>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly period ended: March 31, 2000
--------------
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)
Delaware 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): (925)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
March 31, 2000: 12,025,423
----------
<PAGE>
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31,
----------------------------
(Unaudited) December 31,
2000 1999 1999
------------ ------------ ------------
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 45,551,211 $ 33,642,222 $ 54,509,610
Trade accounts receivable, net 52,893,480 44,724,610 42,420,223
Inventories 78,380,347 59,564,149 72,751,245
Deferred income taxes 5,102,306 4,046,027 4,745,534
Other current assets 2,156,309 1,713,334 1,323,215
------------ ------------ ------------
Total current assets 184,083,653 143,690,342 175,749,827
Property, plant and equipment, net 60,662,207 56,557,645 61,143,524
Investments 363,646 514,155 374,455
Other noncurrent assets 12,255,670 3,048,198 9,986,187
------------ ------------ ------------
Total assets $257,365,176 $203,810,340 $247,253,993
============ ============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Notes payable and current
portion of long-term debt $ 487,549 $ 327,477 $ 349,541
Trade accounts payable 10,192,763 12,371,463 12,780,621
Accrued liabilities 7,436,206 5,223,706 7,819,155
Income taxes payable 7,482,869 5,356,866 3,362,254
Accrued profit sharing
trust contributions 1,135,525 4,128,707 3,504,286
Accrued cash profit sharing
and commissions 4,808,670 3,732,724 4,531,861
Accrued workers' compensation 1,445,764 879,272 1,345,764
------------ ------------ ------------
Total current liabilities 32,989,346 32,020,215 33,693,482
Long-term debt, net of current portion 2,398,651 2,557,020 2,414,562
Deferred income taxes and long-term
liabilities 423,932 434,607 556,783
------------ ------------ ------------
Total liabilities 35,811,929 35,011,842 36,664,827
------------ ------------ ------------
Minority interest in consolidated
subsidiaries 1,804,040 - -
------------ ------------ ------------
Commitments and contingencies (Notes 5 and 6)
Stockholders' equity
Common stock 44,901,418 33,871,198 44,716,488
Retained earnings 175,733,364 135,638,611 166,457,600
Accumulated other comprehensive income (885,575) (711,311) (584,922)
------------ ------------ ------------
Total stockholders' equity 219,749,207 168,798,498 210,589,166
------------ ------------ ------------
Total liabilities and
stockholders' equity $257,365,176 $203,810,340 $247,253,993
============ ============ ============
</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
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Net sales $ 84,615,539 $ 74,661,590
Cost of sales 50,800,161 46,212,976
------------ ------------
Gross profit 33,815,378 28,448,614
------------ ------------
Operating expenses:
Selling 8,553,122 7,897,807
General and administrative 10,648,327 8,121,761
------------ ------------
19,201,449 16,019,568
------------ ------------
Income from operations 14,613,929 12,429,046
Interest income, net 643,875 348,357
------------ ------------
Income before income taxes 15,257,804 12,777,403
Provision for income taxes 6,178,000 5,129,000
Minority interest (195,960) -
------------ ------------
Net income $ 9,275,764 $ 7,648,403
============ ============
Net income per common share
Basic $ 0.77 $ 0.66
Diluted $ 0.76 $ 0.63
Number of shares outstanding
Basic 12,020,446 11,580,828
Diluted 12,277,453 12,093,225
</TABLE>
Simpson Manufacturing Co., Inc. and Subsidiaries
Condensed Consolidated Statements of Comprehensive Income
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Net income $ 9,275,764 $ 7,648,403
Other comprehensive income, net of tax:
Foreign currency translation adjustments (300,653) (279,621)
------------ ------------
Comprehensive income $ 8,975,111 $ 7,368,782
============ ============
</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>
Three Months Ended
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Cash flows from operating activities
Net income $ 9,275,764 $ 7,648,403
------------ ------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Gain on sale of capital equipment (1,700) (20,219)
Depreciation and amortization 3,248,640 2,540,621
Minority interest (195,960) -
Deferred income taxes and long-term liabilities (480,718) (392,970)
Changes in operating assets and liabilities,
net of effects of acquisitions:
Trade accounts receivable (10,571,756) (10,824,803)
Inventories (5,721,118) (3,281,486)
Trade accounts payable (2,519,618) 610,226
Income taxes payable 4,179,992 3,959,444
Accrued profit sharing trust contributions (2,367,051) 955,345
Accrued cash profit sharing and commissions 276,818 (287,082)
Other current assets (868,559) (430,522)
Accrued liabilities (356,846) (367,586)
Accrued workers' compensation 100,000 -
Other noncurrent assets (623,264) 57,966
------------ ------------
Total adjustments (15,901,140) (7,481,066)
------------ ------------
Net cash provided by (used in)
operating activities (6,625,376) 167,337
------------ ------------
Cash flows from investing activities
Capital expenditures (2,548,553) (4,064,037)
Asset acquisitions, net of cash acquired (54,698) -
Proceeds from sale of equipment 8,376 68,467
------------ ------------
Net cash used in investing activities (2,594,875) (3,995,570)
------------ ------------
Cash flows from financing activities
Issuance of debt 149,785 -
Repayment of debt (15,551) (11,389)
Issuance of common stock 127,618 79,394
------------ ------------
Net cash provided by financing activities 261,852 68,005
------------ ------------
Net decrease in cash and cash equivalents (8,958,399) (3,760,228)
Cash and cash equivalents at beginning of period 54,509,610 37,402,450
------------ ------------
Cash and cash equivalents at end of period $ 45,551,211 $ 33,642,222
============ ============
</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") 1999 Annual Report on
Form 10-K (the "1999 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
Basic 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 diluted per-share
calculations for all periods when the effect of their inclusion is
dilutive.
The following is a reconciliation of basic earnings per share ("EPS") to
diluted EPS:
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
March 31, 2000 March 31, 1999
---------------------------------- ----------------------------------
Per Per
Income Shares Share Income Shares Share
------------ ------------ ------ ------------ ------------ ------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS
Income available to
common stockholders $ 9,275,764 12,020,446 $ 0.77 $ 7,648,403 11,580,828 $ 0.66
Effect of Dilutive Securities
Stock options - 257,007 (0.01) - 512,397 (0.03)
------------ ------------ ------ ------------ ------------ ------
Diluted EPS
Income available to
common stockholders $ 9,275,764 12,277,453 $ 0.76 $ 7,648,403 12,093,225 $ 0.63
============ ============ ====== ============ ============ ======
</TABLE>
<PAGE>
2. Trade Accounts Receivable
Trade accounts receivable consist of the following:
<TABLE>
<CAPTION>
At March 31,
----------------------------
(Unaudited) At December 31,
2000 1999 1999
------------ ------------ ------------
<S> <C> <C> <C>
Trade accounts receivable $ 54,461,542 $ 46,501,014 $ 43,952,137
Allowance for doubtful accounts (1,088,601) (1,326,334) (1,203,147)
Allowance for sales discounts (479,461) (450,070) (328,767)
------------ ------------ ------------
$ 52,893,480 $ 44,724,610 $ 42,420,223
============ ============ ============
</TABLE>
3. Inventories
The components of inventories consist of the following:
<TABLE>
<CAPTION>
At March 31,
----------------------------
(Unaudited) At December 31,
2000 1999 1999
------------ ------------ ------------
<S> <C> <C> <C>
Raw materials $ 24,432,755 $ 19,372,470 $ 22,816,584
In-process products 8,664,328 5,256,131 7,593,038
Finished products 45,283,264 34,935,548 42,341,623
------------ ------------ ------------
$ 78,380,347 $ 59,564,149 $ 72,751,245
============ ============ ============
</TABLE>
Approximately 88% 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 LIFO and are subject to
adjustment based upon final year-end inventory amounts. At March 31, 2000,
and December 31, 1999, LIFO cost exceeded the replacement value of LIFO
inventories by approximately $1,482,000 and $1,503,000, respectively. At
March 31, 1999, the replacement value of LIFO inventories exceeded LIFO
cost by approximately $284,000.
<PAGE>
4. Net Property, Plant and Equipment
Net property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
At March 31,
----------------------------
(Unaudited) At December 31,
2000 1999 1999
------------ ------------ ------------
<S> <C> <C> <C>
Land $ 4,311,743 $ 3,891,519 $ 4,316,015
Buildings and site improvements 26,715,204 25,675,093 26,724,935
Leasehold improvements 3,938,741 3,448,358 3,942,613
Machinery and equipment 81,968,262 67,015,178 81,147,265
------------ ------------ ------------
116,933,950 100,030,148 116,130,828
Less accumulated depreciation
and amortization (61,783,333) (51,851,356) (58,949,908)
------------ ------------ ------------
55,150,617 48,178,792 57,180,920
Capital projects in progress 5,511,590 8,378,853 3,962,604
------------ ------------ ------------
$ 60,662,207 $ 56,557,645 $ 61,143,524
============ ============ ============
</TABLE>
5. Debt
Outstanding debt at March 31, 2000 and 1999, and December 31, 1999, and
the available credit at March 31, 2000, consisted of the following:
<TABLE>
<CAPTION>
Debt Outstanding
Available --------------------------------------------
Credit at at March 31, at
March 31, ---------------------------- December 31,
2000 2000 1999 1999
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revolving line of credit, interest
at bank's reference rate (at March
31, 2000, the bank's reference rate
was 9.00%), expires June 2000 $ 12,466,545 $ - $ - $ -
Revolving term commitment, interest
at bank's prime rate (at March 31,
2000, the bank's prime rate was
9.00%), expires June 2000 8,616,628 - - -
Revolving line of credit, interest
rate at the bank's base rate of
interest plus 2%, expires July 2000 398,979 - - -
Term loan, fixed interest rate
of 5.3%, expires September 2006 - 148,651 - 164,562
Standby letter of credit facilities 1,916,828 - - -
Term loan, interest at LIBOR plus
1.375% (at March 31, 2000, LIBOR
plus 1.375% was 7.2938%), expires
May 2008 - 2,550,000 2,850,000 2,550,000
Other notes payable and long-term debt - 187,549 34,497 49,541
------------ ------------ ------------ ------------
23,398,980 2,886,200 2,884,497 2,764,103
Less current portion - (487,549) (327,477) (349,541)
------------ ------------ ------------ ------------
23,398,980 $ 2,398,651 $ 2,557,020 $ 2,414,562
============ ============ ============
Standby letters of credit issued
and outstanding (1,916,828)
------------
$ 21,482,152
============
</TABLE>
<PAGE>
As of March 31, 2000, the Company had three outstanding standby letters of
credit. Two of these letters of credit, in the aggregate amount of
$1,166,748, are used to support the Company's self-insured workers'
compensation insurance requirements. These letters of credit were
increased to an aggregate amount of $1,710,324 in April 2000. The third,
in the amount of $750,080, is used to guarantee performance on the
Company's leased facility in the United Kingdom. Other notes payable
represent debt associated with foreign businesses.
6. Commitments and Contingencies
Note 9 to the consolidated financial statements in the Company's 1999
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.
7. Segment Information
The Company is organized into two primary segments. The segments are
defined by types of products manufactured, marketed and distributed to the
Company's customers. The two product segments are connector products and
venting products. These segments are differentiated in several ways,
including the types of materials used, the production process, the
distribution channels used and the applications in which the products are
used. Transactions between the two segments were immaterial for each of
the periods presented.
The following table illustrates certain measurements used by management to
assess the performance of the segments described above as of or for the
three months ended:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Net Sales
Connector products $ 69,515,000 $ 59,839,000
Venting products 15,101,000 14,823,000
------------ ------------
Total $ 84,616,000 $ 74,662,000
============ ============
Income from Operations
Connector products $ 12,602,000 $ 10,276,000
Venting products 2,081,000 2,132,000
All other (69,000) 21,000
------------ ------------
Total $ 14,614,000 $ 12,429,000
============ ============
At March 31,
----------------------------
2000 1999
------------ ------------
Total Assets
Connector products $166,045,000 $128,957,000
Venting products 42,462,000 37,147,000
All other 48,858,000 37,706,000
------------ ------------
Total $257,365,000 $203,810,000
============ ============
</TABLE>
Cash collected by the Company's subsidiaries is routinely transferred into
the Company's cash management accounts and, therefore, has been included
in the total assets of the segment entitled "All other." Cash and cash
equivalent balances in this segment were approximately $41,172,000 and
$32,573,000 as of March 31, 2000 and 1999, respectively.
<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 months
ended March 31, 2000 and 1999. 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 March 31, 2000, Compared
with the Three Months Ended March 31, 1999
Net sales increased 13.3% in the first quarter of 2000 as compared to the
first quarter of 1999. Most of the sales growth occurred domestically,
particularly in California. International sales also contributed to the
increase, due in large part to the acquisition of Furfix Products Limited
in the third quarter of 1999. Simpson Strong-Tie's first quarter sales
increased 16.2% over the same quarter last year, while Simpson Dura-Vent's
sales increased 1.9%. Contractor distributors were the fastest growing
connector sales channel. The sales increase was broad based across most of
Simpson Strong-Tie's major product lines. The Strong-Wall and Anchoring
Systems products had the highest growth rates in sales. Sales of Simpson
Dura-Vent's Direct-Vent and chimney product lines increased compared to
the first quarter of 1999, while its other product lines declined slightly
relative to the first quarter of 1999.
Income from operations increased 17.6% from $12,429,046 in the first
quarter of 1999 to $14,613,929 in the first quarter of 2000 as a result of
higher sales and gross margins. Gross margins increased from 38.1% in the
first quarter of 1999 to 40.0% in the first quarter of 2000 primarily due
to better absorption of fixed overhead costs as a result of the increased
production. Selling expenses increased 8.3% from $7,897,807 in the first
quarter of 1999 to $8,553,122 in the first quarter of 2000. The increase
was primarily due to higher personnel costs, particularly those associated
with the increase in the number of sales and merchandising personnel.
General and administrative expenses increased 31.1% from $8,121,761 in the
first quarter of 1999 to $10,648,327 in the first quarter of 2000
primarily due to increased cash profit sharing resulting from higher
operating income, and higher personnel and other administrative overhead
costs, including those associated with the operation of Keybuilder.com,
LLC ("Keybuilder.com"). Keybuilder.com is a joint venture 60% owned by the
Company and 40% owned by Keymark Enterprises, Inc. ("Keymark"), a software
developer based in Boulder, Colorado. The effective tax rate was 40.0%,
after adding back the minority interest to income before income taxes, in
the first quarter of 2000, a slight decrease from 40.1% in the first
quarter of 1999.
A large homebuilder has signed a letter of intent to investigate the
feasibility of investing in Keybuilder.com. Keybuilder.com was formed
to develop and market precise residential construction information
accessible over the internet by architects, engineers, building material
suppliers, and subcontractors. The Company has consolidated
Keybuilder.com's losses for the quarter ended March 31, 2000,
in its financial statements, net of Keymark's minority interest.
Liquidity and Sources of Capital
As of March 31, 2000, working capital was $151.1 million as compared to
$111.7 million at March 31, 1999, and $142.1 million at December 31, 1999.
The principal components of the increase in working capital from December
31, 1999, were increases in the Company's trade accounts receivable and
inventories totaling approximately $16.1 million, primarily due to higher
sales levels and seasonal buying programs. In addition, trade accounts
payable and accrued profit sharing trust contributions, primarily due to
an early payment of the Company's 1999 trust obligation, decreased by an
aggregate of approximately $5.0 million. Offsetting these increases was an
increase in income taxes payable of approximately $4.1 million. The
balance of the change in working capital was due to the fluctuation of
various other asset and liability accounts. The working capital change and
changes in noncurrent assets and liabilities combined with net income and
noncash expenses, primarily depreciation and amortization, totaling
approximately $12.5 million, resulted in net cash used in operating
activities of approximately $6.6 million. As of March 31, 2000, the
Company had unused credit facilities available of approximately $21.5
million.
The Company used approximately $2.6 million in its investing activities,
primarily to purchase the capital equipment and property needed to expand
its capacity. The Company plans to continue this expansion throughout the
remainder of the year and into 2001.
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 2000 and into 2001. Depending on the Company's future
growth, it may become necessary to secure additional sources of financing.
The Company believes that the effect of inflation on the Company has not
been material in recent years, as inflation rates have remained relatively
low.
<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 Office Building Lease, dated April 21, 2000, between
Koll Dublin Corporate Center, L.P., a Delaware limited
partnership, and Simpson Manufacturing Co., Inc., a
Delaware corporation.
10.2 Operating Agreement for Keybuilder.com, LLC, a
California limited liability company, dated March 6,
2000.
11. Statements re computation of earnings per share
b. Reports on Form 8-K
No reports on Form 8-K were filed during the quarter for
which this report is filed.
</TABLE>
<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: MAY 15, 2000 By: /s/Stephen B. Lamson
------------ -------------------------------
Stephen B. Lamson
Chief Financial Officer
Exhibit 10.1
------------
OFFICE BUILDING LEASE
BETWEEN
KOLL DUBLIN CORPORATE CENTER, L.P.,
A DELAWARE LIMITED PARTNERSHIP
LANDLORD
AND
SIMPSON MANUFACTURING CO., INC.,
A DELAWARE CORPORATION
TENANT
<PAGE>
TABLE OF CONTENTS
1. BASIC LEASE TERMS....................................................1
2. PREMISES AND COMMON AREAS............................................3
3. TERM.................................................................3
4. POSSESSION...........................................................3
5. RENT.................................................................4
6. OPERATING EXPENSES...................................................4
7. SECURITY DEPOSIT.....................................................5
8. USE..................................................................6
9. NOTICES..............................................................7
10. BROKERS..............................................................7
11. SURRENDER; HOLDING OVER..............................................7
12. TAXES ON TENANT'S PROPERTY...........................................7
13. ALTERATIONS..........................................................8
14. REPAIRS..............................................................9
15. LIENS...............................................................10
16. ENTRY BY LANDLORD...................................................10
17. UTILITIES AND SERVICES..............................................10
18. ASSUMPTION OF RISK AND INDEMNIFICATION..............................11
19. INSURANCE...........................................................11
20. DAMAGE OR DESTRUCTION...............................................13
21. EMINENT DOMAIN......................................................14
22. DEFAULTS AND REMEDIES...............................................14
23. LANDLORD'S DEFAULT..................................................16
24. ASSIGNMENT AND SUBLETTING...........................................16
25. SUBORDINATION.......................................................18
26. ESTOPPEL CERTIFICATE................................................19
27. BUILDING PLANNING...................................................19
28. RULES AND REGULATIONS...............................................19
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS...20
30. DEFINITION OF LANDLORD..............................................20
31. WAIVER..............................................................20
32. PARKING.............................................................20
33. FORCE MAJEURE.......................................................21
34. SIGNS...............................................................21
35. LIMITATION ON LIABILITY.............................................22
36. FINANCIAL STATEMENTS................................................22
37. QUIET ENJOYMENT.....................................................22
38. MISCELLANEOUS.......................................................22
39. EXECUTION OF LEASE..................................................23
40. UNION LABOR.........................................................24
41. OPTION TERM.........................................................24
42. SECURITY MEASURES...................................................25
43. NON-DISTURBANCE AGREEMENT...........................................25
<PAGE>
EXHIBITS:
A-I Site Plan
A-II Outline of Floor Plan of Premises
B Rentable Square Feet
C Work Letter Agreement
D Notice of Lease Term Dates and Tenant's Percentage
E Definition of Operating Expenses
F Standards for Utilities and Services
G Estoppel Certificate
H Rules and Regulations
<PAGE>
OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE ("Lease") is entered into as of April 21,
2000 by and between KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware
limited partnership ("Landlord"), and SIMPSON MANUFACTURING CO., INC., a
Delaware corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms
have the following definitions and meanings:
(a) Landlord: KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited
partnership.
(b) Landlord's Address (For Notices):
4125 Blackhawk Plaza Circle, Suite 200
Danville, CA 94506
Attention: Michael G. Parker
or such other place as Landlord may from time to time designate by
notice to Tenant.
(c) Tenant: SIMPSON MANUFACTURING CO., INC., a Delaware corporation.
(d) Tenant's Address (For Notices): Before the Commencement Date:
4637 Chabot Drive, Suite 200
Pleasanton, CA 94588
Attention: Stephen B. Lamson
and after the Commencement Date, to the Premises, Attention: Stephen B.
Lamson, or such other place as Tenant may from time to time designate by
notice to Landlord.
(e) Development: The parcel(s) of real property commonly known as the
Koll Dublin Corporate Center and located in the City of Dublin (the
"City"), County of Alameda (the "County"), State of California
("State"), as shown on the site plan attached hereto as Exhibit "A-I".
(f) Building: A four-story office building located within the
Development, which Building contains approximately 138,136 Rentable
Square Feet (subject to adjustment as provided in Exhibit "B"), with the
street address of 4120 Dublin Boulevard, Dublin, California.
(g) Premises: Those certain premises consisting of the entire 4th
floor of the Building, as generally shown on the floor plan(s) attached
hereto as Exhibit "A-II", which Premises contain approximately 35,424
Rentable Square Feet and 31,521 Usable Square Feet (subject to
adjustment as provided in Exhibit "B" and Exhibit "D").
(h) Tenant's Percentage: Tenant's percentage of the Building on a
Rentable Square Foot basis, which initially is 25.64%, subject to final
determination as provided in Exhibit "B" and Exhibit "D".
(i) Term: Seven (7) Lease Years and -0- Months.
(j) Estimated Commencement Date: November 1, 2000.
Estimated Expiration Date: October 31, 2007.
(k) Commencement Date: The date on which the Term of this Lease will
commence as determined in accordance with the provisions of Exhibit "C"
and as stated on Exhibit "D".
(l) Initial Monthly Base Rent: $2.50 per Rentable Square Foot, subject
to adjustment as provided in Subparagraph 1(m) below and as otherwise
provided in this Lease.
