UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly period ended: September 30, 1997
-------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
-------- --------
Commission file number: 0-23804
-------
Simpson Manufacturing Co., Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
California 94-3196943
------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4637 Chabot Drive, Suite 200, Pleasanton, CA 94588
--------------------------------------------------
(Address of principal executive offices)
(Registrant's telephone number, including area code): (510)460-9912
-------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
The number of shares of the Registrant's Common Stock outstanding as
of September 30, 1997: 11,501,006
----------
<PAGE>
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
[CAPTION]
<TABLE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
September 30, December 31,
-----------------------------
(Unaudited)
1997 1996 1996
------------ ------------ ------------
ASSETS
<S> <C> <C> <C>
Current assets
Cash and cash equivalents $ 15,336,889 $ 22,112,721 $ 19,815,297
Short-term investments - - 3,896,428
Trade accounts receivable, net 36,272,399 28,051,008 20,930,490
Inventories 54,342,293 35,957,784 42,247,777
Deferred income taxes 3,462,455 2,934,672 2,919,455
Other current assets 1,055,616 903,598 956,565
------------ ------------ ------------
Total current assets 110,469,652 89,959,783 90,766,012
Net property, plant and equipment 37,358,613 26,623,211 28,687,635
Investments 537,509 1,331,957 1,382,578
Other noncurrent assets 3,270,224 1,730,205 1,684,548
------------ ------------ ------------
Total assets $151,635,998 $119,645,156 $122,520,773
============ ============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Notes Payable $ 29,943 $ - $ -
Trade accounts payable 12,650,774 10,214,563 10,063,828
Accrued liabilities 5,845,211 3,893,620 4,137,648
Income taxes payable 1,582,591 1,750,949 341,626
Accrued profit sharing trust
contributions 2,251,234 1,913,458 2,446,001
Accrued cash profit sharing and
commissions 4,770,529 3,963,668 2,292,057
Accrued workers' compensation 809,272 809,272 809,272
------------ ------------ ------------
Total current liabilities 27,939,554 22,545,530 20,090,432
Deferred income taxes and
long-term liabilities 905,183 133,333 133,333
------------ ------------ ------------
Total liabilities 28,844,737 22,678,863 20,223,765
------------ ------------ ------------
Commitments and contingencies (Notes 5 and 6)
Shareholders' equity
Common stock 32,044,605 31,038,763 31,233,648
Retained earnings 90,829,387 65,965,391 70,862,906
Cumulative translation adjustment (82,731) (37,861) 200,454
------------ ------------ ------------
Total shareholders' equity 122,791,261 96,966,293 102,297,008
------------ ------------ ------------
Total liabilities and
shareholders' equity $151,635,998 $119,645,156 $122,520,773
============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1997 1996 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales $ 68,824,611 $ 57,128,574 $186,306,707 $152,345,631
Cost of sales 40,363,583 34,440,638 112,200,433 94,305,621
------------ ------------ ------------ ------------
Gross profit 28,461,028 22,687,936 74,106,274 58,040,010
------------ ------------ ------------ ------------
Operating expenses:
Selling 5,892,494 4,929,448 17,467,520 14,902,126
General and administrative 8,665,462 7,033,766 22,969,505 18,387,692
Compensation related to stock plans 290,000 - 290,000 -
------------ ------------ ------------ ------------
14,847,956 11,963,214 40,727,025 33,289,818
------------ ------------ ------------ ------------
Income from operations 13,613,072 10,724,722 33,379,249 24,750,192
Interest income, net 106,144 175,048 248,233 325,931
------------ ------------ ------------ ------------
Income before income taxes 13,719,216 10,899,770 33,627,482 25,076,123
Provision for income taxes 5,531,001 4,507,000 13,661,001 10,253,000
------------ ------------ ------------ ------------
Net income $ 8,188,215 $ 6,392,770 $ 19,966,481 $ 14,823,123
============ ============ ============ ============
Net income per common share $ 0.68 $ 0.54 $ 1.67 $ 1.26
============ ============ ============ ============
Weighted average shares outstanding 12,012,522 11,796,062 11,946,675 11,727,496
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine Months
Ended September 30,
----------------------------
1997 1996
------------ ------------
<S> <C> <C>
Cash flows from operating activities
Net income $ 19,966,481 $ 14,823,123
------------ ------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Gain on sale of capital equipment (15,368) (18,054)
Depreciation and amortization 5,459,743 4,413,034
Deferred income taxes and long-term liabilities (790,798) (227,667)
Equity in income of affiliates (110,000) (33,000)
Noncash compensation related to stock plans 160,000 -
Changes in operating assets and liabilities, net of
effects of acquisitions:
Trade accounts receivable (14,187,289) (7,325,900)
Inventories (6,000,885) (1,494,307)
Other current assets (32,566) 331,014
Other noncurrent assets (46,878) (60,083)
Trade accounts payable 1,342,138 2,839,549
Accrued liabilities 664,000 542,193
Accrued profit sharing trust contributions (194,767) (86,281)
Accrued cash profit sharing and commissions 2,478,472 2,674,524
Income taxes payable 1,695,718 2,697,696
Accrued workers' compensation - (32,853)
------------ ------------
Total adjustments (9,578,480) 4,219,865
------------ ------------
Net cash provided by operating activities 10,388,001 19,042,988
------------ ------------
Cash flows from investing activities
Capital expenditures (9,679,324) (4,291,456)
Proceeds from sale of equipment 56,021 44,041
Proceeds from sale of short-term investments 3,995,333 -
Acquisitions, net of cash and equity interest
already owned (9,334,340) -
Equity investments - (11,637)
------------ ------------
Net cash used in investing activities (14,962,310) (4,259,052)
------------ ------------
Cash flows from financing activities
Repayment of debt (260,304) (20,037)
Issuance of Company's common stock 356,205 393,034
------------ ------------
Net cash provided by financing activities 95,901 372,997
------------ ------------
Net increase (decrease) in cash and cash equivalents (4,478,408) 15,156,933
Cash and cash equivalents at beginning of period 19,815,297 6,955,788
------------ ------------
Cash and cash equivalents at end of period $ 15,336,889 $ 22,112,721
============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
Interim Period Reporting
The accompanying unaudited interim condensed consolidated financial
statements have been prepared pursuant to the rules and regulations for
reporting on Form 10-Q. Accordingly, certain information and footnotes
required by generally accepted accounting principles have been condensed
or omitted. These interim statements should be read in conjunction with
the consolidated financial statements and the notes thereto included in
Simpson Manufacturing Co., Inc.'s (the "Company's") 1996 Annual Report on
Form 10-K (the "1996 Annual Report").
The unaudited quarterly condensed consolidated financial statements have
been prepared on the same basis as the audited annual consolidated
financial statements, and in the opinion of management, contain all
adjustments (consisting of only normal recurring adjustments) necessary to
present fairly the financial information set forth therein, in accordance
with generally accepted accounting principles. The year-end condensed
consolidated balance sheet data was derived from audited financial
statements, but does not include all disclosures required by generally
accepted accounting principles. The Company's quarterly results may be
subject to fluctuations. As a result, the Company believes the results of
operations for the interim periods are not necessarily indicative of the
results to be expected for any future period.
Net Income Per Common Share
Net income per common share is computed based upon the weighted average
number of common shares outstanding. Common equivalent shares, using the
treasury stock method, are included in the per-share calculations for all
periods since the effect of their inclusion is dilutive.
The number of shares used in computing primary and fully diluted net
income per common share did not differ materially for the three and nine
months ended September 30, 1997 and 1996.
Newly Issued Accounting Standards
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings
Per Share" and No. 129, "Disclosure of Information about Capital
Structure." SFAS No. 128 establishes standards for computing and
presenting earnings per share ("EPS"), replacing the presentation of
primary EPS with a presentation of basic EPS. SFAS No. 129 consolidates
the existing disclosure requirements regarding an entity's capital
structure. SFAS Nos. 128 and 129 are effective for financial statements
issued for periods ending after December 15, 1997, and accordingly,
management has not determined the effect, if any, on the Company's
financial statements for the three and nine months ended September 30,
1997.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income", and SFAS No. 131, "Disclosures About Segments of an Enterprise
and Related Information." SFAS No. 130 established standards for reporting
and display of comprehensive income and its components. SFAS No. 131
specifies revised guidelines for determining an entity's operating
segments and the type and level of financial information to be disclosed.
SFAS Nos. 130 and 131 are effective for financial statements issued for
periods beginning after December 15, 1997, and accordingly, management has
not determined the effect, if any, on the Company's financial statements
for the three and nine months ended September 30, 1997.
<PAGE>
2. Trade Accounts Receivable
Trade accounts receivable consist of the following:
<TABLE>
<CAPTION>
At September 30, At December 31,
1997 1996 1996
------------ ------------ ------------
<S> <C> <C> <C>
Trade accounts receivable $ 38,189,407 $ 29,434,569 $ 22,242,827
Allowance for doubtful accounts (1,622,209) (1,127,853) (1,108,950)
Allowance for sales discounts (294,799) (255,708) (203,387)
------------ ------------ ------------
$ 36,272,399 $ 28,051,008 $ 20,930,490
============ ============ ============
</TABLE>
3. Inventories
The components of inventories consist of the following:
<TABLE>
<CAPTION>
At September 30, At December 31,
1997 1996 1996
------------ ------------ ------------
<S> <C> <C> <C>
Raw materials $ 17,980,381 $ 12,438,103 $ 15,107,660
In-process products 6,092,749 3,478,087 3,763,634
Finished products 30,269,163 20,041,594 23,376,483
------------ ------------ ------------
$ 54,342,293 $ 35,957,784 $ 42,247,777
============ ============ ============
</TABLE>
Approximately 91% of the Company's inventories are valued using the LIFO
(last-in, first-out) method. Because inventory determination under the
LIFO method is only made at the end of each year based on the inventory
levels and costs at that time, interim LIFO determinations must
necessarily be based on management's estimates of expected year-end
inventory levels and costs. Since future estimates of inventory levels and
costs are subject to change, interim financial results reflect the
Company's most recent estimate of the effect of inflation and are subject
to final year-end LIFO inventory amounts. At September 30, 1997 and 1996,
and December 31, 1996, the replacement value of LIFO inventories exceeded
LIFO cost by approximately $386,000, $2,602,000 and $1,186,000,
respectively.
