or involuntarily assigned or exercised by any person or
entity other than said original Lessee while the original Lessee is in full and
actual possession of the Premises and without the intention of thereafter
assigning or subletting. The Options, if any, herein granted to Lessee are not
assignable, either as a part of an assignment of this Lease or separately or
apart therefrom, and no Option may be separated from this Lease in any manner,
by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple Options to
extend or renew this Lease, a later option cannot be exercised unless the prior
Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary: (i) during the period
commencing with the giving of any notice of Default under Paragraph 13.1 and
continuing until the noticed Default is cured, or (ii) during the period of time
any monetary obligation due Lessor from Lessee is unpaid (without regard to
whether notice thereof is given Lessee), or (iii) during the time Lessee is in
Breach of this Lease, or (iv) in the event that Lessor has given to Lessee three
(3) or more notices of separate Defaults under Paragraph 13.1 during the twelve
(12) month period immediately preceding the exercise of the Option, whether or
not the Defaults are cured.
(b) The period of time within which an Option may be exercised shall not be
extended or enlarged by reason of Lessee's inability to exercise an Option
because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Lessee's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a
period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during any twelve (12) month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. Security Measures. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. Reservations. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way, utility
raceways, and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility raceways, dedications, maps and restrictions do not reasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
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 provisions of this
Lease.
44. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. Offer. Preparation of this Lease by either Lessor or Lessee or Lessor's
agent or Lessee's agent and submission of same to Lessee or Lessor shall not be
deemed an offer to lease. This Lease is not intended to be binding until
executed and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
LESSOR AND LESSEE 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 LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR ATTORNEY'S
REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS,
UNDERGROUND STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS 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: LOS ANGELES, CALIFORNIA Executed at: LOS ANGELES, CALIFORNIA
on: July 1998 on: July 1998
By LESSOR: By LESSEE:
<PAGE> 14
EASY SIMI INVESTORS. LTD VOICE POWERED TECHNOLOGY INTERNATIONAL,
INC.
By /s/ Ed Natan By: /s/ Mitch Rubin
Name Printed: ED NATAN Name Printed: MITCH ROBIN
Title: GENERAL PARTNER Title: President
By: By:
Name Printed: Name Printed:
Title: Title:
Address: Address:
Telephone: (818) 789-5600 Telephone: ( )
Facsimile: (818) 788-5973 Facsimile: ( )
BROKER: Executed at: LOS ANGELES BROKER: Executed at: LOS ANGELES
on: JULY 1998 on: JULY 1998
By: By: /s/ Ed Natan
Name Printed: CB/RICHARD ELLIS Name Printed: THE CARDINAL COMPANY
Title: BENNETT ROBINSON Title: ED NATAN
Address: 15303 VENTURA BLVD., SUITE 200. Addresses: 15260 VENTURA BLVD.
SHERMAN OAKS. CALIFORNIA SUITE 1120
SHERMAN OAKS, CALIFORNIA
Telephone: (818) 907-4608 Telephone: (818) 789-5600
Facsimile: Facsimile: (818) 788-5973
NOTE:These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing
the most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 700
South Flower Street, Suite 600, Los Angeles, California 90017 (213)
687-8777.
<PAGE> 15
LEASE AMENDMENT, DATED JULY 6, 1998 BY AND BETWEEN VOICE POWERED TECHNOLOGY
INTERNATIONAL, INC., AS LESSEE AND EASY SIMI INVESTORS, LTD, AS LESSOR
49.) SEE RENTAL ADJUSTMENT ADDENDUM.
50.) NO BROKERAGE FEE SHALL BE DUE OR PAYABLE FOR THE PRIMARY TERM OF THIS
LEASE. IF LESSEE SHALL EXERCISE THEIR OPTION TO EXTEND PURSUANT TO PARAGRAPH 51
THEN CB/RICHARD ELLIS (BENNETT ROBINSON) AND THE CARDINAL COMPANY (ED NATAN)
SHALL BE PAID A FEE EQUAL TO THE LEASE CONSIDERATION OF THE OPTION PERIOD TIMES
4%.
51.) SEE OPTION TO EXTEND ADDENDUM.
