SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM 10-KSB
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1996
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- ----- SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
Commission File Number: 0-22464
KOALA CORPORATION
(Name of Small Business Issuer in Its Charter)
Colorado 84-1238908
(State of Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
11600 E. 53rd Avenue, Unit D
Denver, Colorado 80239
(Address of Principal Executive Offices)
(303) 574-1000
(Issuer's Telephone Number, Including Area Code)
Securities Registered Under Section 12(b) of the Exchange Act: None
Securities Registered under Section 12(g) of the Exchange Act:
Common Stock, $.10 par value
(Title of Class)
Check whether the issuer: (1) 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 issuer was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
_X_ Yes ___ No
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of the 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. _______
State the issuer's revenues for its most recent fiscal year:
$8,938,282.
As of March 3, 1997, the aggregate market value of the voting stock held by
nonaffiliates of the issuer computed by reference to the last quoted price at
which such stock sold on such date as reported by the Nasdaq National Market
System was approximately $17,801,680.
As of March 3, 1997, there were outstanding 2,481,260 shares of the issuer's
Common Stock, $.10 par value.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement for its May 30, 1997 Annual Meeting
of Shareholders are incorporated by reference in Part III.
PART I
ITEM 1. DESCRIPTION OF BUSINESS
THIS REPORT CONTAINS FORWARD-LOOKING STATEMENTS THAT DESCRIBE THE COMPANY'S
BUSINESS AND PROSPECTS AND THE EXPECTATIONS OF THE COMPANY AND MANAGEMENT. THESE
STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES THAT COULD CAUSE
ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE SET FORTH. THESE RISKS AND
UNCERTAINTIES INCLUDE, BUT ARE NOT LIMITED TO, THE COMPANY'S RELIANCE ON THE
REVENUES FROM A SINGLE PRODUCT, THE KOALA BEAR KARE(TM) CHANGING STATION, WHICH
HAS GENERATED A SUBSTANTIAL AMOUNT OF THE COMPANY'S REVENUES; THE UNCERTAINTIES
ASSOCIATED WITH THE INTRODUCTION OF NEW PRODUCTS; MANAGEMENT OF GROWTH,
INCLUDING THE ABILITY TO ATTRACT AND RETAIN QUALIFIED EMPLOYEES; DEPENDENCE ON
MARK A. BETKER, ITS PRESIDENT AND CHIEF EXECUTIVE OFFICER; SUBSTANTIAL
COMPETITION FROM LARGER COMPANIES WITH GREATER FINANCIAL AND OTHER RESOURCES
THAN THE COMPANY; ITS DEPENDENCE ON SUPPLIERS FOR MANUFACTURE OF ITS PRODUCTS;
CURRENCY FLUCTUATIONS AND OTHER RISKS ASSOCIATED WITH FOREIGN SALES; AND
POTENTIAL PRODUCTS LIABILITY RISKS ASSOCIATED WITH ITS EXISTING AND FUTURE
PRODUCTS.
GENERAL
The Company is a leading producer of infant diaper changing stations and other
commercial child care, child protection and recreational products. The Company
markets its products under the Koala Bear Kare(R) name. The Company effectively
created the market for diaper changing stations. The Koala Bear Kare(R) Baby
Changing Station, introduced in 1987, is installed in more than 200,000 public
restrooms across the United States and in more than 20 countries. The Company's
customers for this product include Dayton Hudson Corporation's Target Stores,
the Mayo Clinic, Walt Disney World and many McDonald's, Burger King and Pizza
Hut franchises.
The market for the Company's products has developed as a result of a number of
factors, including the increase in child births as the number of "baby boom"
children of child-bearing age grew, the trend toward dining away from home with
children and the increased emphasis by retail stores, sports facilities,
restaurants and other public facilities on marketing based upon customer service
rather than only upon product and price. The Koala Bear Kare(R) Baby Changing
Station is perceived as an affordable method for such enterprises to
differentiate themselves from their competitors. The Company believes, based in
large part upon its success in marketing the Baby Changing Station, and in turn
on the success of its commercial, institutional and recreational purchasers in
using the product to enhance their own image, that the customers and visitors of
such establishments have increasingly come to expect diaper changing stations as
a matter of course.
In August 1996, the Company relocated its offices and employees from St. Paul,
Minnesota to Denver, Colorado and established a new manufacturing relationship
with a Denver firm to manufacture and assemble its products. Previously, the
Company assembled its own products. The location of the Company's offices near
the contract manufacturing operation is an important factor in maintaining the
Company's high quality standards and minimizing product costs.
BUSINESS STRATEGY
The Company believes that the Koala Bear Kare(R) Baby Changing Station and its
other products have strong brand name recognition. The Company's business
strategy is to capitalize on its strong brand name recognition through
maximizing the market penetration for its Baby Changing Station and development
of new products and to leverage its distribution channels by acquisition of
complementary products. The following are the key elements of the Company's
strategy:
MAXIMIZE MARKET PENETRATION OF THE BABY CHANGING STATION AND OTHER
CHILD PROTECTION PRODUCTS. Since its October 1993 initial public
offering, the Company has expanded marketing efforts related to its
Baby Changing Station and other child protection products. The Company
has increased its presence at trade shows and has expanded its
advertising in trade journals, particularly in more focused market
segments and geographical areas. It has expanded its marketing
nationwide and internationally through the creation of a distributor
and dealer network domestically and in other countries. In 1996, the
Company hired two new sales executives to focus on commercial and
international markets, and increased its emphasis on sales through
independent dealers. The Company also is marketing its products to
national accounts such as restaurant chains and franchises and child
care centers, as well as other appropriate end-users. The Company also
has increased its use of direct mail and telemarketing to sell to
customers that would not be reached by trade shows, journals and
distributors.
EMPHASIZE PRODUCT ENHANCEMENT AND NEW PRODUCT DEVELOPMENT. The Company
has an active product development and enhancement program and
continually seeks to improve its products and create complementary
products. In 1993, the Company introduced the Koala Bear Kare(R) Infant
Seat Kradle, which is designed to allow an infant in a portable infant
car seat to sit at a table without having to be removed from the car
seat. In 1994, the Company added a horizontal-mount Baby Changing
Station to its product line.
ACQUIRE COMPLEMENTARY PRODUCTS. The Company intends to continue the
acquisition of new products which it believes it can market to its
target market and dealer network. In August 1994, the Company acquired
molds and intellectual property rights associated with Booster Buddy(R)
booster seats, which are specially designed and engineered for use by
children in movie theaters, auditoriums and similar settings. In March
1996, the Company acquired certain assets of Activities Unlimited, a
privately-held developer and distributor of commercial-use waiting room
and educational activities equipment for children. Activities Unlimited
has an established product line with a wide variety of high-quality,
commercial-use children's play tables, featuring interlocking
construction blocks, games and mazes. Primary customers include retail
stores, auto dealerships, restaurants, doctors' offices, airports,
children's day-care centers and schools.
PRODUCTS
Baby Changing Stations and Other Child Care Products. The Company currently
markets four products in this segment of its business: the Koala Bear Kare(R)
Baby Changing Station, the Koala Bear Kare(R) Child Protection Seat, the Koala
Bear Kare(R) Infant Seat Kradle and the Booster Buddy(R) booster seat. The
Company also markets disposable sanitary liners to be used with its Baby
Changing Stations.
The Company's original product was the vertical Koala Bear Kare(R) Baby Changing
Station, introduced in 1987. In May 1994, the Company introduced a
horizontal-mount Baby Changing Station. Both of the Company's baby changing
stations can be installed in compliance with ADA regulations, the
horizontal-mount unit at any height because it protrudes only 4 inches from the
wall and the vertical unit (which protrudes 5 inches from the wall), provided
that its leading (I.E., lower) edge is installed within 27 inches of the floor.
The Baby Changing Station, which sells to the end user for $199.95, is designed
to be mounted in restrooms, either over commodes or in the wash area. The unit
consists of a base which is fastened to the wall, a concave bed which folds down
during use, a gas spring mechanism (similar to the opening device on hatchback
cars) and safety straps. The bed portion of the Baby Changing Station, when not
in use, is retracted by the gas spring into the base. The unit occupies only
four square feet of wall space and does not occupy valuable floor space. The
concave bed, with its raised sides and easily-fastened safety straps, holds the
baby safely in place during diaper changing. The gas spring mechanism provides
for slow closing in order to avoid injury to fingers or other objects. Key
stress points on the Baby Changing Station are steel reinforced so that the unit
is designed to withstand static loads of over 250 pounds. The Koala Bear Kare(R)
Baby Changing Station is highly resistant to accidental damage or vandalism
because of its polyethylene and steel construction.
The Baby Changing Station can be operated with a single hand, allowing a parent
to hold a baby while opening the unit. Both the wall base and the bed are made
of FDA-approved, high-impact, blow-molded polyethylene which is durable, resists
odors, mold and mildew, and is easy to clean with customary commercial cleaning
products. The corners of the unit are rounded to assure safe use. The Baby
Changing Station features permanent embossed graphic step-by-step safety
instructions in six languages. The Company believes it offers one of the largest
changing beds available.
The wall base also includes a dispenser for disposable sanitary liners, used to
lay on the bed for a clean surface for changing babies. In addition to selling
bed liners at the time of the initial sale of the Baby Changing Station, the
Company also sells refill liners. The Company currently sells most bed liners in
connection with the initial purchase of Baby Changing Stations, but has taken
steps to increase sales of refill liners through direct mail solicitation of
existing customers and the implementation of liner programs with national
accounts.
As a result of comments both from commercial purchasers of the Koala Bear
Kare(R) Baby Changing Station and from its users, the Company developed the
Koala Bear Kare(R) Child Protection Seat in 1991. The primary purpose of the
Child Protection Seat is to protect a child while a parent is using a restroom
or fitting room. The Child Protection Seat is a wall-mounted, temporary holding
seat. A parent can strap the child into the seat while using the restroom or
changing clothes without having to attend to the child and without having to
leave the child unattended outside the restroom stall or fitting room. The Child
Protection Seat, like the Baby Changing Station, occupies no floor space,
requires less than two square feet of wall space and folds up and out of the way
when not in use. When retracted, the Child Protection Seat extends no further
than a toilet paper dispenser. The Child Protection Seat is constructed of
blow-molded plastic with sturdy polypropylene shoulder harness straps.
The Company believes that the Child Protection Seat is an ideal complement to
its Baby Changing Station because many of the purchasers for the Baby Changing
Station are prospective purchasers of the Child Protection Seat. The Company
provides discounts to customers purchasing a package consisting of both the Baby
Changing Station and the Child Protection Seat.
In May 1993, the Company introduced the Koala Bear Kare(R) Infant Seat Kradle,
which is designed to allow an infant in a portable infant car seat to sit at a
table without having to be removed from the car seat. Infant car seats are
currently required by law in virtually all states. Portable infant car seats,
which have become increasingly popular, are those which are removable from the
car (either with or without a stationary base) and which have a handle or other
apparatus for carrying when out of the car. In order to avoid disturbing the
infant, and because infants are generally too small for high chairs, parents
frequently leave their infant in the car seat while dining. By placing the
portable infant car seat into the Koala Bear Kare(R) Infant Seat Kradle, parents
eliminate the need to set the car seat on the table, where it interferes with
dining, on a chair, where it runs the risk of being knocked over, or on the
floor, where it is an obstacle. Instead, the Infant Seat Kradle can be pushed
under the edge of the table, requiring no more space than a chair in use. As a
result, it does not block aisles or otherwise add to congestion in crowded
restaurants. When not in use, the Infant Seat Kradle folds flat for storage.
Currently, the Company markets the Infant Seat Kradle to commercial customers
with a storage rack. The set occupies approximately the same storage space as
one conventional high chair. The Infant Seat Kradle consists of a polyethylene
frame and nylon mesh cradle with reinforced edges and polypropylene safety
straps.
In August 1994, the Company acquired molds and related equipment used in
manufacturing Booster Buddy(R) booster seats. The Booster Buddy(R) booster seat
is specially designed and engineered for use by children in movie theaters,
auditoriums and similar settings. Its unique features include a convenient
carrying handle, a small-to-medium-sized cup holder and a recessed candy/popcorn
holder. The reversible design fits children from two to seven years old. This
product is made of rotationally molded polyethylene and is available in a
variety of colors.
The Company offers a one-year replacement guarantee, covering damages from
natural disasters or vandalism, subject to a $100 deductible; and a five-year
manufacturer's limited warranty on parts and labor, covering any defects in
workmanship. To date, the Company has replaced few units and has experienced
very few returns and warranty claims.
Children's Recreational and Activity Products. The Company markets children's
recreational and activity products under the Activities Unlimited product line,
including commercial-use children's play tables featuring interlocking
construction blocks, games, mazes and wall activities and other manipulatives.
MANUFACTURING AND DISTRIBUTION
Baby Changing Stations and Other Child Care Products. In August 1996, the
Company entered into a new manufacturing relationship with a Denver-based
plastics manufacturer. The supplier manufactures both the vertical and
horizontal models of the Koala Bear Kare(R) Baby Changing Station and Child
Protection Seat. Components are blow-molded to the Company's specifications,
assembled and delivered to the Company. Previously, the products were assembled
by the Company. The Company performs all administrative functions including
order processing, credit and collection, accounting, inventory control and
shipping from the Company's facilities. All molds used in the manufacturing
process are owned by the Company. Although the Company currently uses only two
plastics suppliers, the Company's products represent only a small portion of
such manufacturers' total businesses, and the Company believes that alternative
sources of supply are available if necessary.
The bed liners used with the Company's Baby Changing Station are manufactured to
the Company's specifications by a major manufacturer of paper products.
Both the Koala Bear Kare(R) Infant Seat Kradle and the Booster Buddy(R) booster
seat are currently manufactured for the Company by outside jobbers. The Company
believes that other third-party manufacturers are readily available for both
products.
Children's Recreational and Activity Products. Most of the Activities Unlimited
products are manufactured to the Company's specifications by an independent
manufacturer located in Denver. Some products are purchased from other outside
vendors. The Company believes that alternative sources of supply are available
if necessary. The Company performs all administrative functions including order
processing, credit and collection; accounting, inventory control and shipping
from the Company's facilities.
SALES AND MARKETING
Baby Changing Stations and Other Child Care Products. The Company markets the
Baby Changing Station to commercial, institutional and recreational
establishments such as restaurants, hospitals, shopping centers, retail stores,
sports facilities, amusements parks, churches, museums and other facilities with
public restrooms, as a means of helping these establishments enhance their image
with customers and visitors by providing facilities for changing diapers.
The United States Department of Justice estimates that there are over 5,000,000
private establishments which constitute public accommodations such as
restaurants, hotels, theaters, convention centers, retail stores, shopping
centers, dry cleaners, laundromats, pharmacies, doctors' offices, hospitals,
museums, libraries, parks, zoos, amusement parks, private schools, day-care
centers, health spas and bowling alleys, many of which are potential purchasers
of the Company's products. The Company has not estimated the number of restrooms
in such facilities. This estimate does not include commercial, government, or
religious facilities such as office buildings, factories, churches, or
government buildings, some of which are also potential purchasers.
The Company emphasizes the ability of purchasers of the Baby Changing Station to
differentiate themselves from their competitors by providing an added level of
service to their customers and visitors. Since the Company began marketing its
Baby Changing Station, the expectations of such purchasers' customers and
visitors have evolved such that the presence of a diaper changing station like
the Koala Bear Kare(R) Baby Changing Station has now increasingly come to be
expected and those establishments without diaper changing stations are perceived
as lacking a necessary service. Therefore, the Company believes that its Baby
Changing Station provides purchasers with a competitive advantage over their
competition who do not offer such a service.
The Company first introduced the Koala Bear Kare(R) Child Protection Seat and
Infant Seat Kradle in 1991 and 1993, respectively. The commercial, institutional
and recreational establishments to which the Company has successfully marketed
the Koala Bear Kare(R) Baby Changing Station are also the primary prospective
purchasers of the Company's Child Protection Seat and, to a lesser extent, the
Infant Seat Kradle. Accordingly, the Company's marketing efforts related to such
products have been similar to those related to the Baby Changing Station. The
Company offers discounts to customers who purchase a child protection package
consisting of a Baby Changing Station and Child Protection Seat.