(m) Adjustment to Monthly Base Rent: Monthly Base Rent will be
adjusted in accordance with the following:
LEASE MONTHS MONTHLY BASE RENT
31-60 $2.60 per Rentable Square Foot
61-84 $2.75 per Rentable Square Foot
(n) Operating Expense Allowance: Operating Expense Allowance means
that portion of Tenant's Percentage of Operating Expenses as described
in Paragraph 6 below which Landlord has included in Monthly Base Rent,
<PAGE>
which, for purposes of this Lease, will be an amount equal to $7.65 per
Rentable Square Foot per year.
(o) Security Deposit: -0-.
(p) Tenant Improvements: All tenant improvements installed or to be
installed by Landlord or Tenant within the Premises to prepare the
Premises for occupancy pursuant to the terms of the Work Letter
Agreement attached hereto as Exhibit "C".
(q) Tenant Improvement Allowance: $25.75 per Rentable Square Foot of
the Premises, to be applied as provided in the Work Letter Agreement
attached hereto as Exhibit "C".
(r) Permitted Use: General office space.
(s) Initial After-Hours Charge: $50.00 per zone per hour for after-
hours HVAC use. (Landlord represents to Tenant that Tenant will not be
charged for any zone that services any tenant space other than the
Premises.)
(t) Parking: 141 unreserved employee parking spaces, initially at no
charge, but subject to Landlord's establishing a standard parking rate
at any time or from time to time, subject to the terms and conditions of
Paragraph 32 below and the Rules and Regulations regarding parking
contained in Exhibit "H".
(u) Broker(s): Cornish & Carey, CB Richard Ellis.
(v) Guarantor(s): N/A.
(w) Interest Rate: shall mean the greater of ten percent (10%) per
annum or two percent (2%) in excess of the prime lending or reference
rate of Wells Fargo Bank N.A. or any successor bank in effect on the
twenty-fifth (25th) day of the calendar month immediately prior to the
event giving rise to the Interest Rate imposition; provided, however,
the Interest Rate will in no event exceed the maximum interest rate
permitted to be charged by applicable law.
(x) Exhibits: A through H, inclusive, which Exhibits are attached to
this Lease and incorporated herein by this reference. As provided in
Paragraph 3 below, a completed version of Exhibit "D" will be delivered
to Tenant after Landlord delivers possession of the Premises to Tenant.
(y) Addendum Paragraphs: 41 through 44, inclusive, which Addendum
Paragraphs are attached to this Lease and incorporated herein by this
reference.
This Paragraph 1 represents a summary of the basic terms and definitions
of this Lease. In the event of any inconsistency between the terms
contained in this Paragraph 1 and any specific provision of this Lease,
the terms of the more specific provision shall prevail.
<PAGE>
2. PREMISES AND COMMON AREAS.
(a) Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Premises as improved or to be improved with the
Tenant Improvements described in the Work Letter Agreement, a copy of
which is attached hereto as Exhibit "C".
(b) Mutual Covenants. Landlord and Tenant agree that the letting and
hiring of the Premises is upon and subject to the terms, covenants and
conditions contained in this Lease and each party covenants as a
material part of the consideration for this Lease to keep and perform
their respective obligations under this Lease.
(c) Tenant's Use of Common Areas. During the Term of this Lease,
Tenant shall have the nonexclusive right to use in common with Landlord
and all persons, firms and corporations conducting business in the
Development and their respective customers, guests, licensees, invitees,
subtenants, employees and agents (collectively, "Development
Occupants"), subject to the terms of this Lease, the Rules and
Regulations referenced in Paragraph 32 below and all covenants,
conditions and restrictions now or hereafter affecting the Development,
the following common areas of the Building and/or the Development
(collectively, the "Common Areas"):
(i) The Building's common entrances, hallways, lobbies, public
restrooms on multi-tenant floors, elevators, stairways and
accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and the common pipes,
conduits, wires and appurtenant equipment within the Building
which serve the Premises (collectively, "Building Common
Areas"); and
(ii) The parking facilities of the Development which serve the
Building (subject to the provisions of Exhibit "H"), loading
and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, landscaped areas, plaza areas,
fountains and similar areas and facilities situated within the
Development and appurtenant to the Building which are not
reserved for the exclusive use of any Development Occupants
(collectively, "Development Common Areas").
(d) Landlord's Reservation of Rights. Provided Tenant's use of and
access to the Premises and parking to be provided to Tenant under this
Lease is not interfered with in an unreasonable manner, Landlord
reserves for itself and for all other owner(s) and operator(s) of the
Development Common Areas and the balance of the Development, the right
from time to time to: (i) install, use, maintain, repair, replace and
relocate pipes, ducts, conduits, wires and appurtenant meters and
equipment above the ceiling surfaces, below the floor surfaces, within
the walls and in the central core areas of the Building; (ii) make
changes to the design and layout of the Development, including, without
limitation, changes to buildings, driveways, entrances, loading and
unloading areas, direction of traffic, landscaped areas and walkways,
and, subject to the parking provisions contained in Paragraph 32 and
Exhibit "H", parking spaces and parking areas; and (iii) use or close
temporarily the Building Common Areas, the Development Common Areas
and/or other portions of the Development while engaged in making
improvements, repairs or alterations to the Building, the Development,
or any portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period
designated in Subparagraph 1(i), commencing on the Commencement Date,
and ending on the last day of the month in which the expiration of such
period occurs, including any extensions of the Term pursuant to any
provision of this Lease or written agreement of the parties. Each
consecutive twelve (12) month period of the Term of this Lease,
commencing on the Commencement Date, will be referred to herein as a
"Lease Year". Landlord's Notice of Lease Term Dates and Tenant's
Percentage ("Notice"), in the form of Exhibit "D" attached hereto, will
set forth the Commencement Date, the date upon which the Term of this
Lease shall end, the Rentable Square Feet within the Premises and the
Building, and Tenant's Percentage and will be delivered to Tenant after
Landlord delivers possession of the Premises to Tenant. The Notice will
be binding upon Tenant unless Tenant objects to the Notice in writing
within five (5) days of Tenant's receipt of the Notice.
4. POSSESSION.
(a) Delivery of Possession. Landlord agrees to deliver possession of
the Premises to Tenant in accordance with the terms of the Work Letter
Agreement attached hereto as Exhibit "C", or, if no Work Letter
Agreement is required for this Lease, then Landlord agrees to deliver
possession of the Premises to Tenant on the Commencement Date.
Notwithstanding the foregoing, Landlord will not be obligated to deliver
possession of the Premises to Tenant (but Tenant will be liable for rent
if Landlord can otherwise deliver the Premises to Tenant) until Landlord
has received from Tenant all of the following: (i) a copy of this Lease
fully executed by Tenant and the guaranty of Tenant's obligations under
this Lease, if any, executed by the Guarantor(s); (ii) the Security
Deposit and the first installment of Monthly Base Rent; (iii) executed
copies of policies of insurance or certificates thereof as required
under Paragraph 19 of this Lease; (iv) copies of all governmental
permits and authorizations, if any, required in connection with Tenant's
operation of its business within the Premises; and (v) if Tenant is a
corporation or partnership, such evidence of due formation, valid
existence and authority as Landlord may reasonably require, which may
include, without limitation, a certificate of good standing, certificate
of secretary, articles of incorporation, statement of partnership, or
other similar documentation.
(b) Condition of Premises. Prior to the Commencement Date and in
accordance with the Work Letter Agreement attached hereto as Exhibit
<PAGE>
"C", Landlord and Tenant will jointly conduct a walk-through inspection
of the Premises and will jointly prepare a punch-list ("Punch-List") of
items required to be installed by Landlord under the Work Letter
Agreement which require finishing or correction. The Punch-List will
not include any items of damage to the Premises caused by Tenant's move-
in or early entry, if permitted, which damage will be corrected or
repaired by Landlord, at Tenant's expense or, at Landlord's election, by
Tenant, at Tenant's expense. Other than the items specified in the
Punch-List, by taking possession of the Premises, Tenant will be deemed
to have accepted the Premises in its condition on the date of delivery
of possession and to have acknowledged that the Tenant Improvements have
been installed as required by the Work Letter Agreement and that there
are no additional items needing work or repair. Landlord will cause all
items in the Punch-List to be repaired or corrected within thirty (30)
days following the preparation of the Punch-List or as soon as
practicable after the preparation of the Punch-List. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made
any representation or warranty with respect to the Premises, the
Building, the Development or any portions thereof or with respect to the
suitability of same for the conduct of Tenant's business and Tenant
further acknowledges that Landlord will have no obligation to construct
or complete any additional buildings or improvements within the
Development. Notwithstanding the foregoing, Landlord warrants to Tenant
that on the Commencement Date, the Premises and the Building (including
all structural, mechanical, electrical and systems, roof, common areas
and restrooms and the parking area for the Building) shall be in good
working condition and shall comply with all applicable requirements of
building codes, California accessibility codes and the Americans with
Disabilities Act [42 U.S.C. sec. 12101 et seq.] (the "ADA") as in effect on
the Commencement Date (the "Building Warranty"). The Building Warranty
shall not apply to any improvements or alterations made by or at the
request of Tenant, except as specifically set forth in the Work Letter
Agreement. If the Premises do not comply with the Building Warranty,
promptly after Landlord's receipt of written notice from Tenant given
within six (6) months after the Commencement Date specifying in detail
the nature and extent of such non-compliance, Landlord, at Landlord's
sole cost and expense, shall take such action as is reasonably necessary
to remedy such non-compliance.
5. RENT.
(a) Monthly Base Rent. Tenant agrees to pay Landlord the Monthly Base
Rent for the Premises (subject to adjustment as hereinafter provided) in
advance on the first day of each calendar month during the Term without
prior notice or demand, except that Tenant agrees to pay the Monthly
Base Rent for the first month of the Term directly to Landlord
concurrently with Tenant's delivery of the executed Lease to Landlord.
If the Term of this Lease commences or ends on a day other than the
first day of a calendar month, then the rent for such period will be
prorated in the proportion that the number of days this Lease is in
effect during such period bears to the number of days in such month.
All rent must be paid to Landlord, without any deduction or offset, in
lawful money of the United States of America, at the address designated
by Landlord or to such other person or at such other place as Landlord
may from time to time designate in writing. Monthly Base Rent will be
adjusted during the Term of this Lease as provided in Subparagraph l(m).
(b) Additional Rent. All amounts and charges to be paid by Tenant
hereunder, including, without limitation, payments for Operating
Expenses, insurance, repairs and parking, will be considered additional
rent for purposes of this Lease, and the word "rent" as used in this
Lease will include all such additional rent unless the context
specifically or clearly implies that only Monthly Base Rent is intended.
(c) Late Payments. Late payments of Monthly Base Rent and/or any item
of additional rent will be subject to interest and a late charge as
provided in Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) Operating Expenses. In addition to Monthly Base Rent, throughout
the Term of this Lease, Tenant agrees to pay Landlord as additional rent
in accordance with the terms of this Paragraph 6, Tenant's Percentage of
Operating Expenses as defined in Exhibit "E" attached hereto to the
extent Tenant's Percentage of Operating Expenses exceeds Tenant's
Operating Expense Allowance.
(b) Estimate Statement. Prior to the Commencement Date and on or about
March 1st of each subsequent calendar year during the Term of this
Lease, Landlord will endeavor to deliver to Tenant a statement
("Estimate Statement") wherein Landlord will estimate both the Operating
Expenses and Tenant's Percentage of Operating Expenses for the then
current calendar year. If the estimate of Tenant's Percentage of
Operating Expenses in the Estimate Statement exceeds Tenant's Operating
Expense Allowance, Tenant agrees to pay Landlord, as "Additional Rent",
one-twelfth (1/12th) of such excess each month thereafter, beginning
with the next installment of rent due, until such time as Landlord
issues a revised Estimate Statement or the Estimate Statement for the
succeeding calendar year; except that, concurrently with the regular
monthly rent payment next due following the receipt of each such
Estimate Statement, Tenant agrees to pay Landlord an amount equal to one
monthly installment of such excess (less any applicable Operating
Expenses already paid) multiplied by the number of months from January,
in the current calendar year, to the month of such rent payment next
due, all months inclusive. If at any time during the Term of this
Lease, but not more often than quarterly, Landlord reasonably determines
that Tenant's Percentage of Operating Expenses for the current calendar
year will be greater than the amount set forth in the then current
Estimate Statement, Landlord may issue a revised Estimate Statement and
Tenant agrees to pay Landlord, within ten (10) days of receipt of the
revised Estimate Statement, the difference between the amount owed by
Tenant under such revised Estimate Statement and the amount owed by
Tenant under the original Estimate Statement for the portion of the then
current calendar year which has expired. Thereafter Tenant agrees to
pay Tenant's Percentage of Operating Expenses based on such revised
<PAGE>
Estimate Statement until Tenant receives the next calendar year's
Estimate Statement or a new revised Estimate Statement for the current
calendar year. In the event Tenant's Percentage of Operating Expenses
for any calendar year is less than Tenant's Operating Expense Allowance,
Tenant will not be entitled to a credit against any rent, additional
rent or Tenant's Percentage of future Operating Expenses payable
hereunder.
(c) Actual Statement. By March 1st of each calendar year during the
Term of this Lease (commencing March 1 in the calendar year following
the base year for Operating Expenses, if applicable), Landlord will also
endeavor to deliver to Tenant a statement ("Actual Statement") which
states the actual Operating Expenses for the preceding calendar year.
If the Actual Statement reveals that Tenant's Percentage of the actual
Operating Expenses is more than the total Additional Rent paid by Tenant
for Operating Expenses on account of the preceding calendar year, Tenant
agrees to pay Landlord the difference in a lump sum within ten (10) days
of receipt of the Actual Statement. If the Actual Statement reveals
that Tenant's Percentage of the actual Operating Expenses is less than
the Additional Rent paid by Tenant for Operating Expenses on account of
the preceding calendar year, Landlord will credit any overpayment toward
the next monthly installment(s) of Tenant's Percentage of the Operating
Expenses due under this Lease.
(d) Miscellaneous. Any delay or failure by Landlord in delivering any
Estimate Statement or Actual Statement pursuant to this Paragraph 6 will
not constitute a waiver of its right to require an increase in rent nor
will it relieve Tenant of its obligations pursuant to this Paragraph 6,
except that Tenant will not be obligated to make any payments based on
such Estimate Statement or Actual Statement until ten (10) days after
receipt of such Estimate Statement or Actual Statement. Even though the
Term has expired and Tenant has vacated the Premises, when the final
determination is made of Tenant's Percentage of the actual Operating
Expenses for the year in which this Lease terminates, Tenant agrees to
promptly pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease
shall promptly be rebated by Landlord to Tenant. Such obligation will
be a continuing one which will survive the expiration or earlier
termination of this Lease. Prior to the expiration or sooner
termination of the Lease Term and Landlord's acceptance of Tenant's
surrender of the Premises, Landlord will have the right to estimate the
actual Operating Expenses for the then current Lease Year and to collect
from Tenant prior to Tenant's surrender of the Premises, Tenant's
Percentage of any excess of such actual Operating Expenses over the
estimated Operating Expenses paid by Tenant in such Lease Year.
(e) Tenant's Review Rights. Upon Tenant's written request given not
more than ninety (90) days after Tenant's receipt of an Actual Statement
for a particular calendar year, and provided that (i) Tenant is not then
in default under this Lease beyond any applicable cure period and (ii)
Tenant has paid all amounts required to be paid under such Actual
Statement, then Tenant and its representatives shall have the right to
review and/or audit Landlord's books and records relating to the
Operating Expenses reflected on such Actual Statement. Tenant shall pay
the costs of such review and/or audit, unless such review and/or audit
shows that Landlord overstated Operating Expenses for the applicable
calendar year by more than three percent (3%) of the originally reported
Operating Expenses, in which event Landlord shall pay the costs and
expenses of such audit or review. Landlord shall pay to Tenant the
amount of any overpayment made by Tenant as disclosed by such audit or
review, and Tenant shall pay to Landlord the amount of any underpayment
as disclosed by such audit or review, less the costs and expenses of
such audit or review. Tenant shall keep any information gained from its
review and/or audit of Landlord's books and records confidential and
shall not disclose such information to any other party, except as
required by law.
7. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant will deposit with Landlord the Security Deposit designated
in Subparagraph 1(o). The Security Deposit will be held by Landlord as
security for the full and faithful performance by Tenant of all of the
terms, covenants, and conditions of this Lease to be kept and performed
by Tenant during the Term hereof. If Tenant fully and faithfully
performs its obligations under this Lease, including, without
limitation, surrendering the Premises upon the expiration or sooner
termination of this Lease in compliance with Subparagraph 11(a) below,
the Security Deposit or any balance thereof will be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) within thirty (30) days following the expiration of the Lease
Term or as required under applicable law, provided that Landlord may
retain the Security Deposit until such time as any outstanding rent or
additional rent amount has been determined and paid in full. The
Security Deposit is not, and may not be construed by Tenant to
constitute, rent for the last month or any portion thereof. If Tenant
defaults with respect to any provisions of this Lease including, but not
limited to, the provisions relating to the payment of rent or additional
rent, Landlord may (but will not be required to) use, apply or retain
all or any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's
default or to compensate Landlord for any loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used or applied, Tenant agrees, within ten (10)
days after Landlord's written demand therefor, to deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its
original amount and Tenant's failure to do so shall constitute a default
under this Lease. Landlord is not required to keep Tenant's Security
Deposit separate from its general funds, and Tenant is not entitled to
interest on such Security Deposit. Should Landlord sell its interest in
the Premises during the Term hereof and deposit with the purchaser
thereof the then unappropriated Security Deposit funds, Landlord will be
discharged from any further liability with respect to such Security
Deposit.
<PAGE>
8. USE.
(a) Tenant's Use of the Premises. The Premises may be used for the use
or uses set forth in Subparagraph 1(r) only, and Tenant will not use or
permit the Premises to be used for any other purpose without the prior
written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion. Nothing in this Lease will be deemed to
give Tenant any exclusive right to such use in the Building or the
Development.
(b) Compliance. At Tenant's sole cost and expense, Tenant agrees to
procure, maintain and hold available for Landlord's inspection, all
governmental licenses and permits required for the proper and lawful
conduct of Tenant's business from the Premises, if any. Tenant agrees
not to use, alter or occupy the Premises or allow the Premises to be
used, altered or occupied in violation of, and Tenant, at its sole cost
and expense, agrees to use and occupy the Premises and cause the
Premises to be used and occupied in compliance with: (i) any and all
laws, statutes, zoning restrictions, ordinances, rules, regulations,
orders and rulings now or hereafter in force and any requirements of any
insurer, insurance authority or duly constituted public authority having
jurisdiction over the Premises, the Building or the Development now or
hereafter in force (collectively, "Applicable Laws"), provided that
Tenant shall not be required to make any alterations to the Premises to
comply with any Applicable Laws, except to the extent required because
of Tenant's specific use of the Premises (other than general office use)
or unless triggered by Tenant's alteration of the Premises, (ii) the
requirements of the Board of Fire Underwriters and any other similar
body, (iii) the Certificate of Occupancy issued for the Building, and
(iv) any recorded covenants, conditions and restrictions and similar
regulatory agreements, if any, which affect the use, occupation or
alteration of the Premises, the Building and/or the Development. Tenant
agrees to comply with the Rules and Regulations referenced in Paragraph
28 below. Tenant agrees not to do or permit anything to be done in or
about the Premises which will in any manner obstruct or interfere with
the rights of other tenants or occupants of the Development, or injure
or unreasonably annoy them, or use or allow the Premises to be used for
any unlawful or unreasonably objectionable purpose. Tenant agrees not
to cause, maintain or permit any nuisance or waste in, on, under or
about the Premises or elsewhere within the Development. Notwithstanding
anything contained in this Lease to the contrary, all transferable
development rights related in any way to that portion of the Development
owned by Landlord are and will remain vested in Landlord, and Tenant
hereby waives any rights thereto.
(c) Hazardous Materials. Except for ordinary and general office
supplies typically used in the ordinary course of business within office
buildings, such as copier toner, liquid paper, glue, ink and common
household cleaning materials (some or all of which may constitute
"Hazardous Materials" as defined in this Lease), Tenant agrees not to
cause or permit any Hazardous Materials to be brought upon, stored,
used, handled, generated, released or disposed of on, in, under or about
the Premises, the Building, the Common Areas or any other portion of the
Development by Tenant, its agents, employees, subtenants, assignees,
licensees, contractors or invitees (collectively, "Tenant's Parties"),
without the prior written consent of Landlord, which consent Landlord
may withhold in its sole and absolute discretion. Upon the expiration
or earlier termination of this Lease, Tenant agrees to promptly remove
from the Premises, the Building and the Development, at its sole cost
and expense, any and all Hazardous Materials, including any equipment or
systems containing Hazardous Materials which are installed, brought
upon, stored, used, generated or released upon, in, under or about the
Premises, the Building and/or the Development or any portion thereof by
Tenant or any of Tenant's Parties. To the fullest extent permitted by
law, Tenant agrees to promptly indemnify, protect, defend and hold
harmless Landlord and Landlord's partners, officers, directors,
employees, agents, successors and assigns (collectively, "Landlord
Indemnified Parties") from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties,
fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees and court
costs) which arise or result from the presence of Hazardous Materials
on, in, under or about the Premises, the Building or any other portion
of the Development and which are caused or permitted by Tenant or any of
Tenant's Parties. Tenant agrees to promptly notify Landlord of any
release of Hazardous Materials at the Premises, the Building or any
other portion of the Development which Tenant becomes aware of during
the Term of this Lease, whether caused by Tenant or any other persons or
entities. In the event of any release of Hazardous Materials caused or
permitted by Tenant or any of Tenant's Parties, Landlord shall have the
right, but not the obligation, to cause Tenant to immediately take all
steps Landlord deems necessary or appropriate to remediate such release
and prevent any similar future release to the satisfaction of Landlord
and Landlord's mortgagee(s). As used in this Lease, the term "Hazardous
Materials" shall mean and include any chemical, substance, material,
controlled substance, object, condition, waste, living organism or
combination thereof, whether solid, semi-solid, liquid or gaseous, which
is or may be hazardous to human health or safety or to the environment
due to its radioactivity, ignitability, corrosivity, reactivity,
explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity,
infectiousness or other harmful or potentially harmful properties or
effects, including, without limitation, tobacco smoke, petroleum and
petroleum products, asbestos, radon, polychlorinated biphenyls (PCBs),
refrigerants (including those substances defined in the Environmental
Protection Agency's "Refrigerant Recycling Rule," as amended from time
to time) and all of those chemicals, substances, materials, controlled
substances, objects, conditions, wastes, living organisms or
combinations thereof which are now or become in the future listed,
defined or regulated in any manner by any Environmental Law based upon,
directly or indirectly, such properties or effects. As used herein,
"Environmental Laws" means any and all federal, state or local
environmental, health and/or safety-related laws, regulations,
standards, decisions of courts, ordinances, rules, codes, orders,
decrees, directives, guidelines, permits or permit conditions, currently
existing and as amended, enacted, issued or adopted in the future which
are or become applicable to Tenant, the Premises or the Development.