52.) THIS LEASE IS CONTINGENT UPON THE FULL EXECUTION BY LESSOR AND NICK PENTA
OF THE ATTACHED EXHIBIT "A". IN THE EVENT SAID EXHIBIT "A" IS NOT FULLY EXECUTED
THIS LEASE SHALL BECOME NULL AND VOID AND NO FURTHER FORCE OR EFFECT AND LESSOR
SHALL RETURN ALL OF LESSEE'S DEPOSITS IMMEDIATELY.
53.) PURSUANT TO 1.6(B) OF THE LEASE AGREEMENT, LESSEE'S SHARE OF OPERATING
EXPENSES SHALL HAVE A MONTHLY CAP OF $100.00 THROUGHOUT THE PRIMARY TERM OF THE
LEASE. LESSEE AS A SEPARATE ITEM SHALL PAY FOR THE COST OF THEIR TRASH BIN AND
TRASH REMOVAL.
54.) IMPROVEMENTS TO THE PREMISES BY LESSOR AT LESSOR'S SOLE COST AND EXPENSE:
LESSOR SHALL COMPLETE THE FOLLOWING IMPROVEMENTS TO THE PREMISES AS SOON AS
POSSIBLE, BUT IN NO EVENT LATER THAN AUGUST 1, 1998:
A.) PAINT, AS NECESSARY, AND CLEAN THE CARPET IN THE OFFICE AREA.
B.) REPLACE ALL CRACKED AND STAINED CEILING TILES.
55.) WARRANTY: LESSOR SHALL WARRANTY THE HVAC IN THE OFFICE AND LABORATORY AREA
FOR THE FIRST TWELVE (12) MONTHS OF THE LEASE TERM.
<PAGE> 16
56.) ADA REQUIREMENTS: LESSOR SHALL BE RESPONSIBLE FOR THE COST OF COMPLIANCE
CONCERNING REGULATIONS FOR THE AMERICANS WITH DISABILITIES ACT AND TITLE 24 AND
ALL DIVISION 91 EARTHQUAKE.
57.) RENTAL ABATEMENT: AS LONG AS LESSEE HAS NOT BEEN IN DEFAULT OF THE LEASE
AGREEMENT, LESSOR SHALL WAIVE THE PAYMENT OF MONTHLY RENT FOR THE PERIOD OF
MARCH 1, 2001 THROUGH APRIL 14, 2001.
58.) INDEMNIFICATION: LESSOR SHALL INDEMNIFY LESSEE FROM ALL PRE-EXISTING
HAZARDOUS MATERIALS AND ASBESTOS CONDITIONS ON THE SUBJECT PREMISES.
59.) SEE ADA ATTACHMENT.
60.) SEE CONSULT YOUR ATTORNEY/ADVISORS ATTACHMENT.
<PAGE> 17
[GRAPHIC OMITTED]
RENT ADJUSTMENT(S)
STANDARD LEASE ADDENDUM
Dated JULY 6. 1998
By and Between (Lessor) EASY SIMI INVESTORS. LTD
(Lessee) VOICE POWERED TECHNOLOGY
INTERNATIONAL. INC.
Address of Premises: 21 W. EASY STREET. UNIT 108 SIMI
VALLEY. CALIFORNIA
Paragraph 49
A. RENT ADJUSTMENTS:
The monthly rent for each month of the adjustment period(s) specified below
shall be increased using the method(s) indicated below: (Check Method(s) to be
Used and Fill in Appropriately)
[X] Cost of Living Adjustment(s) (COLA) ALL INCREASES TO ARE SUBJECT TO 4 % PER
ANNUM LIMITS
a. On (Fill in COLA Dates): DECEMBER 1999
the Base Rent shall be adjusted by the change, if any, from the Base Month
specified below, in the Consumer Price Index of the Bureau of Labor Statistics
of the U.S. Department of Labor for (select one): [ ] CPI W (Urban Wage Earners
and Clerical Workers) or [X] CPI U (All Urban Consumers), for (Fill in Urban
Area): LOS ANGELES. All items (1982-1984 = 100), herein referred to as "CPI".