The Company believes that it has achieved widespread brand name recognition of
its products, and its "Koala Bear Kare" trademarks have been important in
marketing the Company's products. Each of the Company's products which is
marketed under this trademark prominently displays a blue and white sticker with
one of the Company's trademarks.
The Company's products are represented in all 50 states with higher sales
concentrations in more heavily-populated states. The Company also markets its
products in foreign countries and estimates that approximately 85 percent of
sales during the most recent year were domestic and 15 percent were foreign.
Canada, the United Kingdom, Japan, Europe and Australia accounted for the
majority of foreign sales.
The Company's marketing strategy has consisted primarily of advertising in trade
journals, attendance and display at various trade shows, and direct mailings.
The Company believes it has been successful in maintaining a high profile and
obtaining as much publicity as possible by providing members of the press,
particularly those affiliated with appropriate trade journals and those
attending trade shows where the Company displays its products, with packages of
information consisting of prior articles, brochures and descriptions, and other
marketing material. The Company has increased its marketing budget, in an effort
to increase sales of its products to a wider target market. The Company also has
increased its use of direct mail and telemarketing to sell to customers that
would not be reached by trade shows, journals and distributors.
Historically, most sales have been generated by trade journal advertising, trade
show attendance or direct mailings with little or no direct solicitation by the
Company or its dealers. Although the Company has appointed dealers to sell the
Company's products, such dealers are not granted any exclusive rights for
products or territory except that the Company has appointed exclusive dealers in
Canada, the United Kingdom, Japan and Australia. Dealer sales have accounted for
a minority of the Company's domestic sales and a majority of the Company's
foreign sales. In 1996, the Company increased its emphasis on dealer sales. It
currently has 391 dealers in the United States and 64 dealers internationally
that cover 20 countries.
The Company intends to continue its marketing efforts aimed at trade journal
advertising, trade show attendance, and direct mailings. The Company plans to
focus on more defined market segments and geographic regions. The Company
intends to continue to increase sales to distributors, especially those with
defined markets. In addition, the Company plans to approach national accounts
and to market its products through direct mail efforts and telemarketing.
During 1995, the Company employed a new vice president of sales who has been
actively engaged in soliciting orders for the Company's products, supplementing
the Company's broader-based marketing efforts by direct sales activities
primarily directed at potentially high volume national accounts (such as chain
and franchised restaurants). This executive's activities are in addition to
those conducted by the Company's director of marketing, which are principally
focused on trade shows, direct mailings, brochures and other indirect marketing
activities. The Company plans to develop and acquire other commercial products
designed for use by babies, infants and children or which are intended for
integration in restrooms.
During 1996, the Company added two sales executives who have responsibilities
for developing the Company's commercial and international markets. The
commercial sales executive is responsible for distribution channels to dealers
who service U.S. restaurants other than the national chain and franchised
restaurants described above. The international sales executive is responsible
for locating dealers and managing dealer relationships in Europe, Asia and South
America.
Children's Recreational and Activity Products. The Company markets the
Activities Unlimited products domestically primarily through direct sales to
commercial customers and to national accounts. International sales are through
dealers.
COMPETITION
Baby Changing Stations and Other Child Care Products. The Company plans to
expand this product area through the attraction of additional dealers and
through acquisition of complementary products. The Company is not aware of any
other companies marketing diaper changing stations intended for the commercial
market that have a greater market share than the Company. The Company is aware
of four other companies, two based in Minnesota, one based in Ohio and one based
in New Jersey, marketing products that directly compete with the Company's Koala
Bear Kare(R) Baby Changing Station and Child Protection Seat. The Company
believes that each of such competitors has a substantially smaller market than
the Company. The Company competes with such competitors based principally on the
basis of brand name recognition, price, quality and customer service. The
Company believes that its Koala Bear Kare(R) products have brand name
recognition that provides the Company with a significant competitive advantage.
In 1996, Rubbermaid Corporation, a large manufacturer of consumer products,
commenced marketing of products that compete with the Company's Baby Changing
Stations. Although this competitor has not materially affected the Company to
date, it has substantially greater financial and marketing resources than the
Company. There are a number of well-known manufacturers of consumer child safety
equipment, furniture and other juvenile products which are substantially larger
and better financed than the Company. Such companies have not introduced or
marketed products directly competing with the Koala Bear Kare(R) Baby Changing
Station or Child Protection Seat. Although the Company believes that its
products will continue to compete effectively with Rubbermaid or such other
competitors, such manufacturers could reduce the Company's margins and/or market
share. Conversely, the Company believes that such competition could benefit the
Company through expansion of the Company's markets as a result of increased
customer awareness of the types of products sold by the Company.
Children's Recreational and Activity Products. Competition in the children's
recreational product area is from several large companies that make similar
products. The Company competes in this market on the basis of price, quality and
service.
PATENTS AND TRADEMARKS
Although the Company holds patents related to certain aspects of its products,
the Company does not believe that such patents provide significant protection
against competitors and potential competitors whose products compete and likely
would compete with the Company without infringing upon the Company's patents.
The Company has registered various trademarks, including the "Koala Bear Kare"
name and several variations of the Koala Bear Kare(R) picture which is featured
on the Company's products, and believes that such trademarks are important in
assuring recognition of the Company's products. The Company believes that the
various Koala Bear Kare(R) trademarks are widely recognized. The Company has
also registered the trademark "Booster Buddy."
REGULATION
The Company's operations are not subject to any significant government
regulations other than those regulations applicable to businesses generally. The
Company is aware of several jurisdictions which have adopted or are considering
adopting regulations requiring parity between men's and women's restrooms in the
installation of diaper changing stations. The number of jurisdictions which have
adopted such regulations is minimal and the Company is unable to assess what
impact, if any, such or similar regulations would have on the Company's sales.
The Company may, in the future, market its current products or other products
developed or acquired by it directly to consumers. If so, the Company's products
would then be subject to the provisions of the Federal Consumer Product Safety
Act and the Federal Hazardous Substances Act (the "Acts") and regulations
promulgated thereunder. The Acts authorize the Consumer Product Safety
Commission (the "CPSC") to protect the public from products which present a
substantial risk of injury. The CPSC can require the repurchase or recall by the
manufacturer of products which are found to be defective and impose fines or
penalties on the manufacturer. Similar laws exist in some states and cities in
other countries in which the Company may market such products.
EMPLOYEES
The Company has 20 employees. Of such employees, 13 are engaged in sales and
marketing, one is engaged in inventory control and shipping, five are employed
in accounting and administration, and the Company's president is primarily
engaged in marketing and administration. Four employees are located at the
Activities Unlimited sales office in Metairie, Louisiana. The Company's
employees are not covered by any collective bargaining agreements. Management
believes that its relations with its employees are excellent.
ITEM 2. DESCRIPTION OF PROPERTIES
The Company leases, from an unrelated party, approximately 15,000 square feet in
Denver, Colorado for its operations. The lease expires on July 31, 2001. The
rent is approximately $6,100 per month, plus operating expenses. The Company
also leases approximately 1,100 square feet of office space in Metairie,
Louisiana for its Activities Unlimited operations. The rent was approximately
$1,125 per month in 1996 and increased to $1,148 per month in January 1997. This
lease expires in February 1998.
ITEM 3. LEGAL PROCEEDINGS
The Company currently is not involved in any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters which were submitted to a vote of security holders during
the fourth quarter of the fiscal year ended December 31, 1996.
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock of the Company trades on the Nasdaq Stock Market National
Market System under the symbol KARE. The following table sets forth, for the
periods indicated, the high and low sales prices for the Company's Common Stock
for each quarter within the last two fiscal years as reported by Nasdaq. These
quotations reflect inter-dealer prices, without retail markup, markdown or
commissions and may not represent actual transactions.
<TABLE>
<CAPTION>
SALES PRICE
----------------------------------
LOW HIGH
----------------------------------
<S> <C> <C>
YEAR ENDED DECEMBER 31, 1995
First quarter....................................... $5 $6 3/4
Second quarter...................................... $5 3/8 $9 1/8
Third quarter....................................... $7 5/8 $9 7/8
Fourth quarter...................................... $8 1/8 $12 5/8
YEAR ENDED DECEMBER 31, 1996
First quarter....................................... $10 5/8 $19 1/4
Second quarter...................................... $16 3/8 $19 1/8
Third quarter....................................... $13 3/4 $21
Fourth quarter...................................... $12 1/4 $17
</TABLE>
As of March 3, 1997, there were approximately 96 shareholders of record.
The Company has never paid cash dividends on its Common Stock. The Company
currently intends to retain any earnings for use in its operations and does not
anticipate payment of cash dividends in the foreseeable future.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
SELECTED FINANCIAL DATA
The following table summarizes financial data for the years ended December 31,
1994, 1995 and 1996. The data should be read in conjunction with the financial
information and notes thereto included elsewhere in this report.
INCOME STATEMENT DATA(1):
Year Ended December 31,
----------------------------------------------
1994 1995 1996
---- ---- ----
NET SALES.................. $5,177,938 $6,537,440 $8,938,282
Cost of sales.............. 1,832,411 2,551,676 3,241,328
--------- --------- ---------
GROSS PROFIT............... 3,345,527 3,985,764 5,696,954
Selling, general and 1,341,695 1,543,495 2,892,095
administrative expenses.. --------- --------- ---------
OPERATING INCOME........... 2,003,832 2,442,269 2,804,859
Other income (expense)..... 43,780 109,249 ( 159,460)
Amortization of acquisition 85,679 86,375 105,677
intangibles.............. --------- --------- ---------
Income before provision for 1,961,933 2,465,143 2,539,722
income taxes.............
Provision for income taxes. 704,633 890,447 644,182
--------- --------- ---------
NET INCOME................. $1,257,300 $1,574,696 $1,895,540
========= ========= =========
NET INCOME PER SHARE....... $ 0.52 $ 0.65 $ 0.74
========= ========= =========
Weighted average shares 2,405,178 2,421,133 2,549,438
outstanding.............. ========= ========= =========
BALANCE SHEET DATA: December 31,
--------------------------------------------
1994 1995 1996
---- ---- ----
Working capital............ $2,721,358 $4,416,740 $5,643,924
Total assets............... 6,615,724 8,250,309 10,351,202
Total liabilities.......... 328,290 388,179 572,632
Shareholders' equity....... 6,287,434 7,862,130 9,778,570
- -----------------------------------------------------------
(1) Certain reclassifications have been made to prior year amounts to conform to
current year presentation.
INTRODUCTION
Over the past three years the Company has experienced consistent growth in sales
and pre-tax profits. Sales have increased from $5,177,938 in 1994 to $8,938,282
in 1996, while pre-tax profits have increased from $1,961,933 in 1994 to
$2,539,722 in 1996. Cash provided by operating activities has increased over
this same period from $737,646 in 1994 to $1,323,426 in 1996. Cash provided by
operating activities has been and will be used by the Company for expansion of
its marketing and product lines and for acquisitions. See "Liquidity and Capital
Resources" below.
COMPONENTS OF REVENUE AND EXPENSES
The Company's revenues are derived from the sale of Baby Changing Stations,
disposable sanitary liners for the Baby Changing Stations, Child Protection
Seats, Infant Seat Kradles, and Booster Buddy Seats. These products are sold
primarily to commercial, institutional and recreational facilities such as
shopping centers, retail establishments, restaurants, sports and recreational
facilities, and other public buildings. As discussed below, the Company acquired
certain assets of Activities Unlimited, a developer and distributor of
commercial use children's activities products, in late March 1996.
Cost of sales consists of components manufactured for the Company, direct labor
and manufacturing overhead incurred by the Company. All components are
manufactured by outside manufacturers. In September 1996, the Company also began
using outside manufacturers for assembly of all products.
Selling, general and administrative expenses consist primarily of executive,
sales, marketing, and office salaries, related payroll taxes, advertising
expenses, and other miscellaneous selling and administrative expenses.
RESULTS OF OPERATIONS
The following table outlines sales by product line for the last three years (in
thousands):
Years Ended December 31,
------------------------------------------------
1994 1995 1996
---- ---- ----
Baby Changing Station $4,174 $5,386 $6,758
Changing station liners 684 713 1,102
Booster Buddy Seats 50 191 239
Child Protection Seat 135 117 140
Infant Seat Kradle 44 55 74
Parts and accessories(1) 91 75 106
Activities Unlimited n/a(2) n/a(2) 519
------ ------ ------
Total sales $5,178 $6,537 $8,938
===== ===== =====
(1) Certain reclassifications have been made to prior year amounts to conform
to current year presentation. As a result, amounts previously recorded as
revenues related to shipping costs charged to customers, and included in
"Parts and accessories," are not longer presented as revenues.
(2) Not yet introduced
The following table outlines certain items in the Company's income statement as
a percentage of sales for each of the last three years:
Years Ended December 31,
----------------------------------------------
1994 1995 1996
---- ---- ----
Sales ..................... 100.0% 100.0% 100.0%
Cost of sales ............. 35.4 39.0 36.3
------ ------ ------
Gross profit .............. 64.6 61.0 63.7
Selling, general and ...... 25.9 23.6 32.3
administrative expenses . ------ ------ ------
Operating income .......... 38.7 37.4 31.4
Other income (expense) .... 0.8 1.6 (1.8)
Amortization of acquisition 1.7 1.3 1.2
intangibles ............. ------ ------ ------
Income before provision for 37.8 37.7 28.4
income taxes
Provision for income taxes 13.6 13.6 7.2
------ ------ ------
Net income ................ 24.2% 24.1% 21.2%
====== ====== ======
1996 COMPARED TO 1995
Sales increased 37% from $6,537,440 in 1995 to $8,938,282 in 1996, as a result
of continued growth in demand for the Company's products. Sales of the Baby
Changing Station and related liners increased 29% over 1995 and accounted for
73% of the total growth in the Company's sales. Sales of the Booster Buddy,
Child Protection Seat and Infant Seat Kradle increased 25%. The addition of the
Activities Unlimited product line beginning in April 1996 accounted for 22% of
the increase in total sales. The sales and marketing strategy implemented by the
Company has resulted in increased sales and net income as discussed below, as
well as diversification of the Company's product line.
Gross profit increased to $5,696,954 (64% of sales) during 1996, compared with
$3,985,764 (61% of sales) for 1995. The increase in gross profit as a percentage
of sales was due to price reductions achieved in the cost of raw materials and
component parts and the change to sub-contracted assembly in September 1996. The
Company no longer maintains a manufacturing facility for assembly of its
products thus reducing overhead costs.
Selling, general and administrative expenses were $2,892,095 (32% of sales) for
1996 compared with $1,543,495 (24% of sales) for 1995, an 87% increase in terms
of actual dollars; however, the percentage relationship to sales increased only
9 percentage points because the Company has increased sales without a
proportionate increase in general and administrative overhead. The addition of
Activities Unlimited accounted for 23% of the increase in selling, general and
administrative costs. The increase in selling, general, and administrative
expenses is primarily due to increased sales and marketing salaries of $114,049
and administrative salaries of $338,064 which includes the salary for the chief
financial officer added in 1996 and additional advertising costs of $412,042.
Other costs associated with sales and marketing increased $191,723. These costs
include travel, telephone, consultants and contract labor. The Company also
increased its use of outside sales representatives which resulted in an increase
of $94,669 in sales commissions. The Company made the investment in these
increased levels of selling, general and administrative expenses in order to
support the expanded sales and marketing strategies begun in 1995.
Net income for 1996 was $1,895,540 (21% of sales) compared to net income of
$1,574,696 (24% of sales) for 1995, representing an increase of 20%. The
additional expenses incurred as discussed above resulted in the decline in net
income as a percent of sales; however, the Company believes that the investment
in these areas will result in continued sales growth in the future.
1995 COMPARED TO 1994
Sales increased 26% from $5,177,938 in 1994 to $6,537,440 in 1995 as a result of
continued growth in demand for the Company's Baby Changing Station, the 1994
introduction of a horizontal version of the Baby Changing Station and the
increased sales of its new products, the Booster Buddy(R) booster seat and the
Infant Seat Kradle.
Gross profit increased to $3,985,764 (61% of sales) during 1995, compared with
$3,345,527 (65% of sales) for 1994. The decline in gross profit as a percentage
of sales was due to a price reduction implemented in July 1994 to increase
market penetration and increased sales to dealers. In 1995 the Company expanded
its dealer network throughout the United States as well as internationally.