The provisions of this Subparagraph 8(c) shall survive the expiration or
earlier termination of this Lease.
<PAGE>
9. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery (including
delivery by overnight courier or an express mailing service) or by mail,
if sent by registered or certified mail. Notices to Tenant shall be
sufficient if delivered to Tenant at the address designated in
Subparagraph 1(d) and notices to Landlord shall be sufficient if
delivered to Landlord at the address designated in Subparagraph 1(b).
Either party may specify a different address for notice purposes by
written notice to the other, except that the Landlord may in any event
use the Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated
this Lease are stated in Subparagraph 1(u). Each party represents and
warrants to the other, that, to its knowledge, no other broker, agent or
finder (a) negotiated or was instrumental in negotiating or consummating
this Lease on its behalf, and (b) is or might be entitled to a
commission or compensation in connection with this Lease. Landlord and
Tenant each agree to promptly indemnify, protect, defend and hold
harmless the other from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties,
fines, expenses and costs (including attorneys' fees and court costs)
resulting from any breach by the indemnifying party of the foregoing
representation, including, without limitation, any claims that may be
asserted by any broker, agent or finder undisclosed by the indemnifying
party. The foregoing mutual indemnity shall survive the expiration or
earlier termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) Surrender. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not constitute a merger,
and shall, at the option of Landlord, operate as an assignment to
Landlord of any or all subleases or subtenancies. Upon the expiration
or earlier termination of this Lease, Tenant agrees to peaceably
surrender the Premises to Landlord broom clean and in a state of first-
class order, repair and condition, ordinary wear and tear and casualty
damage (if this Lease is terminated as a result thereof pursuant to
Paragraph 20) excepted, with all of Tenant's personal property and
Alterations (as defined in Paragraph 13) removed from the Premises to
the extent required under Paragraph 13 and all damage caused by such
removal repaired as required by Paragraph 13. In addition, unless
otherwise agreed to in writing by Landlord, upon the expiration or
earlier termination of this Lease, Tenant shall, at Tenant's sole cost
and expense, (i) remove all computer and telephone wiring and cabling
installed in the Premises by or for Tenant and (ii) repair any damage
caused by such removal. If any such wiring and/or cabling is not so
removed pursuant to this Subparagraph 11(a), then at Landlord's option,
either such wiring and/or cabling shall become the property of Landlord
(without payment by Landlord) or Landlord may remove such wiring and/or
cabling at Tenant's expense (without limiting Landlord's other remedies
available under this Lease or applicable law). Prior to the date Tenant
is to actually surrender the Premises to Landlord, Tenant agrees to give
Landlord reasonable prior notice of the exact date Tenant will surrender
the Premises so that Landlord and Tenant can schedule a walk-through of
the Premises to review the condition of the Premises and identify the
Alterations and personal property which are to remain upon the Premises
and which items Tenant is to remove, as well as any repairs Tenant is to
make upon surrender of the Premises. The delivery of keys to any
employee of Landlord or to Landlord's agent or any employee thereof
alone will not be sufficient to constitute a termination of this Lease
or a surrender of the Premises.
(b) Holding Over. Tenant will not be permitted to hold over possession
of the Premises after the expiration or earlier termination of the Term
without the express written consent of Landlord, which consent Landlord
may withhold in its sole and absolute discretion. If Tenant holds over
after the expiration or earlier termination of the Term, Landlord may,
at its option, treat Tenant as a tenant at sufferance only, and such
continued occupancy by Tenant shall be subject to all of the terms,
covenants and conditions of this Lease, so far as applicable, except
that the Monthly Base Rent for any such holdover period shall be equal
to the greater of (i) one hundred fifty percent (150%) of the Monthly
Base Rent in effect under this Lease immediately prior to such holdover,
or (ii) the then currently scheduled rental rate for comparable space in
the Building, in either event prorated on a monthly basis; provided,
however, holdover rent for the first thirty (30) days of the holdover
will not be prorated and a minimum of a full month's worth of holdover
rent shall be due, whether Tenant holds over one (1) day or all thirty
(30) days. Acceptance by Landlord of rent after such expiration or
earlier termination will not result in a renewal of this Lease. The
foregoing provisions of this Paragraph 11 are in addition to and do not
affect Landlord's right of re-entry or any rights of Landlord under this
Lease or as otherwise provided by law. If Tenant fails to surrender the
Premises upon the expiration of this Lease in accordance with the terms
of this Paragraph 11 despite demand to do so by Landlord, Tenant agrees
to promptly indemnify, protect, defend and hold Landlord harmless from
all claims, damages, judgments, suits, causes of action, losses,
liabilities, penalties, fines, expenses and costs (including attorneys'
fees and costs), including, without limitation, costs and expenses
incurred by Landlord in returning the Premises to the condition in which
Tenant was to surrender it and claims made by any succeeding tenant
founded on or resulting from Tenant's failure to surrender the Premises.
The provisions of this Subparagraph 11(b) will survive the expiration or
earlier termination of this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before
delinquency, all taxes and assessments (real and personal) levied
against (a) any personal property or trade fixtures placed by Tenant in
or about the Premises (including any increase in the assessed value of
the Premises based upon the value of any such personal property or trade
fixtures); and (b) any Tenant Improvements or Alterations in the
Premises (whether installed and/or paid for by Landlord or Tenant) to
the extent such items are assessed at a valuation higher than the
valuation at which tenant improvements conforming to Landlord's building
<PAGE>
standard tenant improvements are assessed. If any such taxes or
assessments are levied against Landlord or Landlord's property, Landlord
may, after written notice to Tenant (and under proper protest if
requested by Tenant) pay such taxes and assessments, in which event
Tenant agrees to reimburse Landlord all amounts paid by Landlord within
ten (10) business days after demand by Landlord; provided, however,
Tenant, at its sole cost and expense, will have the right, with
Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so
paid under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements
for the Premises pursuant to Exhibit "C", Tenant may, at its sole cost
and expense, make alterations, additions, improvements and decorations
to the Premises (collectively, "Alterations") subject to and upon the
following terms and conditions:
(a) Prohibited Alterations. Tenant may not make any Alterations which:
(i) affect any area outside the Premises; (ii) affect the
Building's structure, equipment, services or systems, or the proper
functioning thereof, or Landlord's access thereto; (iii) affect the
outside appearance, character or use of the Building or the Building
Common Areas; (iv) in the reasonable opinion of Landlord, lessen the
value of the Building; or (v) will violate or require a change in any
occupancy certificate applicable to the Premises.
(b) Landlord's Approval. Before proceeding with any Alterations which
are not prohibited in Subparagraph 13(a) above, Tenant must first obtain
Landlord's written approval of the plans, specifications and working
drawings for such Alterations, which approval Landlord will not
unreasonably withhold or delay; provided, however, Landlord's prior
approval will not be required for any such Alterations which are not
prohibited by Subparagraph 13(a) above and which cost less than Two
Thousand Five Hundred Dollars ($2,500) as long as (i) Tenant delivers to
Landlord notice and a copy of any final plans, specifications and
working drawings for any such Alterations at least ten (10) days prior
to commencement of the work thereof, and (ii) the other conditions of
this Paragraph 13 are satisfied, including, without limitation,
conforming to Landlord's rules, regulations and insurance requirements
which govern contractors. Landlord's approval of plans, specifications
and/or working drawings for Alterations will not create any
responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with applicable permits,
laws, rules and regulations of governmental agencies or authorities. In
approving any Alterations, Landlord reserves the right to require Tenant
to increase its Security Deposit to provide Landlord with additional
reasonable security for the removal of such Alterations by Tenant as may
be required by this Lease.
(c) Contractors. Alterations may be made or installed only by
contractors and subcontractors which have been approved by Landlord,
which approval Landlord will not unreasonably withhold or delay;
provided, however, Landlord reserves the right to require that
Landlord's contractor for the Building be given the first opportunity to
bid for any Alteration work. Before proceeding with any Alterations,
Tenant agrees to provide Landlord with ten (10) days prior written
notice and Tenant's contractors must obtain and maintain, on behalf of
Tenant and at Tenant's sole cost and expense: (i) all necessary
governmental permits and approvals for the commencement and completion
of such Alterations; and (ii) if requested by Landlord, a completion and
lien indemnity bond, or other surety, reasonably satisfactory to
Landlord for such Alterations. Throughout the performance of any
Alterations, Tenant agrees to obtain, or cause its contractors to
obtain, workers compensation insurance and general liability insurance
in compliance with the provisions of Paragraph 19 of this Lease.
(d) Manner of Performance. All Alterations must be performed: (i) in
accordance with the approved plans, specifications and working drawings;
(ii) in a lien-free and first-class and workmanlike manner; (iii) in
compliance with all applicable permits, laws, statutes, ordinances,
rules, regulations, orders and rulings now or hereafter in effect and
imposed by any governmental agencies and authorities which assert
jurisdiction; (iv) in such a manner so as not to interfere with the
occupancy of any other tenant in the Building, nor impose any additional
expense upon nor delay Landlord in the maintenance and operation of the
Building; and (v) at such times, in such manner, and subject to such
rules and regulations as Landlord may from time to time reasonably
designate.
(e) Ownership. The Tenant Improvements, including, without limitation,
all affixed sinks, dishwashers, microwave ovens and other fixtures, and
all Alterations will become the property of Landlord and will remain
upon and be surrendered with the Premises at the end of the Term of this
Lease; provided, however, Landlord may, by written notice delivered to
Tenant concurrently with Landlord's approval of the final working
drawings for any Alterations, identify those Alterations which Landlord
will require Tenant to remove at the end of the Term of this Lease.
Landlord may also require Tenant to remove Alterations which Landlord
did not have the opportunity to approve as provided in this Paragraph
13. If Landlord requires Tenant to remove any Alterations, Tenant, at
its sole cost and expense, agrees to remove the identified Alterations
on or before the expiration or earlier termination of this Lease and
repair any damage to the Premises caused by such removal (or, at
Landlord's option, Tenant agrees to pay to Landlord all of Landlord's
costs of such removal and repair).
(f) Plan Review. Tenant agrees to pay Landlord, as additional rent,
the reasonable costs of professional services and costs for general
conditions of Landlord's third party consultants if utilized by Landlord
(but not Landlord's "in-house" personnel) for review of all plans,
specifications and working drawings for any Alterations, within ten (10)
business days after Tenant's receipt of invoices either from Landlord or
such consultants.
<PAGE>
(g) Personal Property. All articles of personal property owned by
Tenant or installed by Tenant at its expense in the Premises (including
Tenant's business and trade fixtures, furniture, movable partitions and
equipment [such as telephones, copy machines, computer terminals,
refrigerators and facsimile machines]) will be and remain the property
of Tenant, and must be removed by Tenant from the Premises, at Tenant's
sole cost and expense, on or before the expiration or earlier
termination of this Lease. Tenant agrees to repair any damage caused by
such removal at its cost on or before the expiration or earlier
termination of this Lease.
(h) Removal of Alterations. If Tenant fails to remove by the
expiration or earlier termination of this Lease all of its personal
property, or any Alterations identified by Landlord for removal,
Landlord may, at its option, treat such failure as a hold-over pursuant
to Subparagraph 11(b) above, and/or Landlord may (without liability to
Tenant for loss thereof) treat such personal property and/or Alterations
as abandoned and, at Tenant's sole cost and expense, and in addition to
Landlord's other rights and remedies under this Lease, at law or in
equity: (a) remove and store such items; and/or (b) upon ten (10) days
prior notice to Tenant, sell, discard or otherwise dispose of all or any
such items at private or public sale for such price as Landlord may
obtain or by other commercially reasonable means. Tenant shall be
liable for all costs of disposition of Tenant's abandoned property and
Landlord shall have no liability to Tenant with respect to any such
abandoned property. Landlord agrees to apply the proceeds of any sale
of any such property to any amounts due to Landlord under this Lease
from Tenant (including Landlord's attorneys' fees and other costs
incurred in the removal, storage and/or sale of such items), with any
remainder to be paid to Tenant.
(i) Union Labor. Reference is hereby made to Paragraph 40 of this
Lease, which relates to Tenant's use of union labor.
14. REPAIRS.
(a) Landlord's Obligations. Landlord agrees to repair and maintain the
structural portions of the Building and the plumbing, heating,
ventilating, air conditioning, elevator and electrical systems installed
or furnished by Landlord, unless such maintenance and repairs are (i)
attributable to items installed in Tenant's Premises which are above
standard interior improvements (such as, for example, custom lighting,
special HVAC and/or electrical panels or systems, kitchen or restroom
facilities and appliances constructed or installed within Tenant's
Premises) or (ii) caused in part or in whole by the act, neglect or
omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant will pay to Landlord, as additional rent,
the reasonable cost of such maintenance and repairs. Landlord will not
be liable for any failure to make any such repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time
after written notice of the need of such repairs or maintenance is given
to Landlord by Tenant. Except as provided in Paragraph 20, Tenant will
not be entitled to any abatement of rent and Landlord will not have any
liability by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in
or to fixtures, appurtenances and equipment therein. Notwithstanding the
foregoing, if any interruption in the provision of the services described
in this Subparagraph 14(a) occurs and such interruption materially
interferes with Tenant's use and occupancy of the Premises for more than
ten (10) continuous business days, Tenant shall have the right to abate
Base Rent payable with respect to the period of interruption following
such ten (10) business day period, but only to the extent of any rent
loss insurance proceeds received by Landlord in connection with such
abatement. Such abatement shall be in the proportion that such
interference bears to Tenant's normal operations in the Premises, as
agreed to by Landlord and Tenant; provided, however, in no event shall
Landlord be liable for damages or any other amounts or expenses
attributable to such interruption. Tenant waives the right to make
repairs at Landlord's expense under any law, statute, ordinance, rule,
regulation, order or ruling (including, without limitation, to the extent
the Premises are located in California, the provisions of California
Civil Code Sections 1941 and 1942 and any successor statutes or laws of a
similar nature).
(b) Tenant's Obligations. Tenant agrees to keep, maintain and preserve
the Premises in first class condition and repair and, when and if needed,
at Tenant's sole cost and expense, to make all repairs to the Premises
and every part thereof. Any such maintenance and repairs will be
performed by Landlord's contractor, or at Landlord's option, by such
contractor or contractors as Tenant may choose from an approved list to
be submitted by Landlord. Tenant agrees to pay all costs and expenses
incurred in such maintenance and repair within seven (7) days after
billing by Landlord or such contractor or contractors. Tenant agrees to
cause any mechanics' liens or other liens arising as a result of work
performed by Tenant or at Tenant's direction to be eliminated as provided
in Paragraph 15 below. Except as provided in Subparagraph 14(a) above,
Landlord has no obligation to alter, remodel, improve, repair, decorate
or paint the Premises or any part thereof.
(c) Tenant's Failure to Repair. If Tenant refuses or neglects to repair
and maintain the Premises properly as required hereunder to the
reasonable satisfaction of Landlord, Landlord, at any time following ten
(10) days from the date on which Landlord makes a written demand on
Tenant to effect such repair and maintenance, may enter upon the Premises
and make such repairs and/or maintenance, and upon completion thereof,
Tenant agrees to pay to Landlord as additional rent, Landlord's costs for
making such repairs plus an amount not to exceed ten percent (10%) of
such costs for overhead, within ten (10) days of receipt from Landlord of
a written itemized bill therefor. Any amounts not reimbursed by Tenant
within such ten (10) day period will bear interest at the Interest Rate
until paid by Tenant.
<PAGE>
(d) Union Labor. Reference is hereby made to Paragraph 40 of this
Lease, which relates to Tenant's use of union labor.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or
other liens to be filed against all or any part of the Development, the
Building or the Premises, nor against Tenant's leasehold interest in the
Premises, by reason of or in connection with any repairs, alterations,
improvements or other work contracted for or undertaken by Tenant or any
other act or omission of Tenant or Tenant's agents, employees,
contractors, licensees or invitees. At Landlord's request, Tenant agrees
to provide Landlord with enforceable, conditional and final lien releases
(or other evidence reasonably requested by Landlord to demonstrate
protection from liens) from all persons furnishing labor and/or materials
at the Premises. Landlord will have the right at all reasonable times to
post on the Premises and record any notices of non-responsibility which
it deems necessary for protection from such liens. If any such liens are
filed, Tenant will, at its sole cost, promptly cause such liens to be
released of record or bonded so that it no longer affects title to the
Development, the Building or the Premises. If Tenant fails to cause any
such liens to be so released or bonded within ten (10) days after filing
thereof, such failure will be deemed a material breach by Tenant under
this Lease without the benefit of any additional notice or cure period
described in Paragraph 22 below, and Landlord may, without waiving its
rights and remedies based on such breach, and without releasing Tenant
from any of its obligations, cause such liens to be released by any means
it shall deem proper, including payment in satisfaction of the claims
giving rise to such liens. Tenant agrees to pay to Landlord within ten
(10) days after receipt of invoice from Landlord, any sum paid by
Landlord to remove such liens, together with interest at the Interest
Rate from the date of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at
all times have the right to enter the Premises to inspect the same, to
supply janitorial service and any other service to be provided by
Landlord to Tenant hereunder, to show the Premises to prospective
purchasers or tenants, to post notices of nonresponsibility, and/or to
repair the Premises as permitted or required by this Lease. In
exercising such entry rights, Landlord will endeavor to minimize, as
reasonably practicable, the interference with Tenant's business, and will
provide Tenant with reasonable advance notice of any such entry (except
in emergency situations). Tenant shall have the right to accompany
Landlord or its representative whenever Landlord or Landlord's
representative enters the Premises. Landlord may, in order to carry out
such purposes, erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed.
Landlord will at all times have and retain a key with which to unlock all
doors in the Premises, excluding Tenant's vaults and safes. Landlord
will have the right to use any and all means which Landlord may
reasonably deem proper to open said doors in an emergency in order to
obtain entry to the Premises. Any entry to the Premises obtained by
Landlord by any of said means, or otherwise, will not be construed or
deemed to be a forcible or unlawful entry into the Premises, or an
eviction of Tenant from the Premises. Landlord will not be liable to
Tenant for any damages or losses for any entry by Landlord.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so long as
the Premises are occupied, Landlord agrees to furnish or cause to be
furnished to the Premises the utilities and services described in the
Standards for Utilities and Services attached hereto as Exhibit "F",
subject to the conditions and in accordance with the standards set forth
therein. Landlord may require Tenant from time to time to provide
Landlord with a list of Tenant's employees and/or agents which are
authorized by Tenant to subscribe on behalf of Tenant for any additional
services which may be provided by Landlord. Any such additional services
will be provided to Tenant at Tenant's cost. Landlord will not be liable
to Tenant for any failure to furnish any of the foregoing utilities and
services if such failure is caused by all or any of the following: (i)
accident, breakage or repairs; (ii) strikes, lockouts or other labor
disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action or inaction; (iv)
inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel; or (v) any other cause beyond Landlord's
reasonable control. In addition, in the event of any stoppage or
interruption of services or utilities, Tenant shall not be entitled to
any abatement or reduction of rent (except as expressly provided in
Subparagraphs 20(f) or 21(b) if such failure results from a damage or
taking described therein), no eviction of Tenant will result from such
failure and Tenant will not be relieved from the performance of any
covenant or agreement in this Lease because of such failure.
Notwithstanding the foregoing, if any interruption in the supply of
utilities to the Premises occurs and such interruption materially
interferes with Tenant's use and occupancy of the Premises for more than
ten (10) continuous business days, Tenant shall have the right to abate
Base Rent payable with respect to the period of interruption following
such ten (10) business day period, but only to the extent of any rent
loss insurance proceeds received by Landlord in connection with such
abatement. Such abatement shall be in the proportion that such
interference bears to Tenant's normal operations in the Premises, as
agreed to by Landlord and Tenant; provided, however, in no event shall
Landlord be liable for damages or any other amounts or expenses
attributable to such interruption. In the event of any failure, stoppage
or interruption thereof, Landlord agrees to diligently attempt to resume
service promptly. If Tenant requires or utilizes more water or
electrical power than is considered reasonable or normal by Landlord,
Landlord may at its option require Tenant to pay, as additional rent, the
cost, as fairly determined by Landlord, incurred by such extraordinary
usage and/or Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant agrees thereafter to pay all charges of
the utility providing service and Landlord will make an appropriate
adjustment to Tenant's Operating Expenses calculation to account for the
fact Tenant is directly paying such metered charges, provided Tenant will
remain obligated to pay its proportionate share of Operating Expenses
subject to such adjustment.