4. Net Property, Plant and Equipment
Net property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
At September 30, At December 31,
1997 1996 1996
------------ ------------ ------------
<S> <C> <C> <C>
Land $ 2,785,668 $ 2,065,682 $ 2,065,682
Buildings and site improvements 13,027,998 10,379,901 10,379,901
Leasehold improvements 3,050,405 2,826,392 2,869,612
Machinery and equipment 54,486,765 42,897,745 46,311,624
------------ ------------ ------------
73,350,836 58,169,720 61,626,819
Less accumulated depreciation
and amortization (40,937,929) (34,260,537) (35,916,354)
------------ ------------ ------------
32,412,907 23,909,183 25,710,465
Capital projects in progress 4,945,706 2,714,028 2,977,170
------------ ------------ ------------
$ 37,358,613 $ 26,623,211 $ 28,687,635
============ ============ ============
</TABLE>
<PAGE>
5. Debt
The outstanding debt at September 30, 1997 and 1996, and the available
credit at September 30, 1997, consisted of the following:
<TABLE>
<CAPTION>
Available Debt Outstanding
Credit at at September 30,
September 30. -----------------------------
1997 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Revolving line of credit,
interest at bank's reference
rate (at September 30, 1997,
the bank's reference rate was
8.50%), expires June 1998 $ 13,537,128 $ - $ -
Revolving line of credit,
interest at bank's prime rate
(at September 30, 1997, the
bank's prime rate was 8.50%),
expires June 1998 4,937,129 - -
Revolving term commitment,
interest at bank's prime rate
(at September 30, 1997, the
bank's prime rate was 8.50%),
expires June 1998 4,000,000 - -
Revolving line of credit,
interest rate at the bank's
base rate of interest plus 2%,
expires June 1998 403,400 - -
Standby letter of credit facilities 525,744 - -
Other notes payable - 29,943 -
------------ ------------ ------------
Total credit facilities $ 23,403,401 $ 29,943 $ -
============ ============
Standby letters of credit
issued and outstanding (525,744)
------------
Total credit available $ 22,877,657
============
</TABLE>
The Company has two outstanding standby letters of credit. These letters
of credit, in the aggregate amount of $525,744, are used to support the
Company's self-insured workers' compensation insurance requirements. Other
notes payable represent debt associated with foreign businesses acquired
in March 1997.
6. Commitments and Contingencies
Note 10 to the consolidated financial statements in the Company's 1996
Annual Report provides information concerning commitments and
contingencies. From time to time, the Company is involved in various legal
proceedings and other matters arising in the normal course of business.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Certain matters discussed below are forward-looking statements that
involve risks and uncertainties, certain of which are discussed in this
report and in other reports filed by the Company with the Securities and
Exchange Commission. Actual results might differ materially from results
suggested by any forward-looking statements in this report.
The following is a discussion and analysis of the consolidated financial
condition and results of operations for the Company for the three and nine
months ended September 30, 1997 and 1996. The following should be read in
conjunction with the interim Condensed Consolidated Financial Statements
and related Notes appearing elsewhere herein.
Results of Operations for the Three Months Ended September 30, 1997,
Compared with the Three Months Ended September 30, 1996
Sales increased 20.5% in the third quarter of 1997 as compared to the
third quarter of 1996. The increase reflected growth throughout the United
States, particularly in California and the Southeastern portion of the
country. Sales outside of the United States increased substantially,
resulting primarily from the acquisitions of Patrick Bellion, S.A.,
("Bellion") and the Isometric Group ("Isometric"), earlier in the year.
Simpson Strong-Tie's third quarter sales increased 22.2% over the same
quarter last year while Simpson Dura-Vent's sales increased 14.2%.
Homecenters and contractor distributors were the fastest growing connector
sales channels, while dealer distributor sales increased but at a slower
rate than overall sales during the quarter. The growth rate of Simpson
Strong-Tie's seismic and epoxy product sales remained strong and the
Company's line of mechanical anchor products also contributed
significantly to the increase in sales. Simpson Dura-Vent sales of chimney
products experienced above average growth while the rate of growth of the
Direct-Vent products slowed somewhat.
Income from operations increased 26.9% from $10,724,722 in the third
quarter of 1996 to $13,613,072 in the third quarter of 1997. This increase
was primarily due to higher gross margins that resulted from lower
overhead costs as a percentage of sales. The increase in gross margins was
offset somewhat by the lower margins at the recently acquired businesses.
Selling expenses increased 19.5% from $4,929,448 in the third quarter of
1996 to $5,892,494 in the third quarter of 1997, but remained relatively
flat as a percentage of sales. The increase was primarily due to higher
personnel costs related to the increase in the number of salespeople and
retail specialists. General and administrative expenses increased 23.2%
from $7,033,766 in the third quarter of 1996 to $8,665,462 in the third
quarter of 1997. This increase was primarily due to increased cash profit
sharing, as a result of higher operating profit, as well as higher
personnel costs, including those associated with the two acquisitions
earlier in the year. In addition, costs related to the Company's stock
bonus plan, which rewards employees for each ten years of continuous
service, were higher.
Results of Operations for the Nine Months Ended September 30, 1997,
Compared with the Nine Months Ended September 30, 1996
Sales increased 22.3% in the first nine months of 1997 as compared to the
first nine months of 1996. The increase reflected growth throughout the
United States. The largest percentage increase was in the Northeastern
region of the country; California showed the next largest percentage
increase and the largest dollar increase in sales. Sales outside of the
United States doubled, with a significant portion of this increase
resulting from the businesses acquired earlier in the year. Simpson
Strong-Tie's sales for the first nine months of 1997 increased 24.5% over
the same period last year while Simpson Dura-Vent's sales increased 14.4%.
As was the case in the third quarter, homecenters and contractor
distributors were the fastest growing connector sales channels. The growth
rate of Simpson Strong-Tie's seismic, epoxy and engineered wood product
sales remained strong, while Simpson Dura-Vent sales of Direct-Vent and
chimney products experienced above average growth.
Income from operations increased 34.9% from $24,750,192 in the first nine
months of 1996 to $33,379,249 in the first nine months of 1997. This
increase was primarily due to higher gross margins that resulted from
lower overhead costs as a percentage of sales, despite an increase in
depreciation charges which resulted principally from equipment purchased
during 1996. Selling expenses increased 17.2% from $14,902,126 in the
first nine months of 1996 to $17,467,520 in the first nine months of 1997,
but decreased slightly as a percentage of sales. The increase was
primarily due to higher personnel costs related to the increase in the
number of salespeople and retail specialists. General and administrative
expenses increased 24.9% from $18,387,692 in the first nine months of 1996
to $22,969,505 in the first nine months of 1997. This increase was
primarily due to increased cash profit sharing, as a result of higher
operating profit, as well as higher personnel costs, including those
associated with the two acquisitions earlier in the year.
Liquidity and Sources of Capital
As of September 30, 1997, working capital was $82.5 million as compared to
$67.4 million at September 30, 1996, and $70.7 million at December 31,
1996. The principal components of the increase in working capital from
December 31, 1996, were increases in the Company's trade accounts
receivable and inventory balances totaling approximately $27.4 million,
primarily as a result of higher sales levels. In addition, the increases
in these balances were also affected by the purchases of Bellion and
Isometric in March of 1997. The increase in working capital was offset
somewhat by decreases in cash and cash equivalents and short-term
investments which, in the aggregate, decreased a total of nearly $8.4
million, a large portion of which was used in the two acquisitions and to
purchase capital equipment. In the third quarter, however, cash and cash
equivalents increased approximately $10.6 million, principally due to the
collection of accounts receivable, the terms of which had been extended
under the Company's seasonal buying programs. Further offsetting the
increase in trade accounts receivable and inventory were increases in
trade accounts payable, accrued cash profit sharing and commissions,
accrued liabilities and income taxes payable of approximately $2.6
million, $2.5 million, $1.7 million and $1.2 million, respectively. The
balance of the change in working capital was due to the fluctuation of
various other asset and liability accounts. Without giving effect to the
two acquisitions, which are included in cash flows from investing
activities, the working capital change combined with higher net income and
noncash expenses, such as depreciation and amortization, totaling
approximately $25.4 million, resulted in net cash of approximately $10.4
million provided by operating activities. As of September 30, 1997, the
Company had unused credit facilities available of approximately $22.9
million.
The Company used nearly $15.0 million in its investing activities,
primarily to complete the two acquisitions and to purchase capital
equipment. The Company has made approximately $9.7 million in capital
equipment purchases in the first nine months of 1997 to expand its
capacity. The Company plans to continue this expansion throughout the
remainder of the year and in 1998. Partially offsetting these
expenditures, the Company sold its short-term investments, which matured
in March, for approximately $4.0 million.
The Company believes that cash generated by operations and borrowings
available under its existing credit agreements will be sufficient for the
Company's working capital needs and planned capital expenditures through
the remainder of 1997. Depending on the Company's future growth, it may
become necessary to secure additional sources of financing.
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
From time to time, the Company is involved in various legal proceedings
and other matters arising in the normal course of business.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
None.
Item 6. Exhibits and Reports on Form 8-K.
<TABLE>
<CAPTION>
a. Exhibits.
EXHIBIT
NO DESCRIPTION
------- ------------------------------------------------------
<S> <C>
10.1 Agreement for Lease, dated June 5, 1997, between
Kingspark Developments Limited, Simpson Strong-Tie
International, Inc. and The Royal London Mutual
Insurance Society Limited.
11 Statements re computation of earnings per share
27 Financial Data Schedule, which is submitted
electronically to the Securities and Exchange
Commission for information only and not filed.