Sales to dealers result in a lower gross profit per product compared to sales
made directly to end users. The portion of sales made to dealers increased from
31% of sales for 1994 to 38% of sales in 1995, which has contributed to the
decrease in the gross profit percentage. The sales and marketing strategy
implemented by the Company has resulted in increased sales and net income as
discussed below, as well as diversification of the Company's product line.
Selling, general, and administrative expenses were $1,543,495 (24% of sales) for
1995 compared with $1,341,695 (26% of sales) for 1994, a 15% increase in terms
of actual dollars; however, the percentage relationship to sales declined two
percentage points because the Company has increased sales without a significant
increase in general and administrative overhead.
Net income for year ended 1995 was $1,574,696 (24% of sales) compared to net
income of $1,257,300 (24% of sales) for 1994, representing an increase of 25%.
LIQUIDITY AND CAPITAL RESOURCES
The Company finances its business activities primarily from cash provided by
operating activities. Cash provided by operating activities for fiscal 1995 and
fiscal 1996 was $1,575,704 and $1,323,426, respectively. The Company intends to
utilize this operating cash flow to expand the Company's marketing activities
and for product development and product acquisitions as well as for working
capital purposes. The Company completed 1995 and 1996 with working capital of
$4,416,740 and $5,643,924, respectively, and cash balances of $2,994,130 and
$3,442,601 at December 31, 1995 and 1996, respectively.
CORPORATE HEADQUARTERS RELOCATION
The Company completed the relocation of Koala's executive offices to the Denver,
Colorado area during the third quarter of 1996. The move was accomplished with
no disruption to operations with total relocation costs of approximately
$289,000. The new offices are near the Company's new principal contract
manufacturer which, unlike the Company's prior principal manufacturer,
manufactures and assembles its products. As a result, the Company is able to
maintain lower inventories and improve its gross profit.
CURRENT OUTLOOK
During 1996, the Company continued its emphasis on distributor networks and
dealer sales to increase sales and market position. In addition, the Company
implemented changes in production and assembly of its products in an effort to
lower costs. Management believes that the full benefit of these production cost
savings will be reflected in 1997 and future periods. Using dealers to increase
market penetration reduces the Company's need for increased fixed sales
overhead. This sales strategy will be further expanded in 1997. In an effort to
focus on new sales efforts with national accounts, international sales, and U.S.
General Services Administration contracts, the Company hired a vice president of
sales in 1995. During the third quarter of 1996, two additional sales executives
were added to further focus marketing efforts. In May 1996, the Company hired
Jeffrey L. Vigil as Vice President of Finance and Administration to increase
administrative support and financial control. Management is evaluating other
personnel additions in an effort to target new market segments.
INCOME TAXES
The Company's effective tax rate declined in 1996 compared to prior years due to
the Company's move to Colorado, which has lower state income tax rates than
Minnesota. The Company also realized a tax benefit from the tax deduction
generated by the exercise of non-qualified stock options by a former officer of
the Company, resulting in an overall effective tax rate of 25%. Future effective
tax rates are expected to be approximately 36%.
NEW ACCOUNTING STANDARDS
Statement of Financial Accounting Standards (SFAS) No.121, ACCOUNTING FOR THE
IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF, was
issued March 1995 and was adopted by the Company effective for 1996. The
adoption of SFAS No. 121 had no effect on income for 1996 and should not have a
material effect in the future.
SFAS No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION, was issued in October
1995 and is effective for 1996. The adoption of SFAS No. 123 will not have a
material effect on net income. The Company has elected to continue to measure
compensation cost for stock compensation plans under APB Opinion No. 25,
ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES. The disclosures required by SFAS No.
123 are included in the notes to the Financial Statements.
ITEM 7. FINANCIAL STATEMENTS
See Financial Statements beginning on page F-1.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
The information required by Item 9 is incorporated herein by reference to the
section entitled "Principal Shareholders" in the Company's proxy statement for
its Annual Meeting of Shareholders scheduled for May 30, 1997, which will be
filed with Securities and Exchange Commission within 120 days of the Company's
fiscal year ended December 31, 1996.
ITEM 10. EXECUTIVE COMPENSATION
The information required by Item 10 is incorporated herein by reference to the
section entitled "Executive Compensation" in the Company's proxy statement for
its Annual Meeting of Shareholders scheduled for May 30, 1997, which will be
filed with the Securities and Exchange Commission within 120 days of the
Company's fiscal year ended December 31, 1996.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required in Item 11 is incorporated herein by reference to the
section entitled "Principal Shareholders" in the Company's proxy statement for
its Annual Meeting of Shareholders scheduled for May 30, 1997, which will be
filed with Securities and Exchange Commission within 120 days of the Company's
fiscal year ended December 31, 1996.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 12 is incorporated herein by reference to the
section entitled "Certain Relationships and Related Transactions" in the
Company's proxy statement for its Annual Meeting of Shareholders scheduled for
May 30, 1997, which will be filed with the Securities and Exchange Commission
within 120 days of the Company's fiscal year ended December 31, 1996.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3.1 Articles of Incorporation of Koala Corporation.(1)
3.2 Bylaws of Koala Corporation.(1)
4.1 Specimen Common Stock Certificate.(1)
10.1 Omitted.
10.2 Incentive Stock Option Plan dated August 19, 1993.(1)
10.3 Omitted.
10.4 Nondisclosure and Noncompetition Agreement between Koala
Corporation and Jeff H. Hilger dated as of July 12, 1993.(1)
10.5 Omitted.
10.6 Nondisclosure and Noncompetition Agreement between Koala
Corporation and Robert Dainty dated as of July 12, 1993.(1)
10.7 Nondisclosure and Noncompetition Agreement between Koala
Corporation and James P. Galarneault dated as of July 12,
1993.(1)
10.8 Omitted.
10.9 Registration Rights Agreement between Koala Corporation and
Jeff H. Hilger, Clarence A. Lowe, Robert L. Dainty and James
P. Galarneault.(1)
10.10 Koala Corporation 1995 Stock Option Plan.(2)
10.11 Industrial Lease dated August 1, 1996 between Buckhead
Industrial Properties, Inc. and Koala Corporation.
11.1 Statement re: Computation of Per Share Earnings (included in
Note 1 to Notes to Financial Statements).
23.1 Independent Auditors' Consent
27 Financial Data Schedule
- -------------------------------
- ----------------------------
(1) Incorporated by reference to the same exhibit number included
in the Company's Registration Statement on Form SB-2,
Registration No. 33-68482C.
(2) Incorporated by reference to the Company's Form 10-KSB for the
year ended December 31, 1995.
(b) Reports on Forms 8-K.
No reports on Form 8-K were filed during the last quarter of the fiscal year
covered by this report.
SIGNATURES
In accordance with Section 13 of the Securities and Exchange Act of 1934, the
registrant caused this report on Form 10-KSB to be signed on its behalf by the
undersigned, thereunto duly authorized.
KOALA CORPORATION
Date: March 28, 1997 By: /s/ Mark A. Betker
------------------
Mark A. Betker, Chairman,
Chief Executive Officer and President
In accordance with the Exchange Act, this report on Form 10-KSB 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/ Mark A. Betker Chairman, Chief Executive Officer and March 28, 1997
- --------------------------------------- President (Principal Executive Officer)
Mark A. Betker and Director
- --------------------------------------- Director March __, 1997
Michael C. Franson
/s/ Thomas W. Gamel Director March 28, 1997
- ---------------------------------------
Thomas W. Gamel
/s/ John T. Pfannenstein Director March 28, 1997
- ---------------------------------------
John T. Pfannenstein
- --------------------------------------- Director March __, 1997
Ellen Robinson
/s/ Jeffrey L. Vigil Vice President of Finance and March 28, 1997
- --------------------------------------- Administration (Principal Financial and
Jeffrey L. Vigil Accounting Officer)
</TABLE>
KOALA CORPORATION
FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996 AND 1995
INDEX TO FINANCIAL STATEMENTS
Page
Independent auditors' report F-2
Balance sheets F-3
Statements of income F-4
Statements of changes in shareholders' equity F-5
Statements of cash flows F-6
Notes to financial statements F-7
SHAREHOLDERS AND
BOARD OF DIRECTORS
KOALA CORPORATION
DENVER, COLORADO
INDEPENDENT AUDITORS' REPORT
We have audited the accompanying balance sheets of KOALA CORPORATION (a Colorado
corporation) as of December 31, 1996 and 1995, and the related statements of
income, changes in shareholders' equity, and cash flows for the 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 KOALA CORPORATION, as of
December 31, 1996 and 1995, and the results of its operations and its cash flows
for the years then ended, in conformity with generally accepted accounting
principles.
BLANSKI PETER KRONLAGE & ZOCH, P.A.
Minneapolis, Minnesota
February 12, 1997
KOALA CORPORATION
BALANCE SHEETS - DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
ASSETS
1996 1995
---------------- --------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 3,442,601 $ 2,994,130
Accounts receivable, trade (less allowance for doubtful
accounts of $30,000 in 1996 and $15,000 in 1995) 1,656,515 973,324
Refundable income taxes 338,200 165,385
Inventories 443,680 363,270
Prepaid expenses 82,460 46,518
Deferred income taxes 10,900 6,070
---------------- --------------
Total current assets 5,974,356 4,548,697
---------------- --------------
PROPERTY AND EQUIPMENT: 863,285 530,089
Less accumulated depreciation and amortization 165,496 84,620
---------------- --------------
697,789 445,469
---------------- --------------
OTHER ASSETS:
Intangibles (net of accumulated amortization
of $295,360, 1996; and $189,684, 1995) 3,679,057 3,256,143
---------------- --------------
$ 10,351,202 $ 8,250,309
================ ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 273,511 $ 96,019
Accrued expenses 56,921 35,938
---------------- --------------
Total current liabilities 330,432 131,957
---------------- --------------
242,200 256,222
DEFERRED INCOME TAXES ---------------- --------------
COMMITMENTS AND CONTINGENCIES (NOTES 2 AND 3)
SHAREHOLDERS' EQUITY:
Preferred stock, no par value; 1,000,000 shares authorized;
issued and outstanding 0 in 1996 and 1995
Common stock, $.10 par value; 10,000,000 shares authorized;
issued and outstanding 2,481,260 in 1996, 2,399,312 in 1995 248,126 239,931
Additional paid-in capital 4,651,884 4,639,179
Retained earnings 4,878,560 2,983,020
---------------- --------------
9,778,570 7,862,130
---------------- --------------
$ 10,351,202 $ 8,250,309
================ ==============
</TABLE>
See notes to financial statements.
KOALA CORPORATION
STATEMENTS OF INCOME
YEARS ENDED DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
1996 1995
--------------- --------------
<S> <C> <C>
SALES $ 8,938,282 $ 6,537,440
COST OF SALES 3,241,328 2,551,676
--------------- --------------
GROSS PROFIT 5,696,954 3,985,764
SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES 2,892,095 1,543,495
--------------- --------------
INCOME FROM OPERATIONS 2,804,859 2,442,269
--------------- --------------
OTHER INCOME (EXPENSE):
Interest income 129,463 109,249
Relocation expenses (288,923)
Amortization of intangibles (105,677) (86,375)
--------------- --------------
(265,137) 22,874
--------------- --------------
INCOME BEFORE INCOME TAXES 2,539,722 2,465,143
PROVISION FOR INCOME TAXES 644,182 890,447
--------------- --------------
NET INCOME $ 1,895,540 $ 1,574,696
=============== ==============
NET INCOME PER SHARE $ .74 $ .65
=============== ==============
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING 2,549,438 2,421,133
=============== ==============
</TABLE>
See notes to financial statements.
KOALA CORPORATION
STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
Common stock
--------------------------------
Additional Retained
Shares Amount Paid-In-Capital Earnings Total
---------------- ------------- ------------------ ---------------- ---------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1994 2,399,312 $ 239,931 $ 4,639,179 $ 1,408,324 $ 6,287,434
Net income 1,574,696 1,574,696
---------------- ------------- ------------------ ---------------- ---------------
Balance, December 31, 1995 2,399,312 239,931 4,639,179 2,983,020 7,862,130
Issuance of common stock,
exercise of options and
warrants (cashless) 81,948 8,195 (8,195) -
Issuance of 2,200 warrants 20,900 20,900
Net income 1,895,540 1,895,540
---------------- ------------- ------------------ ---------------- ---------------
Balance, December 31, 1996 2,481,260 $ 248,126 $ 4,651,884 $ 4,878,560 $ 9,778,570
================ ============= ================== ================ ===============
</TABLE>
See notes to financial statements.
KOALA CORPORATION
STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996 AND 1995
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
<TABLE>
<CAPTION>
1996 1995
-------------- --------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 1,895,540 $ 1,574,696
Adjustments to reconcile net income to cash and cash
equivalents provided by operating activities:
Amortization 105,677 86,375
Depreciation 83,148 55,162
Loss on disposal of property and equipment 31,796 332
Deferred income taxes (18,852) 115,852
(Increase) decrease in assets:
Accounts receivable, trade (683,191) 16,498
Refundable income taxes (172,815) (81,009)
Inventories (80,410) (168,641)
Prepaid expenses (35,942) 25,528
Increase (decrease) in liabilities:
Accounts payable 177,492 (40,882)
Accrued expenses 20,983 (8,207)
-------------- --------------
Net cash provided by operating activities 1,323,426 1,575,704
-------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property and equipment (367,264) (126,183)
Acquisition of Activities Unlimited (501,188)
Acquisition of patents, trademarks & intangibles (6,503) (3,966)
-------------- --------------
Net cash used by investing activities (874,955) (130,149)
-------------- --------------
NET INCREASE IN CASH AND CASH EQUIVALENTS 448,471 1,445,555
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 2,994,130 1,548,575
-------------- --------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 3,442,601 $ 2,994,130
============== ==============
</TABLE>
See notes to financial statements.
KOALA CORPORATION
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996 AND 1995
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Nature of operations:
KOALA CORPORATION (a Colorado corporation) develops, designs,
manufactures and markets child protection and children's activities
products for commercial, institutional, and recreational
establishments. Its products include diaper changing stations, child
protection seats, infant seat cradles, a children's booster seat and
various activity tables and equipment. The child protection products
comprise approximately 95% of the Company's revenues. In the normal
course of business the Company grants credit to its customers. The
Company performs ongoing credit evaluations of its customers and
generally requires no collateral.
Relocation:
The Company completed the relocation of its executive offices from St.
Paul, Minnesota to Denver, Colorado during the third quarter of 1996.
Total relocation costs were $289,000. The Company also established a
new manufacturing relationship with a Denver firm to manufacture and
assemble its products. Previously the Company assembled its own
products.
Use of estimates:
Management uses estimates and assumptions in preparing financial
statements in accordance with generally accepted accounting
principles. Those estimates and assumptions affect the reported
amounts of assets and liabilities, the disclosure of contingent assets
and liabilities, and the reported revenue and expenses. Actual results
could vary from the estimates that were used.
Cash and cash equivalents:
Cash and cash equivalents include cash on hand, demand deposits,
savings accounts, and short-term investments with original maturities
of three months or less. Cash and cash equivalents include financial
instruments that potentially subject the Company to a concentration of
credit risk. The Company places its cash and temporary cash
investments with high credit quality institutions. At times, cash held
in the Company's primary bank may be in excess of the FDIC insurance
limit. Cash in money market mutual funds is not federally insured. The
Company performs periodic evaluations of the relative credit standing
of these financial institutions. As of December 31, 1996 and 1995,
cash and cash equivalents consisted of the following:
<TABLE>
<CAPTION>
1996 1995
------------- -------------
<S> <C> <C>
Cash in primary banking institution $ 459,364 $ 124,836
Cash in money market mutual funds 2,983,237 2,869,294
-------------- -------------
$ 3,442,601 $ 2,994,130
============== =============
</TABLE>
Inventories:
Inventories are stated at the lower of cost (including manufacturing
overhead applied to finished goods) or market (first-in, first-out).
As of December 31, 1996 and 1995, inventories consisted of the
following:
1996 1995
------------- ------------
Raw materials $ 62,879 $ 312,601
Finished goods 380,801 50,669
------------- ------------
$ 443,680 $ 363,270
============= ============
Property and equipment:
Property and equipment is stated at the lower of depreciated cost or
net realizable value. Depreciation and amortization is being provided
on the straight-line method over the estimated useful life of the
asset. The following is a schedule of estimated useful lives of
property and equipment:
Furniture and fixtures 7 years
Shop and office equipment 3 - 10 years
Leasehold improvements 40 years
Intangibles:
Acquisition intangibles represent the excess of the cost of the
companies acquired over the fair value of their net assets at the
date of acquisition. Acquisition intangible costs are being amortized
using the straight-line method using an estimated useful life of up
to 40 years.