<PAGE>
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) Assumption of Risk. Tenant, as a material part of the consideration
to Landlord, hereby agrees that neither Landlord nor any Landlord
Indemnified Parties (as defined in Subparagraph 8(c) above) will be
liable to Tenant for, and Tenant expressly assumes the risk of and waives
any and all claims it may have against Landlord or any Landlord
Indemnified Parties with respect to, (i) any and all damage to property
or injury to persons in, upon or about the Premises, the Building or the
Development resulting from any act or omission (except for the grossly
negligent or intentionally wrongful act or omission) of Landlord, (ii)
any such damage caused by other tenants or persons in or about the
Building or the Development, or caused by quasi-public work, (iii) any
damage to property entrusted to employees of the Building, (iv) any loss
of or damage to property by theft or otherwise, or (v) any injury or
damage to persons or property resulting from any casualty, explosion,
falling plaster or other masonry or glass, steam, gas, electricity, water
or rain which may leak from any part of the Building or any other portion
of the Development or from the pipes, appliances or plumbing works
therein or from the roof, street or subsurface or from any other place,
or resulting from dampness. Notwithstanding anything to the contrary
contained in this Lease, neither Landlord nor any Landlord Indemnified
Parties will be liable for consequential damages arising out of any loss
of the use of the Premises or any equipment or facilities therein by
Tenant or any Tenant Parties or for interference with light or other
incorporeal hereditaments. Tenant agrees to give prompt notice to
Landlord in case of fire or accidents in the Premises or the Building, or
of defects therein or in the fixtures or equipment.
(b) Indemnification. Tenant will be liable for, and agrees, to the
maximum extent permissible under applicable law, to promptly indemnify,
protect, defend and hold harmless Landlord and all Landlord Indemnified
Parties, from and against, any and all claims, damages, judgments, suits,
causes of action, losses, liabilities, penalties, fines, expenses and
costs, including attorneys' fees and court costs (collectively,
"Indemnified Claims"), arising or resulting from (i) any act or omission
of Tenant or any Tenant Parties (as defined in Subparagraph 8(c) above);
(ii) the use of the Premises and Common Areas and conduct of Tenant's
business by Tenant or any Tenant Parties, or any other activity, work or
thing done, permitted or suffered by Tenant or any Tenant Parties, in or
about the Premises, the Building or elsewhere within the Development;
and/or (iii) any default by Tenant of any obligations on Tenant's part to
be performed under the terms of this Lease. In case any action or
proceeding is brought against Landlord or any Landlord Indemnified
Parties by reason of any such Indemnified Claims, Tenant, upon notice
from Landlord, agrees to promptly defend the same at Tenant's sole cost
and expense by counsel approved in writing by Landlord, which approval
Landlord will not unreasonably withhold.
(c) Survival; No Release of Insurers. Tenant's indemnification
obligations under Subparagraph 18(b) will survive the expiration or
earlier termination of this Lease. Tenant's covenants, agreements and
indemnification obligation in Subparagraphs 18(a) and 18(b) above, are
not intended to and will not relieve any insurance carrier of its
obligations under policies required to be carried by Tenant pursuant to
the provisions of this Lease.
19. INSURANCE.
(a) Tenant's Insurance. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type
in the Premises pursuant to this Lease (which may be prior to the
Commencement Date), and continuing throughout the entire Term hereof and
any other period of occupancy, Tenant agrees to keep in full force and
effect, at its sole cost and expense, the following insurance:
(i) "All Risks" property insurance including at least the following
perils: fire and extended coverage, smoke damage, vandalism,
malicious mischief, sprinkler leakage (including earthquake
sprinkler leakage). This insurance policy must be upon all
property owned by Tenant, for which Tenant is legally liable,
or which is installed at Tenant's expense, and which is located
in the Building including, without limitation, any Tenant
Improvements which satisfy the foregoing qualification and any
Alterations, and all furniture, fittings, installations,
fixtures and any other personal property of Tenant, in an
amount not less than the full replacement cost thereof. If
there is a dispute as to full replacement cost, the decision of
Landlord or any mortgagee of Landlord will be presumptive.
(ii) One (1) year insurance coverage for business interruption and
loss of income and extra expense insuring the same perils
described in Subparagraph 19(a)(i) above, in such amounts as
will reimburse Tenant for any direct or indirect loss of
earnings attributable to any such perils including prevention
of access to the Premises, Tenant's parking areas or the
Building as a result of any such perils.
(iii) Commercial General Liability Insurance or Comprehensive
General Liability Insurance (on an occurrence form) insuring
bodily injury, personal injury and property damage including
the following divisions and extensions of coverage: Premises
and Operations; Owners and Contractors protective; blanket
contractual liability (including coverage for Tenant's
indemnity obligations under this Lease); products and
completed operations; and liquor liability (if Tenant serves
alcohol on the Premises). Such insurance must have the
following minimum limits of liability: bodily injury,
personal injury and property damage - $2,000,000 each
occurrence, $5,000,000 in the aggregate, provided that if
liability coverage is provided by a Commercial General
Liability policy the general aggregate limit shall apply
separately and in total to this location only (per location
general aggregate), and provided further, such minimum limits
of liability may be adjusted from year to year to reflect
increases in coverages as recommended by Landlord's insurance
carrier as being prudent and commercially reasonable for
<PAGE>
tenants of first class office buildings comparable to the
Building, rounded to the nearest five hundred thousand
dollars.
(iv) Comprehensive Automobile Liability insuring bodily injury and
property damage arising from all owned, non-owned and hired
vehicles, if any, with minimum limits of liability of
$1,000,000 per accident.
(v) Worker's Compensation as required by the laws of the State.
(vi) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to
time in form, in amounts, and for insurance risks against
which, a prudent tenant would protect itself, but only to the
extent coverage for such risks and amounts are available in
the insurance market at commercially acceptable rates.
Landlord makes no representation that the limits of liability
required to be carried by Tenant under the terms of this Lease
are adequate to protect Tenant's interests and Tenant should
obtain such additional insurance or increased liability limits
as Tenant deems appropriate.
(b) Supplemental Tenant Insurance Requirements.
(i) All policies must be in a form reasonably satisfactory to
Landlord and issued by an insurer admitted to do business in the State.
(ii) All policies must be issued by insurers with a policyholder
rating of "A" and a financial rating of "X" in the most recent
version of Best's Key Rating Guide.
(iii) All policies must contain a requirement to notify Landlord
(and Landlord's partners, members and property manager and any
mortgagees or ground lessors of Landlord who are named as
additional insureds, if any) in writing not less than thirty
(30) days prior to any material change, reduction in coverage,
cancellation or other termination thereof. Tenant agrees to
deliver to Landlord, as soon as practicable after placing the
required insurance, but in any event within the time frame
specified in Subparagraph 19(a) above, certificate(s) of
insurance and/or if required by Landlord, certified copies of
each policy evidencing the existence of such insurance and
Tenant's compliance with the provisions of this Paragraph 19.
Tenant agrees to cause replacement policies or certificates to
be delivered to Landlord not less than thirty (30) days prior
to the expiration of any such policy or policies. If any such
initial or replacement policies or certificates are not
furnished within the time(s) specified herein, Tenant will be
deemed to be in material default under this Lease without the
benefit of any additional notice or cure period provided in
Subparagraph 22(a)(iii) below, and Landlord will have the
right, but not the obligation, to procure such insurance as
Landlord deems necessary to protect Landlord's interests at
Tenant's expense. If Landlord obtains any insurance that is
the responsibility of Tenant under this Paragraph 19, Landlord
agrees to deliver to Tenant a written statement setting forth
the cost of any such insurance and showing in reasonable
detail the manner in which it has been computed and Tenant
agrees to promptly reimburse Landlord for such costs as
additional rent.
(iv) General Liability and Automobile Liability policies under
Subparagraphs 19(a)(iii) and (iv) must name Landlord and
Landlord's partners, members and property manager (and at
Landlord's request, Landlord's mortgagees and ground lessors
of which Tenant has been informed in writing) as additional
insureds and must also contain a provision that the insurance
afforded by such policy is primary insurance and any insurance
carried by Landlord and Landlord's property manager or
Landlord's mortgagees or ground lessors, if any, will be
excess over and non-contributing with Tenant's insurance.
(c) Tenant's Use. Tenant will not keep, use, sell or offer for sale in
or upon the Premises any article which may be prohibited by any insurance
policy periodically in force covering the Building or the Development
Common Areas. If Tenant's occupancy or business in, or on, the Premises,
whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance periodically carried by Landlord
with respect to the Building or the Development Common Areas or results
in the need for Landlord to maintain special or additional insurance,
Tenant agrees to pay Landlord the cost of any such increase in premiums
or special or additional coverage as additional rent within ten (10) days
after being billed therefor by Landlord. In determining whether
increased premiums are a result of Tenant's use of the Premises, a
schedule issued by the organization computing the insurance rate on the
Building, the Development Common Areas or the Tenant Improvements showing
the various components of such rate, will be conclusive evidence of the
several items and charges which make up such rate. Tenant agrees to
promptly comply with all reasonable requirements of the insurance
authority or any present or future insurer relating to the Premises.
(d) Cancellation of Landlord's Policies. If any of Landlord's insurance
policies are cancelled or cancellation is threatened or the coverage
reduced or threatened to be reduced in any way because of the use of the
Premises or any part thereof by Tenant or any assignee or subtenant of
Tenant or by anyone Tenant permits on the Premises and, if Tenant fails
to remedy the condition giving rise to such cancellation, threatened
cancellation, reduction of coverage, threatened reduction of coverage,
increase in premiums, or threatened increase in premiums, within forty-
eight (48) hours after notice thereof, Tenant will be deemed to be in
material default of this Lease and Landlord may, at its option, either
terminate this Lease or enter upon the Premises and attempt to remedy
such condition, and Tenant shall promptly pay Landlord the reasonable
costs of such remedy as additional rent. If Landlord is unable, or
elects not to remedy such condition, then Landlord will have all of the
remedies provided for in this Lease in the event of a default by Tenant.
<PAGE>
(e) Waiver of Subrogation. Landlord's and Tenant's property insurance
shall each contain a clause whereby the insurer waives all rights of
recovery by way of subrogation against the other party. Tenant shall
also obtain and furnish evidence to Landlord of the waiver by Tenant's
worker's compensation insurance carrier of all rights of recovery by way
of subrogation against Landlord.
(f) Landlord's Insurance. Landlord shall maintain such insurance with
respect to the Building as may be required by the holder of the first
priority deed of trust or mortgage on the Building.
20. DAMAGE OR DESTRUCTION.
(a) Partial Destruction. If the Premises or the Building are damaged by
fire or other casualty to an extent not exceeding twenty-five percent
(25%) of the full replacement cost thereof, and Landlord's contractor
reasonably estimates in a writing delivered to Landlord and Tenant that
the damage thereto may be repaired, reconstructed or restored to
substantially its condition immediately prior to such damage within one
hundred eighty (180) days from the date of such casualty, and Landlord
will receive insurance proceeds sufficient to cover the costs of such
repairs, reconstruction and restoration (including proceeds from Tenant
and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the
costs of repair, reconstruction and restoration of any portion of the
Tenant Improvements and any Alterations for which Tenant is responsible
under this Lease), then Landlord agrees to commence and proceed
diligently with the work of repair, reconstruction and restoration and
this Lease will continue in full force and effect.
(b) Substantial Destruction. Any damage or destruction to the Premises
or the Building which Landlord is not obligated to repair pursuant to
Subparagraph 20(a) above will be deemed a substantial destruction. In
the event of a substantial destruction, Landlord may elect to either (i)
repair, reconstruct and restore the portion of the Building or the
Premises damaged by such casualty, in which case this Lease will continue
in full force and effect, subject to Tenant's termination right contained
in Subparagraph 20(d) below; or (ii) terminate this Lease effective as of
the date which is thirty (30) days after Tenant's receipt of Landlord's
election to so terminate.
(c) Notice. Under any of the conditions of Subparagraph 20(a) or (b)
above, Landlord agrees to give written notice to Tenant of its intention
to repair or terminate, as permitted in such paragraphs, within the
earlier of sixty (60) days after the occurrence of such casualty, or
fifteen (15) days after Landlord's receipt of the estimate from
Landlord's contractor (the applicable time period to be referred to
herein as the "Notice Period").
(d) Tenant's Termination Rights. If Landlord elects to repair,
reconstruct and restore pursuant to Subparagraph 20(b)(i) hereinabove,
and if Landlord's contractor estimates that as a result of such damage,
Tenant cannot be given reasonable use of and access to the Premises
within three hundred sixty-five (365) days after the date of such damage,
then Tenant may terminate this Lease effective upon delivery of written
notice to Landlord within ten (10) days after Landlord delivers notice to
Tenant of its election to so repair, reconstruct or restore.
(e) Tenant's Costs and Insurance Proceeds. In the event of any damage
or destruction of all or any part of the Premises, Tenant agrees to
immediately (i) notify Landlord thereof, and (ii) deliver to Landlord all
property insurance proceeds received by Tenant with respect to any Tenant
Improvements installed by or at the cost of Tenant and any Alterations,
but excluding proceeds for Tenant's furniture, fixtures, equipment and
other personal property, whether or not this Lease is terminated as
permitted in this Paragraph 20, and Tenant hereby assigns to Landlord all
rights to receive such insurance proceeds. If due to Tenant's failure to
obtain insurance for the full replacement cost of any Tenant Improvements
installed by or at the cost of Tenant and any Alterations from any and
all casualties, Tenant fails to receive insurance proceeds covering the
full replacement cost of any Tenant Improvements installed by or at the
cost of Tenant and any Alterations which are damaged, then to the extent
of any insurance proceeds that would have been payable under the
insurance policies required to be obtained by Tenant under Paragraph 19
above plus any deductible, Tenant will be deemed to have self-insured the
replacement cost of such items, and upon any damage or destruction
thereto, Tenant agrees to immediately pay to Landlord the full
replacement cost of such items, less any insurance proceeds actually
received by Landlord from Landlord's or Tenant's insurance with respect
to such items.
(f) Abatement of Rent. In the event of any damage, repair,
reconstruction and/or restoration described in this Paragraph 20, rent
will be abated or reduced, as the case may be, from the date of such
casualty, in proportion to the degree to which Tenant's use of the
Premises is impaired during such period of repair until such use is
restored. Except for abatement of rent as provided hereinabove, Tenant
will not be entitled to any compensation or damages for loss of, or
interference with, Tenant's business or use or access of all or any part
of the Premises or for lost profits or any other consequential damages of
any kind or nature, which result from any such damage, repair,
reconstruction or restoration.
(g) Inability to Complete. Notwithstanding anything to the contrary
contained in this Paragraph 20, if Landlord is obligated or elects to
repair, reconstruct and/or restore the damaged portion of the Building or
the Premises pursuant to Subparagraph 20(a) or 20(b)(i) above, but is
delayed from completing such repair, reconstruction and/or restoration
beyond the date which is ninety (90) days after the date estimated by
Landlord's contractor for completion thereof by reason of any causes
(other than delays caused by Tenant, its subtenants, employees, agents or
contractors or delays which are beyond the reasonable control of Landlord
as described in Paragraph 33), then either Landlord or Tenant may elect
<PAGE>
to terminate this Lease upon ten (10) days prior written notice given to
the other after the expiration of such ninety (90) day period.
(h) Damage Near End of Term. Landlord and Tenant shall each have the
right to terminate this Lease if any damage to the Premises occurs during
the last twelve (12) months of the Term of this Lease where Landlord's
contractor estimates in a writing delivered to Landlord and Tenant that
the repair, reconstruction or restoration of such damage cannot be
completed within sixty (60) days after the date of such casualty. If
either party desires to terminate this Lease under this Subparagraph (h),
it shall provide written notice to the other party of such election
within ten (10) days after receipt of Landlord's contractor's repair
estimates.
(i) Waiver of Termination Right. Landlord and Tenant agree that the
foregoing provisions of this Paragraph 20 are to govern their respective
rights and obligations in the event of any damage or destruction and
supersede and are in lieu of the provisions of any applicable law,
statute, ordinance, rule, regulation, order or ruling now or hereafter in
force which provide remedies for damage or destruction of leased premises
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Civil Code Section 1932,
Subsection 2, and Section 1933, Subsection 4 and any successor statute or
laws of a similar nature).
(j) Termination. Upon any termination of this Lease under any of the
provisions of this Paragraph 20, the parties will be released without
further obligation to the other from the date possession of the Premises
is surrendered to Landlord except for items which have accrued and are
unpaid as of the date of termination and matters which are to survive any
termination of this Lease as provided in this Lease.
21. EMINENT DOMAIN.
(a) Substantial Taking. If the whole of the Premises, or such part
thereof as shall substantially interfere with Tenant's use and occupancy
of the Premises, as contemplated by this Lease, is taken for any public
or quasi-public purpose by any lawful power or authority by exercise of
the right of appropriation, condemnation or eminent domain, or sold to
prevent such taking, either party will have the right to terminate this
Lease effective as of the date possession is required to be surrendered
to such authority.
(b) Partial Taking; Abatement of Rent. In the event of a taking of a
portion of the Premises which does not substantially interfere with
Tenant's use and occupancy of the Premises, then, neither party will have
the right to terminate this Lease and Landlord will thereafter proceed to
make a functional unit of the remaining portion of the Premises (but only
to the extent Landlord receives proceeds therefor from the condemning
authority), and rent will be abated with respect to the part of the
Premises which Tenant is deprived of on account of such taking.
Notwithstanding the immediately preceding sentence to the contrary, if
any material part of the Building or the Development is taken (whether or
not such taking substantially interferes with Tenant's use of the
Premises), Landlord may terminate this Lease upon thirty (30) days prior
written notice to Tenant if Landlord also terminates all other leases of
space in the Building that may be terminated by Landlord as a result of
such taking.
(c) Condemnation Award. In connection with any taking of the Premises
or the Building, Landlord will be entitled to receive the entire amount
of any award which may be made or given in such taking or condemnation,
without deduction or apportionment for any estate or interest of Tenant,
it being expressly understood and agreed by Tenant that no portion of any
such award will be allowed or paid to Tenant for any so-called bonus or
excess value of this Lease, and such bonus or excess value will be the
sole property of Landlord. Tenant agrees not to assert any claim against
Landlord or the taking authority for any compensation because of such
taking (including any claim for bonus or excess value of this Lease);
provided, however, if any portion of the Premises is taken, Tenant will
have the right to recover from the condemning authority (but not from
Landlord) any compensation as may be separately awarded or recoverable by
Tenant for the taking of Tenant's furniture, fixtures, equipment and
other personal property within the Premises, for Tenant's relocation
expenses, and for any loss of goodwill or other damage to Tenant's
business by reason of such taking.
(d) Temporary Taking. In the event of taking of the Premises or any
part thereof for temporary use, (i) this Lease will remain unaffected
thereby and rent will abate for the duration of the taking in proportion
to the extent Tenant's use of the Premises is interfered with, and (ii)
Landlord will be entitled to receive such portion or portions of any
award made for such use provided that if such taking remains in force at
the expiration or earlier termination of this Lease, Tenant will then pay
to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations under Paragraph 11 with respect to surrender of the Premises
and upon such payment Tenant will be excused from such obligations. For
purpose of this Subparagraph 21(d), a temporary taking shall be defined
as a taking for a period of ninety (90) days or less.
22. DEFAULTS AND REMEDIES.
(a) Defaults. The occurrence of any one or more of the following events
will be deemed a default by Tenant:
<PAGE>
(i) [INTENTIONALLY DELETED]
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by
Tenant hereunder, as and when due, where such failure
continues for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided, however, that any
such notice will be in lieu of, and not in addition to, any
notice required under applicable law (including, without
limitation, to the extent the Premises are located in
California, the provisions of California Code of Civil
Procedure Section 1161 regarding unlawful detainer actions or
any successor statute or law of a similar nature).
(iii) The failure by Tenant to observe or perform any of the
covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Subparagraph
22(a)(i) or (ii) above, where such failure continues (where no
other period of time is expressly provided) for a period of
thirty (30) days after written notice thereof from Landlord to
Tenant. The provisions of any such notice will be in lieu of,
and not in addition to, any notice required under applicable
law (including, without limitation, to the extent the Premises
are located in California, California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions and any
successor statute or similar law). If the nature of Tenant's
default is such that more than thirty (30) days are reasonably
required for its cure, then Tenant will not be deemed to be in
default if Tenant, with Landlord's concurrence, commences such
cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the
benefit of creditors; (B) the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (C) the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (D) the
attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease where such seizure is
not discharged within thirty (30) days.
(b) Landlord's Remedies; Termination. In the event of any default by
Tenant, in addition to any other remedies available to Landlord at law or
in equity under applicable law (including, without limitation, to the
extent the Premises are located in California, the remedies of Civil Code
Section 1951.4 and any successor statute or similar law, which provides
that Landlord may continue this Lease in effect following Tenant's breach
and abandonment and collect rent as it falls due, if Tenant has the right
to sublet or assign, subject to reasonable limitations), Landlord will
have the immediate right and option to terminate this Lease and all
rights of Tenant hereunder. If Landlord elects to terminate this Lease
then, to the extent permitted under applicable law, Landlord may recover
from Tenant (i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus (ii) the worth at
the time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount
of such rent loss that Tenant proves could have been reasonably avoided;
plus (iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the Term after the time of award exceeds
the amount of such rent loss that Tenant proves could be reasonably
avoided; plus (iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which, in the ordinary course of things,
results therefrom including, but not limited to: attorneys' fees and
costs; brokers' commissions; the costs of refurbishment, alterations,
renovation and repair of the Premises, and removal (including the repair
of any damage caused by such removal) and storage (or disposal) of
Tenant's personal property, equipment, fixtures, Alterations, the Tenant
Improvements and any other items which Tenant is required under this
Lease to remove but does not remove, as well as the unamortized value of
any free rent, reduced rent, free parking, reduced rate parking and any
Tenant Improvement Allowance or other costs or economic concessions
provided, paid, granted or incurred by Landlord pursuant to this Lease.
The unamortized value of such concessions shall be determined by taking
the total value of such concessions and multiplying such value by a
fraction, the numerator of which is the number of months of the Lease
Term not yet elapsed as of the date on which the Lease is terminated, and
the denominator of which is the total number of months of the Lease Term.