</TABLE>
b. Reports on Form 8-K
Report on Form 8-K dated September 24, 1997, reporting under
Item 5 that the Company had submitted an application for listing
on the New York Stock Exchange.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Simpson Manufacturing Co., Inc.
-------------------------------
(Registrant)
DATE: November 10, 1997 By: /s/Stephen B. Lamson
----------------- -------------------------------
Stephen B. Lamson
Chief Financial Officer
<PAGE>
EXHIBIT 10.1
------------
DATED June 5, 1997
KINGSPARK DEVELOPMENTS LIMITED (1)
SIMPSON STRONG-TIE INTERNATIONAL INC (2)
and
THE ROYAL LONDON MUTUAL
INSURANCE SOCIETY LIMITED (3)
AGREEMENT FOR LEASE
Cardinal Point Tamworth
<PAGE>
CONTENTS
Clause Heading page
1 DEFINITIONS 1
2 INTERPRETATION 8
3 CLAUSE HEADINGS 8
4 THE DEVELOPER'S WORKS 8
5 TENANT'S RIGHTS OF INSPECTION 14
6 EARLY ACCESS TO CARRY OUT TENANT'S WORKS 15
7 EARLY OCCUPATION BY TENANT 18
8 CERTIFICATE OF PRACTICAL COMPLETION 19
9 DEFECTS LIABILITY 20
10 LIQUIDATED DAMAGES AND RESCISSION 20
11 WARRANTIES 22
12 AGREEMENTS AND DECLARATIONS 23
13 INSURANCE 24
14 ASCERTAINMENT OF THE INITIAL RENT 24
15 THE LEASE AND THE GUARANTEE 27
16 TITLE 28
17 MATTERS AFFECTING THE PREMISES 28
18 DISPUTES 29
19 ASSIGNMENT AND UNDERLETTING 30
20 MATTERS OUTSTANDING ON COMPLETION 31
21 NOTICES 31
22 ACKNOWLEDGEMENT 31
23 V.A.T. 32
24 DEFAULT BY TENANT 32
25 DEFAULT BY THE DEVELOPER 33
26 INTEREST 33
27 DEVELOPERS COVENANT 33
<PAGE>
DATE OF AGREEMENT 1997
PARTIES
(1) KINGSPARK DEVELOPMENTS LIMITED (Company Registration
Number 2872273 whose registered office is at Kingspark
House 1 Monkspath Hall Road Solihull West Midlands
B90 4FY
(2) SIMPSON STRONG-TIE INTERNATIONAL INC of Phoenix Road Hawks
Green Cannock Staffordshire WS11 2LR
(3) THE ROYAL LONDON MUTUAL INSURANCE SOCIETY LIMITED (Company
Registration Number 99064) whose registered office is at
Royal London House Middleborough Colchester Essex CO1 1RA
IT IS HEREBY AGREED:
PART 1
(Introduction)
1 DEFINITIONS
1.1 The terms defined in this Clause shall for all purposes of this
Agreement have the meanings specified in this Clause.
1.1.1 "Access Certificate" the certificate issued by the Employer's
Agent certifying the Access Date.
1.1.2 "Access Date" 31 October 1997 or such later date as shall be
agreed or determined pursuant to clauses 4.4.4 4.5 5.4 6.5
hereof being the date upon which the Employer's Agent issues
the Access Certificate and so that by such date the Access
Date Pre-Requisites shall be satisfied to enable the Tenant
to enter such part or parts only of the Building as may be
reasonably necessary for the purpose of carrying out the
Tenant's Works
<PAGE>
1.1.3 "Access Date Pre-Requisites"
1.1.3.1 sufficient of the Developer's Works shall have been
completed so as to ensure that the Tenant shall have
reasonable access to and egress from the Early
Access Area including access and egress for its
contractors materials and goods [and]
1.1.3.2 all electricity gas telephone and water services are
available to the Early Access Area subject only to
service connections which require an occupier's
application to a service or statutory undertaking
and
1.1.3.3 the Early Access Area are wind and water tight and
the interior thereof have been practically completed
in accordance with the Specification and the
Drawings (so far as the same relate thereto)
including without prejudice to the generality of the
foregoing the application of all coats of sealant
floor finish in the warehouse and are free from
Developer's contractors workmen excess materials and
rubbish and
1.1.3.4 the Early Access Area have been secured so that the
Tenant will be able to proceed with the Tenant's
Works without any material interruption or delay by
reason of any of the Developer's Works.
1.1.3.5 A secure portacabin with a gross internal area of
300 square feet or thereabouts with power, lighting
and telephone are available within the Early Access
Area together with temporary toilet facilities in
such position as the Tenant shall reasonably require
1.1.4 "the Architect" Maber Associates of St Mary's Hall, Lace
Market,17 Barker Gate, Nottingham NG1 1JU or such other
Architect notified in writing to the Tenant and the Landlord
as shall be appointed by the Building Contractor.
<PAGE>
1.1.5 "the Building" the warehouse/ factory building with a Gross
Internal Area of approximately 70,000 square feet together
with offices having a Gross Internal Area of approximately
8,075 square feet and ancillary accommodation to be
constructed on the Premises as part of the Developer's Works
(such areas to be subject to a tolerance of plus or minus two
and one half per cent).
1.1.6 "the Building Contract" a JCT Standard Form Building Contract
with Contractor's Design 1981 Edition Incorporating
Amendments 1:1986 2:1987 3:1988 4:1988 5:1989 6:1990 7:1994
8:1995 9:1995 and 10:1996 and TC/94/WCD together with the
amendments annexed hereto as Annexure 1 together with such
other amendments as may be agreed between the Developer and
the Building Contractor with the consent of the Tenant (such
consent not to be unreasonably withheld or delayed)
1.1.7 "the Building Contractor" John Sisk and Son Limited whose
registered office is at 691-693 Warwick Road Solihull West
Midlands B91 3DA or such other Building Contractor notified
in writing and approved by the Tenant and the Landlord. (such
approval not to be unreasonably withheld or delayed)
1.1.8 "the Certificate" the Certificate issued by the Employer's
Agent pursuant to Clause 8.1 hereof.
1.1.9 "Consents" all planning permissions building regulation
approvals planning agreements and any other consents
statutory or otherwise necessary or expedient for the
carrying out of the Developer's Works or any part thereof.
1.1.10 "Date of Practical Completion" the date stated in the
Certificate or in the event of dispute the date when the
Independent Arbitrator shall determine that Practical
Completion took place.
1.1.11 "Defects Liability Period" the period of 12 months commencing
from the Date of Practical Completion.
1.1.12 "the Developer" means Kingspark Developments Limited.
<PAGE>
1.1.13 "the Developer's Solicitors" Messrs Edge & Ellison of Regent
Court Regent Street Leicester LE1 7BR.
1.1.14 "the Developer's Works" the works on the Premises to be
carried out by the Developer in accordance with the Drawings
the Specification and the Consents.
1.1.15 "the Drawings" the drawings numbered 59127M048Rev.E,
59127M049Rev.D, 59127M050Rev.C, 59127M062Rev.A and
59127M072Rev.A copies of which are annexed hereto as
Annexure 2.
1.1.16 "the Duty of Care Warranties" the draft Warranties to be
entered into by the Professional Team in the form annexed as
Annexure 3
1.1.17 "Early Access Area" the production and warehouse area as
shown edged red on the drawing numbered 59127M072Rev.A
annexed hereto.
1.1.18 "the Employer's Agent" the meaning ascribed by the Building
Contract.
1.1.19 "the Estimated Completion Date" 28 day of November 1997
1.1.20 "Gross Internal Area" the gross internal area of the Building
measured in square feet ascertained according to the Code of
Measuring Practice of the Royal Institution of Chartered
Surveyors incorporating the Society of Valuers and
Auctioneers (Fourth Edition 1993).
1.1.21 "the Guarantee" the bank guarantee in the form annexed hereto
as Annexure 4
1.1.22 "Guarantee Charges" a sum not exceeding Twenty Eight Thousand
Two Hundred and Sixty Pounds (GBP28,260)
1.1.23 "Independent Arbitrator" the person appointed in accordance
with Clause 18 of this Agreement.
<PAGE>
1.1.24 "Inducement" the sum of One Hundred and Seventy Five Thousand
Six Hundred and Sixty Nine Pounds plus Value Added Tax being
an inducement to the Tenant to take the Lease
1.1.25 "Initial Rent per square foot" Four Pounds and Fifty Pence
(GBP4.50) per annum exclusive
1.1.26 "the Landlord" means The Royal London Mutual Insurance
Society Limited
1.1.27 "the Landlord's Surveyor" means Gardiner and Theobald
Management Services of Melrose House 21 Cadogen Street
Glasgow G2 6QH or such other person or firm notified to the
Developer and the Tenant in writing as such by the Landlord
1.1.28 "the Lease" the Lease agreed to be granted by the Landlord
and accepted by the Tenant of the Premises pursuant to this
Agreement in the form of the draft annexed hereto as Annexure
5 the terms of which have been agreed between the parties.
1.1.29 "the Planning Permission" the planning permission number
T 23221 dated 7 May 1997
1.1.30 "Practical Completion" means the date that the Developer's
Works are substantially complete (notwithstanding minor
snagging items may still be outstanding) and that all surplus
materials plant and equipment have been removed from the
Premises as certified in accordance with this Agreement
1.1.31 "the Premises" ALL THAT property situate at Cardinal Point
Bonehill Road Tamworth comprising approximately 5.3
acres/2.14 hectares as more particularly described in the
Lease.
1.1.32 "the Professional Team" the Architect and the Structural
Engineer.