Costs of obtaining patents and trademarks are capitalized and
amortized on the straight line basis over 17 years for patents and 20
years for trademarks once approval is granted. Costs are expensed if
approval is denied.
Advertising costs:
Advertising costs are charged to operations when the advertising
first takes place. Advertising expense for the periods ended December
31, 1996 and 1995 was $935,358 and $523,316, respectively. Prepaid
advertising costs at December 31, 1996 and 1995 was $44,598 and
$42,861, respectively, and consist of costs of advertising which have
not taken place.
Income taxes:
The Company provides for deferred taxes on temporary differences
arising from assets and liabilities whose bases are different for
financial reporting and state and federal income tax purposes. The
differences relate primarily to depreciable and amortizable assets,
certain accrued expenses and the allowance for uncollectible accounts.
Net income per share:
Net income per share of common stock is based upon the weighted
average number of shares outstanding and the effect of common shares
contingently issuable from stock options and warrants. The exercise of
outstanding stock options and warrants would not result in a material
dilution of earnings per share.
Prior year reclassification:
Certain reclassifications have been made to the prior year amounts to
conform with the current year presentation.
2. COMMITMENTS AND CONTINGENCIES:
Operating lease:
The Company has entered into an operating lease for office/production
facilities located in Denver, Colorado. The lease term runs through
July 31, 2001. The lease calls for monthly base rents of $6,133. The
Company is responsible for its share of common building operating
costs, payable on a monthly basis.
The Company also has an operating lease for office facilities in New
Orleans, Louisiana. The lease term runs through February 28, 1998.
The lease calls for base rents of $1,148. The Company is also
responsible for its share of building operating costs.
Facilities rent expense was $85,146 and $62,777 for the years ended
December 31, 1996 and 1995, respectively.
Total minimum operating lease commitments for the years ending
December 31 are as follows:
Year Ending December 31, Amount
------------------------ -------------
1997 $ 87,372
1998 75,892
1999 73,596
2000 73,596
2001 42,931
-------------
$ 353,387
=============
Warranties:
The Company provides a replacement guarantee for one year from
purchase protecting against damage from natural disasters or
vandalism subject to a $100 deductible. The Company also provides a
five year warranty on parts and labor covering any defects in
workmanship. The Company has experienced minimal returns and warranty
claims; therefore, as of December 31, 1996 and 1995, no accrual has
been made for future claims.
3. STOCK OPTIONS AND WARRANTS:
Options:
The Company adopted a Stock Option Plan (1993 Plan) in August 1993.
The 1993 Plan provides that options to purchase up to 100,000 shares
of common stock may be granted. The Company adopted a second plan in
November 1995 (1995 Plan) which provides that additional options to
purchase up to 400,000 shares of common stock may be granted. The
exercise price of each option is equal to the market price of the
Company's stock on the date of grant. The option term varies, as well
as the vesting periods, at the discretion of the Board of Directors.
The fair value of each option granted is estimated on the grant date
using the Black-Scholes Model. The following assumptions were made in
estimating fair value:
Assumption
Dividend yield 0.0%
Risk-free interest rate
5 year 5.38%
2 year 5.18%
Expected life 2 to 5 years
Expected volatility 30.47%
The Company applies APB Opinion 25 in accounting for its stock based
compensation plans. Accordingly, no compensation cost has been
recognized for the plan in 1996 and 1995. Had compensation cost been
determined on the basis of fair value pursuant to FASB Statement No.
123, net income and earnings per share would have been presented as
follows:
Net income 1996 1995
---------- ------------- -------------
As reported $ 1,895,540 $ 1,574,696
============= =============
Pro forma (FASB 123) $ 1,713,373 $ 1,490,760
============= =============
Primary earnings per share
--------------------------
As reported $ .74 $ .65
============ ============
Pro forma (FASB 123) $ .67 $ .62
============ ============
Following is a summary of the status of the plans during 1996 and
1995:
Number of Weighted Average
Shares Exercise Price
--------- ----------------
Outstanding 12/31/94 20,000 $ 5.50
Granted - 1995 27,500 5.50
Granted - 1995 50,000 9.25
Granted - 1995 250,000 11.25
-------------
Outstanding 12/31/95 347,500 10.18
Surrendered - 11/96 (1,068) 5.50
Exercised - 11/96 (1,432) 5.50
Surrendered - 12/96 (45,715) 8.00
Exercised - 12/96 (49,285) 8.00
-------------
Outstanding 12/31/96 250,000 11.25
=============
In 1996, 46,783 options were surrendered in cashless exercise; 50,717
shares were issued.
1996 1995
------------- -------------
Options exercisable 50,000 97,500
============= =============
Weighted average fair value
of options granted during
the year $ 0 $ 10.46
============= =============
A summary of the status of fixed options outstanding at December 31,
1996 is as follows:
<TABLE>
<CAPTION>
Outstanding Options Exercisable Options
---------------------------------------- ------------------------
Weighted
Average Weighted Weighted
Remaining Average Average
Contractual Exercise Exercise
Price Number Life Price Number Price
-------------------------------------------------------- ------------------------
<S> <C> <C> <C> <C> <C>
$ 9.25 100,000 7 years $ 9.25 20,000 $ 9.25
$ 11.25 50,000 7 years $ 11.25 10,000 $ 11.25
$ 13.25 100,000 7 years $ 13.25 20,000 $ 13.25
</TABLE>
The Company acquired Activities Unlimited in March 1996. A portion of
the purchase price is in the form of options to purchase Koala common
stock. Options are granted to the sellers of Activities Unlimited
based on operations during the first two years following the closing
of the acquisition (March, 1997 and 1998). Options to purchase 1,000
shares will be granted for each $25,000 of product line contribution,
will be fully vested when granted and will be exercisable at date of
grant, expiring 5 years after date of grant. The exercise price will
be the fair market value of a share of stock on the date of grant. As
of December 31, 1996, no options had been granted under this
agreement.
Warrants:
The Company granted to the underwriter of its 1993 stock offering,
for nominal consideration, warrants to purchase up to 70,000 shares
of its stock at $7.20 per share, beginning in October 1994 and
expiring in October 1999. In January of 1996 the underwriter
exercised the warrants in a cashless transaction, receiving 31,231
shares and surrendering 38,769 warrants.
The Company acquired the assets of A & B Booster, Inc., in 1994. A
portion of the purchase price is in the form of warrants to purchase
Koala common stock at $6.50 per share. Warrants are to be issued to
the sellers of A & B Booster to purchase 100 shares of common stock
per each whole multiple of $10,000 of Booster Buddy sales in each of
the three years beginning August 1, 1994, 1995, and 1996. The
warrants are exercisable at any time prior to January 1, 1998. As of
December 31, 1996 and 1995, there were 3,900 and 1,700 warrants
outstanding, respectively.
4. INCOME TAXES:
The components of the provision for income tax were:
<TABLE>
<CAPTION>
1996
---------------------------------------------
Federal State Total
------------ ------------ ------------
<S> <C> <C> <C>
Current tax expense $ 600,306 $ 62,728 $ 663,034
Deferred tax expense (benefit) (15,170) (3,682) (18,852)
----------- ----------- -----------
Provision for income taxes $ 585,136 $ 59,046 $ 644,182
=========== =========== ===========
1995
----------------------------------------------
Federal State Total
------------ ------------ ------------
Current tax expense $ 700,282 $ 74,313 $ 774,595
Deferred tax expense (benefit) 122,393 (6,541) 115,852
---------- ---------- -------
Provision for income taxes $ 822,675 $ 67,772 $890,447
========== ========== ========
The Company's net deferred tax asset and liability consists of:
1996
---------------------------------------------
Federal State Total
------------ ------------ ------------
Deferred income tax benefits (current) $ 9,850 $ 1,050 $ 10,900
Deferred income tax liability (non-current) (218,850) (23,350) (242,200)
----------- ----------- -----------
$ (209,000) $ (22,300) $ (231,300)
=========== =========== ===========
1995
---------------------------------------------
Federal State Total
------------ ------------ ------------
Deferred income tax benefits (current) $ 4,600 $ 1,470 $ 6,070
Deferred income tax liability (non-current) (228,770) (27,452) (256,222)
------------- ----------- -----------
$ (224,170) $ (25,982) $ (250,152)
============= =========== ===========
The effective tax rate differs from the statutory rate as follows:
1996 1995
-------------- ---------
Federal statutory rate 34.0% 34.0%
State income taxes - net of federal effect 2.4 2.5
Effect of difference in tax basis of goodwill (1.5) (1.5)
Cumulative effect of change in estimated
effective state income tax rate (3.3)
Tax basis of non-qualified stock options exercised (5.6)
Miscellaneous tax adjustments (.6) 1.1
----- -------
Effective tax rate 25.4% 36.1%
==== =======
</TABLE>
5. FAIR VALUE OF FINANCIAL INSTRUMENTS:
Estimated fair value of the Company's financial instruments, none of
which are held for trading purposes, is as follows at December 31, 1996
and 1995:
<TABLE>
<CAPTION>
1996 1995
------------------------------- ---------------------------
Carrying Fair Carrying Fair
Amount Value Amount Value
-------- ----- -------- -----
<S> <C> <C> <C> <C>
Cash and cash equivalents $3,442,601 $3,442,601 $ 2,994,130 $ 2,994,130
</TABLE>
The carrying value of cash and cash equivalents approximates fair value.
6. MAJOR SUPPLIERS:
For the periods ended December 31, 1996 and 1995, the Company purchased
a significant amount of component parts from three vendors which
accounted for approximately 69% and 64% of the Company's total cost of
sales, respectively.
7. SUPPLEMENTAL CASH FLOW INFORMATION:
1996 1995
-------------- ---------------
Interest received $ 129,463 $ 109,249
============== ==============
Interest paid $ 0 $ 0
============== ==============
Income taxes paid $ 835,849 $ 855,604
============== ==============
8. 401(k) PLAN:
Effective January 1997, the Company adopted a 401(k) Plan for the
benefit of substantially all of its employees meeting specified
eligibility requirements. The Plan permits contributions by the Company
but does not require them.
9. PREFERRED STOCK:
During 1996 the shareholders voted to amend the Articles of
Incorporation to provide for the issuance of 1,000,000 shares of no par
value preferred stock. At December 31, 1996, none are outstanding. The
Board of Directors is granted authority to determine dividends on the
preferred stock.
10. ACQUISITION OF ACTIVITIES UNLIMITED:
The Company acquired all of the operating assets of Activities
Unlimited, LLC as of March 31, 1996, for $500,000 paid in cash. The
Company markets children's recreational and activity products under the
Activities Unlimited product line, including commercial-use children's
play tables, games, mazes and wall activities.
EXHIBIT 10.11
ACKNOWLEDGMENT OF COMMENCEMENT
This Acknowledgment is made as of September 24, 1996, with reference to
that certain Lease Agreement (hereinafter referred to as the "lease") dated
_______________________, by and between Buckhead Industrial Properties, Inc.,
as Landlord therein, and Koala Corporation, as Tenant for the demised premises
situated at 11600 E. 54th Avenue, Unit D, Denver, CO 80239 .
The undersigned hereby confirms the following:
1. That the Tenant accepted possession of the Demised Premises (as
described in said lease) on August 1, 1996, and acknowledges that the premises
are as represented by the Lessor and in good order, condition and repair, and
that the improvements, if any, required to be constructed for Tenant by Landlord
under this lease have been so constructed and are satisfactorily completed in
all respects.
2. That all conditions of said lease to be performed by Landlord
prerequisite to the full effectiveness of said lease have been satisfied and
that Landlord has fulfilled all of its duties of and Inducement nature.
3. That is (SIC) accordance with the provisions of Section 1.2 of sale
lease the commencement date of the term is August 1, 1996, and that, unless
sooner terminated, the original term thereof expires on July 31, 2001.
4. That said lease is in full force and effect and that the same
represents the entire agreement between Landlord and Tenant credits against
rentals.
5. That there are no existing defenses which Tenant has against the
enforcement of said lease by Landlord, and no offsets or credits against
rentals.
6. That the minimum rental obligation of said lease is presently in
effect and that all rentals, charges and other obligations on the part of Tenant
under said lease commenced to accrue on August 1, 1996.
7. That the undersigned Tenant has not made any prior assignment,
hypothecation or pledge of said lese or of the rents thereunder.
TENANT:
By:______________________________________________
Title:___________________________________________
Date:____________________________________________
EXHIBIT 10.11
INDUSTRIAL LEASE
THIS LEASE, made the _______ day of _____________, 1996, between BUCKHEAD
INDUSTRIAL PROPERTIES, INC., a Maryland corporation, having its principal place
of business at 1150 Lake Hearn Drive, 4th Floor, Atlanta, Georgia 30342 ("the
Landlord"), and KOALA CORPORATION, a __________ corporation, having a place of
business at _______________________________________ ("the Tenant").
Section 1.1 Building Location: 11600 East 53rd Avenue
Denver, Colorado 80239
Unit #/Sq. Ft.: D/14,932
Section 1.2 Lease Term: Five (5) Years, Zero (0) Months
Commencement: August 1, 1996 Expiration: July 31, 2001
Section 1.5 Base Rent: period Years 1-5
per square foot $3.85
per month $4,790.68
per annum $57,488.20
(See Rider to Lease for additional increases in Base Rent.)
Section 2.1 Pro-Rata Share of Building Operating Costs Payable as Additional
Rent: 14,932/193,325 = 7.72%
Section 3.1 Insurance:
$1,000,000 in respect to injury or death to a single person,
$2,000,000 in respect to any one occurrence, and,
$2,000,000 in respect to property damage.
Section 6.1 Permitted Use of Premises:
Section 17.1 Property Manager Address:
COMPASS Management and Leasing, Inc.
1225 Seventeenth Street, Suite 2525
Denver, Colorado 80202
Section 22.1 Brokerage: CB Commercial and COMPASS Management and Leasing, Inc.
Section 23.1 Security Deposit: $4,790.68
Section 25.10 Parking Spaces: One (1) unreserved stall per 1,500 square feet
Exhibits A, B and C and the Rider to Lease, attached hereto become part of this
lease, consisting of five (5) pages.
WITNESSETH:
ARTICLE I
DESCRIPTION-TERM-RENT-USE
Section 1.1 The Landlord, in consideration of the rents, covenants and
agreements does lease unto the Tenant, and the Tenant does hereby take the space
("the Premises") described on Exhibit A attached hereto in the building located
at the place specified on Page 1 of this Lease ("the Building"), with the
privilege to the Tenant of using (subject to such rules and regulations as the
Landlord may from time to time prescribe) the necessary entrances and
appurtenances, together with all machinery, apparatus, equipment, and fixtures
now or hereafter owned by the Landlord and located on the Premises and used
exclusively for the operation and maintenance of the Premises (the "Building
Equipment"). This Lease is subject to any existing ground leases, encumbrances,
conditions, covenants, easements, restrictions and rights-of-way, whether or not
of record, and to such matters as may be disclosed by inspection or survey, none
of which shall affect Tenant's quiet enjoyment of the Premises except as set
forth in Article XVIII.
Section 1.2 The term of this Lease shall be as specified on Page 1 of this Lease
(unless sooner terminated as herein provided).
Section 1.3 If the Landlord shall be unable to tender possession of the Premises
on the anticipated occupancy date, the Landlord shall not be liable for any
damage caused thereby, nor shall this Lease be void or voidable by Tenant, but
in such event, unless the delay results (i) from failure of Tenant to provide
plans or otherwise perform in accordance with the requirements of the Lease or
(ii) from any delay in Landlord's ability to tender possession of the Premises
caused by Tenant, no rental shall be payable by Tenant prior to actual tender to
Tenant of possession of the Premises. Notwithstanding the foregoing, Tenant
shall have the right to terminate this Lease if the Landlord shall be unable to
tender possession of the Premises by August 31, 1996, if such failure is not
caused by Tenant and provided Tenant executes the Lease by May 30, 1996.
Section 1.4 By occupying the Premises, tenant shall be deemed to have accepted
the same as suitable for the purpose herein intended and to have acknowledged
that the Premises comply fully with the Landlord's obligations, with the
exception of any "punch list" type items which may not have been completed.