b. The monthly rent payable in accordance with paragraph A.I.a. of this
Addendum shall be calculated as follows: the Base Rent set forth in paragraph
1.5 of the attached Lease, shall be multiplied by a fraction the numerator of
which shall be the CPI of the calendar month two months prior to the month(s)
specified in paragraph A.I.a. above during which the adjustment is to take
effect, and the denominator of which shall be the CPI of the calendar month
which is two months prior to (select one): [X] the first month of the term of
this Lease as set forth in paragraph 1.3 ("Base Month") or [ ] (Fill in Other
"Base Month"): AUGUST 1998. The sum so calculated shall constitute the new
monthly rent hereunder, but in no event, shall any such new monthly rent be less
than the rent payable for the month immediately preceding the rent adjustment.
c. In the event the compilation and/or publication of the CPI shall be
transferred to any other governmental department or bureau or agency or shall be
discontinued, then the index most nearly the same as the CPI shall be used to
make such calculation. In the event that the Parties cannot agree on such
alternative index, then the matter shall be submitted for decision to the
American Arbitration Association in accordance with the then rules of said
Association and the decision of the arbitrators shall be binding upon the
parties. The cost of said Arbitration shall be paid equally by the Parties.
[ ] II. Market Rental Value Adjustment(s) (MRV)
a. On (Fill in MRV Adjustment Date(s):
the Base Rent shall be adjusted to the "Market Rental Value" of the property as
follows:
1) Four months prior to each Market Rental Value Adjustment Date described
above, the Parties shall attempt to agree upon what the new MRV will be on the
adjustment date. If agreement cannot be reached within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a mutually acceptable
appraiser or broker to establish the new MRV within the next thirty days. Any
associated costs will be split equally between the Parties, or
(b) Both Lessor and Lessee shall each immediately make a reasonable
determination of the MRV and submit such determination in writing, to
arbitration in accordance win the following provisions:
(i) Within fifteen days thereafter, Lessor and Lessee shall each select an
[ ] appraiser or [ ] broker ("Consultant" - check ONE of their choice to act as
an arbitrator. The two arbitrators so appointed shall immediately select a third
mutually acceptable Consultant to act as a third arbitrator.
(ii) The Three arbitrators shall within thirty days of the appointment of
the third arbitrator reach a decision as to what the actual MRV for the Premises
is, and whether Lessor's or Lessee's submitted MRV is the closest thereto. The
decision of a majority of the arbitrators shall be binding on the Parties. The
submitted MRV which is determined to be the closest to the actual MRV shall
thereafter be used by the Parties.
(iii) If either of the Parties fails to appoint an arbitrator within the
specified fifteen days, the arbitrator timely appointed by one of them shall
reach a decision on his or her own, and said decision shall be binding on the
Parties.
<PAGE> 18
(iv) The entire cost of such arbitration shall be paid by the party whose
submitted MRV is not selected, ie. the one that is NOT the closest to the actual
MRV.
2) Notwithstanding the foregoing, the new MRV shall not be less than the
rent payable for the month immediately preceding the rent adjustment.
b. Upon the establishment of each New Market Rental Value:
1) the new MRV will become the new "Base Rent" for the purpose of
calculating any further Adjustments, and
2) the first month of each Market Rental Value term shall become the new
'Base Month' for the purpose of calculating any further Adjustments.
[ ] III. Fixed Rental Adjustment(s) (FRA)
The Base Rent shall be increased to the following amounts on the dales set forth
below: On (Fill in FRA Adjustment Date(s)): The New Base Rent shall be:
-------------------- $--------------------
-------------------- $--------------------
-------------------- $--------------------
-------------------- $--------------------
B. NOTICE:
Unless specified otherwise herein, notice of any such adjustments, other
than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of
the Lease.
C. BROKER'S FEE:
The Brokers specified in paragraph 1.10 shall be paid a Brokerage Fee for
each adjustment specified above in accordance with paragraph 15 of the Lease.