1.1.33 "the Rescission Date" the 28 November 1998
<PAGE>
1.1.34 "Relevant Event" shall have the same meaning as specified in
the Building Contract but excluding clauses 25.4.10.1
(labour) and 25.4.10.2 (goods and materials)
1.1.35 "the Rent Commencement Date" either:
1.1.35.1 the date of Completion of the Lease or;
1.1.35.2 The date the Lease would have been completed but for
the Tenant being in default of its obligations
pursuant to clause 15.2 or
1.1.35.3 if earlier the date on which the Tenant takes
occupation of the Premises
PROVIDED ALWAYS THAT for the purpose of ascertaining the Rent
Commencement Date (but not further or otherwise) the Date of
Practical Completion shall be the date certified by and in
the reasonable opinion of the Employer's Agent as being the
date on which Practical Completion would have been achieved
but for delays caused by the Tenant's request for variations
or additions to the Developer's Works and/or delays caused by
the Tenant's Works and/or failure by the Tenant to carry out
the Tenant's Works pursuant to the terms of this Agreement or
in the event of dispute the date determined pursuant to
clause 18 hereof
1.1.36 "the Specification" the Specification annexed hereto as
Annexure 6
1.1.37 "the Statutory Requirements" any Act of Parliament any
instrument rule or order made under any Act of Parliament
or any regulation or bye-law of any local authority or of
any statutory undertaker which has relevant jurisdiction
and the requirements of the Fire Officer.
1.1.38 "the Structural Engineer" Cameron Taylor Bedford of Granville
House High Street Knowle Solihull West Midlands B93 OLN or
such other structural engineer or firm of engineers notified
in writing to and with the written approval of the Tenant and
the Landlord (such approval not to be unreasonably withheld
or delayed) as shall be appointed by the Building Contractor.
<PAGE>
1.1.39 "Sub-Contractor" means any Sub-Contractor employed by the
Building Contractor having a material design input into the
Developer's Works
1.1.40 "Temporary Office Facility" means a complex of secure porta
cabins with a total gross internal area of 2,500 square feet
or thereabouts within the Early Access Area having the
facilities referred to in clause 1.1.3.5 and in addition
computer network cabling being twisted pair category 5
ethernet cable to enable the Temporary Office Facility to be
fully operational
1.1.41 "the Tenant" means Simpson Strong-Tie International Inc.
1.1.42 "The Tenant's Representative" means W S Atkins of Auchlech
House Five Ways Birmingham B15 1DJ or such other prior firm
or company as may be appointed by the Tenant to be its
representative for the purposes of this Agreement and whose
name is notified in writing to the Developer and the Landlord
by the Tenant or the Tenant's Solicitors
1.1.43 "the Tenant's Solicitors" Messrs Lee Crowder of 39 Newhall
Street Birmingham B3 3DY (refJK.51125/001).
1.1.44 "the Tenant's Works" the works to be carried out by the
Tenant in the Early Access Area comprising but not limited to
racking compressed air and installation of alarm system
wiring computer cabling and other equipment and fitting out
of a tool and maintenance room in accordance with the
specifications and drawings to be approved by the Developer
and the Landlord (such approval not to be unreasonably
withheld or delayed) pursuant to the terms of this Agreement
prior to the commencement of such works
1.1.45 "the Termination Date" means the date 7 months from the date
which the Lease would have been granted but for the Developer
being in breach of its obligations under this Agreement
provided that Practical Completion has not taken place before
that date
<PAGE>
1.1.46 "Working Day" any day from Monday to Friday (inclusive) which
is not Christmas Day Good Friday or a statutory bank
holiday.
1.1.47 "Works Completion Date" the date by which the Developer is
required to complete the Developer's Works and any other
works upon the Premises in accordance with the Drawings the
Specification the Statutory Requirements and the Consents
(being either the Estimated Completion Date or such later
date as may be agreed or determined pursuant to Clause 4.4.4,
4.5 5.4 6.5 hereof).
INTERPRETATION
2.1 Where in this Agreement the context so admits words importing one
gender shall include all other genders and words importing the
singular shall include the plural and vice versa.
CLAUSE HEADINGS
3.1 The clause headings hereto are inserted for convenience of reference
only and shall not in any manner affect the construction meaning or
effect of anything herein contained or govern the rights and
liabilities of the parties hereto.
PART II
(Building Provisions)
THE DEVELOPER'S WORKS
4.1 The Developer shall as soon as practicable after the date hereof
apply for and obtain all other Consents as soon as requisite
(unless the same has already been obtained) and shall forthwith upon
receipt of the same cause copies to be supplied to the Tenant and
shall give all notices required to be given by statute or otherwise
and in relation to the Developer's Works the Developer warrants that
it shall:
<PAGE>
4.1.1 Not use any:
4.1.1.1 high alumina cement in structural element;
4.1.1.2 asbestos and any materials with an asbestos content;
4.1.1.3 woodwool slab used in permanent shuttering form or
in structural parts;
4.1.1.4 calcium chloride (additionally additives shall not
be employed in cement mortar or reinforced concrete
without the prior written consent of the Tenant or
its nominated surveyor);
4.1.1.5 calcium Silicate or sand lime bricks or tiles;
4.1.1.6 marine derived or marine washed aggregates or
naturally occurring aggregates for use in reinforced
concrete which are not in accordance with
BS8110:1985 and BS882:1983 and a suitable form of
shell content monitoring procedure;
4.1.1.7 lead or any materials containing lead which may be
ingested, inhaled or absorbed except where copper
alloy fittings contained in them are specifically
required in drinking water pipework by any relevant
statutory requirements;
4.1.1.8 urea formaldehyde foam or other insulants which will
support or contribute to combustion or any urea
formaldehyde, foam or materials which may release
formaldehyde in quantities which may be hazardous
with reference to the limits set from time to time
by the Health and Safety Executive at the time of
specification;
4.1.1.9 materials which are generally composed of mineral
fibres either man made or naturally occurring which
have a diameter of three microns or less and a
length of two hundred microns or less or which
contain any fibres not sealed or otherwise
estabilised to ensure that fibre migration is
prevented except where the above involves the
specification of suspended sealing tiles;
4.1.1.10 sprayed vermiculite on steel work as fire
protection;
4.1.1.11 any other substances or materials not in accordance
with British Standards and Codes of Practice current
at the time or in accordance with good building
practice or which are generally known to competent
contractors to be deleterious to health and safety
or to the durability of buildings and/or structures
and/or fixtures and/or plant or machinery or any
part thereof in the particular circumstances in
which they are used at the time of specification.
4.1.2 Within five working days of receipt thereof by the Developer
the Developer will produce to the Tenant's Representative any
and every material order direction requisition permission
notice or either like matter whatsoever effecting or likely
to effect the Developer's Works or the Premises or any part
thereof and served upon the Developer by any competent
authority or third party
<PAGE>
4.1.3 Notwithstanding the occurrence or actual completion of the
Lease the Developer shall at its own expense do all such
works during the Defects Liability Period as are necessary
to comply with all conditions in the Consents in respect of
the Developer's Works which may be required to be implemented
thereafter including (but without limitation) the carrying
our of landscaping in accordance with the provisions of
clause 4.1.6 and the replacement of any damaged diseased or
dying trees and shrubs in accordance with any relevant
conditions contained in the Consents
4.1.4 The Developer shall procure that at Practical Completion the
Premises are cleared and free from any rubbish generated by
or resulting from the Developer's Works and all the Building
Contractor's plant and excess materials shall be removed from
the Premises
4.1.5 The Developer shall also procure that any landscaping work
required as part of the Developer's Works is carried out as
soon as practicable (but in any event in the next planting
season following Practical Completion)
4.2 The Developer will at its own expense procure that the Building
Contractor carries out and completes the Developer's Works in all
respects in accordance with the Planning Permission and all other
Consents and Statutory Requirements and the terms and provisions
hereof and in a good and workmanlike manner and with suitable good
quality materials free from material defects in all respects to the
reasonable satisfaction of the Tenant and the Developer may
substitute other materials or things or equipment of no lessor
quality or suitability for those referred to in the Specification
and Drawings where it is certified by the Employer's Agent necessary
owing to any said materials fittings or equipment referred to in the
Drawings and Specification not being procurable within a reasonable
time having regard to the building programme of the Developer's
Works and or make such variations as shall be approved by the Tenant
in writing such approval not to be unreasonably withheld or delayed
and such approval shall be deemed to have been given if no response
is received from the Tenant within 5 working days (time to be of the
essence in this respect) of written notification of substitution
with full details thereof provided to the Tenant from the Developer
thereof) but only to the extent that such substitutions or
variations:-
<PAGE>
4.2.1 Will not materially alter the design layout nature or
standard of construction of the Building; and
4.2.2 Will not materially reduce the size of the Building or
materially affect the respective proportions of the office
warehouse accommodation within the Building; and
4.2.3 Will not materially affect the user of the Premises by the
Tenant
4.3 If the Tenant requires any additional works or modification to the
Premises whereby the Developer's Works differ in any respect from
the details set forth in the Drawings and Specification hereto then:
4.3.1 It shall first request from the Developer an approval of such
additional works or modifications and a detailed itemised
written estimate of the cost (if any) to the Tenant of such
additional works or modifications together with an estimate
of the anticipated delay in the Access Date and/or the Works
Completion Date and the Recision Date which would be likely
to be occasioned but such additional works or modifications
may only be requested by the Tenant to the extent that they
will not:
4.3.1.1 Materially alter the design layout nature or
standard of construction of the Building; and
4.3.1.2 Materially reduce the size of the Building or
materially affect the respective proportions of the
office warehouse accommodation within the Building;
and
4.3.1.3 Materially affect the user of the Premises by the
Tenant
<PAGE>
4.3.2 If the Developer approves such variations or additions (which
the Developer shall not be entitled to unreasonably withhold
approval of) it shall supply the above referred to written
estimate as set out in clause 4.3.1 hereto as soon as
practicable but in any event no later than ten Working Days
after the request of the Tenant
4.3.3 If after requesting an estimate in accordance with clause
4.3.1 hereof the Tenant decides not to proceed with such
additional works of modifications the Tenant shall pay the
Developer all proper costs incurred by the Developer in
providing the said estimate within ten working days of
written demand from the Developer served on the Tenant
4.4 In the event that the Developer agrees to carry out the Tenant's
additional works or modifications referred to in clause 4.3.1 hereto
at a price agreed between the parties then the following terms shall
apply:
4.4.1 the Tenant shall pay to the Developer the proper costs of
such additional work or modifications as agreed between the
parties together with an additional sum equal to fifteen per
cent of such costs
4.4.2 the said costs shall be paid to the Developer either within 7
days of completion of the relevant additional works or
modification such completion having been certified in
writing by the Employer's Agent PROVIDED ALWAYS that where
such certification is not accepted by the Tenant then the
Independent Arbitrator provisions referred to in clauses 6.2
and 6.3 hereof will apply to such additional works or
conditions (mutatis mutandis)
4.4.3 The Tenant shall at the expiration or sooner determination of
the Lease if so required by the Landlord and at the Tenant's
own expense reinstate the whole or any part of the Premises
in accordance with the Drawings and the Specification.