As used in Subparagraphs 22(b)(i) and (ii) above, the "worth at the time
of award" is computed by allowing interest at the Interest Rate. As used
in Subparagraph 22(b)(iii) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
(c) Landlord's Remedies; Re-Entry Rights. In the event of any default
by Tenant, in addition to any other remedies available to Landlord under
this Lease, at law or in equity, Landlord will also have the right, with
or without terminating this Lease, to re-enter the Premises and remove
all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere and/or disposed of at the
sole cost and expense of and for the account of Tenant in accordance with
the provisions of Subparagraph 13(h) of this Lease or any other
procedures permitted by applicable law. No re-entry or taking possession
of the Premises by Landlord pursuant to this Subparagraph 22(c) will be
construed as an election to terminate this Lease unless a written notice
of such intention is given to Tenant or unless the termination thereof is
decreed by a court of competent jurisdiction.
(d) Landlord's Remedies; Re-Letting. In the event of the vacation or
abandonment of the Premises by Tenant or in the event that Landlord
elects to re-enter the Premises or takes possession of the Premises
pursuant to legal proceeding or pursuant to any notice provided by law,
<PAGE>
then if Landlord does not elect to terminate this Lease, Landlord may
from time to time, without terminating this Lease, either recover all
rent as it becomes due or relet the Premises or any part thereof on terms
and conditions as Landlord in its sole and absolute discretion may deem
advisable with the right to make alterations and repairs to the Premises
in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will be
applied: first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any cost of
such reletting; third, to the payment of the cost of any alterations and
repairs to the Premises incurred in connection with such reletting;
fourth, to the payment of rent due and unpaid hereunder and the residue,
if any, will be held by Landlord and applied to payment of future rent as
the same may become due and payable hereunder. Should that portion of
such rents received from such reletting during any month, which is
applied to the payment of rent hereunder, be less than the rent payable
during that month by Tenant hereunder, then Tenant agrees to pay such
deficiency to Landlord immediately upon demand therefor by Landlord.
Such deficiency will be calculated and paid monthly.
(e) Landlord's Remedies; Performance for Tenant. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease
are to be performed by Tenant at Tenant's sole cost and expense and
without any abatement of rent. If Tenant fails to pay any sum of money
owed to any party other than Landlord, for which it is liable under this
Lease, or if Tenant fails to perform any other act on its part to be
performed hereunder, and such failure continues for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing
Tenant from its obligations, but shall not be obligated to, make any such
payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by
Landlord and all necessary incidental costs, together with interest
thereon at the Interest Rate, from the date of such payment by Landlord
until reimbursed by Tenant. This remedy shall be in addition to any
other right or remedy of Landlord set forth in this Paragraph 22.
(f) Late Payment. If Tenant fails to pay any installment of rent within
five (5) days of when due or if Tenant fails to make any other payment
for which Tenant is obligated under this Lease within five (5) days of
when due, such late amount will accrue interest at the Interest Rate and
Tenant agrees to pay Landlord as additional rent such interest on such
amount from the date such amount becomes due until such amount is paid.
In addition, Tenant agrees to pay to Landlord concurrently with such late
payment amount, as additional rent, a late charge equal to five percent
(5%) of the amount due to compensate Landlord for the extra costs
Landlord will incur as a result of such late payment (provided that
Landlord shall be entitled to such late charge for the first occurrence
of such a delinquency in any twelve (12) month period only if Tenant
fails to cure such delinquency within three (3) days after notice from
Landlord thereof). The parties agree that (i) it would be impractical
and extremely difficult to fix the actual damage Landlord will suffer in
the event of Tenant's late payment, (ii) such interest and late charge
represents a fair and reasonable estimate of the detriment that Landlord
will suffer by reason of late payment by Tenant, and (iii) the payment of
interest and late charges are distinct and separate in that the payment
of interest is to compensate Landlord for the use of Landlord's money by
Tenant, while the payment of late charges is to compensate Landlord for
Landlord's processing, administrative and other costs incurred by
Landlord as a result of Tenant's delinquent payments. Acceptance of any
such interest and late charge will not constitute a waiver of the
Tenant's default with respect to the overdue amount, or prevent Landlord
from exercising any of the other rights and remedies available to
Landlord. If Tenant incurs a late charge more than three (3) times in
any period of twelve (12) months during the Lease Term, then,
notwithstanding that Tenant cures the late payments for which such late
charges are imposed, Landlord will have the right to require Tenant
thereafter to pay all installments of Monthly Base Rent quarterly in
advance throughout the remainder of the Lease Term.
(g) Rights and Remedies Cumulative. All rights, options and remedies of
Landlord contained in this Lease will be construed and held to be
cumulative, and no one of them will be exclusive of the other, and
Landlord shall have the right to pursue any one or all of such remedies
or any other remedy or relief which may be provided by law or in equity,
whether or not stated in this Lease. Nothing in this Paragraph 22 will
be deemed to limit or otherwise affect Tenant's indemnification of
Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the
performance of any obligation required to be performed by Landlord under
this Lease unless Landlord fails to perform such obligation within thirty
(30) days after the receipt of written notice from Tenant specifying in
detail Landlord's failure to perform; provided however, that if the
nature of Landlord's obligation is such that more than thirty (30) days
are required for performance, then Landlord will not be deemed in default
if it commences such performance within such thirty (30) day period and
thereafter diligently pursues the same to completion. Upon any default
by Landlord, Tenant may exercise any of its rights provided at law or in
equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) Restriction on Transfer. Except as expressly provided in this
Paragraph 24, Tenant will not, either voluntarily or by operation of law,
assign or encumber this Lease or any interest herein or sublet the
Premises or any part thereof, or permit the use or occupancy of the
Premises by any party other than Tenant (any such assignment,
encumbrance, sublease or the like will sometimes be referred to as a
"Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold.
<PAGE>
(b) Corporate and Partnership Transfers. For purposes of this Paragraph
24, if Tenant is a corporation, partnership or other entity, any
transfer, assignment, encumbrance or hypothecation of twenty-five percent
(25%) or more (individually or in the aggregate) of any stock or other
ownership interest in such entity, and/or any transfer, assignment,
hypothecation or encumbrance of any controlling ownership or voting
interest in such entity, will be deemed a Transfer and will be subject to
all of the restrictions and provisions contained in this Paragraph 24.
Notwithstanding the foregoing, the immediately preceding sentence will
not apply to any transfers of stock of Tenant if Tenant is a publicly-
held corporation and such stock is transferred publicly over a recognized
security exchange or over-the-counter market.
(c) Permitted Controlled Transfers. Notwithstanding the provisions of
this Paragraph 24 to the contrary, Tenant may assign this Lease or sublet
the Premises or any portion thereof ("Permitted Transfer"), without
Landlord's consent and without extending any sublease termination option
to Landlord, to any parent, subsidiary or affiliate corporation which
controls, is controlled by or is under common control with Tenant, or to
any corporation resulting from a merger or consolidation with Tenant, or
to any person or entity which acquires all the assets of Tenant's
business as a going concern, provided that: (i) at least twenty (20)
days prior to such assignment or sublease, Tenant delivers to Landlord
the financial statements and other financial and background information
of the assignee or sublessee described in Subparagraph 24(d) below; (ii)
if an assignment, the assignee assumes, in full, the obligations of
Tenant under this Lease (or if a sublease, the sublessee of a portion of
the Premises or Term assumes, in full, the obligations of Tenant with
respect to such portion); (iii) the financial net worth of the assignee
or sublessee as of the time of the proposed assignment or sublease is
adequate to cover the obligations under this Lease (in the case of a
proposed assignment) or under the proposed sublease; (iv) Tenant remains
fully liable under this Lease; and (v) the use of the Premises under
Paragraph 8 remains unchanged.
(d) Transfer Notice. If Tenant desires to effect a Transfer, then at
least thirty (30) days prior to the date when Tenant desires the Transfer
to be effective (the "Transfer Date"), Tenant agrees to give Landlord a
notice (the "Transfer Notice"), stating the name, address and business of
the proposed assignee, sublessee or other transferee (sometimes referred
to hereinafter as "Transferee"), reasonable information (including
references) concerning the character, ownership, and financial condition
of the proposed Transferee, the Transfer Date, any ownership or
commercial relationship between Tenant and the proposed Transferee, and
the consideration and all other material terms and conditions of the
proposed Transfer, all in such detail as Landlord may reasonably
require. If Landlord reasonably requests additional detail, the Transfer
Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent to any Transfer
until such information is provided to it.
(e) Landlord's Options. Within fifteen (15) days of Landlord's receipt
of any Transfer Notice, and any additional information requested by
Landlord concerning the proposed Transferee's financial responsibility,
Landlord will elect to do one of the following (i) consent to the
proposed Transfer; (ii) refuse such consent, which refusal shall be on
reasonable grounds including, without limitation, those set forth in
Subparagraph 24(f) below; or (iii) terminate this Lease as to all of the
Premises (in the case of a proposed assignment) or as to such portion of
the Premises that is proposed to be sublet and recapture all or such
portion of the Premises for reletting by Landlord.
(f) Reasonable Disapproval. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Subparagraph
24(e) will be deemed reasonably withheld if based upon any reasonable
factor, including, without limitation, any or all of the following
factors: (i) if the Building is less than eighty percent (80%) occupied,
if the net effective rent payable by the Transferee (adjusted on a
rentable square foot basis) is less than the net effective rent then
being quoted by Landlord for new leases in the Building for comparable
size space for a comparable period of time; (ii) the proposed Transferee
is a governmental entity; (iii) the portion of the Premises to be sublet
is irregular in shape with inadequate means of ingress and egress; (iv)
the use of the Premises by the Transferee (A) is not permitted by the use
provisions in Paragraph 8 hereof, (B) violates any exclusive use granted
by Landlord to another tenant in the Development, or (C) otherwise poses
a risk of increased liability to Landlord; (v) the Transfer would likely
result in a significant and inappropriate increase in the use of the
parking areas or Development Common Areas by the Transferee's employees
or visitors, and/or significantly increase the demand upon utilities and
services to be provided by Landlord to the Premises; (vi) the Transferee
does not have the financial capability to fulfill the obligations imposed
by the Transfer and this Lease; or (vii) the Transferee poses a business
or other economic risk which Landlord deems unacceptable.
(g) Additional Conditions. A condition to Landlord's consent to any
Transfer of this Lease will be the delivery to Landlord of a true copy of
the fully executed instrument of assignment, sublease, transfer or
hypothecation, and, in the case of an assignment, the delivery to
Landlord of an agreement executed by the Transferee in form and substance
reasonably satisfactory to Landlord, whereby the Transferee assumes and
agrees to be bound by all of the terms and provisions of this Lease and
to perform all of the obligations of Tenant hereunder. As a condition
for granting its consent to any assignment or sublease, Landlord may
require that the assignee or sublessee remit directly to Landlord on a
monthly basis, all monies due to Tenant by said assignee or sublessee.
As a condition to Landlord's consent to any sublease, such sublease must
provide that it is subject and subordinate to this Lease and to all
mortgages; that Landlord may enforce the provisions of the sublease,
including collection of rent; that in the event of termination of this
Lease for any reason, including without limitation a voluntary surrender
<PAGE>
by Tenant, or in the event of any reentry or repossession of the Premises
by Landlord, Landlord may, at its option, either (i) terminate the
sublease, or (ii) take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, in which case such sublessee
will attorn to Landlord, but that nevertheless Landlord will not (1) be
liable for any previous act or omission of Tenant under such sublease,
(2) be subject to any defense or offset previously accrued in favor of
the sublessee against Tenant, or (3) be bound by any previous
modification of any sublease made without Landlord's written consent, or
by any previous prepayment by sublessee of more than one month's rent.
(h) Excess Rent. If Landlord consents to any assignment of this Lease,
Tenant agrees to pay to Landlord, as additional rent, fifty percent (50%)
of all sums and other consideration payable to and for the benefit of
Tenant by the assignee on account of the assignment, as and when such
sums and other consideration are due and payable by the assignee to or
for the benefit of Tenant (or, if Landlord so requires, and without any
release of Tenant's liability for the same, Tenant agrees to instruct the
assignee to pay such sums and other consideration directly to Landlord).
If for any sublease, Tenant receives rent or other consideration, either
initially or over the term of the sublease, in excess of the rent fairly
allocable to the portion of the Premises which is subleased based on
square footage, Tenant agrees to pay to Landlord as additional rent fifty
percent (50%) of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt. In
calculating excess rent or other consideration which may be payable to
Landlord under this paragraph, Tenant will be entitled to deduct
commercially reasonable third party brokerage commissions and attorneys'
fees and other amounts reasonably and actually expended by Tenant in
connection with such assignment or subletting if acceptable written
evidence of such expenditures is provided to Landlord.
(i) Termination Rights. If Tenant requests Landlord's consent to any
assignment of this Lease or any subletting of all or a portion of the
Premises, Landlord will have the right, as provided in Subparagraph
24(e), to terminate this Lease as to all of the Premises (in the case of
a proposed assignment) or as to such portion of the Premises that is
proposed to be sublet effective as of the date Tenant proposes to assign
this Lease or to sublet all or less than all of the Premises. Landlord's
right to terminate this Lease as to less than all of the Premises
proposed to be sublet will not be deemed waived as to any future
additional subletting or assignment as a result of Landlord's consent to
a subletting of less than all of the Premises or Landlord's failure to
exercise its termination right with respect to any subletting or
assignment. Landlord will exercise such termination right, if at all, by
giving written notice to Tenant within fifteen (15) days of receipt by
Landlord of the financial responsibility information required by this
Paragraph 24. Tenant understands and acknowledges that the option, as
provided in this Paragraph 24, to terminate this Lease as to all of the
Premises (in the case of a proposed assignment) or as to such portion of
the Premises that is proposed to be sublet rather than approve the
assignment of this Lease or the subletting of all or a portion of the
Premises, is a material inducement for Landlord's agreeing to lease the
Premises to Tenant upon the terms and conditions herein set forth. In
the event of any such termination with respect to less than all of the
Premises, the cost of segregating the recaptured space from the balance
of the Premises will be paid by Tenant and Tenant's future monetary
obligations under this Lease will be reduced proportionately on a square
footage basis to correspond to the balance of the Premises which Tenant
continues to lease.
(j) No Release. No Transfer will release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the rent
and to perform all other obligations to be performed by Tenant hereunder.
Landlord may require that any Transferee remit directly to Landlord on a
monthly basis, all monies due Tenant by said Transferee. However, the
acceptance of rent by Landlord from any other person will not be deemed
to be a waiver by Landlord of any provision hereof. Consent by Landlord
to one Transfer will not be deemed consent to any subsequent Transfer.
In the event of default by any Transferee of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. Landlord may consent to
subsequent assignments of this Lease or sublettings or amendments or
modifications to this Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions will not relieve Tenant of liability
under this Lease.
(k) Administrative and Attorneys' Fees. If Tenant effects a Transfer or
requests the consent of Landlord to any Transfer (whether or not such
Transfer is consummated), then, upon demand, Tenant agrees to pay
Landlord a non-refundable administrative fee of Two Hundred Fifty Dollars
($250.00), plus any reasonable attorneys' and paralegal fees incurred by
Landlord in connection with such Transfer or request for consent (whether
attributable to Landlord's in-house attorneys or paralegals or otherwise)
not to exceed One Hundred Dollars ($100.00) for each one thousand (1,000)
rentable square feet of area contained within the Premises or portion
thereof to be assigned or sublet. Acceptance of the Two Hundred Fifty
Dollar ($250.00) administrative fee and/or reimbursement of Landlord's
attorneys' and paralegal fees will in no event obligate Landlord to
consent to any proposed Transfer.
25. SUBORDINATION. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination,
and at the election of Landlord or any mortgagee or beneficiary with a
deed of trust encumbering the Building and/or the Development, or any
lessor of a ground or underlying lease with respect to the Building, this
Lease will be subject and subordinate at all times to: (i) all ground
leases or underlying leases which may now exist or hereafter be executed
affecting the Building; and (ii) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed for which the
Building, the Development or any leases thereof, or Landlord's interest
and estate in any of said items, is specified as security; provided,
<PAGE>
however, that the subordination of this Lease to any mortgage or deed of
trust or any ground or underlying lease is subject to Tenant's receipt of
a commercially reasonable non-disturbance agreement from the holder of
such mortgage or deed of trust or such ground or underlying lease in a
form reasonably satisfactory to Tenant. Notwithstanding the foregoing,
Landlord reserves the right to subordinate any such ground leases or
underlying leases or any such liens to this Lease. If any such ground
lease or underlying lease terminates for any reason or any such mortgage
or deed of trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in
which event Tenant's right to possession of the Premises will not be
disturbed as long as Tenant is not in default under this Lease. Tenant
hereby waives its rights under any law which gives or purports to give
Tenant any right to terminate or otherwise adversely affect this Lease
and the obligations of Tenant hereunder in the event of any such
foreclosure proceeding or sale. Tenant covenants and agrees to execute
and deliver, upon demand by Landlord and in the form reasonably required
by Landlord, any additional documents evidencing the priority or
subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any
such mortgage or deed of trust. If Tenant fails to sign and return any
such documents within ten (10) days of receipt, Tenant will be in default
hereunder.
26. ESTOPPEL CERTIFICATE.
(a) Tenant's Obligations. Within ten (10) days following any written
request which Landlord may make from time to time, Tenant agrees to
execute and deliver to Landlord a statement, in a form substantially
similar to the form of Exhibit "G" attached hereto or as may reasonably
be required by Landlord's lender, certifying: (i) the date of
commencement of this Lease; (ii) the fact that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that
this Lease is in full force and effect, and stating the date and nature
of such modifications); (iii) the date to which the rent and other sums
payable under this Lease have been paid; (iv) that there are no current
defaults under this Lease by either Landlord or Tenant except as
specified in Tenant's statement; and (v) such other matters reasonably
requested by Landlord. Landlord and Tenant intend that any statement
delivered pursuant to this Paragraph 26 may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) Tenant's Failure to Deliver. Tenant's failure to deliver such
statement within such time will be conclusive upon Tenant (i) that this
Lease is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one (1) month's rent
has been paid in advance. Without limiting the foregoing, if Tenant
fails to deliver any such statement within such ten (10) day period,
Landlord may deliver to Tenant an additional request for such statement
and Tenant's failure to deliver such statement to Landlord within ten
(10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect
Landlord from and against any and all claims, damages, losses,
liabilities and expenses (including attorneys' fees and costs)
attributable to any failure by Tenant to timely deliver any such estoppel
certificate to Landlord as required by this Paragraph 26.
27. BUILDING PLANNING. If Landlord requires the Premises for use in
conjunction with another suite or for other reasons connected with the
planning program for the Building, Landlord will have the right, upon one
hundred fifty (150) days prior written notice to Tenant, to move Tenant
to other upper floor space in the Development of substantially similar
size as the Premises, with similar views, and with tenant improvements of
substantially similar quality and layout as then existing in the
Premises. The replacement space must be an entire single floor. Any
such relocation will be at Landlord's cost and expense, including the
cost of providing such substantially similar tenant improvements (but not
any furniture or personal property, except as otherwise specifically set
forth herein) and Tenant's reasonable moving, telephone and cable
installation, modification of furniture modules, if required, and
stationery reprinting costs. If Landlord so relocates Tenant, the terms
and conditions of this Lease will remain in full force and effect and
apply to the new space, except that (a) a revised Exhibit "A-II" will
become part of this Lease and will reflect the location of the new space,
(b) Paragraph 1 of this Lease will be amended to include and state all
correct data as to the new space, (c) the new space will thereafter be
deemed to be the "Premises", and (d) all economic terms and conditions
(e.g. rent, total Operating Expense Allowance, etc.) will be adjusted on
a per square foot basis based on the total number of rentable square feet
of area contained in the new space. Landlord and Tenant agree to
cooperate fully with one another in order to minimize the inconvenience
of Tenant resulting from any such relocation. However, if the new space
does not meet with Tenant's reasonable approval, Tenant will have the
right to cancel this Lease upon giving Landlord one hundred fifty (150)
days notice within ten (10) days of receipt of Landlord's relocation
notification accompanied by a description of the replacement space;
provided, however, Landlord has the right, by written notice to Tenant
given within ten (10) days following receipt of Tenant's cancellation
notice to rescind Landlord's relocation notice, in which event Landlord's
relocation notice will be rescinded, Tenant's cancellation notice will be
cancelled and this Lease will remain in full force and effect. If Tenant
cancels this Lease pursuant to this Paragraph 27, Tenant agrees to vacate
the Building and the Premises within one hundred fifty (150) days of its
delivery to Landlord of the notice of cancellation.
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and
comply with the "Rules and Regulations," a copy of which is attached
hereto and incorporated herein by this reference as Exhibit "H", and all
reasonable and nondiscriminatory modifications thereof and additions
thereto from time to time put into effect by Landlord. Landlord will not
be responsible to Tenant for the violation or non-performance by any
other tenant or occupant of the Building of any of the Rules and
Regulations.
<PAGE>
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) Modifications. If, in connection with Landlord's obtaining or
entering into any financing or ground lease for any portion of the
Building or the Development, the lender or ground lessor requests
modifications to this Lease, Tenant, within ten (10) days after request
therefor, agrees to execute an amendment to this Lease incorporating such
modifications, provided such modifications are reasonable and do not
increase the obligations of Tenant under this Lease or adversely affect
the leasehold estate created by this Lease.
(b) Cure Rights. In the event of any default on the part of Landlord,
Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises or
ground lessor of Landlord whose address has been furnished to Tenant, and
Tenant agrees to offer such beneficiary, mortgagee or ground lessor a
reasonable opportunity to cure the default (including with respect to any
such beneficiary or mortgagee, time to obtain possession of the Premises,
subject to this Lease and Tenant's rights hereunder, by power of sale or
a judicial foreclosure, if such should prove necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned,
means and includes only the owner or owners, at the time in question, of
the fee title of the Premises or the lessees under any ground lease, if
any. In the event of any transfer, assignment or other conveyance or
transfers of any such title (other than a transfer for security purposes
only), Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) will be automatically relieved from and
after the date of such transfer, assignment or conveyance of all
liability as respects the performance of any covenants or obligations on
the part of Landlord contained in this Lease thereafter to be performed,
so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer.