Tenant agrees that its failure to deliver to Landlord such a written "punch
list" prior to occupancy shall be conclusive proof that no such items exist.
Prior to occupancy or within three (3) business days of delivery to Tenant by
Landlord, whichever is sooner, Tenant agrees to execute and return to Landlord a
letter prepared by Landlord confirming the Commencement Date, certifying that
Tenant has accepted delivery of the Premises and that the condition of the
Premises complies with Landlord's obligations hereunder, subject to any "punch
list" items which may not have been completed. Tenant shall have the right to
supplement the "punch list" for thirty (30) days after Tenant's occupancy of the
Premises. Landlord shall promptly correct all "punch list" items at Landlord's
expense.
Section 1.5 Tenant agrees and covenants to pay to Landlord during the term of
this Lease, at the place specified by Landlord, Base Rent (as specified on Page
1 of this Lease) and Additional Rent (as specified in Article II of this Lease)
without notice demand, deduction or setoff. Base Rent shall be paid in advance
on the first day of each calendar month during the term of this Lease, except
that the first month's rent shall be due and payable when this Lease is
executed. If the term does not commence on the first day of a month, Base Rent
shall be prorated and paid on the date of such commencement. Interest at the
rate of two percent (2%) per month will be charged retroactive to the first day
of the month for rents not paid by the fifth (5th) day of the month until all
monies are paid.
ARTICLE II
ADDITIONAL RENT
Section 2.1 In addition to Base Rent, Tenant shall pay Tenant's Pro Rata Share
(as specified on Page 1 of this Lease) of Building Operating Costs ("Additional
Rent"). Building Operating Costs shall mean all expenses, costs and
disbursements which Landlord shall pay or become obligated to pay because of, or
in connection with, the maintenance, repair and operation of the Building,
including, but not limited to, real estate taxes and assessments, use, sales, or
any other taxes (except income taxes) based on rents, personal property taxes on
personal property used in the operation of the Building; Landlord's insurance
relating to the Building; utilities not separately metered to individual
tenants; costs of leasing or amortization of energy reduction devices; repairs,
redecorating of common areas; costs of roof renovation (which shall be amortized
over its life); janitorial service; operating supplies; property management;
building services; snow removal; landscaping; costs of leasing or amortizing
plants, shrubs, trees, or flowers and normal maintenance thereof; costs of
rubbish removal; tools and equipment used for the daily operation of the
Building; air conditioning and heating; elevator repair and maintenance;
resurfacing and restriping of parking areas; repair and replacement of car stops
and signage; security; and wages, payroll taxes, welfare and disability benefits
reasonably incurred in the operation of the Building. Building Operating Costs
shall not include monies spent for income tax, accounting, interest,
depreciation, or expenditures of a capital nature (except to the extent that
such expenditures are required due to a change in a law or are reasonably
anticipated to cause a reduction in the cost of services; in such case, that
part of the capital expense attributable to the lease year under good accounting
practices shall be included in the Building Operating Costs).
Section 2.2 Landlord's best estimate as to the amount of Tenant's Share of
Additional Rent shall be payable monthly, together with the monthly installment
of Base Rent and any other rent due and payable to Landlord. Within
one-hundred-twenty (120) days after the beginning of each calendar year,
commencing with the year following the year of the Lease Commencement Date,
Landlord shall give Tenant a statement of Landlord's estimate of Additional
Rent. Annually, after assessing past and estimated future operating costs data,
Landlord may adjust the monthly operating cost payment provided for herein
upward or downward to reflect more accurately the anticipated monthly costs. All
payments due at least thirty (30) days after the revision notice shall be made
at the new rate.
Section 2.3 By May 1 of each calendar year during Tenant's occupancy and the
calendar year following termination of this Lease, or as soon thereafter as
practical, Landlord shall furnish to Tenant a statement of Landlord's actual
Basic Cost for the previous year. If for any calendar year additional rent
collected for the prior year as a result of Landlord's estimate of Basic Cost is
(i) in excess of the additional rent actually due during such prior year, then
Landlord shall apply such excess to the next due rental payments, or (ii) less
than the additional rent actually due during such prior year, then Tenant shall
pay to Landlord, on demand, any underpayment with respect to the prior year.
Section 2.4 Each statement furnished by Landlord to Tenant shall be conclusive
and binding upon Tenant unless, within thirty (30) days after receipt of such
statement, Tenant delivers to Landlord a written notice specifying the
particular details for which such statement is claimed to be incorrect. Pending
the determination of such dispute, Tenant shall pay without delay the full
amount of the additional rent payable by Tenant in accordance with each such
statement that Tenant is disputing. Without limiting the preceding sentence,
Tenant, or its authorized agent, shall have the right, during Landlord's normal
business hours and after reasonable notice, to inspect the books and records of
Landlord applicable to the determination of any statement of any additional rent
payable by Tenant for the purpose of verifying in good faith the information
contained in such statement for a period of up to one year after the receipt of
such statement by Tenant.
Section 2.5 Should Tenant require any additional work or service, including but
not limited to heating, ventilation and air-conditioning ("HVAC") furnished
outside Landlord's normal operating hours of 8:00 a.m. to 6:00 p.m., Monday
through Friday, 8:00 a.m. to 1:00 p.m., Saturday, excluding holidays, Landlord
may, upon reasonable advance notice by Tenant, furnish such additional service
at a charge not less than Landlord's actual cost, plus overhead for the
additional services provided, it being agreed that the cost to the Landlord of
such additional services shall not be considered or treated as Basic Cost.
Section 2.6 Landlord may, at any time, in its sole discretion, require separate
metering for gas, electric power or for any other utility service required by
Tenant if such service is deemed by Landlord to be in excess of Building
standard usage or for any other reason, in which case the cost of such metering
shall be at Tenant's sole cost and expense, due and payable upon demand by
Landlord, and in which event Tenant shall pay for all such utility service in
excess of its normal and customary usage, as metered. For any utility services
that are separately metered as prescribed herein, the amount of said services
which had been included in the calculation of the Base Year Stop or the
calculation of Basic Cost shall be excluded therefrom.
Section 2.7 Notwithstanding any expiration or termination of this Lease prior to
the end of the Lease Term, Tenant's obligations to pay any and all additional
rent pursuant to this Lease shall continue and shall cover all periods up to the
expiration or termination date of this Lease. Tenant's obligations to pay any
and all additional rent or other sums owing by Tenant to Landlord under this
Lease shall survive any expiration or termination of this Lease.
Section 2.8 In determining Basic Cost, where less than ninety-five percent (95%)
of the Building's rentable square footage is occupied during all or any part of
a year, those items of the Basic Cost which vary according to occupancy, such as
electricity and janitorial services, shall be increased to that amount which
would have been incurred had the Building been ninety-five percent (95%)
occupied during the entire year.
ARTICLE III
INSURANCE
Section 3.1 Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property, but
only to the extent that such loss or damage is covered by any insurance then in
force, even if such fire or other casualty shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, that such release shall be applicable and in
force and effect only with respect to any loss or damage occurring during such
time as the policy or policies of insurance covering said loss shall contain a
clause or endorsement to the effect that this release shall not adversely affect
or impair said insurance or prejudice the right of the insured to recover
thereunder.
Section 3.2 Tenant shall maintain throughout the Lease Term, at Tenant's sole
cost and expense, insurance against loss or liability in connection with bodily
injury, death, property damage and destruction, in or upon the Premises or the
remainder of the Land, and arising out of the use of all or any portion of the
same by Tenant or its agents, employees, officers, invitees, visitors and
guests, under policies of comprehensive general public liability insurance
having such limits as to each as may be reasonably required by Landlord from
time to time, but in any event of not less than One Million Dollars
($1,000,000.00) per occurrence for death or injury, and One Million Dollars
($1,000,000.00) per occurrence for property damage or destruction. Such policies
shall name Landlord and Tenant (and, at Landlord's or such mortgagee's or
paramount lessor's or installment seller's request), any mortgagee of all or any
portion of the Buildings and any landlord of, or installment seller to, Landlord
as the insured parties, shall provide that they shall not be modified or
canceled without at least thirty (30) days' prior written notice to Landlord and
any other party designated as aforesaid and shall be issued by insurers of
recognized responsibility licensed to do business in the jurisdiction in which
the Building is located and acceptable to Landlord. Copies of all such policies
certified by the insurers to be true and complete shall be supplied to Landlord
and such mortgagees, paramount lessors and installment sellers at all times.
ARTICLE IV
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
Section 4.1 If the Tenant shall, at any time, fail to make any payment or
perform any other act on its part to be made or performed under this Lease, the
Landlord may, but shall not be obligated to, and without notice or demand and
without waiving or releasing the Tenant from any obligation of the Tenant under
this Lease, make such payment or perform such other act to the extent the
Landlord may deem desirable. All sums so paid by the Landlord and all expenses
including attorneys' fees and costs, together with interest thereon at the rate
of two percent (2%) per month, shall be additional Rent and be payable to the
Landlord on demand.
ARTICLE V
REPAIRS AND MAINTENANCE OF PREMISES-SURRENDER OF PREMISES-WASTE
Section 5.1 Except as provided below in this Section, the Tenant covenants at
the Tenant's sole expense to maintain in good order and condition and to
promptly repair the Premises and Building Equipment including, but not limited
to, ceilings, floors, walls, woodwork, paint, doors, glass, plumbing, plumbing
fixtures, heating/ air conditioning, hot water systems, electrical systems,
mechanical systems and equipment. The Tenant covenants to keep the Premises in a
clean and orderly condition and free of debris, materials and rubbish. Landlord
shall be responsible for all structural repairs to the Building, including the
foundation, roof and land- bearing walls and shall be responsible for any
non-structural repairs to the Premises and Building Equipment caused by
structural defects in the Building, including heaving of the floors or
foundation movement. Landlord shall enforce all available warranties applicable
to the Premises or Building Equipment.
Section 5.2 Tenant shall not in any manner deface or injure or make unapproved
modifications of the Premises or the Building and will pay the cost of repairing
any damage or injury done to the Premises or the Building or any part thereof by
Tenant or Tenant's agents, employees or invitees. Tenant shall throughout the
Lease Term take good care of the Premises and keep them free from waste and
nuisance of any kind. Tenant agrees, at Tenant's sole cost and expense, to keep
the Premises, including, without limitation, all fixtures installed by Tenant
and any plate glass and special store fronts, in good condition and make all
necessary non-structural repairs and replacements except those caused by fire,
casualty or acts of God covered by Landlord's fire insurance policy covering the
Building. Such repairs and replacements shall be in quality equal to the
original work and installation. If Tenant fails to make such repairs within
fifteen (15) days after the occurrence of the damage or injury, Landlord may, at
its sole option, make such repair, and Tenant shall, upon demand therefor, pay
Landlord for Landlord's cost thereof plus fifteen percent (15%) for overhead
costs.
Section 5.3 Notwithstanding anything in the Lease to the contrary, Tenant will
not make or allow to be made any alterations or physical additions in or to the
Premises, including changes in locks on doors, plumbing, lighting, wiring or
partitions, without the prior written consent of Landlord. All maintenance,
repairs, alterations, additions or improvements shall be conducted only by
contractors or subcontractors approved in advance in writing by Landlord, it
being understood that Tenant shall procure and maintain, and shall cause such
contractors and subcontractors engaged by or on behalf of Tenant to procure and
maintain, insurance coverage against such risks, in such amounts and with such
companies as Landlord may require in connection with any such maintenance,
repair, alteration, addition or improvement.
Section 5.4 At the end or other termination of this Lease, Tenant shall deliver
up the Premises with all improvements located therein in good repair and
condition, reasonable wear and tear excepted, and shall deliver to Landlord all
keys to the Premises. All alterations, additions or improvements (whether
temporary or permanent in character) made in or upon the Premises by Landlord or
Tenant shall be Landlord's property upon termination of this Lease and shall
remain on the Premises without compensation to Tenant; provided, however, that
if Landlord so elects on or prior to the termination or upon earlier vacation of
the Premises, Tenant shall remove all alterations, additions, improvements and
partitions erected by Tenant after the Commencement Date and shall restore the
Premises to their original condition by the date of termination of this Lease or
upon earlier vacating of the Premises, except as provided herein. If Tenant
fails to restore the Premises upon Landlord's request, Landlord shall have the
right to perform such restoration and Tenant shall be liable for all costs and
expenses incurred by Landlord therefor.
Section 5.5 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Premises. The maintenance contractor and its service contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within any applicable operation/maintenance
manuals and shall be effective (and a copy delivered to Landlord) within thirty
(30) days of the date Tenant takes possession of the Premises. Landlord, at its
own discretion, may enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing all
heating/air conditioning systems related to the office space only within the
Premises; provided, however, that the cost of such preventive
maintenance/service contract shall be borne by Tenant as an Operating Expense
and paid pursuant to Article III of the Lease.
Section 5.6 Tenant shall store waste, scrap, garbage, etc. in enclosed metal
containers with lids and shall not store any motor vehicles at Premises. Waste
containers shall be stored within the Premises.
Section 5.7 Tenant acknowledges that it will be doing business with various
business entities which may deliver, or cause to be delivered, various materials
to Tenant. Tenant covenants and agrees that it shall, within forty-five (45)
days after occurrence, repair damages to foundation, roof, overhead doors, door
jambs, entryways, and exterior walls of the Building where the Premises is
located, which were caused by the act, omission or negligence of Tenant,
Tenant's agents, employees, customers, invitees and suppliers, their agents,
employees or delivery services.
Section 5.8 Tenant shall remove stains or deposits of grease, oil, tar, paint,
or any other material or storage vessel used by Tenant and shall restore the
Premises, its parking lot or other outside area to its original condition.
Section 5.9 The Tenant shall not make any changes or alterations, structural or
otherwise, to the Premises without the Landlord's prior written consent. All
repairs, improvements, fixtures, changes or alterations made or installed by the
Tenant shall become the property of the Landlord immediately upon completion of
installation without payment by the Landlord except as otherwise set forth in
this Article V.
Section 5.10 All work for repairs as required by this Lease, as required for
compliance with laws, ordinances, regulations or requirements and changes or
alterations permitted by this Lease shall be done in all cases subject to the
condition which the Landlord may impose and in a good and workmanlike manner.
ARTICLE VI
USE - COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS
Section 6.1 Tenant shall use the Premises only for the Permitted Use. Tenant
will not occupy or use the Premises, or permit any portion of the Premises to be
occupied or used, for any business or purpose other than the Permitted Use or
for any use or purpose which is unlawful, in part or in whole, disreputable in
any manner, or extra hazardous, nor will Tenant permit anything to be done which
shall in any way cause substantial noise, vibrations or fumes, or increase the
rate of insurance on the Building or contents or cause any cancellation of any
insurance policy covering the Building or any portion of its contents. In the
event that, by reason of acts or omissions of Tenant, there shall be any
increase in the rate of insurance on the Building or contents created by
Tenant's acts, omissions or conduct of business, Tenant hereby agrees to pay to
Landlord the amount of such increase on demand. Tenant will conduct its business
and control its agents, employees and invitees in such a manner as not to create
any nuisance, nor interfere with or disturb the possession of other tenants or
Landlord in the management of the Building. Tenant shall not, without the prior
written consent of Landlord, paint, install lighting or decorations, or install
any signs, window or door lettering or advertising media of any type on or about
the Premises or any part thereof.
Section 6.2 Notwithstanding the generality of Section 6.1 above, Tenant shall
conduct all activity in compliance with all federal, state, and local laws,
statutes, ordinances, rules, regulations, orders and requirements of common law
concerning protection of the environment or human health ("Environmental Laws").
Tenant shall also cause its subtenants (if subtenants are permitted by this
Lease or are hereafter approved by Landlord), licensees, invitees, agents,
contractors, subcontractors and employees to comply with all Environmental Laws.
Tenant and its permitted subtenants, licensees, invitees, agents, contractors,
and subcontractors shall obtain, maintain, and comply with all necessary
environmental permits, approvals, registrations and licenses.