4.4.4 Any actual delay to the Developer's Works arising out of or
relating to the carrying out of such agreed additional works
or modifications shall cause the Access Date and/or the Works
Completion Date and the Rescission Date to be extended by a
period at least equal to the length of such delay where so
certified to be the case in reasonable opinion of the
Employer's Agent and in the event of dispute it shall be
rendered in accordance with the provisions of clause 18
hereof
<PAGE>
4.4.5 On completion of the Lease the Tenant shall enter into a
Licence for Alterations with the Landlord in respect of the
said additional works or modifications referred to in this
clause 4.4 and also in relation to the Tenants's Works in
such from as the Landlord's Solicitors may reasonably
require but which in any event provides for the effect on
rent of the said additional works or modifications referred
to in this clause 4.4 and the Tenant's Works to be
disregarded on any review of the annual rent payable under
the Lease and for the reinstatement of the Premises at the
Tenant's own expense in accordance with the Drawings and
Specification
4.5 The Developer hereby undertakes with the Tenant to procure that the
Building Contractor proceeds diligently with the construction of the
Developer's Works and shall procure that the Early Access Area is
completed by the Access Date and the remainder to be completed to
the extent aforesaid not later than the Estimated Completion Date
unless prevented or delayed by a Relevant Event as certified by and
in the reasonable opinion of the Employer's Agent in which case the
Access Date and/or the Works Completion Date shall be extended by a
period or periods at least equal to the length of such delay and in
the event of dispute as to the length of such extension then such
dispute shall be resolved in accordance with the provisions of
clause 18 hereof
4.6 The Landlord shall not be liable to the Tenant for any failure to
comply with the provisions of clause 4.1 4.2, 4.3 or 4.4 save as
otherwise expressly provided in this Agreement
4.7 Within ten working days of the Date of Practical Completion the
Developer will deliver to the Tenant two sets of "as-built" drawings
together with copies of all relevant manuals and guarantees in
respect of any plant or machinery installed as part of the
Developer's Works and any agreed additional works or modifications
referred to in clause 4.4 hereof
<PAGE>
5 TENANT'S RIGHTS OF INSPECTION
5.1 The Tenant shall have the right for itself and the Tenant's
Representative at all reasonable times after making previous
arrangements with the Developer during the course of the Developer's
Works at its own risk and peril to enter upon the Premises to view
the state and progress of the Developer's Works PROVIDED THAT in so
doing the Tenant (and others so entitled) shall:
5.1.1 comply with the reasonable requirements of the Building
Contractor
5.1.2 not interfere or hinder or prejudice in any way the
Developer's Works.
5.2 The Developer shall for the purpose of enabling the Tenant's
Representative to inspect the progress of the Developer's Works
supply all such information in respect of the Developer's Works as
the Tenant's Representative shall from time to time reasonably
require and will give the Tenant's Representative the opportunity to
attend the site and meet with the Employers Agent at least every 4
weeks and the Developer will pay due regard to all representations
which the Tenant's Representative shall make.
5.3 For the avoidance of doubt the Tenant shall not make any
representations to the Building Contractor.
5.4 If the Tenant (or others so entitled) breach this proviso then the
Access Date and/or the Works Completion Date and the Rescission
Date shall be extended by a period or periods at least equal to the
length of such delay as certified by the Employer's Agent and if
there shall be any dispute as to the length of any such extension
then such dispute shall be resolved in accordance with the
provisions of Clause 18 hereof.
<PAGE>
EARLY ACCESS TO CARRY OUT TENANT'S WORKS
6.1 When in the reasonable opinion of the Employer's Agent and the
Landlord's Surveyor the Developer's Works are sufficiently complete
to enable the Access Certificate to be issued the Employer's Agent
shall forthwith issue a certificate to that effect and subject to
Clause 6.2 hereof on that date it shall be assumed for all the
purposes of this Agreement that the Developer's Works have been
completed sufficiently to enable the Tenant to commence the Tenant's
Works provided that the Developer shall give the Tenant and the
Landlord's Surveyor at least 5 Working Days prior written notice of
the intention to issue the Access Certificate so as to give the
Tenant and/or its representatives the opportunity of attending the
inspection of the Developer's Works by the Developer prior to issue
of the Access Certificate.
6.2 If the Tenant shall not accept that the Developer's Works have been
sufficiently completed to enable the Access Certificate to be issued
then the Tenant shall be entitled at any time within three Working
Days after the date of receipt of the Access Certificate (as to
which period time shall be of the essence) to serve written notice
on the Developer specifying the reasons why the Access Certificate
has not been properly issued and requiring the matter to be referred
forthwith to an Independent Arbitrator for determination pursuant to
the provisions of Clause 18 hereof who shall determine the date when
the Access Certificate should have been issued for the purposes of
this Agreement.
6.3 Nothing in this clause shall prevent the Developer at any time after
the service of a notice under sub-clause 6.2 hereof from remedying
any matters which are alleged by the Tenant to be incorrect or
incomplete and procuring re-issue of the Access Certificate
following completion thereof in which case any reference to an
Independent Arbitrator shall be withdrawn and the provisions of this
clause shall be repeated until the Access Certificate has been
properly issued.
6.4 From the Access Date the Tenant shall be entitled to occupy the
Early Access Area or any part thereof for the purpose only of
carrying out the Tenant's Works prior to completion of the Lease and
the Tenant shall until such completion occupy the Premises as
licensee of the Landlord upon the terms so far as applicable
contained in the Lease and observe and comply with all the Tenant's
covenants and conditions in the Lease other than the covenant to pay
rent and all other outgoings in respect of the Premises.
<PAGE>
6.5 Provided that in so doing the Tenant (and others so entitled) shall:
6.5.1 comply with the reasonable requirements of the Building
Contractor where such requirements do not hinder the carrying
our of the Tenant's Works
6.5.2 not interfere or hinder or prejudice in any way the
Developer's Works
AND if the Tenant (or others so entitled) breach this proviso then
the Access Date and the Works Completion Date and the Rescission
Date shall be extended by a period or periods at least equal to the
length of such delay and if there shall be any dispute as to the
length of any such extension then such dispute shall be resolved in
accordance with the provisions of Clause 18 hereof.
6.6 From the date the Tenant occupies the Premises or any part thereof
pursuant to Clause 6.4 hereof the Tenant shall indemnify the
Landlord and the Developer at all times against any proper costs
incurred by the Developer or Landlord because of the Tenant's
occupation and claims demands or liabilities arising in respect of
such occupation where in either case the Tenant is in breach of its
obligations under this Agreement and without prejudice to the
generality of the foregoing shall pay the reasonable and proper cost
of any electricity gas water or other services used by the Tenant
and the Tenant shall keep in force with an insurance company
adequate public liability insurance covering all matters arising
from the works undertaken by the Tenant in respect of the Premises
and the entry on to the Premises by any third party.
6.7 The Tenant's Works shall be carried out in accordance with plans and
specifications to be submitted in duplicate by the Tenant to the
Landlord and the Developer for their approval prior to the
commencement of such works and as soon as possible after the date of
this Agreement (such approval not to be unreasonably withheld or
delayed).
6.8 On receipt of the Landlord's and the Developer's approval the Tenant
will forthwith apply for and when obtained supply to the Landlord
and the Developer copies of all requisite permissions and/or
licences of the Town Planning Local and other Authorities necessary
for the execution of the Tenant's Works and supply of copies to the
Developer and the Landlord
<PAGE>
6.9 The Tenant's Works shall be carried out in a proper and workmanlike
manner and with good quality materials free from material defects in
accordance with all Statutory Requirements and all necessary
Consents for the carrying out of such works which the Tenant will
obtain before commencing any works permitted to be carried out under
this Clause 6.
6.10 The Tenant shall keep the Landlord and the Developer effectively
indemnified against any costs claims demands expenses
liabilities insurance premiums or proceedings arising out of or in
connection with any breach of the conditions or requirements imposed
or implied by any permission or licence granted for the execution of
any such works whether under this Clause or otherwise and any
condition imposed by any necessary permission licence or consent not
being a breach directly caused by any action on the part of the
Landlord or the Developer.
PROVIDED THAT where access is granted to the Tenant pursuant to this
clause such access shall not be construed as occupation for the
purposes of Clause 7 hereof and no fee or payment will be demanded
from the Tenant.
6.11 If the Tenant materially breaches any of the terms or conditions of
this Clause 6 and does not forthwith remedy such breach upon written
notice from the Developer without prejudice to any other rights or
remedies available to the Landlord or the Developer the Developer
and/or the Landlord shall be entitled to require the Tenant to
vacate the Premises forthwith upon service of written notice to that
effect.