<PAGE> 19
[GRAPHIC OMITTED]
OPTION(S) TO EXTEND
STANDARD LEASE ADDENDUM
Dated JULY 6, 1998
By and Between (Lessor) EASY SIMI INVESTORS. LTD
(Lessee) VOICE POWERED TECHNOLOGY
INTERNATIONAL, INC,_____
Address of Premises: 21 W. EASY STREET, UNIT 108, SIMI
VALLEY, CALIFORNIA
Paragraph 51
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of this Lease for
ONE (1) additional 36 month period(s) commencing when the prior term expires
upon each and all of the following terms and conditions:
(i) In order to exercise an option to extend, Lessee must give written
notice of such election to Lessor and Lessor must receive the same at least 4
but not more than 6 months prior to the date that the option period would
commence, time being of the essence. If proper notification of the exercise of
an option is not given and/or received, such option shall automatically expire.
Options (if there are more than one) may only be exercised consecutively.
(ii) The provisions of paragraph 39, including those relating to Lessee's
Default set forth in paragraph 39.4 of this Lease, are conditions of this
Option.
(iii) Except for the provisions of this Lease granting an option or options
to extend the term, all of the terms and conditions of this Lease except where
specifically modified by this option shall apply.
(iv) This Option is personal to the original Lessee, and cannot be assigned
or exercised by anyone other than said original Lessee and only while the
original Lessee is in full possession of the Premises and without the intention
of thereafter assigning or subletting.
(v) The monthly rent for each month of the option period shall be
calculated as follows, using the method(s) indicated below: (Check Method(s) to
be Used and Fill in Appropriately)
[X] I. Cost of Living Adjustment(s) (COLA). ALL INCREASES ARE SUBJECT TO 4% PER
ANNUM LIMITS
a. On (Fill in COLA Dates): APRIL 2001 AND SEPTEMBER 2002 the Base Rent
shall be adjusted by the change, if any, from the Base Month specified below, in
the Consumer Price Index of the Bureau of Labor Statistics of the U.S.
Department of Labor for (select one): [ ] CPI W (Urban Wage Earners and Clerical
Workers) or [X] CPI U (All Urban Consumers), for (Fill in Urban Area): LOS
ANGELES.
All Items (1982-1984 = 100), herein referred to as "CPI".
b. The monthly rent payable in accordance with paragraph A.I.a. of this
Addendum shall be calculated as follows: the Base Rent set forth in paragraph
1.5 of the attached Lease, shall be multiplied by a fraction the numerator of
which shall be the CPI of the calendar month two months prior to the month(s)
specified in paragraph A.I.a. above during which the adjustment is to take
effect, and the denominator of which shall be the CPI of the calendar month
which is two months prior to (select one): [ ]the first month of the term of
this Lease as set forth in paragraph 1.3 ("Base Month") or [ ] (Fill in Other
"Base Month"): DECEMBER 1999.The sum so calculated shall constitute the new
monthly rent hereunder, but in no event, shall any such new monthly rent be less
than the rent payable for the month immediately preceding the rent adjustment.
c. In the event the compilation and/or publication of the CPI shall be
transferred to any other governmental department or bureau or agency or shall be
discontinued, then the index most nearly the same as the CPI shall be used to
make such calculation. In the event that the Parties cannot agree on such
alternative index. then the matter shall be submitted for decision to the
American Arbitration Association in accordance with the then rules of said
Association and the decision of the arbitrators shall be binding upon the
parties. The cost of said Arbitration shall be paid equally by the Parties.
[ ] II. Market Rental Value Adjustments) (MRV)
a. On (Fill in MRV Adjustment Date(s)) The Base Rent shall be adjusted to
the "Market Rental Value" of the property as follows:
1) Four months prior to each Market Rental Value Adjustment Date
described above, the Parties shall attempt to agree upon what the new MRC will
be on the adjustment date. If agreement cannot be reached, within thirty days,
then:
<PAGE> 20
(a) Lessor and Lessee shall immediately appoint a mutually acceptable
appraiser or broker to establish the new MRV within the next thirty days. Any
associated costs will be split equally between the Parties, or
(b) Both Lessor and Lessee shall each immediately make a reasonable
determination of the MRV and submit such determination, in writing, to
arbitration in accordance with the following provisions:
(i) Within fifteen days thereafter, Lessor and Lessee shall each select an
[ ] appraiser or [ ] broker ("Consultant" - check one) of their choice to act as
an arbitrator. The two arbitrators so appointed shall immediately select a third
mutually acceptable Consultant to act as a third arbitrator.