In addition to and not in limitation of the foregoing, Tenant, its permitted
subtenants, licensees, invitees, agents, contractors, subcontractors and
employees shall not generate, refine, produce, transfer, process or transport
Hazardous Material on, above, beneath or near the Premises, the Building or the
Land. As used herein, the term "Hazardous Materials") shall including, without
limitation, all of the following: (1) hazardous substances, as such term is
defined in the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. Section 9601(14), as amended by the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613
(Oct. 17, 1986) ("SARA"); (2) regulated substances, within the meaning of Title
I of the Resource Conservation and Recovery Act, 42 U.S.C. Sections
6991-6991(i), as amended by SARA; (3) any element, compound or material which
can pose a threat to the public health or the environment when released into the
environment; (4) petroleum and petroleum byproducts; (5) an object or material
which is contaminated with any of the foregoing; (6) any other substance
designated by any of the Environmental Laws or a federal, state or local agency
as detrimental to public health, safety and the environment.
Section 6.3 Tenant shall protect, indemnify and save Landlord harmless from and
against any and all liability, loss, damage, cost or expense (including
reasonable attorneys' fees) that Landlord may suffer or incur as a result of any
claims, demands, damages, losses, liabilities, costs, charges, suits, orders,
judgments or adjudications asserted, assessed, filed, or entered against
Landlord or any of the Building or the Land, by any third party, including,
without limitation, any governmental authority, arising from Tenant's breach of
Environmental Laws or otherwise arising from Tenant's alleged generation
refining, production, storage, handling, use, transfer, processing,
transportation, release, spillage, pumping, pouring, emission, emptying,
dumping, discharge or escape of Hazardous Materials on, from or affecting the
Premises, the Building or the Land, including, without limitation, liability for
costs and expenses of abatement, correction, clean-up or other remedy, fines,
damages, response (including death) and property damage.
Section 6.4 Tenant, its permitted subtenants, licensees, invitees, agents,
contractors, subcontractors and employees shall not release, spill, pump, pour,
emit, empty, dump or otherwise discharge or allow to escape Hazardous Materials
onto the Land or Building, and Tenant shall take all action necessary to remedy
the results of any such release, spillage, pumping, pouring, emission, emptying,
dumping, discharge, or escape.
Section 6.5 Tenant shall, within 48 hours of delivery or receipt, deliver to
Landlord copies of any written communication relating to the Building or the
Land between Tenant and any governmental agency or instrumentality concerning or
relating to Environmental Laws.
Section 6.6 Tenant, its permitted subtenants, licensees, invitees, agents,
contractors, subcontractors and employees shall not use parking spaces on the
Land or Building in excess of that number set out on the attached Data Sheet
which has been reasonably determined by Landlord to be Tenant's proportionate
share of the total parking spaces available on the Building and Land.
Notwithstanding anything contained herein, if any governmental regulation or
ordinance is enacted or amended after the effective date of this Lease so as to
allow or require a modification in Tenant's number of parking spaces, Landlord
reserves the right to make such modification without modifying in any way the
rent due hereunder or any other obligations of Tenant; provided, however, that
Tenant shall not have fewer than ten (10) parking spaces.
ARTICLE VII
DAMAGE OR DESTRUCTION
Section 7.1 In the event of damage to or destruction of the Premises or the
Building, or the entrances and other common facilities necessary to provide
normal access to the Premises, caused by fire or other casualty, Tenant shall
provide immediate notice thereof to Landlord, and Landlord shall make repairs
and restorations as hereafter expressly provided, unless this Lease shall be
terminated by Landlord or unless any mortgagee which is entitled to receive
casualty insurance proceeds fails to make available to Landlord a sufficient
amount of such proceeds to cover the cost of such repairs and restoration.
Section 7.2 If (i) the damage is of such nature or extent, in the judgment of
Landlord's architect, that more than one hundred eighty (180) consecutive days,
after commencement of the Work, would be required (with normal work crews and
hours) to repair and restore the part of the Premises or Building which has been
damaged, or (ii) a substantial portion of the Premises or the Building is so
damaged that, in the Landlord's sole judgment, it is uneconomic to restore or
repair the Premises or the Building, as the case may be, Landlord shall so
advise Tenant promptly; and Landlord or Tenant, for a period of ten (10) days
thereafter, shall have the right to terminate this Lease by written notice to
the other, as of the date specified in such notice, which termination date shall
be no later than thirty (30) days after the date of such notice. In the event of
such fire or other casualty, if this Lease is not terminated pursuant to the
terms of this Section 7, and if (i) sufficient casualty insurance proceeds are
available for use for such restoration or repair, and (ii) this Lease is then in
full force and effect, Landlord shall proceed promptly and diligently to restore
the Premises to its substantially similar condition prior to the occurrence of
the damage, provided that Landlord shall not be obligated to repair or restore
any alterations, additions or fixtures which Tenant or any other tenant may have
installed unless Tenant, in a manner satisfactory to Landlord, assures payment
in full of all costs which may be incurred by Landlord in connection therewith.
Landlord shall not insure any improvements or alterations to the Premises in
excess of Standard Tenant Work, or any fixtures, equipment or other property of
Tenant. Tenant shall, at its sole expense, insure the value of its leasehold
improvements and fixtures located in the Premises, for the purpose of providing
funds to Landlord to repair and restore the Premises to its substantially
similar condition prior to occurrence of the damage, If there be any such
alteration, fixtures, or additions and Tenant does not assure or agree to assure
payment of the cost or restoration or repair as aforesaid, Landlord shall have
the right to determine the manner in which the Premises shall be restored so as
to be substantially the same as the Premises existed prior to the damage
occurring, as if such alterations, additions or fixtures had not been made or
installed. The validity and effect of this Lease shall not be impaired in any
by, and Landlord shall have no liability as a result of, the failure of Landlord
to complete repairs and restoration of the Premises or of the Building within
one hundred eighty (180) consecutive days after commencement of work, even if
Landlord had in good faith notified Tenant that it estimated that the repair and
restoration would be completed within such period, provided that Landlord
proceeds diligently with such repair and restoration.
Section 7.3 In the case of damage to the Premises not caused by the negligence
or willful misconduct of the Tenant or any of its agents, employees or invitees,
and which is of a nature or extent that Tenant's continued occupancy is
substantially impaired, the rent otherwise payable by Tenant hereunder shall be
equitably abated or adjusted for the duration of such impairment as determined
by Landlord. In no event, however, shall any damages be payable by Landlord to
Tenant in respect of business interruption resulting from any fire or other
casualty on the Premises or Building. Tenant shall be responsible to insure
and/or repair all of Tenant's leasehold improvements and all equipment, fixtures
and personal property located in the Premises.
ARTICLE VIII
CONDEMNATION
Section 8.1 If the whole or, as determined by Landlord in its sole discretion,
any substantial part of the Land or the Building should be taken for any public
or quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof and the taking would
prevent or materially interfere with the use of the Premises for the purpose for
which they are being used, as determined by Landlord, this Lease shall terminate
effective when the physical taking of said Land or the Building shall occur. If
part of the Land or Building shall be taken for any public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this Lease is not terminated
as provided in the sentence above, this Lease shall not terminate, but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as Landlord shall determine may be fair and reasonable under all of
the circumstances. In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to all remedies provided by
law; provided, however, that any award paid to Tenant shall not detract from any
award which Landlord is entitled to receive; and if Landlord's award is reduced
to any extent as a result of any award to Tenant, then Tenant shall assign and
pay over to Landlord the amount by which Landlord's award is so reduced.
ARTICLE IX
MECHANICS' LIENS
Section 9.1 The Tenant shall not suffer nor permit any mechanics' or other liens
to be filed against the Building, the Premises, or against the Tenant's
leasehold interest in the Premises by reason of work, labor, services or
materials supplied or claimed to have been supplied to the Tenant or anyone
holding the Premises or any part thereof through or under the tenant. The
Landlord shall have the right at all times to post any notices which the
Landlord may deem to be necessary or advisable for the protection of the
Landlord and the Building from mechanics' liens. If a mechanics' lien shall be
filed against the Premises, the Tenant shall discharge it within twenty (20)
days after the filing date.
Section 9.2 If the Tenant shall fail to discharge such mechanics' lien, then, in
addition to any other rights or remedies available, the Landlord may, but shall
not be obligated to, discharge the amount claimed to be due, or by deposit in
court, or by bonding, and in any such event the Landlord shall be entitled, if
the Landlord so elects, to compel the prosecution of an action for the
foreclosure of such mechanics' lien by the lienor and to pay the amount of the
judgment, if any, in favor of the lienor with interest, costs and allowances.
Any amount paid by the Landlord for the above, and all reasonable attorneys'
fees and costs of the Landlord, with interest at the rate of two percent (2%)
per month, shall be deemed Additional Rent and shall be payable by the Tenant to
the Landlord.
ARTICLE X
LANDLORD'S RIGHT TO ENTER PREMISES
Section 10.1 The Tenant agrees to permit the Landlord and its representatives to
enter the Premises at all time during usual business hours or at any other time
in case of emergency, to inspect the same and the Landlord may, but shall not be
obliged to, make any repairs deemed necessary or desirable by the Landlord and
to perform any work in the Premises deemed necessary by the Landlord to comply
with any laws, ordinances, regulations or requirements of any governmental
authority or the recommendations of any insurer. During the progress of any such
work, the Landlord may keep and store upon the Premises all necessary materials,
tools and equipment. Landlord shall use its best efforts to complete such work
promptly and not interfere unreasonably with Tenant's use of the Premises. The
Landlord shall not in any event be liable for inconvenience, annoyance,
disturbance, loss of business or other damage to Tenant.
Section 10.2 The Tenant agrees to permit the Landlord and its representatives to
enter the Premises during usual business hours to exhibit the same for the
purpose of sale, mortgage or lease. During the final six (6) months of the term
of this Lease, or in the case of default, Landlord may display "For Sale" or
"For Lease" signs.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
Section 11.1 The Tenant shall not, without the Landlord's prior written consent:
(a) assign, convey, mortgage, pledge, encumber or otherwise transfer (whether
voluntarily or otherwise) this Lease or any interest under it (in the event
Tenant is a corporation, limited liability company or partnership, any transfer,
sale, pledge or other disposition of more than fifty percent (50%) of the
corporate stock, voting securities, membership interest or partnership interest
of Tenant shall be deemed an assignment); (b) allow any transfer thereof or any
lien upon the Tenant's interest by operation of law; (c) sublet the Premises or
any part thereof, or (d) permit the use or occupancy of the Premises or any part
thereof by any one other than the Tenant. In no event shall Landlord be held
responsible for monetary damages for the withholding of consent.
Notwithstanding anything to the contrary, Tenant may, with written notice to
Landlord, sell or transfer shares of its capital stock without the consent of
Landlord, so long as no related or affiliated persons or entities together
obtain control of more than fifty percent (50%) of said shares of capital stock
as a result of said sale or transfer.
Section 11.2 Tenant agrees to pay to Landlord, on demand, reasonable fees
incurred by Landlord in connection with any request by Tenant for Landlord to
consent to any assignment or subletting by Tenant.
Section 11.3 If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anybody other than Tenant, Landlord may, after default
by Tenant, collect rent from assignee, subtenant or occupant, and apply the net
amount collected to the Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of Tenant's
covenants contained in this Lease or the acceptance of the assignee, subtenant
or occupant as Tenant, or a release of Tenant from further performance of
Tenant's covenants including, but not limited to, Tenant's covenant to pay Rent.
Section 11.4 Upon assignment, subletting or occupancy of the Premises, Tenant
shall pay to Landlord monthly as Additional Rent, the excess of consideration
received or to be received during such month over the rental reserved for such
month in this Lease which is applicable to such portion of the Premises so
assigned, sublet or occupied.
Section 11.5 In the event Tenant, with Landlord's prior written consent,
subleases to a third party, the subtenant shall be subject to and comply with
the requirements of this Lease.
ARTICLE XII
RIGHTS OF MORTGAGEE
Section 12.1 In the event of any act or omission by the Landlord which would
give the Tenant the right to terminate this Lease, the Tenant shall not exercise
such right until: (a) it shall have given written notice, by certified mail, of
such act or omission to the holder of any deed of trust or mortgage encumbering
the Premises whose name and address shall have been furnished to the Tenant in
writing, at the last address so furnished, and (b) a reasonable period of time
for remedying such act or omission shall have elapsed following the giving of
such notice, provided that following the giving of such notice, the Landlord or
said holder shall, with reasonable diligence, have commenced and continued to
remedy such act or omission or to cause the same to be remedied.
Section 12.2 This Lease and all rights of Tenant hereunder shall be and are
subject and subordinate at all times to any deeds of trust, mortgages, as well
as to any ground leases or primary leases, that now or hereafter cover all or
any part of the Building, the Land or an interest of Landlord therein, and to
any and all advances made on the security thereof, and to any and all increases,
renewals, modifications, consolidations, replacements and extensions of any of
such deeds of trust, mortgages installment sale agreements, instruments,
encumbrances or leases, as well as any substitutions therefor, all automatically
and without the necessity of any further action on the part of Tenant to
effectuate such subordination. Tenant shall, however, upon demand at any time or
times execute, acknowledge and deliver to Landlord any and all instruments and
certificates that in the reasonable judgment of Landlord may be necessary or
proper to confirm or evidence such subordination. Notwithstanding the foregoing,
if any mortgagee, trust beneficiary or ground lessor shall elect to have this
Lease treated as if it became effective and Tenant had taken possession prior to
the lien of its mortgage or deed of trust or prior to its ground lease, and
shall give notice thereof to Tenant, this Lease shall be deemed to have become
effective and Tenant's right to possession shall be considered prior to such
mortgage, deed of trust, or prior to its ground lease whether this Lease is
dated prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof. In the event any mortgage or deed of
trust which is subordinate to this Lease is foreclosed or a deed in lieu of
foreclosure is given to the mortgagee or beneficiary, Tenant shall attorn to the
purchaser at the foreclosure sale or to the grantee under the deed in lieu of
foreclosure; in the event any ground lease to which this Lease is subordinate is
terminated, Tenant shall attorn to the ground lessor. Tenant shall upon demand
at any time execute, acknowledge and deliver to Landlord's mortgagee (including
the beneficiary under any deed of trust) or other holder any and all instruments
and certificates that in the judgment of Landlord's mortgage may be necessary or
proper to confirm or evidence any of the foregoing.
ARTICLE XIII
INDEMNIFICATION OF LANDLORD-NO REPRESENTATION BY LANDLORD
Section 13.1 Landlord shall not be liable to Tenant or to Tenant's employees,
agents or visitors, or to any other person or entity, whomsoever, for any injury
to person or damage to or loss of property on or about the Premises or the
Building caused by the negligence or misconduct of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Building under the express or implied invitation of Tenant, or arising out of
the use of the Premises by Tenant and the conduct of its business therein, or
arising out of any breach or default by Tenant in the performance of its
obligations hereunder or resulting from any other cause except Landlord's
negligence, and Tenant hereby agrees to indemnify Landlord and hold it harmless
from any loss, expenses or claims arising out of such damage or injury.
Section 13.2 Landlord shall indemnify, defend and protect Tenant from any claim
or suit brought against Tenant or loss incurred by Tenant for the Landlord's
sole failure to comply with the requirements of the Americans with Disability
Act ("ADA"). The Tenant and Landlord agree, however, that this provision does
not apply to any claim or suit brought or loss incurred for the Tenant's
Premises based upon Tenant's failure to comply with its sole obligations
pursuant to the ADA. Tenant agrees to indemnify, defend and protect Landlord
from any claim or suit brought against Landlord for Tenant's failure to comply
with the Tenant's sole obligations pursuant to the ADA. In addition, Tenant will
notify Landlord if any of the following conditions occur: (1) notice from an
individual claiming a violation under the ADA; (2) notice from the federal
government investigating an ADA complaint; (3) notice from an individual or the
government threatening a lawsuit or other legal action based on a violation of
the ADA; (4) notice that an individual or the government has filed a lawsuit or
other legal action claiming non-compliance with the ADA.
Section 13.3 Landlord states that, to its knowledge, there are apparently no
hazardous or toxic substances located in, on or under the Building, the property
or the Premises other than those materials and substances normally used in the
operation of the Building, property or Premises, and other than those normally
used by other Tenants.
Further, Landlord states that, to its best knowledge, there has been no
violation thereon of any law governing hazardous or toxic substances. landlord
shall also indemnify Tenant with regard to any loss or liability the Tenant may
incur as a result of Landlord's sole negligence with regard to any hazardous
substances that Landlord causes to be located in or on the Building, the
property or the Premises, unless Tenant has caused such hazardous substances to
be located thereon. Tenant shall indemnify Landlord with regard to any loss or
liability that Landlord may incur as a result of Tenant's sole negligence with
regard to any hazardous substance that is now or hereafter becomes located in or
on the Building, the property or the Premises, unless Landlord has caused such
hazardous substances to be located thereon.