6.12 If it is necessary for the Building Contractor to enter any of the
Early Access Area once the Tenant has taken occupation thereof the
Developer will procure that the Building Contractor will protect all
of the Tenant's equipment machinery or fixtures or fittings therein
and shall cause no delay or hindrance in the carrying out of the
Tenant's Works
6.13 If due to the act omission or default of the Developer in procuring
the carrying out of the Developer's Works the Access Certificate has
not been issued by the Access Date then the Developer shall pay to
the Tenant by way of liquidated and ascertained damages a sum
calculated at the rate of Twenty Thousand Pounds (GBP20,000.00) for
each week or pro rata at the end of each week or part week during
the period commencing on the Access Date and expiring on the earlier
of the date of issue of the Access Certificate or the date upon
which liquidated and ascertained damages become due pursuant to
clause 10.1.1 such payment to be made on a weekly basis as such
liquidated and ascertained damages fall due or payable hereunder
<PAGE>
7 EARLY OCCUPATION BY TENANT
7.1 If the Landlord and the Developer shall permit the Tenant to occupy
the Premises or any part thereof otherwise than under Clause 6 prior
to completion of the Lease and the Tenant takes up such right to
occupy the Tenant shall:
7.1.1 Until such completion occupy the Premises as licensee of the
Landlord upon the terms so far as applicable contained in the
Lease and observe and comply with all the Tenant's covenants
and conditions in the Lease
7.1.2 Pay to the Developer a sum in the place of rent to be
calculated at the same rate as the rent under the Lease pro
rata and to be payable and to be made in respect of the
period specified in Clause 15.1 hereof and continue to pay
any such sums on each quarter day until completion of the
Lease
7.2 If the provisions of clause 10.1.2 apply then the Tenant shall be
entitled to occupy and use the Early Access Area for the purpose of
carrying out its business and the provisions of clause 7.1.1 and
7.1.2 shall apply
<PAGE>
8 CERTIFICATE OF PRACTICAL COMPLETION
8.1 When in the reasonable opinion of the Employer's Agent Practical
Completion of the Developer's Works in accordance with the Drawings
and Specification and the terms of this Agreement has taken place
the Employer's Agent shall forthwith issue a Certificate to that
effect and subject to sub-clause 8.2 hereof the Date of Practical
Completion of the Developer's Works shall for all purposes of this
Agreement be deemed to have taken place PROVIDED THAT the Landlord's
Surveyor or the Employer's Agent will give the Tenant at least ten
working days prior written notice of the Employer's Agent's
intention to issue the Certificate so as to give the Tenant and/or
its representatives the opportunity of attending the final
inspection of the Developer's Works by the Employer's Agent and the
Landlord's Surveyor prior to the issue of the Certificate.
8.2 If the Tenant shall not accept that Practical Completion has taken
place on the day when the Employer's Agent shall have issued the
Certificate then it shall be entitled at any time within five
Working Days after the date of the Certificate (as to which period
time shall be of the essence) to serve written notice on the
Developer and the Landlord requiring the matter to be referred to an
Independent Arbitrator for determination under Clause 18 hereof and
giving reasons.
8.3 If the Tenant fails for any reason to serve a notice within the time
specified in sub-clause 8.2 of this Clause then the Certificate
shall be accepted by the parties hereto as final.
8.4 If the Tenant serves a notice on the Developer under sub-clause 8.2
of this Clause then the Developer and the Tenant parties hereto
shall use their best endeavours to provide the Independent
Arbitrator with such information as shall be required by him to
determine the matters in dispute and in particular whether or not
the Certificate was properly issued.
8.5 In the event that the Independent Arbitrator shall determine that
the Certificate was not properly issued by the Employer's Agent then
the Developer shall procure that a further certificate shall not be
issued unless the Employer's Agent has given to the Tenant and the
Landlord 5 working days notice of its intention to issue the
Certificate and the provisions of this clause shall be deemed
repeated in extenso herein until Practical Completion has been
properly certified.
<PAGE>
8.6 Nothing in this Clause shall prevent the Developer at any time from
remedying any matters which are alleged by the Tenant to be
incomplete and the Certificate may be reissued following completion
thereof in which case any reference to an Independent Arbitrator
shall be withdrawn and the provisions of this Clause shall be
repeated until Practical Completion has been properly certified.
9 DEFECTS LIABILITY
9.1 The Developer shall procure that it or the Building Contractor shall
forthwith in a good and workmanlike manner make good any defects
shrinkages or other faults which shall appear within the Defects
Liability Period and which are due to failure of the Building
Contractor to comply with its obligations under the Building
Contract or failure of the Developer to comply with its obligations
in this Agreement or to frost occurring before the Date of Practical
Completion ("the Defects") and will (without prejudice to the
foregoing) at its own cost enforce the provisions for rectifying
defects contained in the Building Contract and shall in any event
procure that the Defects shall be remedied in accordance with clause
16.2 of the Building Contract (as amended) PROVIDED THAT the
Developer shall not be liable to procure the remedy of any such
matters unless the Tenant shall specify the same in writing to the
Developer in a Schedule of Defects which shall be delivered to the
Developer not later than 10 Working Days after the expiration of the
Defects Liability Period.
10 LIQUIDATED DAMAGES AND RESCISSION
10.1 If due to the act omission or default of the Developer in procuring
the carrying out of the Developer's Works the Certificate has not
been issued within 5 Working Days after the Works Completion Date
then the Developer shall pay to the Tenant by way of liquidated and
ascertained damages
10.1.1 a sum calculated at the rate of Twenty Thousand Pounds
(GBP20,000.00) for each week or pro rata during the period
commencing on the Works Completion Date and expiring on the
date when the Access Certificate is issued or determined or
the Date of Practical Completion is agreed or determined (if
earlier) and/or
<PAGE>
10.1.2 a sum calculated at the rate of Seven Thousand Five Hundred
Pounds (GBP7,500.00) for each week or pro rata during the
period commencing on the Works Completion Date and expiring
on the Date of Practical Completion or earlier determination
of this Agreement by the Tenant
such payment to be made to the Tenant on a weekly basis as such
liquidated and ascertained damages fall due and payable hereunder
PROVIDED THAT the Tenant hereby expressly acknowledges and agrees
that any failure on the part of the Developer to pay such liquidated
and ascertained damages shall not hold up or delay the grant of the
Lease which shall be granted in accordance with Clause 15 AND
PROVIDED FURTHER that the Tenant shall not be entitled to the
payment of any such liquidated and ascertained damages in respect
of the period commencing on the date that the Tenant takes
occupation of the Premises and PROVIDED FURTHER that where such
liquidated and ascertained damages are payable in accordance with
clause 10.1.2 hereof the Developer shall forthwith provide on the
date such damages become payable to the Tenant without cost to the
Tenant the Temporary Office Facility and so that where the Developer
fails to provide such Temporary Office Facility as required herein
the Tenant reserves any and all rights to claim damages from the
Developer for loss costs expenses and liabilities suffered by the
Tenant arising from the failure of the Developer to provide the
Temporary Office Facility
10.2 If for any reason other than the act omission or default on the part
of the Developer the Date of Practical Completion does not occur by
the Rescission Date then the Tenant may by written notice to the
Landlord and the Developer rescind this Agreement provided that such
notice is served not later than five Working Days after the
Rescission Date (time to be of the essence) whereupon this Agreement
shall (save for paragraph 10.4) immediately determine and cease to
have effect and for the avoidance of doubt the Tenant acknowledges
that in the event of rescission as aforesaid it shall not be
entitled to any damages or claims or rights or remedies(save for
liquidated and ascertained damages as hereinbefore referred to)
against the Developer for failure to achieve Practical Completion
before the Rescission Date.
<PAGE>
10.3 If due to the act omission or default of the Developer the Date of
Practical Completion does not occur by the Termination Date then the
Tenant may by written notice to the Landlord and the Developer
forthwith terminate this Agreement provided that such notice is
served not later than five Working Days after the Termination Date
(time to be of the essence) whereupon this Agreement shall (save for
paragraph 10.4) immediately determine and cease to have effect and
in the event of termination as aforesaid the Tenant agrees that any
damages or claims or right or remedies against the Developer for
losses incurred by the Tenant for failure to achieve Practical
Completion before the Termination Date shall not exceed a sum equal
to the aggregate of the liquidated and ascertained damages (payable
pursuant to the terms of this Agreement) and Two Million Pounds
(GBP2,000,000.00) for all other damages and that it shall not be
entitled to any damages or claims or rights or remedies against the
Landlord and for the avoidance of doubt the liquidated and
ascertained damages cannot also be claimed as part of the other
damages.
10.4 If this Agreement determines the Tenant shall immediately procure
the cancellation of any land charge or registration at H.M. Land
Registry in respect of this Agreement
11 WARRANTIES
11.1 The Developer shall use all reasonable endeavours to procure as soon
as practicable but in any event it shall procure by no later than
the Date of Practical Completion that the Building Contractor and
the Professional Team shall undertake responsibility to the Tenant
in contract for the exercise of all reasonable skill and care in the
design construction and carrying out of the Developer's Works in
accordance with the draft Duty of Care Warranties annexed hereto as
Annexure 4 with such reasonable amendments only as may be required
by the Building Contractor or the Professional Team or their
respective insurers having first obtained the previous consent of
the Tenant (such consent not to be unreasonably withheld or delayed)
and upon delivery of such warranties the Developer will deliver to
the Tenant a full copy of the Building Contract all appointments of
the Professional Team and all Sub-Contracts of the Sub-contractors
referred to in clause 11.2 hereof and documentary evidence that
professional indemnity insurance in the case of the Professional
Team and professional indemnity insurance or product liability
insurance as appropriate in the case of the Sub-Contractors is in
place
<PAGE>
11.2 The Developer shall procure that any Sub-Contractors involved in the
design of the following:
steelwork
roofing
cladding
floor slab
Mechanical and Electrical Works
undertake responsibility to the Tenant in contract as soon as
reasonably possible in accordance with the draft Duty of Care
Warranty annexed hereto as Annexure 5 on the same basis as set out
in Clause 11.1 (but it is expressly agreed that if such Duty of Care
Warranties are not available by the time that the Lease is to be
granted hereunder the Tenant shall not be entitled to delay taking
up the Lease) but in any event no later than one month after the
Date of Practical Completion
12 AGREEMENTS AND DECLARATIONS
For the avoidance of doubt IT IS HEREBY AGREED AND DECLARED as
follows:
12.1 The Landlord does not warrant that the Developer's Works will be
suitable for any particular purpose of the Tenant
12.2 The Landlord's obligations and duties in respect of the Developer's
Works shall be exclusively limited to the contractual obligations
and duties contained in this Agreement and any claim by the Tenant
against the Landlord in tort is excluded
12.3 The Landlord shall be under no liability whatsoever for any loss or
damage suffered by the Tenant by reason of any failure by the
Developer to carry out and complete the Developer's Works in
accordance with this Agreement
<PAGE>
13 INSURANCE
13.1 From the day on which the Developer's Works are commenced until
Practical Completion the Developer shall procure that the Building
Contractor insures the Developer's Works in their full reinstatement
value under a builders all risks policy with a reputable insurance
company in the European Union and shall use its reasonable
endeavours to have the interest of the Tenant noted thereon
13.2 The Developer shall whenever reasonably required to procure that the
Building Contractor produces the said policy or reasonable evidence
of the same and a receipt for the then current premium to the
Tenant.