(ii) The three arbitrators shall within thirty days of the appointment of
the third arbitrator reach a decision as to what the actual MRV for the Premises
is, and whether Lessor's or Lessee's submitted MRV is the closest thereto. The
decision of a majority of the arbitrators shall be binding on the Parties. The
submitted MRV which is determined to be the closest to the actual MRV shall
thereafter be used by the Parties.
(iii) If either of the Parties fails to appoint an arbitrator within the
specified fifteen days, the arbitrator timely appointed by one of them shall
reach a decision on his or her own, and said decision shall be binding on the
Parties.
(iv) The entire cost of such arbitration shall be paid by the party whose
submitted MRV is not selected, ie. the one that is NOT the closest to the actual
MRV.
2) Notwithstanding the foregoing, the new MRV shall not be less than the
rent payable for the month immediately preceding the rent adjustment.
b. Upon the establishment of each New Market Rental Value:
1) the new MRV will become the new "Base Rent" for the purpose of
calculating any further Adjustments, and
2) the first month of each Market Rental Value term shall become the new
"Base Month" for .the purpose of calculating any further Adjustments.
[ ] III. Fixed Rental Adjustment(s) (FRA)
The Base Rent shall be increased to the following amounts on the dates set forth
below:
On (Fill in FRA Adjustment Date(s)): The New Base Rent shall be:
---------------------- $------------------
---------------------- $------------------
---------------------- $------------------
---------------------- $------------------
B. NOTICE:
Unless specified otherwise herein, notice of any rental adjustments, other
than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the
Lease.
C. BROKER'S FEE:
The Brokers specified in paragraph 1.10 shall be paid a Brokerage Fee for
each adjustment specified above in accordance with paragraph 15 of the Lease.
<PAGE> 21
ADDENDUM TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE-GROSS DATED JULY
6, 1998 BY AND BETWEEN EASY SIMI INVESTORS LTD., A CALIFORNIA LIMITED
PARTNERSHIP AS "LESSOR" AND VOICE POWERED TECHNOLOGY INTERNATIONAL, INC., A
CALIFORNIA CORPORATION AS "LESSEE" FOR THE PROPERTY LOCATED AT 21 W. EASY
STREET, UNIT 108, SIMI VALLEY, CALIFORNIA 93065.
AMERICANS WITH DISABILITIES ACT ("ADA") - "The parties hereto agree to
comply with all applicable federal, state and local laws, regulations, codes,
ordinances and administrative orders having jurisdiction over the parties,
property of the subject matter of this agreement, including, but not limited
to, the 1964 Civil rights Act and all amendments thereto, the Foreign
Investment In Real Property Tax Act, the Comprehensive Environmental Response
Compensation and Liability Act and The Americans With Disabilities Act."
DATE SIGNATURE /s/ Mitchell B. Rubin
DATE SIGNATURE /s/ Ed Natan
<PAGE> 22
ADDENDUM TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE-GROSS DATED JULY
6, 1998 BY AND BETWEEN EASY SIMI INVESTORS LTD., A CALIFORNIA LIMITED
PARTNERSHIP AS "LESSOR" AND VOICE POWERED TECHNOLOGY INTERNATIONAL, INC., A
CALIFORNIA CORPORATION AS "LESSEE" FOR THE PROPERTY LOCATED AT 21 W. EASY
STREET, UNIT 108, SIMI VALLEY, CALIFORNIA 93065.
CONSULT YOUR ATTORNEY/ADVISORS - This document has been prepared for
approval by your attorney. No representation is made by CB Richard Ellis, Inc.
or the Southern California Chapter of the Society of Industrial and Office
Realtors (S.I.O.R.), Inc., or the agents or employees of either of them as to
the legal sufficiency, legal effect, or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
DATE SIGNATURE /s/ Mitchell B. Rubin
DATE SIGNATURE /s/ Ed Natan
<PAGE> 23
EXHIBIT "A"
LEASE TERMINATION AGREEMENT
BY AND BETWEEN
SIMON PETROCHEMICALS INC., A CALIFORNIA CORPORATION, DBA TRIBOTECT, AS
LESSEE AND EASY SIMI INVESTORS LTD., A CALIFORNIA LIMITED PARTNERSHIP, AS
LESSOR, DATED JULY 6, 1998
THIS LEASE TERMINATION AGREEMENT SHALL ONLY BE VALID IF SIGNED BY BOTH LESSOR
AND LESSEE.