Landlord and Landlord's transferees and assignees have the absolute right
to transfer all or any portion of their respective title and interest in
the Development, the Building, the Premises and/or this Lease without the
consent of Tenant, and such transfer or subsequent transfer will not be
deemed a violation on Landlord's part of any of the terms and conditions
of this Lease.
31. WAIVER. The waiver by either party of any breach of any term,
covenant or condition herein contained will not be deemed to be a waiver
of any subsequent breach of the same or any other term, covenant or
condition herein contained, nor will any custom or practice which may
develop between the parties in the administration of the terms hereof be
deemed a waiver of or in any way affect the right of either party to
insist upon performance in strict accordance with said terms. The
subsequent acceptance of rent or any other payment hereunder by Landlord
will not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
rent. No acceptance by Landlord of a lesser sum than the basic rent and
additional rent or other sum then due will be deemed to be other than on
account of the earliest installment of such rent or other amount due, nor
will any endorsement or statement on any check or any letter accompanying
any check be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such installment or other amount or pursue any other
remedy provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval will not be
deemed to waive or render unnecessary Landlord's consent or approval to
or of any subsequent similar acts by Tenant.
32. PARKING.
(a) Grant of Parking Rights. So long as this Lease is in effect and
provided Tenant is not in default hereunder, Landlord grants to Tenant
and Tenant's Authorized Users (as defined below) a license to use the
number and type of parking spaces designated in Subparagraph 1(t) subject
to the terms and conditions of this Paragraph 32 and the Rules and
Regulations regarding parking contained in Exhibit "H" attached hereto.
Except as otherwise expressly set forth in Subparagraph 1(t), as
consideration for the use of such parking spaces, Tenant agrees to pay to
Landlord or, at Landlord's election, directly to Landlord's parking
operator, as additional rent under this Lease, the prevailing parking
rate for each such parking space as established by Landlord in its
discretion from time to time. Tenant agrees that all parking charges
will be payable on a monthly basis concurrently with each monthly payment
of Monthly Base Rent. Tenant agrees to submit to Landlord or, at
Landlord's election, directly to Landlord's parking operator with a copy
to Landlord, written notice in a form reasonably specified by Landlord
containing the names, home and office addresses and telephone numbers of
those persons who are authorized by Tenant to use Tenant's parking spaces
on a monthly basis ("Tenant's Authorized Users") and shall use its best
efforts to identify each vehicle of Tenant's Authorized Users by make,
model and license number. Tenant agrees to deliver such notice prior to
the beginning of the Term of this Lease and to periodically update such
notice as well as upon specific request by Landlord or Landlord's parking
operator to reflect changes to Tenant's Authorized Users or their
vehicles.
(b) Visitor Parking. So long as this Lease is in effect, Tenant's
visitors and guests will be entitled to use those specific parking areas
which are designated for short term visitor parking and which are located
within the surface parking area(s), if any, and/or within the parking
structure(s) which serve the Building. Visitor parking will be made
available at a charge to Tenant's visitors and guests, with the rate
being established by Landlord in its discretion from time to time.
<PAGE>
Tenant, at its sole cost and expense, may elect to validate such parking
for its visitors and guests. All such visitor parking will be on a non-
exclusive, in common basis with all other visitors and guests of the
Development.
(c) Use of Parking Spaces. Tenant will not use or allow any of Tenant's
Authorized Users to use any parking spaces which have been specifically
assigned by Landlord to other tenants or occupants or for other uses such
as visitor parking or which have been designated by any governmental
entity as being restricted to certain uses. Tenant will not be entitled
to increase or reduce its parking privileges applicable to the Premises
during the Term of the Lease except as follows: If at any time Tenant
desires to increase or reduce the number of parking spaces allocated to
it under the terms of this Lease, Tenant must notify Landlord in writing
of such desire and Landlord will have the right, in its sole and absolute
discretion, to either (a) approve such requested increase in the number
of parking spaces allocated to Tenant (with an appropriate increase to
the additional rent payable by Tenant for such additional spaces based on
the then prevailing parking rates), (b) approve such requested decrease
in the number of parking spaces allocated to Tenant (with an appropriate
reduction in the additional rent payable by Tenant for such eliminated
parking spaces based on the then prevailing parking rates), or (c)
disapprove such requested increase or decrease in the number of parking
spaces allocated to Tenant. Promptly following receipt of Tenant's
written request, Landlord will provide Tenant with written notice of its
decision including a statement of any adjustments to the additional rent
payable by Tenant for parking under the Lease, if applicable.
(d) General Provisions. Except as otherwise expressly set forth in
Subparagraph 1(t), Landlord reserves the right to set and increase
monthly fees and/or daily and hourly rates for parking privileges from
time to time during the Term of the Lease. Landlord may assign any
unreserved and unassigned parking spaces and/or make all or any portion
of such spaces reserved, if Landlord reasonably determines that it is
necessary for orderly and efficient parking or for any other reasonable
reason. Failure to pay the rent for any particular parking spaces or
failure to comply with any terms and conditions of this Lease applicable
to parking may be treated by Landlord as a default under this Lease and,
in addition to all other remedies available to Landlord under the Lease,
at law or in equity, Landlord may elect to recapture such parking spaces
for the balance of the Term of this Lease if Tenant does not cure such
failure within the applicable cure period set forth in Paragraph 22 of
this Lease. In such event, Tenant and Tenant's Authorized Users will be
deemed visitors for purposes of parking space use and will be entitled to
use only those parking areas specifically designated for visitor parking
subject to all provisions of this Lease applicable to such visitor
parking use. Except in connection with an assignment or sublease
expressly permitted under the terms of this Lease, Tenant's parking
rights and privileges described herein are personal to Tenant and may not
be assigned or transferred, or otherwise conveyed, without Landlord's
prior written consent, which consent Landlord may withhold in its sole
and absolute discretion. In any event, under no circumstances may
Tenant's parking rights and privileges be transferred, assigned or
otherwise conveyed separate and apart from Tenant's interest in this
Lease.
(e) Cooperation with Traffic Mitigation Measures. Tenant agrees to use
its reasonable, good faith efforts to cooperate in traffic mitigation
programs which may be undertaken by Landlord independently, or in
cooperation with local municipalities or governmental agencies or other
property owners in the vicinity of the Building. Such programs may
include, but will not be limited to, carpools, vanpools and other
ridesharing programs, public and private transit, flexible work hours,
preferential assigned parking programs and programs to coordinate tenants
within the Development with existing or proposed traffic mitigation
programs.
(f) Parking Rules and Regulations. Tenant and Tenant's Authorized Users
shall comply with all rules and regulations regarding parking set forth
in Exhibit "H" attached hereto and Tenant agrees to cause its employees,
subtenants, assignees, contractors, suppliers, customers and invitees to
comply with such rules and regulations. Landlord reserves the right from
time to time to modify and/or adopt such other reasonable and non-
discriminatory rules and regulations for the parking facilities as it
deems reasonably necessary for the operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in
or prevented from the performance of any act required under this Lease by
reason of strikes, lock-outs, labor troubles, inability to procure
standard materials, failure of power, restrictive governmental laws,
regulations or orders or governmental action or inaction (including
failure, refusal or delay in issuing permits, approvals and/or
authorizations which is not the result of the action or inaction of the
party claiming such delay), riots, civil unrest or insurrection, war,
fire, earthquake, flood or other natural disaster, unusual and
unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party
delayed in performing work or doing acts required under the provisions of
this Lease, then performance of such act will be excused for the period
of the delay and the period for the performance of any such act will be
extended for a period equivalent to the period of such delay. The
provisions of this Paragraph 33 will not operate to excuse Tenant from
prompt payment of rent or any other payments required under the
provisions of this Lease.
34. SIGNS.
(a) Premises Signage. Landlord will designate the location on the
Premises for one Tenant identification sign. Tenant agrees to have
Landlord install and maintain Tenant's identification sign in such
designated location in accordance with this Paragraph 34 at Tenant's sole
cost and expense.
<PAGE>
(b) Building Parapet Signage. In addition to the identification sign
referred to in Paragraph 34(a) above, during the initial Term, Tenant
shall have the exclusive right to install and maintain identification
signage on the parapet of the Building in a location approved by
Landlord, provided that the following conditions precedent have been
satisfied: (i) at least seventy-five percent (75%) of the Building shall
have been leased, (ii) no other tenant in the Building shall have leased
more space than Tenant has leased in the Building, and (iii) Tenant shall
not be in default under this Lease beyond any applicable cure period.
(c) General. Except as otherwise provided in this Paragraph 34, Tenant
has no right to install Tenant identification signs in any other location
in, on or about the Premises or the Development and will not display or
erect any other signs, displays or other advertising materials that are
visible from the exterior of the Building or from within the Building in
any interior or exterior common areas. The size, design, color and other
physical aspects of any and all permitted sign(s) will be subject to (i)
Landlord's written approval prior to installation, which approval may be
withheld in Landlord's sole and absolute discretion, (ii) any covenants,
conditions or restrictions governing the Premises, and (iii) any
applicable municipal or governmental permits, approvals, guidelines and
restrictions (including, without limitation, any guidelines issued or
restrictions imposed by the City of Dublin or the East Dublin Specific
Plan). Tenant will be solely responsible for all costs for installation,
maintenance, repair and removal of any Tenant identification sign(s). If
Tenant fails to remove Tenant's sign(s) upon termination of this Lease
and repair any damage caused by such removal, Landlord may do so at
Tenant's sole cost and expense. Tenant agrees to reimburse Landlord for
all costs incurred by Landlord to effect any installation, maintenance or
removal on Tenant's account, which amount will be deemed additional rent,
and may include, without limitation, all sums disbursed, incurred or
deposited by Landlord including Landlord's costs, expenses and actual
attorneys' fees with interest thereon at the Interest Rate from the date
of Landlord's demand until paid by Tenant. Any sign rights granted to
Tenant under this Lease are personal to Tenant and may not be assigned,
transferred or otherwise conveyed to any assignee or subtenant of Tenant
without Landlord's prior written consent, which consent Landlord may
withhold in its sole and absolute discretion.
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of
Tenant covenants and agrees that, in the event of any actual or alleged
failure, breach or default hereunder by Landlord: (a) Tenant's recourse
against Landlord for monetary damages will be limited to Landlord's
interest in the Building including, subject to the prior rights of any
Mortgagee, Landlord's interest in the rents of the Building and any
insurance proceeds payable to Landlord; (b) Except as may be necessary
to secure jurisdiction of the partnership or company, no partner or
member of Landlord shall be sued or named as a party in any suit or
action and no service of process shall be made against any partner or
member of Landlord; (c) No partner or member of Landlord shall be
required to answer or otherwise plead to any service of process; (d) No
judgment will be taken against any partner or member of Landlord and any
judgment taken against any partner or member of Landlord may be vacated
and set aside at any time after the fact; (e) No writ of execution will
be levied against the assets of any partner or member of Landlord; (f)
The obligations under this Lease do not constitute personal obligations
of the individual members, partners, directors, officers or shareholders
of Landlord, and Tenant shall not seek recourse against the individual
members, partners, directors, officers or shareholders of Landlord or any
of their personal assets for satisfaction of any liability in respect to
this Lease; and (g) These covenants and agreements are enforceable both
by Landlord and also by any partner or member of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by
Landlord and at any time during the Term of this Lease upon ten (10) days
prior written notice from Landlord, Tenant agrees to provide Landlord
with a current financial statement for Tenant and any guarantors of
Tenant and financial statements for the two (2) years prior to the
current financial statement year for Tenant and any guarantors of Tenant.
Such statements are to be prepared in accordance with generally accepted
accounting principles and, if such is the normal practice of Tenant,
audited by an independent certified public accountant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all
other charges and performing all of the covenants and provisions on
Tenant's part to be observed and performed under this Lease, Tenant may
peaceably and quietly have, hold and enjoy the Premises in accordance
with this Lease without hindrance or molestation by Landlord or its
employees or agents.
38. MISCELLANEOUS.
(a) Conflict of Laws. This Lease shall be governed by and construed
solely pursuant to the laws of the State, without giving effect to choice
of law principles thereunder.
(b) Successors and Assigns. Except as otherwise provided in this Lease,
all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors and assigns.
(c) Professional Fees and Costs. If either Landlord or Tenant should
bring suit against the other with respect to this Lease, then all costs
and expenses, including without limitation, actual professional fees and
costs such as appraisers', accountants' and attorneys' fees and costs,
incurred by the party which prevails in such action, whether by final
<PAGE>
judgment or out of court settlement, shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to judgment. As
used herein, attorneys' fees and costs shall include, without limitation,
attorneys' fees, costs and expenses incurred in connection with any (i)
postjudgment motions; (ii) contempt proceedings; (iii) garnishment, levy,
and debtor and third party examination; (iv) discovery; and (v)
bankruptcy litigation.
(d) Terms and Headings. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in
any gender include other genders. The paragraph headings of this Lease
are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
(e) Time. Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor.
(f) Prior Agreement; Amendments. This Lease constitutes and is intended
by the parties to be a final, complete and exclusive statement of their
entire agreement with respect to the subject matter of this Lease. This
Lease supersedes any and all prior and contemporaneous agreements and
understandings of any kind relating to the subject matter of this Lease.
There are no other agreements, understandings, representations,
warranties, or statements, either oral or in written form, concerning the
subject matter of this Lease. No alteration, modification, amendment or
interpretation of this Lease shall be binding on the parties unless
contained in a writing which is signed by both parties.
(g) Separability. The provisions of this Lease shall be considered
separable such that if any provision or part of this Lease is ever held
to be invalid, void or illegal under any law or ruling, all remaining
provisions of this Lease shall remain in full force and effect to the
maximum extent permitted by law.
(h) Recording. Neither Landlord nor Tenant shall record this Lease nor
a short form memorandum thereof without the consent of the other.
(i) Counterparts. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which
shall be one and the same agreement.
(j) Nondisclosure of Lease Terms. Tenant acknowledges and agrees that
the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect
the ability of Landlord to negotiate other leases and impair Landlord's
relationship with other tenants. Accordingly, Tenant agrees that it, and
its partners, officers, directors, employees, agents and attorneys, shall
not intentionally and voluntarily disclose the terms and conditions of
this Lease to any newspaper or other publication or any other tenant or
apparent prospective tenant of the Building or other portion of the
Development, or real estate agent, either directly or indirectly, without
the prior written consent of Landlord, provided, however, that Tenant may
disclose the terms to prospective subtenants or assignees under this
Lease.
(k) Non-Discrimination. Tenant acknowledges and agrees that there shall
be no discrimination against, or segregation of, any person, group of
persons, or entity on the basis of race, color, creed, religion, age,
sex, marital status, national origin, or ancestry in the leasing,
subleasing, transferring, assignment, occupancy, tenure, use, or
enjoyment of the Premises, or any portion thereof.
39. EXECUTION OF LEASE.
(a) Joint and Several Obligations. If more than one person executes
this Lease as Tenant, their execution of this Lease will constitute their
covenant and agreement that (i) each of them is jointly and severally
liable for the keeping, observing and performing of all of the terms,
covenants, conditions, provisions and agreements of this Lease to be
kept, observed and performed by Tenant, and (ii) the term "Tenant" as
used in this Lease means and includes each of them jointly and severally.
The act of or notice from, or notice or refund to, or the signature of
any one or more of them, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, will be binding upon each and
all of the persons executing this Lease as Tenant with the same force and
effect as if each and all of them had so acted or so given or received
such notice or refund or so signed.
(b) Tenant as Corporation or Partnership. If Tenant executes this Lease
as a corporation or partnership, then Tenant and the persons executing
this Lease on behalf of Tenant represent and warrant that such entity is
duly qualified and in good standing to do business in California and that
the individuals executing this Lease on Tenant's behalf are duly
authorized to execute and deliver this Lease on its behalf, and in the
case of a corporation, in accordance with a duly adopted resolution of
the board of directors of Tenant, a copy of which is to be delivered to
Landlord on execution hereof, if requested by Landlord, and in accordance
with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on
execution hereof, if requested by Landlord, and that this Lease is
binding upon Tenant in accordance with its terms.
<PAGE>
(c) Examination of Lease. Submission of this instrument by Landlord to
Tenant for examination or signature by Tenant does not constitute a
reservation of or option for lease, and it is not effective as a lease or
otherwise until execution by and delivery to both Landlord and Tenant.
40. UNION LABOR. Notwithstanding anything herein to the contrary,
Tenant covenants and agrees that all contractors and subcontractors at
any tier performing any construction, repair, refurbishment or
restoration, including, without limitation, tenant improvements, build-
outs, alterations, additions, improvements, renovations, repairs,
remodeling, painting and installations of fixtures, mechanical,
electrical, plumbing, data, security, telecommunication, low voltage or
elevator equipment or systems or other equipment, or with respect to any
other construction work in, on, or to the Premises shall: (i) be bound
by and signatory to a collective bargaining agreement with a labor
organization (a) whose jurisdiction covers the type of work to be
performed on the Premises, and (b) who is affiliated with the Building
and Construction Trades Department of the AFL-CIO; and (ii) each such
contractor or subcontractor shall observe area standards for wages and
other terms and conditions of employment, including fringe benefits.
41. OPTION TERM.
(a) Option Right. Landlord hereby grants the originally named Tenant
herein (or any affiliate to which this Lease has been assigned pursuant
to Paragraph 24(c) above (a "Permitted Assignee")), one (1) option to
extend the Term for a period of five (5) years (the "Option Term"), which
option shall be exercisable only by written notice delivered by Tenant to
Landlord as provided below, provided that, as of the date of delivery of
such notice, Tenant is not in default under this Lease beyond any
applicable cure period and Tenant has not previously been in default
under this Lease beyond any applicable cure period more than once in the
prior twenty-four (24) months. Upon the proper exercise of such option
to extend, and provided that, as of the end of the initial Term, Tenant
is not in default under this Lease beyond any applicable cure period and
Tenant has not previously been in default beyond any applicable cure
period under this Lease more than once in the prior twenty-four (24)
months, the Term, as it applies to the Premises, shall be extended for a
period of five (5) years at the monthly base rent and on the other terms
set forth in Paragraph 41(b) below. The rights contained in this
Paragraph 41 shall be personal to Tenant or a Permitted Assignee.
(b) Option Rent. The monthly base rent payable by Tenant during the
Option Term (the "Option Rent") shall be equal to rent at which tenants,
as of the commencement of the Option Term, will be leasing non-sublease
space comparable in size, location and quality to the Premises, for a
comparable term, which comparable space is located in other comparable
office buildings in the Cities of Dublin or Pleasanton, California;
provided, however, that in no event will Option Rent be less than the
Monthly Base Rent payable by Tenant for the last year of the initial term
of this Lease. All other terms and conditions of this Lease shall apply
throughout the Option Term; however, any obligation of Landlord to
construct tenant improvements or provide an allowance (if applicable)
shall not apply during the Option Term and Tenant shall, in no event,
have the option to extend the Term beyond the Option Term described in
Paragraph 41(a) above.
(c) Exercise of Option. The option contained in this Paragraph 41 shall
be exercised by Tenant, if at all, and only in the following manner: (i)
Tenant shall deliver written notice to Landlord not more than eleven (11)
months nor less than nine (9) months prior to the expiration of the
initial Term, stating that Tenant is exercising its option; (ii)
Landlord, after receipt of Tenant's notice, shall deliver notice (the
"Option Rent Notice") to Tenant not less than seven (7) months prior to
the expiration of the initial Term, setting forth the Option Rent; and
(iii) if Tenant wishes to object to the Option Rent, Tenant shall, on or
before the earlier of (A) the date occurring six (6) months prior to the
expiration of the initial Term and (B) the date occurring thirty (30)
days after Tenant's receipt of the Option Rent Notice deliver written
notice thereof to Landlord, in which case the parties shall follow the
procedure, and the Option Rent shall be determined, as set forth in
Paragraph 41(d) below.
(d) Determination of Option Rent. In the event Tenant timely and
appropriately objects to the Option Rent, Landlord and Tenant shall
attempt to agree upon the Option Rent using their best good-faith
efforts. If Landlord and Tenant fail to reach agreement within ten (10)
days following Tenant's objection to the Option Rent, (the "Outside
Agreement Date"), then each party shall make a separate determination of
the Option Rent, as the case may be, within five (5) days, and such
determinations shall be submitted to arbitration in accordance with
Subparagraphs (i) through (vii) below.
(i) Landlord and Tenant shall each appoint one arbitrator who
shall by profession be a real estate broker who shall have
been active over the five (5) year period ending on the date
of such appointment in the leasing of commercial properties in
the Dublin area. The determination of the arbitrators shall
be limited solely to the issue area of whether Landlord's or
Tenant's submitted Option Rent, is the closest to the actual
Option Rent as determined by the arbitrators, taking into
account the requirements of Paragraph 41(b) above. Each such
arbitrator shall be appointed within fifteen (15) days after
the applicable Outside Agreement Date.
(ii) The two arbitrators so appointed shall within ten (10) days of
the date of the appointment of the last appointed arbitrator
agree upon and appoint a third arbitrator who shall be
qualified under the same criteria set forth hereinabove for
qualification of the initial two arbitrators.
<PAGE>
(iii) The three arbitrators shall within thirty (30) days of the
appointment of the third arbitrator reach a decision as to
whether the parties shall use Landlord's or Tenant's submitted
Option Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three arbitrators shall be
binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator
within fifteen (15) days after the applicable Outside
Agreement Date, the arbitrator appointed by one of them shall
reach a decision, notify Landlord and Tenant thereof, and such
arbitrator's decision shall be binding upon Landlord and
Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third
arbitrator, or both parties fail to appoint an arbitrator,
then the appointment of the third arbitrator or any arbitrator
shall be dismissed and the matter to be decided shall be
forthwith submitted to arbitration under the provisions of the
American Arbitration Association, but subject to the
instruction set forth in this Paragraph 41(d).
(vii) The cost of arbitration shall be paid by the non-prevailing
party.