13.3 In the event of the Developer's Works being destroyed or damaged by
any risk insured against under the said policy the Developer shall
procure that all monies payable under the said policy shall with all
reasonable speed and diligence be laid out and applied in rebuilding
repairing or otherwise re-instating the Developer's Works in
accordance with the Drawings and Specification as soon as
practicable.
13.4 From the Date of Practical Completion the Landlord shall insure or
procure insurance of the Premises pursuant to the covenant to be
contained in the Lease as if the same had been granted.
PART III
(Lease provisions)
14 ASCERTAINMENT OF THE INITIAL RENT
14.1 As soon as practicable on or before the Date of Practical Completion
the Developer and the Landlord and the Tenant shall endeavour to
agree the Gross Internal Area of the Building and in the event of
their not being able to agree the same within five Working Days
after the first request by the Developer so to do then any party may
request an independent surveyor to determine the same such person to
act as an expert and not as an arbitrator and the independent
surveyor shall be a Fellow of the Royal Institution of Chartered
Surveyors and be agreed upon by the Developer and the Landlord and
the Tenant and in default of agreement appointed by the President
for the time being of the Royal Institution of Chartered Surveyors
on the application of any of them and the decision of the
independent surveyor so agreed upon or appointed shall be final and
conclusive as to the Gross Internal Area.
<PAGE>
14.2 The fees of the independent surveyor shall be borne by the Developer
the Landlord and the Tenant in such manner as the independent
surveyor shall direct and in the absence of such direction each
party shall bear their own costs
14.3 If the independent surveyor so agreed upon or appointed shall be
unwilling or become unable to establish the Gross Internal Area or
shall die then the parties shall be entitled to effect or all or any
of them may apply to the President for the Royal Institution of
Chartered Surveyors to effect any re-appointment as may be necessary
from time to time.
14.4 When the Gross Internal Area has been agreed upon or determined the
Rent shall be the sum aggregate of:
14.4.1 the sum calculated by multiplying the number of square feet
comprised in the Gross Internal Area by the Initial Rent per
square foot. Subject to a maximum of Three Hundred and Fifty
One Thousand Three Hundred and Thirty Eight Pounds
(GBP351,338.00.) and
14.4.2 Twenty-five Thousand Pounds (GBP25,000.00)
14.5 If the Gross Internal Area shall exceed 78,075 square feet then the
definition in the Lease of the "open market rent" shall contain an
additional assumption that the Gross Internal Area of the Premises
(as originally demised) will be deemed to be no greater than 78,075
square feet
14.6 If either:-
14.6.1 the Gross Internal Area if less than 76,123 square feet or
greater than 81,979 square feet or
<PAGE>
14.6.2 the coverage of the overhead crane shown hatched on plan
number 59127.M.049.Rev.D shall not be reduced by more than
one metre between the points marked A and B on the said plan
then the Tenant shall be entitled within ten Working Dates upon it
having been agreed or determined to serve written notice on the
Developer determining this Agreement and upon service if such notice
this Agreement shall forthwith cease and determine but without
prejudice to the rights of the Tenant in respect of any claim
against the Developer arising out of any antecedent breach of the
terms hereof
<PAGE>
15 THE LEASE AND THE GUARANTEE
15.1 The Landlord (or a nominee of the Landlord) agrees with the Tenant
and the Developer to grant or to procure the grant of the Lease and
the Tenant agrees with the Landlord and the Developer to take the
Lease at the time and in the manner and subject as hereinafter
mentioned with the term thereof commencing on the quarter day
immediately preceding the Date of Practical Completion at the yearly
rents therein mentioned (subject to increase as therein mentioned)
the first payment of such rents to be made on the Rent Commencement
Date and to be in respect of the period commencing on the Rent
Commencement Date and expiring on the quarter day next thereafter.
15.2 The Lease shall be completed within five working days after the Date
of Practical Completion (the Landlord ensuring that the engrossment
Counterpart Lease has been submitted to the Tenant's Solicitor not
less than five working days prior to the Date of Practical
Completion) or (if later) five working days after agreement of the
rent in accordance with Clause 14 hereof and on completion the
Tenant shall execute and deliver to the Landlord
15.2.1 a Counterpart of the Lease and
15.2.2 the Guarantee duly executed by Barclays Bank Plc and the
Tenant
15.3 Contemporaneously upon the grant of the Lease and completion of the
Guarantee
15.3.1 the Landlord shall execute and deliver to the Tenant the
original Lease and any Licence for Alterations
15.3.2 the Developer shall pay to the Tenant the Guarantee Charges
and shall pay to the Tenant the Inducement subject to receipt
by the Developer immediately on payment thereof of a valid
Value Added Tax invoice and
<PAGE>
16 TITLE
16.1 The freehold title having been deduced to the Tenant prior to the
date hereof neither the Tenant nor its solicitors shall raise any
objection or requisition in respect thereof save in respect of any
incumbrances created by the Landlord after the date of the relevant
office copy entries dated 14 April 1997
16.2 The Landlord shall within ten working days from the date hereof
place its Land Certificate relating to its freehold title on deposit
at H.M. Land Registry to enable both notice of this Agreement and
substantive registration of the Lease to be registered on such title
and the Landlord's Solicitors shall notify the Tenant's Solicitors
immediately upon notification to the Landlord's Solicitors of the
requisite deposit number.
16.3 The Landlord shall on completion of the Lease at its own expense
obtain an supply to the Tenant copies of all Consents required by
the Landlord to enable it to grant the Lease
17 MATTERS AFFECTING THE PREMISES
17.1 The Premises are let subject to:
17.1.1 All local land charges whether registered or not before the
date of this Agreement and all matters capable of
registration as local land charges except any matters capable
of discharge by the payment of money.
17.1.2 All notices served and orders demands proposals or
requirements made by a Local or Public Authority (whether
before or after the date hereof).
17.1.3 All actual or proposed orders directions notices charges
restrictions conditions agreement or other matters arising
under the Town and Country Planning Acts.
17.1.4 The matters contained or referred to in the Property and
Charges Registers of Title Number SF 373788 registered at H M
Land Registry as evidenced by office copy entries dated 14
April 1997 and the Agreement dated 12 July 1996 made between
British Gas Plc (1) and Foldgate Ltd (2) and any deed entered
into pursuant to such agreement in the form annexed to such
agreement or with such variations as the Tenant may approve
(such approval not to be unreasonably withheld or delayed)
<PAGE>
PART IV
(General Matters)
18 DISPUTES
18.1 Disputes Generally
Any dispute or difference arising between the parties hereto as to
their respective rights duties and obligations hereunder or as to
any matter arising out of or in connection with this Agreement
(other than any such dispute or difference with regard to the
meaning or construction of this Agreement) shall be referred to and
determined by an independent person who has been professionally
qualified in respect of the subject matter of the dispute or
difference for not less than 10 years and who is also a specialist
in relation to such subject matter such independent person to be
agreed between the parties hereto or failing such agreement to be
nominated by the President or the Vice-President or other duly
authorised officer of the Royal Institution of Chartered Surveyors
on the application of either the Landlord the Developer or the
Tenant.
18.2 Appointment of Arbitrator
Except as mentioned in the next succeeding sub-clause any person
appointed under this Clause shall act as an arbitrator in accordance
with the Arbitration Acts 1996.
18.3 Appointment of Expert
18.3.1 Any dispute relating to matters of fact arising out of
Clauses 4 5 6 7 8 and 9 shall be referred to an independent
person acting as an expert.
18.3.2 Whenever a person appointed under this Agreement acts as an
expert ("the Expert") then:-
18.3.2.1 the Expert shall fully consider all written
representations made by or on behalf of the Tenant
the Landlord and the Developer which shall be
delivered to him within five Working Days of notice
of his appointment and shall thereafter afford the
Landlord the Developer and the Tenant a further 5
Working Days to make written cross representations
thereon and the Expert shall consider the same
<PAGE>
18.3.2.2 the Expert shall be at liberty to call for such
written evidence from the parties to the dispute and
to seek such legal or other expert assistance as he
may reasonably require
18.3.2.3 the Expert shall not take oral representations from
either party to the dispute without allowing the
other party thereto the opportunity to be present
and to give evidence and to cross examine that party
provided always that nothing herein shall oblige the
Expert to take oral representations
18.3.2.4 the Expert shall have regard to all representations
and evidence submitted therewith when making his
decision which shall be in writing and the Expert
shall give reasons or his decision
18.3.2.5 the Expert shall use all reasonable endeavours to
give his decision (and the reasons therefor) as
speedily as possible and (save in the case of
manifest error) his decision shall be final and
binding on the parties to this Agreement
18.3.2.6 the fees of such Expert shall be payable by the
parties hereto in such proportions as he shall
determine or in default of such determination each
shall bear their own costs.
19 ASSIGNMENT AND UNDERLETTING
19.1 The benefit of this Agreement shall be personal to the Tenant and
the Tenant shall not assign underlet or part with or share its
interest under this Agreement or any part thereof or otherwise
dispose of the same or any part thereof
<PAGE>
19.2 Pending the grant of the Lease this Agreement shall not operate as a
demise.