LESSOR AND LESSEE HEREBY AGREE TO THE FOLLOWING:
1.) THE LEASE AGREEMENT BETWEEN THE PARTIES DATED DECEMBER 16, 1994 AND MODIFIED
ON JANUARY 12,1998 IS HEREBY TERMINATED, LESSEE SHALL HAVE NO FURTHER
RESPONSIBILITIES TO LESSOR OTHER THAN WHAT IS SET FORTH IN THIS AGREEMENT.
2.) LESSEE AGREES TO VACATED THE PREMISES ON OR ABOUT JULY IS. 1998 BUT IN NO
EVENT LATER THAN JULY 17, 1998. LESSEE AGREES TO VACATE THE PREMISES IN BROOM
CLEAN CONDITION.
3.) LESSOR SHALL WAIVE ALL PAST DUE RENTALS, COMMON AREA MAINTENANCE CHARGES AND
LATE FEES THAT LESSEE NOW OWES.
4.) LESSEE SHALL BE RESPONSIBLE FOR THE PAYMENT TO DAUM COMMERCIAL REALTY A FEE
IN THE AMOUNT OF $8,170.00, TO BE PAID NO LATER THAN JULY 15,1998. LESSEE SHALL
HAVE NO FURTHER RESPONSIBILITIES WHATSOEVER FOR ANY ADDITIONAL CHARGES OR FEES
(OTHER THAN #5 BELOW) WITH REGARD TO THIS AGREEMENT.
5.) IN CONSIDERATION OF LESSOR TERMINATING THE LEASE AND THE WAIVING OF PAST DUE
RENTALS, LESSEE HEREBY FORFEITS THEIR SECURITY DEPOSIT TO LESSOR, WHICH LESSOR
CURRENTLY HAS ON ACCOUNT.
6.) ANY DEFAULT OF THE TERMS OF THIS AGREEMENT BY LESSEE, SHALL VOID THIS
AGREEMENT AND IMMEDIATELY REINSTATE THE LEASE BETWEEN THE PARTIES,
ALL TERMS AND CONDITIONS OF THIS AGREEMENT ARE HEREBY AGREED:
LESSEE: SIMON PETROCHEMICALS INC. LESSOR.EASY SIMI INVESTORS
DBA TRIBOTECT
BY: /s/ NICK PENTA /S/ ED NATAN
NICK PENTA, CEO ED NATAN, G.P.
<PAGE> 24
[GRAPHIC OMITTED]
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
GUARANTY OF LEASE
THIS GUARANTY OF LEASE SHALL BE LIMITED TO A TOTAL OF SIX (6) MONTHS RENT
AND CAM PAYMENTS FROM THE START OF ANY UNCURRED DEFAULT.
WHEREAS EASY SIMI INVESTORS. LTD, hereinafter "Lessor", and VOICE POWERED
TECHNOLOGY INTERNATIONAL. INC., hereinafter "Lessee," are about to execute a
document entitled "Lease" dated JULY 1998 concerning the premises commonly known
as 21 W. EASY STREET. UNIT 108. SIMI VALLEY wherein Lessor will lease the
premises to Lessee, and
WHEREAS, FRANKLIN ELECTRONIC PUBLISHERS hereinafter "Guarantors" have a
financial interest in Lessee, and
WHEREAS, Lessor would not execute the Lease if Guarantors did not execute
and deliver to Lessor this Guarantee of Lease.
NOW THEREFORE, in consideration of the execution of the foregoing Lease by
Lessor and as a material inducement to Lessor to execute said Lease, Guarantors
hereby jointly, severally, unconditionally and irrevocably guarantee the prompt
payment by Lessee of all rents and all other sums payable by Lessee under said
Lease and the faithful and prompt performance by Lessee of each and every one of
the terms, conditions and covenants of said Lease to be kept and performed by
Lessee.
It is specifically agreed that the terms of the foregoing Lease may be
modified by agreement between Lessor and Lessee, or by a course of conduct, and
said Lease may be assigned by Lessor or any assignee of Lessor, upon written or
notice to Guarantors and that this Guaranty shall guarantee the performance of
said Lease as so modified.