42. SECURITY MEASURES. The Building will have a card reader system for
Building access during non-business hours. In addition, there will be an
on-site roving security guard that will patrol the Development during
non-business hours. Tenant hereby acknowledges that Landlord shall have
no obligation to provide any other guard service or other security
measures for the benefit of the Premises, the Building or the
Development. Tenant hereby assumes all responsibility for the protection
of Tenant and its agents, employees, contractors, invitees and guests,
and the property thereof, from acts of third parties, including keeping
doors locked and other means of entry to the Premises closed, whether or
not Landlord, at its option, elects to provide security protection for
the Development or any portion thereof. Tenant further assumes the risk
that any safety and security devices, services and programs which
Landlord elects, in its sole discretion, to provide may not be effective,
or may malfunction or be circumvented by an unauthorized third party, and
Tenant shall, in addition to its other insurance obligations under this
Lease, obtain its own insurance coverage to the extent Tenant desires
protection against losses related to such occurrences. Tenant shall
cooperate in any reasonable safety or security program developed by
Landlord or required by law.
43. NON-DISTURBANCE AGREEMENT. Landlord agrees to deliver to Tenant,
within ninety (90) days after the execution of this Lease by both
parties, a commercially reasonable non-disturbance agreement from the
holder of the existing deed of trust against the Building.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed by their duly authorized representatives as of the date first
above written.
TENANT: LANDLORD:
SIMPSON MANUFACTURING CO., INC., KOLL DUBLIN CORPORATE CENTER,
a Delaware corporation L.P., a Delaware limited
partnership
By: /s/STEVE LAMSON By: KDC-DUBLIN, LLC, a
---------------------- Delaware limited liability
Print Name: STEVE LAMSON company, its general partner
Print Title: CFO
By: KDC-OC, LLC, a Delaware
limited liability
company, its managing
member
By: Koll Development
Company, LLC, a
Delaware limited
liability company,
its manager
By: /s/MICHAEL G. PARNER
-------------------------
Print Name: MICHAEL G. PARNER
Print Title: SENIOR VP
<PAGE>
EXHIBIT A-I
SITE PLAN
<PAGE>
EXHIBIT A-II
OUTLINE OF FLOOR
PLAN OF PREMISES
<PAGE>
EXHIBIT B
RENTABLE SQUARE FEET AND USABLE SQUARE FEET
1. The term "Rentable Square Feet" as used in the Lease will be deemed
to include: (a) with respect to the Premises, the usable area of the
Premises determined in accordance with the Method for Measuring Floor
Area in Office Buildings, ANSI Z65.1-1996 (the "BOMA Standard"), plus a
pro rata portion of the main lobby area on the ground floor and all
elevator machine rooms, electrical and telephone equipment rooms and mail
delivery facilities and other areas used by all tenants of the Building,
if any, plus (i) for single tenancy floors, all the area covered by the
elevator lobbies, corridors, special stairways, restrooms, mechanical
rooms, electrical rooms and telephone closets on such floors, or (ii) for
multiple tenancy floors, a pro-rata portion of all of the area covered by
the elevator lobbies, corridors, special stairways, restrooms, mechanical
rooms, electrical rooms and telephone closets on such floor; and (b) with
respect to the Building, the total rentable area for all floors in the
Building computed in accordance with the provisions of Subparagraph 1(a)
above. In calculating the "Rentable Square Feet" of the Premises or the
Building, the area contained within the exterior walls of the Building
stairs, fire towers, vertical ducts, elevator shafts, flues, vents,
stacks and major pipe shafts will be excluded.
2. The term "Usable Square Feet" as used in Exhibit "C" with respect to
the Premises, if applicable, will be deemed to include the usable area of
the Premises as determined in accordance with the BOMA Standard.
3. For purposes of establishing Tenant's Percentage, Tenant's Operating
Expense Allowance, and Monthly Base Rent as shown in Paragraph 1 of the
Lease, the number of Rentable Square Feet of the Premises is deemed to be
as set forth in Subparagraph 1(g) of the Lease, and the number of
Rentable Square Feet of the Building is deemed to be as set forth in
Subparagraph 1(f) of the Lease. From time to time at Landlord's option,
Landlord's architect may redetermine the actual number of Rentable Square
Feet of the Premises, and the Building, and the actual number of Usable
Square Feet of the Premises respectively, based upon the criteria set
forth in Paragraph 1 and Paragraph 2 above, which determination will be
conclusive, and thereupon Tenant's Percentage, Tenant's Operating Expense
Allowance, Monthly Base Rent and (if applicable) the Tenant Improvement
Allowance will be adjusted accordingly.
<PAGE>
EXHIBIT C
WORK LETTER AGREEMENT
[ALLOWANCE]
This WORK LETTER AGREEMENT ("Work Letter Agreement") is entered into as
of April 21, 2000, by and between KOLL DUBLIN CORPORATE CENTER, L.P., a
Delaware limited partnership ("Landlord"), and SIMPSON MANUFACTURING
COMPANY, INC., a California corporation ("Tenant").
R E C I T A L S :
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering
certain premises (the "Premises") more particularly described in Exhibit
"A" attached to the Lease. All terms not defined herein have the same
meaning as set forth in the Lease. To the extent applicable, the
provisions of the Lease are incorporated herein by this reference.
B. In order to induce Tenant to enter into the Lease and in
consideration of the mutual covenants hereinafter contained, Landlord and
Tenant agree as follows:
1. BASE BUILDING AND TENANT IMPROVEMENTS.
(a) Base Building Shell. The base building shell constructed by
Landlord shall include the following:
(i) All core areas, elevator lobbies and restrooms on the fourth
floor of the Building or in the main lobby of the Building
shall be complete.
(ii) The main HVAC loop for the fourth floor of the Building shall
be in place and ready to receive mixing boxes for zoning.
(iii) The main fire sprinkler risers and grid for the fourth floor
of the Building shall be in place, ready for drop down.
(iv) After Tenant's approval of the Final Plans (as defined below),
all perimeter walls of the Premises shall be sheet-rocked and
ready for finish.
(v) The Tenant-side of the core partitions on the fourth floor of
the Building shall be fire taped.
(vi) The column furring at exterior columns in the Premises shall
be finish taped.
(vii) The fourth floor of the Building shall be covered with 3-1/4"
concrete.
(viii)Electrical service shall be provided to closets on the fourth
floor of the Building.
(ix) The telephone sleeve shall be provided to closets on the
fourth floor of the Building.
(b) Tenant Improvements. As used in the Lease and this Work Letter
Agreement, the term "Tenant Improvements" or "Tenant Improvement Work"
means those items of general tenant improvement construction shown on the
Final Plans (described in Paragraph 4 below), more particularly described
in Paragraph 5 below.
2. WORK SCHEDULE. Attached hereto as Schedule 1 is a schedule (the
"Work Schedule") which sets forth the timetable for the planning and
completion of the installation of the Tenant Improvements and the
Commencement Date of the Lease. The Work Schedule also sets forth each
of the various items of work to be done or approval to be given by
Landlord and Tenant in connection with the completion of the Tenant
Improvements. The Work Schedule shall be the basis for completing the
Tenant Improvements. All plans and drawings required by this Work Letter
Agreement and all work performed pursuant thereto are to be prepared and
performed in accordance with the Work Schedule. Landlord may, from time
to time during construction of the Tenant Improvements, modify the Work
Schedule as Landlord reasonably deems appropriate.
3. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the
following person(s) as Landlord's representative ("Landlord's
Representative") to act for Landlord in all matters covered by this Work
Letter Agreement: Jeffrey Logan.
Tenant hereby appoints the following person(s) as Tenant's representative
("Tenant's Representative") to act for Tenant in all matters covered by
this Work Letter Agreement: David Hendricks.
All communications with respect to the matters covered by this Work
Letter Agreement are to made to Landlord's Representative or Tenant's
Representative, as the case may be, in writing in compliance with the
notice provisions of the Lease. Either party may change its
<PAGE>
representative under this Work Letter Agreement at any time by written
notice to the other party in compliance with the notice provisions of the
Lease.
4. TENANT IMPROVEMENT PLANS.
(a) Preparation of Space Plans. In accordance with the Work Schedule,
Tenant agrees to meet with Tenant's space planner for the purpose of
promptly preparing preliminary space plans for the layout of Premises
("Space Plans"). Tenant's space planner shall be Bill Douglass of
Ambiance Associates or such other person or entity as shall be approved
by Landlord, which approval shall not be unreasonably withheld. The
Space Plans are to be sufficient to convey the architectural design of
the Premises and layout of the Tenant Improvements therein and are to be
submitted to Landlord in accordance with the Work Schedule for Landlord's
approval. If Landlord reasonably disapproves any aspect of the Space
Plans, Landlord will advise Tenant in writing of such disapproval and the
reasons therefor in accordance with the Work Schedule. Tenant will then
submit to Landlord for Landlord's approval, in accordance with the Work
Schedule, a redesign of the Space Plans incorporating the revisions
reasonably required by Landlord.
(b) Preparation of Final Plans. Based on the approved Space Plans, and
in accordance with the Work Schedule, Landlord's architect will prepare
complete architectural plans, drawings and specifications and complete
engineered mechanical, structural and electrical working drawings for all
of the Tenant Improvements for the Premises (collectively, the "Final
Plans"). The Final Plans will show: (a) the subdivision (including
partitions and walls), layout, lighting, finish and decoration work
(including carpeting and other floor coverings) for the Premises; (b) all
internal and external communications and utility facilities which will
require conduiting or other improvements from the base Building shell
work and/or within common areas; and (c) all other specifications for the
Tenant Improvements. The Final Plans will be submitted to Tenant for
signature to confirm that they are consistent with the Space Plans. If
Tenant reasonably disapproves any aspect of the Final Plans based on any
inconsistency with the Space Plans, Tenant agrees to advise Landlord in
writing of such disapproval and the reasons therefor within the time
frame set forth in the Work Schedule. In accordance with the Work
Schedule, Landlord will then cause Landlord's architect to redesign the
Final Plans incorporating the revisions reasonably requested by Tenant so
as to make the Final Plans consistent with the Space Plans.
(c) Requirements of Tenant's Final Plans. Tenant's Final Plans will
include locations and complete dimensions, and the Tenant Improvements,
as shown on the Final Plans, will: (i) be compatible with the Building
shell and with the design, construction and equipment of the Building;
(ii) if not comprised of the Building standards set forth in the written
description thereof (the "Standards"), then compatible with and of at
least equal quality as the Standards and approved by Landlord; (iii)
comply with all applicable laws, ordinances, rules and regulations of all
governmental authorities having jurisdiction, and all applicable
insurance regulations; (iv) not require Building service beyond the level
normally provided to other tenants in the Building and will not overload
the Building floors; and (v) be of a nature and quality consistent with
the overall objectives of Landlord for the Building, as determined by
Landlord in its reasonable but subjective discretion.
(d) Submittal of Final Plans. Once approved by Landlord and Tenant,
Landlord's architect will submit the Final Plans to the appropriate
governmental agencies for plan checking and the issuance of a building
permit. Landlord's architect, with Tenant's cooperation, will make any
changes to the Final Plans which are requested by the applicable
governmental authorities to obtain the building permit. After approval
of the Final Plans no further changes may be made without the prior
written approval of both Landlord and Tenant, and then only after
agreement by Tenant to pay any excess costs resulting from the design
and/or construction of such changes. Tenant hereby acknowledges that any
such changes will be subject to the terms of Paragraph 10 below.
(e) Changes to Shell of Building. If the Final Plans or any amendment
thereof or supplement thereto shall require changes in the Building
shell, the increased cost of the Building shell work caused by such
changes will be paid for by Tenant or charged against the "Allowance"
described in Paragraph 5 below.
(f) Competitive Bids. Promptly after approval of the Final Plans by
Landlord and Tenant, either (i) Landlord shall submit the Final Plans to,
and request sealed bids from, at least three (3) general contractors
acceptable to both Landlord and Tenant for construction of the Tenant
Improvements or (ii) Landlord shall solicit a bid from a mutually agreed
upon general contractor which will include a pre-negotiated fee for
overhead and profit and which general contractor shall request bids from
at least three (3) bidders in each major trade division. Such
contractors shall have a time period mutually acceptable to Landlord and
Tenant within which to submit their proposals. Landlord shall select the
general contractor that submitted the lowest complete, fully qualified
and responsible proposal.
(g) Work Cost Estimate and Statement. Prior to the commencement of
construction of any of the Tenant Improvements shown on the Final Plans,
Landlord will submit to Tenant a written estimate of the cost to complete
the Tenant Improvement Work, including hard and soft costs as itemized in
Paragraph 5(a) below (collectively, the "Work Cost") which written
estimate will be based on the bid submitted by the successful general
contractor, taking into account any modifications which may be required
to reflect changes in the Final Plans required by the City or County in
which the Premises are located (the "Work Cost Estimate"). Tenant will
either approve the Work Cost Estimate or disapprove specific items and
submit to Landlord revisions to the Final Plans to reflect deletions of
<PAGE>
and/or substitutions for such disapproved items. Submission and approval
of the Work Cost Estimate will proceed in accordance with the Work
Schedule. Upon Tenant's approval of the Work Cost Estimate (such
approved Work Cost Estimate to be hereinafter known as the "Work Cost
Statement"), Landlord will have the right to purchase materials and to
commence the construction of the items included in the Work Cost
Statement pursuant to Paragraph 6 hereof. If the total costs reflected
in the Work Cost Statement exceed the Allowance described in Paragraph 5
below, Tenant agrees to pay such excess, as additional rent, within five
(5) business days after Tenant's approval of the Work Cost Estimate.
Throughout the course of construction, any differences between the
estimated Work Cost in the Work Cost Statement and the actual Work Cost
will be determined by Landlord and appropriate adjustments and payments
by Landlord or Tenant, as the case may be, will be made within five (5)
business days thereafter.
5. PAYMENT FOR THE TENANT IMPROVEMENTS.
(a) Allowance. Landlord hereby grants to Tenant a tenant improvement
allowance of $25.75 per Rentable Square Foot of the Premises (the
"Allowance"). The Allowance is to be used only for:
(i) Payment of the cost of preparing the Space Plans and the Final
Plans, including mechanical, electrical, plumbing and
structural drawings and of all other aspects necessary to
complete the Final Plans. The Allowance will not be used for
the payment of extraordinary design work not consistent with
the scope of the Standards (i.e., above-standard design work)
or for payments to any other consultants, designers or
architects other than Landlord's architect and/or Tenant's
architect.
(ii) The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements.
(iii) Construction of the Tenant Improvements, including, without
limitation, the following:
(aa) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and
painting, millwork and similar items;
(bb) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work necessary for the
Premises;
(cc) The furnishing and installation of all duct work,
terminal boxes, diffusers and accessories necessary for
the heating, ventilation and air conditioning systems
within the Premises, including the cost of meter and key
control for after-hour air conditioning;
(dd) Any additional improvements to the Premises required for
Tenant's use of the Premises including, but not limited
to, odor control, special heating, ventilation and air
conditioning, noise or vibration control or other
special systems or improvements;
(ee) All fire and life safety control systems such as fire
walls, sprinklers, halon, fire alarms, including piping,
wiring and accessories, necessary for the Premises;
(ff) All plumbing, fixtures, pipes and accessories necessary
for the Premises;
(gg) Testing and inspection costs; and
(hh) Fees for Landlord's tenant improvement coordinator in
the amount of five percent (5%) of the actual Work Cost,
and fees for the contractor including, but not limited
to, fees and costs attributable to general conditions.
(iv) All costs expended by Landlord in connection with the
preparation of the Space Plans, including those costs
incurred by Landlord prior to the execution of this Lease by
Landlord and Tenant.
(b) Excess Costs. The cost of each item referenced in Paragraph 5(a)
above shall be charged against the Allowance. If the Work Cost exceeds
the Allowance, Tenant agrees to pay to Landlord such excess including
fees for the contractor and Landlord's standard five percent (5%) fee for
the tenant improvement coordinator associated with the supervision of
such excess work as follows: after the Allowance has been exhausted,
Tenant shall make monthly progress payments to Landlord for the Work Cost
based on the progress of the Tenant Improvement Work within five (5) days
after Landlord's invoice therefor. In no event will the Allowance be
used to pay for Tenant's furniture, artifacts, equipment, telephone
systems or any other item of personal property which is not affixed to
the Premises.
(c) Changes. If, after the Final Plans have been prepared and the Work
Cost Statement has been established, Tenant requires any changes or
substitutions to the Final Plans, any additional costs related thereto
including fees for the contractor and Landlord's standard five percent
(5%) fee for the tenant improvement coordinator associated with the
supervision of such changes or substitutions are to be paid by Tenant to
Landlord prior to the commencement of construction of the Tenant
Improvements. Any changes to the Final Plans will be approved by
Landlord and Tenant in the manner set forth in Paragraph 4 above and
will, if necessary, require the Work Cost Statement to be revised and
agreed upon between Landlord and Tenant in the manner set forth in
Subparagraph 4(f) above. Landlord will have the right to decline
Tenant's request for a change to the Final Plans if such changes are
<PAGE>
inconsistent with the provisions of Paragraph 4 above, or if the change
would unreasonably delay construction of the Tenant Improvements and the
Commencement Date of the Lease.
(d) Governmental Cost Increases. If increases in the cost of the Tenant
Improvements as set forth in the Work Cost Statement are due to
requirements of any governmental agency, Tenant agrees to pay Landlord
the amount of such increase including fees for the contractor and
Landlord's standard five percent (5%) fee for the tenant improvement
coordinator associated with the supervision of such additional work
within five (5) days of Landlord's written notice; provided, however,
that Landlord will first apply toward any such increase any remaining
balance of the Allowance.
(e) Unused Allowance Amounts. Any portion of the Allowance that has not
been used within sixty (60) days after the Commencement Date will not be
refunded to Tenant or be available to Tenant as a credit against any
obligations of Tenant under the Lease unless Tenant has paid for excess
costs as described in Subparagraphs 5(b), 5(c) or 5(d), in which case the
unused Allowance may be applied toward such excess cost amounts and paid
to Tenant.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. Until Tenant approves the
Final Plans and Work Cost Statement, Landlord will be under no obligation
to cause the construction of any of the Tenant Improvements. Following
Tenant's approval of the Work Cost Statement described in Subparagraph
4(f) above and upon Tenant's payment of the total amount by which such
Work Cost Statement exceeds the Allowance, if any, Landlord's contractor
will commence and diligently proceed with the construction of the Tenant
Improvements, subject to Tenant Delays (as described in Paragraph 9
below) and Force Majeure Delays (as described in Paragraph 10 below).
7. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with its
obligation to other tenants in the Building, if appropriate and
necessary, make the freight/construction elevator reasonably available to
Tenant in connection with initial decorating, furnishing and moving into
the Premises. Tenant agrees to pay for any after-hours staffing of the
freight/construction elevator, if needed.
8. COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION.
(a) Commencement Date. The Term of the Lease will commence on the date
(the "Commencement Date") which is the earlier of: (i) the date Tenant
moves into the Premises to commence operation of its business in all or
any portion of the Premises; or (ii) the later of (A) the Estimated
Completion Date or (B) the date the Tenant Improvements have been
"substantially completed" (as defined below); provided, however, that if
substantial completion of the Tenant Improvements is delayed as a result
of any Tenant Delays described in Paragraph 9 below, then the
Commencement Date as would otherwise have been established pursuant to
this Subparagraph 8(a)(ii) will be accelerated by the number of days of
such Tenant Delays. During the two (2) week period prior to substantial
completion of the Tenant Improvements, Tenant may, at Tenant's sole risk,
enter the Premises upon such substantial completion for the sole purpose
of installing its furniture, fixtures and equipment, provided that (a)
Tenant's early entry shall not interfere with Landlord's completion of
any punch list items or cause labor difficulties; and (b) Tenant shall
comply with all provisions of the Lease other than the obligation to pay
Monthly Base Rent.
(b) Substantial Completion; Punch-List. For purposes of Subparagraph
8(a)(ii) above, the Tenant Improvements will be deemed to be
"substantially completed" when Landlord's contractor certifies in writing
to Landlord and Tenant that Landlord: (a) is able to provide Tenant with
reasonable access to the Premises; (b) has substantially performed all of
the Tenant Improvement Work required to be performed by Landlord under
this Work Letter Agreement, other than decoration and minor "punch-list"
type items and adjustments which do not materially interfere with
Tenant's access to or use of the Premises; and (c) has obtained a
temporary certificate of occupancy or other required equivalent approval
from the local governmental authority permitting occupancy of the
Premises. Within two (2) business days after receipt of such certificate
from Landlord's contractor, Tenant will conduct a walk-through inspection
of the Premises with Landlord and provide to Landlord a written punch-
list specifying those decoration and other punch-list items which require
completion, which items Landlord will thereafter diligently complete.
(c) Delivery of Possession. Landlord agrees to deliver possession of
the Premises to Tenant when the Tenant Improvements have been
substantially completed in accordance with Subparagraph (b) above. The
parties estimate that Landlord will deliver possession of the Premises to
Tenant and the Term of this Lease will commence on or before the
estimated commencement date set forth in the Work Schedule delivered to
Tenant pursuant to Paragraph 2 above (the "Projected Commencement Date").
Landlord agrees to use its commercially reasonable efforts to cause the
Premises to be substantially completed on or before the Projected
Commencement Date. Tenant agrees that if Landlord is unable to deliver
possession of the Premises to Tenant on or prior to the Projected
Commencement Date, the Lease will not be void or voidable, nor will
Landlord be liable to Tenant for any loss or damage resulting therefrom,
but if such late delivery is due to Landlord's fault or due to any Force
Majeure Delay(s), then, as Tenant's sole remedy, the Commencement Date
and the Expiration Date of the Term will be extended one (1) day for each
day Landlord is delayed in delivering possession of the Premises to
Tenant.