20 MATTERS OUTSTANDING ON COMPLETION
20.1 Notwithstanding the execution of the Lease this Agreement shall
remain in force with regard to any obligations or restrictions
hereunder and not provided for in the Lease.
21 NOTICES
21.1 Any notice required to be served hereunder shall be delivered
personally or sent by recorded delivery post or sent by facsimile
transmission to the addressee at its registered office as set out
in this Agreement.
22 ACKNOWLEDGEMENT
22.1 The Tenant hereby acknowledges and confirm[s] to the Developer and
the Landlord that the Tenant:
22.1.1 Has obtained independent advice and information relating to
the Premises; and
22.1.2 Enters into this Agreement solely as a result of the terms
hereof and in reliance upon its own inspection and advice and
not in reliance upon any representations or warranty whether
written or oral or express made by or on behalf of the
Developer or Landlord other than the Developer's Solicitors'
or the Landlord's Solicitors written replies to the Tenant's
Solicitors' enquiries and the information given in
correspondence from the Developer's Solicitors or the
Landlord's Solicitors to the Tenant's Solicitors
22.1.3 is looking to the Landlord only for performance of the
obligations of the Landlord referred to in Clauses 14 and 15
notwithstanding anything to the contrary or any implication
of this Agreement the Landlord shall have no liability
whatsoever to the Tenant under this Agreement whether express
or implied save under Clauses 14 and 15 and the Tenant
confirms that it will not counterclaim seek set off or
deductions from the Rent under the Lease by reason of any
rights or claims it may have or allege under this Agreement.
<PAGE>
23 V.A.T.
23.1 In addition to all payments on the part of the Tenant herein
specified the Tenant will pay to the Developer or the Landlord all
or any Value Added Tax which is now or may hereafter (and whether at
the Developer's or Landlord's option or otherwise) become payable or
chargeable thereon at the rate at the time and in the manner
properly required by the Commissioners of Customs and Excise.
23.2 The Developer or the Landlord will where such Value Added Tax is
paid by the Tenant forthwith deliver to the Tenant a receipted valid
Value Added Tax invoice therefor addressed to the Tenant
24 DEFAULT BY TENANT
24.1 If the Tenant shall fail materially to perform or observe any of
the agreements and stipulations herein contained or;
24.2 If the Tenant shall enter into liquidation (whether compulsory or
voluntary not being merely a voluntary liquidation for the purpose
of amalgamation or reconstruction while solvent) or pass a
resolution for winding up (save as aforesaid) or is unable to pay or
has no reasonable prospect of being able to pay its debts within the
meaning of Sections 122 and 123 of the Insolvency Act 1986 ("the
1986 Act") or summons a meeting of its creditors or any of them
under Part I of the 1986 Act or suffers a petition for an
Administration Order in respect of it to be granted in Court or
suffers a receiver or if the Tenant shall enter into composition
with their or his creditors or if an interim order or made under
Part VIII of the 1986 Act prior to the grant of the Lease; or
24.3 The Lease is not completed in accordance with Clause 15 hereof and
the Landlord being ready able and willing to complete shall serve
Fourteen days written notice on the Tenant making time of the
essence of this Agreement and the Tenant shall fail to complete the
Lease by the expiration of such notice
<PAGE>
notice on the Tenant shall be entitled to terminate this Agreement
forthwith but without prejudice to any other rights or remedies
available to it.
25 DEFAULT BY THE DEVELOPER
25.1 In the event that a substantial breach of the Developer's
obligations under this Agreement to procure the carrying out and
completion of the Developer's Works occurs which shall not have been
remedied by the Developer after receipt by the Developer of
reasonable notice to remedy the same or in the event of the
Developer being in respect to any of the matters referred to in
clause 24.2 hereof (mutatis mutandis) THEN the Tenant shall be
entitled to give notice in writing to the Landlord terminating this
agreement save that the Landlord shall have 30 Working Days from
date of receipt of such notice (time being of the essence) in which
to serve a written notice on the Tenant confirming that the
Landlord will take over the obligations on the part of the
Developer and complete the Developer's Works in accordance with the
terms of this Agreement and the Landlord confirms that if it serves
such a notice it will observe and perform all the obligations and
covenants on the part of the Developer contained in this Agreement
remaining to be performed as though all references to the Developer
in this Agreement were to the Landlord and such provisions
(including this clause 25) shall apply mutandis mutatis but if no
such notice is given by the Landlord to the Tenant then the Tenant
shall be entitled to terminate this Agreement by written notice to
the Developer but without prejudice in any way to any other rights
or remedies available to it
26 INTEREST
In the event that any of the parties default in making a payment of
any sums due to any other party hereunder under the terms of this
Agreement the defaulting party shall pay interest on any unpaid sums
at the rate of 4% per annum above the base rate of Lloyds Bank Plc
from time to time such interest to be calculated from the date on
which payment of any unpaid sum was due until the date of actual
payment.
<PAGE>
27 DEVELOPERS COVENANT
The Developer hereby covenants to indemnify the Tenant against the
sum payable under clause 21.3.1 of the Lease and to pay such sum to
the Tenant within seven days of written notification thereof by the
Tenant to the Developer Provided That the Tenant will forthwith upon
receipt from the Landlord of any demand for such payment notify the
Developer and supply to the Developer such information and
documentation as the Developer shall reasonably require to ascertain
that the contribution to costs are properly payable pursuant to the
terms of the Lease.
IN WITNESS of which the parties have signed this deed on the date set out
above
The COMMON SEAL of KINGSPARK DEVELOPMENTS LIMITED was affixed to this
deed, which was delivered when dated, in the presence of:
Director
Signature: /s/Colin Beasley
------------------------
Name: Colin Beasley
------------------------
Director/Secretary
Signature: /s/Greg Court
------------------------
Name: Greg Court
------------------------
<PAGE>
The COMMON SEAL of SIMPSON STRONG-TIE INTERNATIONAL INC was affixed to
this deed, which was delivered when dated, in the presence of:
Director
Signature: /s/Andris Peterson
------------------------
Name: Andris Peterson
------------------------
Director/Secretary
Signature: /s/Steve Lamson
------------------------
Name: Steve Lamson
------------------------
<PAGE>
The COMMON SEAL of THE ROYAL LONDON MUTUAL INSURANCE SOCIETY LIMITED was
affixed to this deed, which was delivered when dated, in the presence of:
Director
Signature: /s/M.J. Yardley
------------------------
Name: M.J. Yardley
------------------------
Director/Secretary
Signature: /s/M.J. Ross
------------------------
Name: M.J. Ross
------------------------
<PAGE>
ANNEXURES
---------
1 Building Contract Amendments
2 Drawings - Numbered: 59127M048D, 59127M049D
59127M050C, 59127M062A and
59127M072
3 Duty of Care Warranties
*Architect
*Building Contractor
*Structural Engineer
*Sub-Contractor
4 Guarantee
5 Lease and Drawing(s) 59127.M.072.A/59127.M.048.E and Extension
Specification
6 Specification
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
Primary Earnings per Share
Three Months Ended Nine Months Ended
September 30, September 30,
1997 1996 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Weighted average number of
common shares outstanding 11,475,850 11,436,426 11,464,393 11,418,249
Shares issuable pursuant to
employee stock option plans,
less shares assumed repurchased
at the average fair value
during the period 530,793 355,661 477,104 305,885
Shares issuable pursuant to the
independent director stock
option plan, less shares assumed
repurchased at the average fair
value during the period 5,879 3,975 5,178 3,362
------------ ------------ ------------ ------------
Number of shares for computation
of primary net income per share 12,012,522 11,796,062 11,946,675 11,727,496
============ ============ ============ ============
Net income $ 8,188,215 $ 6,392,770 $ 19,966,481 $ 14,823,123
============ ============ ============ ============
Primary net income per share $ 0.68 $ 0.54 $ 1.67 $ 1.26
============ ============ ============ ============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
Fully Diluted Earnings per Share
Three Months Ended Nine Months Ended
September 30, September 30,
1997 1996 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Weighted average number of
common shares outstanding 11,475,850 11,436,426 11,464,393 11,418,249
Shares issuable pursuant to
employee stock option plans,
less shares assumed repurchased
at the end of period fair value 578,772 358,029 584,484 366,483
Shares issuable pursuant to the
independent director stock option
plan, less shares assumed
repurchased at the end of period
fair value 6,544 4,000 6,642 4,000
------------ ------------ ------------ ------------
Number of shares for computation
of fully diluted net income per
share 12,061,166 11,798,455 12,055,519 11,788,732
============ ============ ============ ============
Net income $ 8,188,215 $ 6,392,770 $ 19,966,481 $ 14,823,123
============ ============ ============ ============
Fully diluted net income per share $ 0.68 $ 0.54 $ 1.66 $ 1.26
============ ============ ============ ============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Balance Sheet at September 30, 1997, (Unaudited)
and the Condensed Consolidated Statement of Operations for the nine
months ended September 30, 1997, (Unaudited) and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 15,336,889
<SECURITIES> 0
<RECEIVABLES> 38,189,407
<ALLOWANCES> 1,917,008
<INVENTORY> 54,342,293
<CURRENT-ASSETS> 110,469,652
<PP&E> 78,296,542
<DEPRECIATION> 40,937,929
<TOTAL-ASSETS> 151,635,998
<CURRENT-LIABILITIES> 27,939,554
<BONDS> 0
0
0
<COMMON> 32,044,605
<OTHER-SE> 90,746,656
<TOTAL-LIABILITY-AND-EQUITY> 151,635,998
<SALES> 186,306,707
<TOTAL-REVENUES> 186,306,707
<CGS> 112,200,433
<TOTAL-COSTS> 112,200,433
<OTHER-EXPENSES> 40,727,025
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0<F1>
<INCOME-PRETAX> 33,627,482
<INCOME-TAX> 13,661,001
<INCOME-CONTINUING> 19,966,481
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 19,966,481
<EPS-PRIMARY> 1.67
<EPS-DILUTED> 1.66
<FN>
<F1>Interest income for the nine months ended September 30, 1997,
was $248,233.
</FN>
</TABLE>