Section 13.4 The Tenant is fully familiar with the physical condition of the
Premises and every part thereof. The Landlord has made no representations in
connection with the condition of the Premises, and the Landlord shall not be
liable for any latent or patent defects therein.
ARTICLE XIV
DEFAULT PROVISIONS-REMEDIES OF LANDLORD
Section 14.1 The following events shall be deemed to be events of default
by Tenant under this Lease:
(a) Tenant shall fail to pay any installments of Base Rent or Additional
Rent when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period
of five (5) days from the date such payment was due.
(b) Tenant shall (i) apply for or consent to the appointment of a receiver,
trustee or liquidator of the Tenant or of all or a substantial part of
its assets, (ii) become insolvent or admit in writing its inability to
pay its debts as they come due, (iii) make a general assignment for the
benefit of creditors, (iv) file a petition or an answer seeking
reorganization or arrangement with creditors or to take advantage of
any insolvency law, other than the federal Bankruptcy Code, (v) file an
answer admitting the material allegations of a petition filed against
the Tenant in any reorganization or insolvency proceedings, other than
a proceeding commenced pursuant to the federal Bankruptcy Code, or if
any other, judgment or decree shall be entered by any court of
competent jurisdiction, except for bankruptcy court of a federal court
sitting as a bankruptcy court, adjudicating the Tenant insolvent or
approving a petition seeking reorganization of the Tenant or appointing
a receiver, trustee or liquidator of the Tenant or of all or a
substantial part of its assets, or (vi) make a transfer on fraud of
creditors.
(c) Tenant shall abandon or vacate any substantial portion of the Premises.
(d) Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Section 14.1) and shall
not cure such failure within twenty (20) days after written notice
thereof to Tenant.
(e) Tenant shall fail to discharge any lien placed upon the Premises within
twenty (20) days after any such lien or encumbrance is filed against
the Premises.
Section 14.2 If an Event of Default occurs, then Landlord may either:
(a) give Tenant written notice of Landlord's intention not terminate this
Lease on the date of such given notice or any later date specified
therein. Landlord's written notice shall operate as a notice to quit,
and Landlord may proceed to recover possession of the Premises by any
lawful means, including by reentry and repossession; the obligation of
Tenant to pay and the right of Landlord to recover all Rent, including
accrued rent and all future rent owed for the remaining term of the
Lease, and other charges together with the costs of collection,
including attorneys' fees, shall survive termination of the Lease; or
(b) without further notice, except as is required by law, reenter and take
possession of the Premises, or any part thereof, and repossess the same
as Landlord's former estate, and expel Tenant and those claiming
through or under Tenant and remove the effects of either or both
without being deemed guilty of any manner of trespass, without being
deemed to have elected to terminate this Lease, and without prejudice
to any remedies for arrears of rent, preceding breaches of covenants,
or loss of profits; after reentering and repossessing the Premises
without terminating this Lease, Landlord may, from time to time,
without terminating Lease, relet the Premises or any part thereof, on
behalf of Tenant for such term of terms and at such rent or rents, and
upon such other terms and conditions, as Landlord may deem advisable in
its sole discretion (including concessions, free rent and payment of
commissions) with the right to make alterations and repairs to the
Premises.
In the event Landlord does not elect to terminate this Lease, but on the
contrary elects to take possession, then such repossession shall not relieve
Tenant of its obligations and liability under this Lease, all of which shall
survive such repossession. In the event of such repossession, Tenant shall pay
to Landlord as Rent all Rent which would be payable hereunder if such
repossession had not occurred, less the net proceeds, if any, of any reletting
or the value of Landlord's use, if any, of the Premises after deducting all of
Landlord's expenses in connection with such reletting, including, but not
limited to, all repossession costs, brokerage commissions, legal expenses,
expenses of employees, costs of alterations, expenses of preparation for
reletting, rental concessions and free rent. Tenant shall pay such Rent to
Landlord on the days on which the Rent would have been payable hereunder if
possession had not been retaken.
Any damage or loss sustained by Landlord following Landlord's election to
reenter and repossess the Premises without terminating this Lease may be
recovered by Landlord, at Landlord's option, (i) at the time of reletting, (ii)
in separate actions, from time to time, as said damage shall have been made more
easily ascertainable by successive reletting, or (iii) be deferred until the
expiration of the term of this Lease, in which event the cause of action shall
not be deemed to have accrued until the date of expiration of the term of this
Lease, in which event the cause of action shall not be deemed to have accrued
until the date of expiration of said term. Although Landlord has no obligation
to relet the Premises for Tenant's Account following Landlord's election to
reenter and repossess the Premises without terminating this Lease, if after so
repossessing the Premises Landlord undertakes reasonable efforts for a period of
sixty (60) days to relet the Premises for Tenant's account and Landlord is
unable to find a new tenant for the Premises and relet the Premises on behalf of
the Tenant upon such terms and conditions as Landlord may deem advisable, in its
sole discretion, then Landlord may, at its option exercisable by written notice
and demand to Tenant, elect to accelerate all Rent due for the remainder of the
Term (determined as of there had been no Event of Default) and Tenant shall
immediately pay Landlord the present value (discounted at 10%) of the Rent due
for the remainder of the Term, together with all expenses and costs, including
reasonable attorneys' fees, incurred by Landlord.
In the event this Lease is terminated pursuant to the provisions of this
Section, or terminated pursuant to a proceeding for possession under the
Colorado Forcible Entry and Unlawful Detainer Statutes, Tenant shall remain
liable to Landlord for damages in an amount equal to the Rent and other sums
which would have been owing by Tenant hereunder for the balance of the Term had
this Lease not been terminated plus all amounts incurred by Landlord in order to
obtain possession of the Premises and relet the same, including attorneys' fees,
reletting expenses, alterations and repair costs, brokerage commissions and all
other like amounts. Landlord shall be entitled to collect such damages from
Tenant monthly on the days on which the Rent and other amounts would have been
payable hereunder if this Lease had not been terminated, and Landlord shall be
entitled to receive the same from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant as damages for loss of the bargain
and not as a penalty, an amount equal to the worth at the time of termination of
the amount of Rent reserved in this Lease for the balance of the Term hereof
plus all amounts incurred by Landlord in obtaining possession of the Premises
and in relating the same, including attorneys' fees, reletting expenses,
alterations and repair costs, brokerage commissions and all other like amounts.
The provisions contained in this paragraph shall be in addition to and shall not
prevent the enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired term of this Lease. All rights and remedies
of Landlord under this Lease shall be cumulative and shall not be exclusive of
any other rights and remedies provided to Landlord under applicable law.
Section 14.3 The Tenant hereby expressly waives the service of notice of
intention to re-enter provided for in any statute, or to institute legal
proceedings to that end. The Landlord and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by either party against the other
on any matters arising out of or in connection with this Lease, the relationship
of Landlord and Tenant thereunder, the Premises of the Tenant's use of occupancy
thereof. The terms "enter", "entry" as used in this Lease are not restricted to
their technical legal meaning. If, on account of any breach or default by Tenant
in Tenant's obligations under the terms and conditions of this Lease, it shall
become necessary or appropriate for Landlord to employ or consult with an
attorney concerning, or to enforce of defend, any of Landlord's rights or
remedies hereunder, Tenant agrees to pay any attorneys' fees and costs so
incurred by Landlord.
ARTICLE XV
HOLDING OVER
Section 15.1 Tenant covenants that it will vacate the Premises immediately upon
the expiration or sooner termination of this Lease. If the Tenant retains
possession of the Premises or any part thereof after the termination of the
term, the Tenant shall pay the Landlord rent at double the monthly rate
specified in Article I for the time the Tenant thus remains in possession and,
in addition thereto, shall pay the Landlord for all damages, consequential as
well as direct, sustained by reason of the Tenant's retention of possession. If
the Tenant remains in possession of the Premises, or any part thereof, after the
termination of the term, such holding over shall, at the election of the
Landlord expressed in a written notice to the Tenant and not otherwise,
constitute a renewal of this Lease for one (1) year. The provisions of this
Section do not exclude the Landlord's rights of re-entry or any other right
hereunder, including without limitation, the right to refuse double the monthly
rent and instead to remove Tenant through summary proceedings for holding over
beyond the expiration of the term of this Lease.
ARTICLE XVI
INVALIDITY OF PARTICULAR PROVISIONS
Section 16.1 If any covenant, agreement or condition of this Lease shall to any
extent be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby. Each covenant, agreement or condition of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
ARTICLE XVII
NOTICES
Section 17.1 Any notice to be given under this Lease shall be in writing and
shall be deemed given (a) upon personal delivery to the intended recipient's
address set forth below; (b) three (3) days following the date on which such
notice is deposited in the United States Mail, postage prepaid, Registered or
Certified Mail, addressed to the intended recipient's address set forth below;
(c) one (1) day following the date on which such notice is delivered to a
commercial overnight mail delivery service; of (d) upon report of successful
transmission by facsimile machine that automatically generates, at the
conclusion of such transmission, a printed diagnostic report with respect to the
success of the transmission, directed to the intended recipient as set forth
below:
If to Landlord: Equitable Real Estate Investment Management, Inc.
1225 Seventeenth Street, Suite 2525
Denver, Colorado 80202
Phone No. (303) 293-2000
Fax No. (303) 293-8330
If to Tenant: Koala Corporation
11600 East 53rd Avenue, Unit D
Denver, Colorado 80239
ARTICLE XVIII
QUIET ENJOYMENT
Section 18.1 The Landlord covenants and agrees that the Tenant upon paying the
Base Rent, Additional Rent and all other charges herein provided for and
performing the covenants, agreements and conditions of this Lease on the
Tenant's part to be performed and fulfilled, shall lawfully and quietly hold,
occupy and enjoy the Premises during the term of this Lease without hindrance or
molestation by the Landlord, subject, however, to the matters herein set forth
and all deeds of trust, mortgages and ground leases to which this Lease is
subject and subordinate.
ARTICLE XIX
LIMITATION OF LANDLORD'S LIABILITY
Section 19.1 The liability of Landlord and all officers, employees,
shareholders, members, managers, venturers or partners (general or limited) of
Landlord to Tenant for any default by Landlord under the terms of this Lease
shall be non-recourse and limited to the interest of Landlord in the Building.
The term "Landlord" as used in this Lease shall be limited to the owner or
owners of the Landlord's interest in this Lease at the time in question, and in
the event of any transfer or transfers of such interest, the Landlord herein
named (and in case of any subsequent transfer, the then transferor) shall be
automatically freed and relieved from and after the date of such transfer as
respects the performance of any covenants or agreements on the part of the
Landlord contained in this Lease thereafter to be performed, provided that any
funds in the hands of such Landlord or the then transferor at the time of such
transfer included, but not limited to, the security deposit, in which the Tenant
has an interest shall be turned over to the transferee and upon any such
transfer, the Landlord shall be released from any liability for such funds. The
transferee shall be deemed to have assumed, subject to the limitations of this
Section, all of the covenants, agreements and conditions in this Lease contained
to be performed on the part of the Landlord, it being intended hereby that the
covenants and agreements contained in this Lease on the part of the Landlord to
be performed shall be binding on the Landlord, its successors and assigns, only
during and in respect of their respective periods of ownership.
ARTICLE XX
ESTOPPEL CERTIFICATE BY TENANT
Section 20.1 From time to time upon not less than ten (10) days' prior request
by the Landlord, the Tenant agrees to execute, acknowledge and deliver to the
Landlord a statement in writing certifying (a) that this Lease is unmodified and
in full force and effect or if there have been modifications, that the same is
in full force and effect as modified and identifying the modifications, (b) the
dates to which the Base Rent, Additional Rent and other charges have been paid,
and (c) that, so far as the person making the certificate knows, the Landlord is
not in default under any provisions of this Lease. If Tenant should fail to
provide an estoppel certificate, then Tenant shall be deemed to have admitted
all of the matters contained in the tendered statement. It is intended that any
such statement may be relied upon by any person proposing to acquire the
Landlord's interest in this Lease or any prospective mortgagee of, or assignee
of any mortgage upon, such interest.
ARTICLE XXI
CUMULATIVE REMEDIES-NO WAIVER-NO ORAL CHANGE
Section 21.1 The specified remedies to which the Landlord may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which the Landlord may be entitled, either
at law or in equity, in case of any breach or threatened breach by the Tenant of
any covenant, agreement or condition of this Lease. In addition to the other
remedies in this Lease, the Landlord shall be entitled to the restraint by
injunction of the violation, or attempted or threatened violation, of any of the
covenants, agreements or conditions of this Lease. No receipt of monies by
Landlord from Tenant after the termination or cancellation hereof in any lawful
manner shall reinstate, continue or extend the term hereof, or affect any notice
given to Tenant, or operate as a waiver of the right of the Landlord to enforce
the payment of Rent or Additional rent or other charges then due or thereafter
falling due, or operate as a waiver of the right of Landlord to recover
possession of the Premises by proper suit, action, proceedings or remedy; it
being agreed that, after the service of notice to terminate or cancel this
Lease, and the expiration of the time specified, if the default has not been
cured, or after the commencement of suit, action or summary proceedings or of
any other remedy, or after a final order warrant or judgment for the possession
of the Premises, Landlord may demand, receive and collect any monies then due,
or thereafter becoming due, without in any manner affecting such notice,
proceeding, suit, action, order, warrant or judgment and any and all such monies
so collected shall be deemed to be payments on account for the use and
occupation of the Premises, or at the election of Landlord, on account of
Tenant's liability hereunder. Acceptance of the keys to the Premises or any
similar act, by Landlord, or any agent or employee of Landlord during the term
hereof, shall not be deemed to be an acceptance of a surrender of the Premises
unless Landlord has consented in writing.
Section 21.2 The failure of the Landlord to insist in any one or more cases upon
the strict performance or observance of any of the covenants, agreements or
conditions of this Lease or to exercise any option herein contained shall not be
construed as a future waiver of such covenant, agreement, condition or option. A
receipt by the Landlord of rent with knowledge of the breach of any covenant,
agreement or condition hereof shall not be deemed a waiver of such breach, and
no waiver by the Landlord of any covenant, agreement or condition of this Lease
shall be deemed to have been made unless expressed in writing and signed by the
Landlord.
Section 21.3 This Lease constitutes the entire agreement between the parties.
This Lease shall not be amended or modified except in writing signed by the
party against whom enforcement of the amendment or modification is sought.
ARTICLE XXII
BROKERAGE
Section 22.1 Tenant represents and warrants that it has dealt with no broker,
agent or other person in connection with this transaction and/or that no other
broker, agent or other person brought about this transaction, other than those
persons as specified on Page 1 of this Lease, and Tenant agrees to indemnify and
hold Landlord harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction. The provisions
of this Article shall survive the termination of this Lease.
ARTICLE XXIII
SECURITY DEPOSIT
Section 23.1 Tenant has deposited with Landlord the sum specified on Page 1 of
this Lease as security for the return of the premises in good order and
condition and the full performance of every provision of this Lease to be
performed by Tenant. The security deposit shall not be considered an advance
payment of rent or a measure of Landlord's damages in case of default by Tenant.
The security deposit shall not be applied to the payment of rent, provided
however, that if Tenant Defaults with respect to any provision of this Lease,
Landlord may use, apply or retain all or any part of this security deposit for
the payment of any Base Rent and Additional Rent or any other sum in default, or
for the payment of any other amount which Landlord may spend or become obligated
to spend by reason of Tenant's default, or to compensate Landlord for any other
loss, cost of damage which Landlord may suffer by reason of Tenant's default. If
any portion of said deposit is so used or applied, Tenant shall, within five (5)
days after written demand, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount and Tenant's failure to do
so shall be a breach of this Lease. Landlord shall not, unless otherwise
required by law, be required to keep this security deposit separate from its
general funds nor pay interest to its Tenant. For full security deposit
reimbursement the following conditions must be met:
(a) All walls must be clean and free of holes.
(b) Overhead door must be free of any broken panels, cracked lumber or
dented panels. The overhead door springs, rollers, tracks, motorized
door operator, and all other items pertaining to the overhead door must
also be in good working condition.
(c) Heaters, air conditioning units must be in good working order. Filters
must be changed - all thermostats must be in working order. Tenant must
supply Landlord with maintenance records.