This Guaranty shall not be released, modified or affected by the failure or
delay on the part of Lessor to enforce any of the rights or remedies of the'
Lessor under said Lease, whether pursuant to the terms thereof or at law or in
equity.
Notice of default and opportunity to cure any default by Lessee shall be
given to Guarantors under the same terms and conditions as notices given to
Lessee pursuant to the Lease, it being specifically agreed that the guarantee of
the undersigned is a continuing guarantee under which Lessor may proceed
immediately against Lessee and/or against Guarantors following any breach or
default by Lessee or for the enforcement of any rights which Lessor may have as
against Lessee under the terms of the Lease or at law or in equity.
Lessor shall have the right to proceed against Guarantors hereunder
following any breach or default by Lessee without first proceeding against
Lessee and without previous notice to or demand upon either Lessee or
Guarantors.
Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations relating to this Guaranty or the Lease, (d) any right
to require the Lessor to proceed against the Lessee or any other Guarantor or
any other person or entity liable to Lessor, (e) any right to require Lessor to
apply to any default any security deposit or other security it may hold under
the Lease, (f) any right to require Lessor to proceed under any other remedy
Lessor may have before proceeding against Guarantors, (g) any right of
subrogation.
Guarantors do hereby subrogate all existing or future indebtedness of
Lessee to Guarantors to the obligations owed to Lessor under the Lease and this
Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that recourse
may be had against his or her separate property for all of the obligations
hereunder.
The obligations of Lessee under the Lease to execute and deliver
estoppel statements and financial statements, as therein provided, shall be
deemed to also require (he Guarantors hereunder to do and provide the same.
The term "Lessor" refers to and means the Lessor named in the Lease
and also Lessor's successors and assigns. So long as Lessor's interest in the
Lease, the leased premises or the rents, issues and profits therefrom, are
subject to any mortgage or deed of trust or assignment for security, no
acquisition by Guarantors of the Lessor's interest shall affect the continuing
obligation of Guarantors under this Guaranty which shall nevertheless continue
in full force and effect for the benefit of the mortgagee, beneficiary, trustee
or assignee under such mortgage, deed of trust or assignment and their
successors and assigns.
The term "Lessee" refers to and means the Lessee named in the Lease and
also Lessee's successors and assigns.
In the event any action be brought by said Lessor against Guarantors
hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful
party in such action shall pay to the prevailing party therein a reasonable
attorney's fee which shall be fixed by the court.
Notice to be given to: Gregory J. Winsky, Senior Vice President Franklin
Electronic Publishers, Inc., One Franklin Plaza Burlington, New Jersey 08016
If this Form has been filled in, it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made by
the American Industrial Real Estate Association, the real estate broker or its
agents or employees as to the legal sufficiency, legal effect, or tax
consequences of this Form or the transaction relating thereto.
Executed at: LOS ANGELES, CALIFORNIA
ON JULY 1998
ADDRESS:
FRANKLIN ELECTRONIC PUBLISHERS
BY: /s/ GREG WINSKY
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S BALANCE SHEET AND STATEMENT OF OPERATIONS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. STATEMENT OF OPERATIONS
DATA APPLIES ON TO THE SEVEN AND ONE-HALF MONTHS FROM MAY 13 TO
DECEMBER 31, 1998.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 71,303
<SECURITIES> 0
<RECEIVABLES> 193,881
<ALLOWANCES> 0
<INVENTORY> 314,350
<CURRENT-ASSETS> 586,986
<PP&E> 406,074
<DEPRECIATION> 314,002
<TOTAL-ASSETS> 909,233
<CURRENT-LIABILITIES> 836,157
<BONDS> 0
0
0
<COMMON> 90,246
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 909,233
<SALES> 1,688,000
<TOTAL-REVENUES> 1,688,000
<CGS> 1,066,806
<TOTAL-COSTS> 2,119,259
<OTHER-EXPENSES> 16,894
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (31,739)
<INCOME-PRETAX> (483,550)
<INCOME-TAX> 0
<INCOME-CONTINUING> (483,550)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (483,550)
<EPS-PRIMARY> (0.00)
<EPS-DILUTED> (0.00)
</TABLE>