(d) All floors must be clean and free of excessive dust, dirt, grease, oil
and stains.
(e) Drop grid ceiling must be free of excessive dust from lack of changing
filters. (No ceiling tiles should be missing or damaged.)
(f) All trash must be removed form both inside and outside of the building.
(g) All light bulbs and ballasts must be working.
(h) All signs in front of Building and on glass entry door and rear door
must be removed.
(i) Hot water heater must work.
(j) All plumbing fixtures, equipment and drains must be clean and in
working order.
(k) Warehouse floor must be clean and free of grease and stains.
(l) Windows must be clean.
(m) All keys must be returned.
(n) All mechanical and electrical systems must be in good working
condition.
(o) Tenant shall be in compliance with surrender provisions of this Lease.
In the event Tenant has complied with the above conditions, Landlord shall
return the security deposit to Tenant within sixty (60) days after the
termination of this Lease, or the surrender and acceptance by Landlord of the
Premises. Notwithstanding the foregoing, Landlord may retain the security
deposit for non-payment of rent, utility charges, abandonment of the Premises,
repairs, work or cleaning work contracted for the by Tenant.
ARTICLE XXIV
RULES AND REGULATIONS
Section 24.1 Tenant and Tenant's agents, contractors, employees and invitees
will comply fully with all requirements of the Rules and Regulations of the
Building and related facilities, as specified in the Rules and Regulations now
or hereafter sent by Landlord to Tenant. Landlord shall at all times have the
right to change such rules and regulations to promulgate other Rules and
Regulations in such manner as Landlord may deem advisable, in its reasonable
discretion, for safety, care or cleanliness of the Building and related
facilities or the Premises, and for preservation of good order therein, all of
which Rules and Regulations, changes and amendments will be forwarded to Tenant
in writing and shall be carried out and observed by Tenant. Tenant shall be
responsible for compliance therewith by the agents, contractors, employees and
invitees of Tenant.
ARTICLE XXV
RIGHTS RESERVED BY LANDLORD
Section 25.1 Landlord shall have the following rights, exercisable without
effecting an eviction, constructive or actual, or disturbance of Tenant's use or
possession or giving rise to any claim or setoff or abatement of rent or
affecting any of Tenant's obligations hereunder:
(a) To change the name by which the Building is designated upon four (4)
months' written notice to Tenant.
(b) to decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in and about the
Building, or any part thereof, and for such purposes to enter upon the
Premises and, during the continuance of any such work, to temporarily
close doors, entryways, public space and corridors in the Building, to
interrupt or temporarily suspend Building services and facilities and
to change the arrangement and location of entrances or passageways,
doors and doorways, corridors, elevators, stairs, toilets, or other
public parts of the Building, so long as the Premises are reasonably
accessible.
(c) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted
herein.
(d) To take all such reasonable matters as Landlord may deem advisable for
the security of the Building and its occupants, including without
limitation, the search of all persons entering or leaving the Building,
the evacuation of the Building for cause, suspected cause, or for drill
purposes, the temporary denial of access to the Building, and the
closing of the Building after normal business hours and on Saturdays,
Sundays and holidays; subject, however, to Tenant's right to admittance
when the Building is closed after normal business hours under such
reasonable regulations as Landlord may prescribe from time to time
which may include, by way of example but not of limitation, that person
entering or leaving the Building, whether or not during normal business
hours, identify themselves to a security officer by registration or
otherwise and that such persons establish their right to enter or leave
the Building.
ARTICLE XXVI
FINANCIAL STATEMENTS
Section 26.1 Tenant agrees to provide to Landlord within fourteen (14) days of
request by Landlord, but no more than once per year, the most recent audited
annual financial statements of Tenant, including balance sheets, income
statements, and financial notes ("Statements"). Tenant consents that Landlord
may release the Statements to Landlord's subsidiaries, affiliates, lenders,
advisors, joint venture partners, or potential purchasers of the property for
the purposes of evaluating Tenant's financial condition with respect to
performance under the Lease. Landlord agrees to keep the Statements confidential
and to not release the Statements to third parties except as set forth herein.
ARTICLE XXVII
PERSONAL PROPERTY TAXES
Section 27.1 Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the Premises. If
any such taxes for which Tenant is liable are in any way levied or assessed
against Landlord, Tenant shall pay the Landlord upon demand that part of such
taxes for which Tenant is primarily liable hereunder.
ARTICLE XXVIII
MISCELLANEOUS PROVISIONS
Section 28.1 Tenant shall be solely responsible for and promptly pay all charges
for heat, water, gas, electricity and other utilities used or consumed on the
Premises. Landlord shall not be liable to Tenant for interference in or
interruption of any utility service nor shall any curtailment or interruption
constitute a constructive eviction or grounds for rental abatement in whole or
in part hereunder. In the event utilities are not separately metered to Tenant,
then Tenant shall reimburse Landlord, upon demand, for the cost to Landlord of
utilities used or consumed on the Premises.
Section 28.2 Tenant shall not place on the outside of the Building any sign,
advertisement, illumination or projection, without Landlord's prior written
consent. In multi-tenant buildings, Tenant shall pay for and comply with
Landlord's uniform signage requirements.
Section 28.3 If the Landlord is unable to tender possession of the Premises on
the commencement date, the Landlord shall not be liable for any damage caused
thereby, nor shall this Lease be void or voidable by Tenant, but in such event
unless the delay results from failure of Tenant to provide plans or otherwise
perform in accordance with the requirements of the Lease, no rent shall be
payable by Tenant prior to actual tender to Tenant of possession of the
Premises. In any event, late delivery of the Premises will not extend the term
of this Lease.
Section 28.4 This Lease shall be construed and enforced in accordance with the
laws of the State of Colorado.
Section 28.5 The parties hereto agree that the covenants and agreements herein
contained shall bind and inure to the benefit of the Landlord, the Tenant, and
their respective successors and assigns.
Section 28.6 Any covenants, obligations or indemnities to be performed or which
arise after the termination of this Lease shall survive any earlier lease
termination.
Section 28.7 If any of Tenant's checks fail to clear its Bank, Landlord may
demand all future rent payments to be either in the form of cash, certified
check, money order, wire transfer or cash equivalent funds.
Section 28.8 There will be a Fifty Dollar ($50.00) service charge upon all
insufficient fund checks and interest will accrue on the amount at the rate of
two percent (2%) per month until paid.
Section 28.9 "Reasonable wear and tear" is hereby defined as that degree of wear
and tear which would normally occur in the general usage of the Premises, but
shall not include any physical damage to the floors, walls, and ceiling of the
Premises, nor any damage caused through operation of machinery, office equipment
or other equipment used in the operation of Tenant's business. Additionally, if
Tenant's use, by reason of fumes discharged or liquids used by Tenant, should
cause damage to the Premises or other nearby premises, both interior or
exterior, said damages shall not be deemed as "reasonable wear and tear", and
Tenant shall be liable for the complete restoration of the Premises at Tenant's
expense. Said damage shall include, but not be limited to, damaged, rusting or
corroded walls, floors, ceilings, doors, windows, plumbing, heating and air
conditioning units, metal bar joists, steel decks, or roof vents or stacks.
Section 28.10 Landlord agrees to provide, for the use of Tenant and Tenant's
employees, agents, customers and invitees, sufficient parking space adjacent to
or reasonably near the Premises (together with necessary access thereto) to
accommodate not more than the number of parking spaces for passenger automobiles
as specified on Page 1 of this Lease. Tenant shall have no interest in any
parking area so furnished, but shall have only a license to use the same during
the term of this Lease in common with others entitled to the use thereof. All
rights herein granted with respect to parking and driveway areas shall at all
times be subject to reasonable regulation by Landlord, but Landlord shall have
no liability to any person for any interference with or obstruction of, any such
rights.
Section 28.11 In the event rail side track service is provided to the Premises,
Tenant covenants and agrees to pay to the Landlord, as Additional Rent, its pro
rata share of all costs incurred by Landlord under rail agreements for the
provisions and maintenance of such rail side track service.
Section 28.12 No act done and no failure to act by Landlord or its agents during
the term hereby granted shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be valid
unless the same be made in writing and signed by Landlord.
Section 28.13 In case it should be necessary or proper for Landlord to bring any
action under this Lease or to consult or place this Lease, or any amount payable
by Tenant hereunder, with an attorney concerning a default of Tenant hereunder,
whether such default is later cured, then Tenant shall pay any and all
reasonable attorneys' fees, court costs and expenses of Landlord incurred in
connection with such enforcement.
Section 28.14 The normal operating hours for the Building are Monday through
Friday 8:00 a.m. to 6:00 p.m., and Saturday 8:00 a.m. to 1:00 p.m., excluding
holidays.
Section 28.15 Whenever a period of time is herein prescribed for action to be
taken by Landlord, or whenever Landlord is otherwise obligated to perform
hereunder, Landlord shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays or failures
to perform due to strikes, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the reasonable control of Landlord.
Section 28.16 If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, the remainder of this Lease shall not be affected
thereby. Each covenant and agreement contained in this Lease shall be construed
as a separate and independent covenant or agreement.
Section 28.17 If there is more than one (1) Tenant, the obligations hereunder
imposed upon Tenant shall be joint and several. If there is a guarantor of
Tenant's obligations hereunder, the obligations hereunder imposed upon Tenant
shall be the joint and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant before proceeding against such
guarantor, nor shall any such guarantor be released from its guaranty for any
reason whatsoever, including, without limitation, any extensions or renewals
hereof, any amendments hereto, any waivers hereof, or failure to give such
guarantor any notices hereunder.
IN WITNESS WHEREOF, the Landlord and the Tenant have executed this Lease the day
and year first above written.
LANDLORD:
BUCKHEAD INDUSTRIAL PROPERTIES, INC.
By: EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., as its Agent
By:_________________________________________________
TENANT:
KOALA CORPORATION
By:_________________________________________________
EXHIBIT A
PREMISES
EXHIBIT B
RULES AND REGULATIONS
1. Landlord will furnish each Tenant with two keys to each door lock in
the Leased Premises, and Landlord may make a reasonable charge for any
additional keys requested by Tenant. No Tenant shall have any keys made
for the Leased Premises; nor shall any Tenant alter any lock, or
install new or additional locks or bolts, on any door without the prior
written approval of Landlord. If a lock alteration or installation is
made, the new lock must accept the master key for the Building. Each
Tenant, upon the expiration or termination of its tenancy, shall
deliver to Landlord all keys in such Tenant's possession for all locks
and bolts in the Building.
2. Tenant shall refer all its contractors, contractors, representatives,
and installation technicians, rendering any service on or to the
Premises, to the Landlord for Landlord's approval and supervision prior
to performance of any work performed in the Building, including, but
not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment,
or any other physical portion of the Building or the Premises.
3. No Tenant shall, at any time, occupy any part of the Premises as
sleeping or lodging quarters.
4. No birds, fowl, or other animals shall be brought into or kept in or
about the Premises.
5. None of the entries, passages, doors, stairways, or vestibule shall be
blocked or obstructed, nor shall any rubbish, litter, trash, or
materials of any nature be placed, emptied, or thrown into such areas,
nor shall such areas be used at any time except for ingress and egress
by Tenant, or the Tenant's agents, employees, or business invitees.
6. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any
damage resulting to such water closets and water fixtures from misuse
shall be the responsibility of the company or person who caused such
damage. No person shall waste water by interfering with the faucets or
otherwise.
7. No person shall disturb the occupants of the Building by the use of any
musical instrument, the making of unseemly noises, or any unreasonable
use.
8. Tenant shall provide its own dumpster for trash storage and removal,
and agrees not to leave or store any materials, litter, or trash on the
Common Areas, including parking areas. Landlord reserves the right to
approve the type of dumpster utilized by the Tenant.
9. The use of parking areas shall be subject to such reasonable rules and
regulations as the Landlord may promulgate uniformly for all Tenants.
Tenant agrees that it shall not use or permit the use by its employees
of the parking and loading dock areas for the overnight storage of
automobiles or other vehicles which would interfere with maintenance,
snow removal, traffic flow, emergency vehicles, or other intended uses
of the Project. Landlord shall have the right to tow any vehicle
belonging to Tenant, its agents, employees, or invitees which is
improperly parked and which the Tenant fails to remove after written
notice by the Landlord.
10. No sign, advertisement, or other lettering shall be painted, affixed,
or exposed on the windows, doors, or any part of the outside of the
Building or the Premises other than as specifically permitted in
writing by the Landlord.
11. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the Premises, regardless of whether
such loss occurs when an area is locked against entry or not.
12. Tenant shall be responsible for any damage to paving caused by the
parking or loading of trailers or trucks.
13. No drapes, curtains, blinds, or other window covering shall be
installed by the Tenant without the prior written approval of the
Landlord.
14. it is the Landlord's desire to maintain in the Building the highest
standard of dignity and good taste, consistent with comfort and
convenience for the Tenants. Any action or condition not meeting with
this standard should be reported directly to the Landlord. landlord's
and Tenant's cooperation will be mutually beneficial and sincerely
appreciated. Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to
time be needful for the safety, care, and cleanliness of the Premises,
and for the preservation of good order therein.
EXHIBIT C
Exhibit C consists of the following base building construction drawings by
Intergroup Architects, Inc., dated June 14, 1995, and June 30, 1995, and
described (and attached as 11x17) as follows:
Project Name: Equitable/DBC
- ------------- -------------
Architectural: A1-A14
Structural: S1-S9
Civil: C1-C5
RIDER TO LEASE
This RIDER TO LEASE is attached to and made a part of that certain
lease dated the ____ day of _____________, 1996, between BUCKHEAD INDUSTRIAL
PROPERTIES, INC. ("the Landlord") and KOALA CORPORATION ("the Tenant"). In the
event the Lease and Rider to Lease are inconsistent, this Rider to Lease shall
supersede any agreements previously made in such Lease regarding the following:
Tenant Improvements.
Landlord will at Landlord's expense, provide an allowance of $59,728.00
for all construction services specifically related to the tenant improvements
for the premises and, in addition to, the shell construction as described in
Exhibit C. It is understood that the Tenant requires up to 3,300 sf of office
space built out in the building prior to occupancy. This will exceed the above
referenced allowance. The Landlord will install these improvements and will
amortize these expenses over the initial lease term of five years at an interest
rate of ten percent (10%) and add it onto the base rental rate. As an example,
if the additional expenses are $5,000, the base rental rate will increase
$106.24 per month. The construction will be subject to all provisions in Section
V contained herein in the Lease. In addition, Landlord will be responsible for
adding four (4) evergreen trees (average six (6) feet in height) to the
landscaping on the south side of the building known as 11600 East 53rd Avenue,
Denver, Colorado 80239.
LANDLORD:
BUCKHEAD INDUSTRIAL PROPERTIES, INC.
By: EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., as its Agent
By:_____________________________________________
TENANT:
KOALA CORPORATION
By:_____________________________________________
EXHIBIT 23.1
Independent Auditors' Consent
We consent to the use in the Registration Statements and prospectus on Form S-3
dated February 1, 1996 of Koala Corporation of our report dated February 12,
1997, on the financial statements of Koala Corporation for the years ended
December 31, 1996 and 1995, incorporated by reference in the Registration
Statements, and to the use of our name and the statements with respect to us
under the heading "Experts" in such Prospectus.
BLANSKI PETER KRONLAGE & ZOCH, P.A.
Minneapolis, Minnesota
March 25, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 3,442,601
<SECURITIES> 0
<RECEIVABLES> 1,686,515
<ALLOWANCES> (30,000)
<INVENTORY> 443,680
<CURRENT-ASSETS> 5,974,356
<PP&E> 863,285
<DEPRECIATION> (165,496)
<TOTAL-ASSETS> 10,351,202
<CURRENT-LIABILITIES> 330,432
<BONDS> 0
0
0
<COMMON> 248,126
<OTHER-SE> 9,530,444
<TOTAL-LIABILITY-AND-EQUITY> 10,351,202
<SALES> 8,938,282
<TOTAL-REVENUES> 8,938,282
<CGS> 3,241,328
<TOTAL-COSTS> 3,241,328
<OTHER-EXPENSES> 3,157,232
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 2,539,722
<INCOME-TAX> 644,182
<INCOME-CONTINUING> 1,895,540
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,895,540
<EPS-PRIMARY> .74
<EPS-DILUTED> .74
</TABLE>