9. TENANT DELAYS. For purposes of this Work Letter Agreement, "Tenant
Delays" means any delay in the completion of the Tenant Improvements
resulting from any or all of the following: (a) Tenant's failure to
timely perform any of its obligations pursuant to this Work Letter
Agreement, including any failure to complete, on or before the due date
<PAGE>
therefor, any action item which is Tenant's responsibility pursuant to
the Work Schedule delivered by Landlord to Tenant pursuant to this Work
Letter Agreement; (b) Tenant's changes to Space Plans or Final Plans
after Landlord's approval thereof; (c) Tenant's request for materials,
finishes, or installations which are not readily available or which are
incompatible with the Standards; (d) any delay of Tenant in making
payment to Landlord for Tenant's share of the Work Cost; or (e) any
negligent or wrongful act or failure to act by Tenant, Tenant's
employees, agents, architects, independent contractors, consultants
and/or any other person performing or required to perform services on
behalf of Tenant.
10. FORCE MAJEURE DELAYS. For purposes of this Work Letter, "Force
Majeure Delays" means any actual delay in the construction of the Tenant
Improvements, which is beyond the reasonable control of Landlord or
Tenant, as the case may be, as described in Paragraph 33 of the Lease.
11. UNION LABOR. Reference is hereby made to Paragraph 40 of the Lease
which requires the use of union labor, which provision in hereby deemed
incorporated herein in its entirety.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this
Work Letter Agreement to be duly executed by their duly authorized
representatives as of the date of the Lease.
TENANT: LANDLORD:
SIMPSON MANUFACTURING CO., INC., KOLL DUBLIN CORPORATE CENTER,
a Delaware corporation L.P., a Delaware limited
partnership
By: /s/STEVE LAMSON By: KDC-DUBLIN, LLC, a
---------------------- Delaware limited liability
Print Name: STEVE LAMSON company, its general partner
Print Title: CFO
By: KDC-OC, LLC, a Delaware
limited liability
company, its managing
member
By: Koll Development
Company, LLC, a
Delaware limited
liability company,
its manager
By: /s/MICHAEL G. PARNER
-------------------------
Print Name: MICHAEL G. PARNER
Print Title: SENIOR VP
<PAGE>
<PAGE>
WORK SCHEDULE
<PAGE>
EXHIBIT D
NOTICE OF LEASE TERM DATES
AND TENANT'S PERCENTAGE
To: Simpson Manufacturing Company, Inc.
Date:
Re: Lease dated April 21, 2000 (the "Lease"), between KOLL DUBLIN
CORPORATE CENTER, L.P., a Delaware limited partnership, Landlord,
and SIMPSON MANUFACTURING COMPANY, INC., a California corporation,
Tenant, concerning the 4th Floor of the Building located at 4120
Dublin Boulevard, Dublin, California (the "Premises").
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being
substantially complete in accordance with the subject Lease and that
there is no deficiency in construction except as may be indicated on the
"Punch-List" prepared by Landlord and Tenant, a copy of which is attached
hereto.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the Lease the Commencement Date
is __________, and the Term of the Lease will expire on _______________.
3. That in accordance with the Lease, rent commenced to accrue on
__________.
4. If the Commencement Date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each
billing thereafter will be for the full amount of the monthly installment
as provided for in the Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the Term of the Lease. Your rent checks should be
made payable to _________________________ at _________________________.
6. The number of Rentable Square Feet within the Premises is __________
square feet as determined by Landlord's architect in accordance with the
terms of the Lease.
7. The number of Rentable Square Feet within the Building is __________
square feet as determined by Landlord's architect in accordance with the
terms of the Lease.
8. Tenant's Percentage, as adjusted based upon the number of Rentable
Square Feet within the Premises, is _____%.
LANDLORD:
KOLL DUBLIN CORPORATE CENTER,
L.P., a Delaware limited
partnership
By: KDC-DUBLIN, LLC, a
Delaware limited liability
company, its general partner
By: KDC-OC, LLC, a Delaware
limited liability
company, its managing
member
By: Koll Development
Company, LLC, a
Delaware limited
liability company,
its manager
By:
-------------------------
Print Name:
Print Title:
SAMPLE ONLY
[NOT FOR EXECUTION]
<PAGE>
EXHIBIT E
DEFINITION OF OPERATING EXPENSES
1. Items Included in Operating Expenses. The term "Operating Expenses"
as used in the Lease to which this Exhibit "E" is attached means: all
costs and expenses of operation and maintenance of the Building and the
Common Areas (as such terms are defined in the Lease), as determined by
standard accounting practices, calculated assuming the Building is
ninety-five percent (95%) occupied, including the following costs by way
of illustration but not limitation, but excluding those items
specifically set forth in Paragraph 3 below:
(a) Real Property Taxes and Assessments (as defined in Paragraph 2
below) and any taxes or assessments imposed in lieu thereof;
(b) any and all assessments imposed with respect to, or allocated to,
the Building pursuant to any covenants, conditions and restrictions
affecting the Development, the Common Areas or the Building;
(c) water and sewer charges and the costs of electricity, heating,
ventilating, air conditioning and other utilities;
(d) utilities surcharges and any other costs, levies or assessments
resulting from statutes or regulations promulgated by any government or
quasi-government authority in connection with the use, occupancy or
alteration of the Building or the Premises or the parking facilities
serving the Building or the Premises;
(e) costs of insurance obtained by Landlord;
(f) waste disposal and janitorial services;
(g) labor;
(h) costs incurred in the management of the Building, including, without
limitation: (i) supplies, (ii) wages and salaries (and payroll taxes and
similar governmental charges related thereto) of employees at the level
of property manager or lower used in the management, operation and
maintenance of the Building, (iii) Building management office rental,
supplies, equipment and related operating expenses, and (iv) a
management/administrative fee determined as a percentage of the annual
gross revenues of the Building exclusive of the proceeds of financing or
a sale of the Building and an administrative fee for the management of
the Development Common Area determined as a percentage of Development
Common Area Operating Expenses;
(i) supplies, materials, equipment and tools including rental of
personal property used for maintenance;
(j) repair and maintenance of the elevators and the structural portions
of the Building, including the plumbing, heating, ventilating, air-
conditioning and electrical systems installed or furnished by Landlord;
(k) maintenance, costs and upkeep of all parking and Development Common
Areas, including, without limitation, the "Park and Ride" parking area
located within the Development, regardless of whether or not such parking
area has been dedicated to the City of Dublin;
(l) depreciation on a straight line basis and rental of personal
property used in maintenance;
(m) amortization on a straight line basis over the useful life [together
with interest at the Interest Rate on the unamortized balance] of all
capitalized expenditures which are: (i) reasonably intended to produce a
reduction in operating charges or energy consumption; or (ii) required
under any governmental law or regulation enacted after the Commencement
Date or under any new official interpretation (i.e., by a governmental
agency or federal or state court) promulgated after the Commencement
Date; or (iii) for replacement of any Building equipment needed to
operate the Building at the same quality levels as prior to the
replacement;
(n) costs and expenses of gardening and landscaping;
(o) maintenance of signs (other than signs of tenants of the Building);
(p) personal property taxes levied on or attributable to personal
property used in connection with the Building or the Common Areas;
(q) reasonable accounting, audit, verification, legal and other
consulting fees; and
(r) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items,
including appropriate reserves.
When calculating Operating Expenses for purposes of establishing Tenant's
Operating Expense Allowance, Operating Expenses shall not include Real
<PAGE>
Property Taxes and Assessments attributable to special assessments,
charges, costs, or fees or due to modifications or changes in
governmental laws or regulations including, but not limited to, the
institution of a split tax roll, and shall exclude market-wide labor-rate
increases due to extraordinary circumstances including, but not limited
to, boycotts and strikes and utility increases due to extraordinary
circumstances including, but not limited to, conservation surcharges,
boycotts, embargoes or other shortages.
2. Real Property Taxes and Assessments. The term "Real Property Taxes
and Assessments", as used in this Exhibit "E", means: any form of
assessment, license fee, license tax, business license fee, commercial
rental tax, levy, charge, improvement bond, tax or similar imposition
imposed by any authority having the direct power to tax, including any
city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement or special assessment district
thereof, as against any legal or equitable interest of Landlord in the
Premises, Building, Common Areas or the Development (as such terms are
defined in the Lease), adjusted to reflect an assumption that the
Building is fully assessed for real property tax purposes as a completed
building ready for occupancy, including the following by way of
illustration but not limitation:
(a) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the
Premises;
(b) any assessment, tax, fee, levy or charge in substitution, partially
or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by
the voters of the State of California in the June, 1978 election and that
assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street,
sidewalk and road maintenance, refuse removal and for other governmental
services formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all such new
and increased assessments, taxes, fees, levies and charges be included
within the definition of "real property taxes" for the purposes of this
Lease;
(c) any assessment, tax, fee, levy or charge allocable to or measured by
the area of the Premises or other premises in the Building or the rent
payable by Tenant hereunder or other tenants of the Building, including,
without limitation, any gross receipts tax or excise tax levied by state,
city or federal government, or any political subdivision thereof, with
respect to the receipt of such rent, or upon or with respect to the
possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises, or any portion
thereof but not on Landlord's other operations;
(d) any assessment, tax, fee, levy or charge upon this transaction or
any document to which Tenant is a party, creating or transferring an
interest or an estate in the Premises; and/or
(e) any assessment, tax, fee, levy or charge by any governmental agency
related to any transportation plan, fund or system (including assessment
districts) instituted within the geographic area of which the Building is
a part.
Notwithstanding the foregoing, if at any time after the Commencement
Date, the amount of Real Property Taxes and Assessments decreases, then
for purposes of all subsequent Lease Years, including the Lease Year in
which such decrease in Real Property Taxes and Assessments occurs,
Tenant's Operating Expense Allowance shall be decreased by an amount
equal to such decrease in Real Property Taxes and Assessments.
3. Items Excluded From Operating Expenses. Notwithstanding the
provisions of Paragraphs 1 and 2 above to the contrary, "Operating
Expenses" will not include:
(a) Landlord's federal or state income, franchise, inheritance or estate
taxes;
(b) any ground lease rental;
(c) costs incurred by Landlord for the repair of damage to the Building
to the extent that Landlord is reimbursed by insurance or condemnation
proceeds or by tenants, warrantors or other third persons;
(d) depreciation, amortization and interest payments, except as
specifically provided herein, and except on materials, tools, supplies
and vendor-type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party,
where such depreciation, amortization and interest payments would
otherwise have been included in the charge for such third party's
services, all as determined in accordance with standard accounting
practices;
(e) brokerage commissions, finders' fees, attorneys' fees, space
planning costs and other costs incurred by Landlord in leasing or
attempting to lease space in the Building;
(f) costs of a capital nature, including, without limitation, capital
improvements, capital replacements, capital repairs, capital equipment
and capital tools, all as determined in accordance with standard
accounting practices; provided, however, the capital expenditures set
forth in Subparagraph 1(m) above will in any event be included in the
definition of Operating Expenses;
<PAGE>
(g) interest, principal, points and fees on debt or amortization on any
mortgage, deed of trust or other debt encumbering the Building or the
Development;
(h) costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements for tenants in the
Building (including the original Tenant Improvements for the Premises),
or incurred in renovating or otherwise improving, decorating, painting or
redecorating space for tenants or other occupants of the Building,
including space planning and interior design costs and fees;
(i) attorneys' fees and other costs and expenses incurred in connection
with negotiations or disputes with present or prospective tenants or
other occupants of the Building; provided, however, that Operating
Expenses will include those attorneys' fees and other costs and expenses
incurred in connection with negotiations, disputes or claims relating to
items of Operating Expenses, enforcement of rules and regulations of the
Building, and such other matters relating to the maintenance of standards
required of Landlord under the Lease;
(j) except for the administrative/management fees described in
Subparagraph 1(h) above, costs of Landlord's general corporate overhead;
(k) all items and services for which Tenant or any other tenant in the
Building reimburses Landlord (other than through operating expense pass-
through provisions);
(l) electric power costs for which any tenant directly contracts with
the local public service company; and
(m) costs arising from Landlord's charitable or political contributions.
<PAGE>
EXHIBIT F
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto.
Subject to the terms and conditions of the Lease and provided Tenant
remains in occupancy of the Premises, Landlord will provide or make
available the following utilities and services:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays, from 8 a.m. to 6 p.m., and have one elevator
available for Tenant's use at all other times.
2. On Monday through Friday, except holidays, from 7 a.m. to 6 p.m.
(and other times for a reasonable additional charge to be fixed by
Landlord), ventilate the Premises and furnish air conditioning or heating
on such days and hours, when in the reasonable judgment of Landlord it
may be required for the comfortable occupancy of the Premises.
Landlord's after-hours charge for HVAC as of the date of the Lease is set
forth in Subparagraph 1(s) of the Lease. Such charge is subject to
change at any time and from time to time by Landlord. The air
conditioning system achieves maximum cooling when the window coverings
are extended to the full length of the window opening and adjusted to a
45 degree angle upwards. Landlord will not be responsible for room
temperatures if Tenant does not keep all window coverings in the Premises
extended to the full length of the window opening and adjusted to a 45
degree angle upwards whenever the system is in operation. Tenant agrees
to cooperate fully at all times with Landlord, and to abide by all
reasonable regulations and requirements which Landlord may prescribe for
the proper function and protection of said air conditioning system.
Tenant agrees not to connect any apparatus, device, conduit or pipe to
the chilled and hot water air conditioning supply lines of the Building.
Tenant further agrees that neither Tenant nor its servants, employees,
agents, visitors, licensees or contractors shall at any time enter the
mechanical installations or facilities of the Building or the Development
or adjust, tamper with, touch or otherwise in any manner affect said
installations or facilities. The cost of maintenance and service calls
to adjust and regulate the air conditioning system will be charged to
Tenant if the need for maintenance work results from either Tenant's
adjustment of room thermostats or Tenant's failure to comply with its
obligations under this Exhibit, including keeping window coverings
extended to the full length of the window opening and adjusted to a 45
degree angle upwards. Such work will be charged at hourly rates equal
to then-current journeyman's wages for air conditioning mechanics.
3. Landlord will make available to the Premises, 24 hours per day,
seven days a week, electric current as required by the Building standard
office lighting and fractional horsepower office business machines
including copiers, personal computers and word processing equipment in an
amount not to exceed six (6) watts per square foot per normal business
day (excluding ceiling lights and HVAC). If Landlord reasonably
determines that Tenant is using electricity in excess of Tenant's pro
rata share to be supplied by Landlord pursuant to the foregoing sentence,
Landlord may require Tenant to pay an increased share of the electricity
costs, as equitably determined by Landlord, or to install, at Tenant's
sole cost and expense, a separate meter for the electricity supplied to
the Premises. If a separate meter is not installed at Tenant's cost,
such excess cost will be established by an estimate agreed upon by
Landlord and Tenant, and if the parties fail to agree, such cost will be
established by an independent licensed engineer selected in Landlord's
reasonable discretion, whose fee shall be shared equally by Landlord and
Tenant. Tenant agrees not to use any apparatus or device in, upon or
about the Premises (other than standard office business machines,
personal computers and word processing equipment) which may in any way
increase the amount of such services usually furnished or supplied to
said Premises, and Tenant further agrees not to connect any apparatus or
device with wires, conduits or pipes, or other means by which such
services are supplied, for the purpose of using additional or unusual
amounts of such services without the written consent of Landlord. Should
Tenant use the same to excess, the refusal on the part of Tenant to pay
upon demand of Landlord the amount established by Landlord for such
excess charge will constitute a breach of the obligation to pay rent
under this Lease and will entitle Landlord to the rights therein granted
for such breach. Tenant's use of electric current will never exceed the
capacity of the feeders to the Building, or the risers or wiring
installation and Tenants will not install or use or permit the
installation or use of any computer or electronic data processing
equipment in the Premises (except standard office business machines,
personal computers and word processing equipment) without the prior
written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any
purpose in addition to ordinary drinking and lavatory purposes, of which
fact Tenant constitutes Landlord to be the sole judge, Landlord may
install a water meter and thereby measure Tenant's water consumption for
all purposes. Tenant agrees to pay Landlord for the cost of the meter
and the cost of the installation thereof and throughout the duration of
Tenant's occupancy Tenant will keep said meter and installation equipment
in good working order and repair at Tenant's own cost and expense, in
default of which Landlord may cause such meter and equipment to be
replaced or repaired and collect the cost thereof from Tenant. Tenant
agrees to pay for water consumed, as shown on such meter, as and when
bills are rendered, and on default in making such payment, Landlord may
pay such charges and collect the same from Tenant. Any such costs or
expenses incurred, or payments made by Landlord for any of the reasons or
purposes hereinabove stated will be deemed to be additional rent payable
by Tenant and collectible by Landlord as such.
5. Landlord will provide janitor service to the Premises, provided the
same are used exclusively as offices, and are kept reasonably in order by
<PAGE>
Tenant, and unless otherwise agreed to by Landlord and Tenant no one
other than persons approved by Landlord shall be permitted to enter the
Premises for such purposes. If the Premises are not used exclusively as
offices, they will be kept clean and in order by Tenant, at Tenant's
expense, and to the satisfaction of Landlord, and by persons approved by
Landlord. Tenant agrees to pay to Landlord the cost of removal of any of
Tenant's refuse and rubbish to the extent that the same exceeds the
refuse and rubbish usually attendant upon the use of the Premises as
offices.
6. Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electrical systems, when
necessary, by reason of accident or emergency or for repairs, alterations
or improvements, when in the judgment of Landlord such actions are
desirable or necessary to be made, until said repairs, alterations or
improvements shall have been completed, and Landlord will have no
responsibility or liability for failure to supply elevator facilities,
plumbing, ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause beyond
Landlord's reasonable control, or by laws, rules, orders, ordinances,
directions, regulations or by reason of the requirements of any federal,
state, county or municipal authority or failure of gas, oil or other
suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel supply. It is expressly
understood and agreed that any covenants on Landlord's part to furnish
any services pursuant to any of the terms, covenants, conditions,
provisions or agreements of this Lease, or to perform any act or thing
for the benefit of Tenant, will not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike or labor
trouble or any other cause whatsoever beyond Landlord's control.
<PAGE>
EXHIBIT G
ESTOPPEL CERTIFICATE
The undersigned, SIMPSON MANUFACTURING COMPANY, INC., a California
corporation ("Tenant"), hereby certifies to KOLL DUBLIN CORPORATE CENTER,
L.P., a Delaware limited partnership, as follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated April 21, 2000, between KOLL DUBLIN CORPORATE CENTER, L.P., a
Delaware limited partnership ("Landlord") and Tenant (the "Lease"),
regarding the premises located at 4120 Dublin Boulevard, Dublin,
California (the "Premises"). The Lease is now in full force and effect
and has not been amended, modified or supplemented, except as set forth
in Paragraph 4 below.
2. The Term of the Lease commenced on _______________, 20__.
3. The Term of the Lease will expire on _______________, 20__.
4. The Lease has: (Initial one)
(_____) not been amended, modified, supplemented, extended, renewed
or assigned.
(_____) been amended, modified, supplemented, extended, renewed or assigned
by the following described terms or agreements, copies of which are attached
hereto:
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the
Lease will be assigned to _________________________ and that no
modification, adjustment, revision or cancellation of the Lease or
amendments thereto shall be effective unless written consent of
_______________ is obtained, and that until further notice, payments
under the Lease may continue as heretofore.
7. The amount of Monthly Base Rent is $__________.
8. The amount of Security Deposit (if any) is $__________. No other
security deposits have been made except as follows:
__________________________________________________.
9. Tenant is paying the full lease rental which has been paid in full
as of the date hereof. No rent or other charges under the Lease have
been paid for more than thirty (30) days in advance of its due date
except as follows:
10. All work required to be performed by Landlord under the Lease has
been completed except as follows: ______________________________.
11. There are no defaults on the part of the Landlord or Tenant under
the Lease except as follows: ______________________________.
12. Neither Landlord nor Tenant has any defense as to its obligations
under the Lease and claims no set-off or counterclaim against the other
party except as follows: _____________________________________________.
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies
other than as provided in the Lease except as follows:
___________________________________.
14. All provisions of the Lease and the amendments thereto (if any)
referred to above are hereby ratified.
The foregoing certification is made with the knowledge that
_______________ is relying upon the representations herein made in
funding a loan to Landlord in purchasing the Premises.
<PAGE>
IN WITNESS WHEREOF, this certificate has been duly executed and delivered
by the authorized officers of the undersigned as of __________, 20_____.
TENANT:
SIMPSON MANUFACTURING CO., INC., a Delaware corporation
By:
Print Name:
Print Title:
By:
Print Name:
Print Title:
SAMPLE ONLY
[NOT FOR EXECUTION]
<PAGE>
EXHIBIT H
RULES AND REGULATIONS
A. General Rules and Regulations. The following rules and regulations
govern the use of the Building and the Development Common Areas. Tenant
will be bound by such rules and regulations and agrees to cause Tenant's
Authorized Users, its employees, subtenants, assignees, contractors,
suppliers, customers and invitees to observe the same.
1. Except as specifically provided in the Lease to which these Rules
and Regulations are attached, no sign, placard, picture, advertisement,
name or notice may be installed or displayed on any part of the outside
or inside of the Building or the Development without the prior written
consent of Landlord. Landlord will have the right to remove, at Tenant's
expense and without notice, any sign installed or displayed in violation
of this rule. All approved signs or lettering on doors and walls are to
be printed, painted, affixed or inscribed at the expense of Tenant and
under the direction of Landlord by a person or company designated or
approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant
will immediately discontinue such use. Tenant agrees not to place
anything against or near glass partitions or doors or windows which may
appear unsightly from outside the Premises including from within any
interior common areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Development. The
halls, passages, exits, entrances, elevators and stairways are not open
to the general public, but are open, subject to reasonable regulations,
to Tenant's business invitees. Landlord will in all cases retain the
right to control and prevent access thereto of all persons whose presence
in the reasonable judgment of Landlord would be prejudicial to the
safety, character, reputation and interest of the Development and its
tenants, provided that nothing herein contained will be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of
any tenant will go upon the roof of the Building.
4. Tenant will not obtain for use on the Premises ice, drinking water,
food, food vendors, beverage, towel or other similar services or accept
barbering or bootblacking service upon the Premises, except at such
reasonable hours and under such reasonable regulations as may be fixed by
Landlord. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, distribution of handbills or any other written
material, peddling, sales and displays of products, goods and wares in
all portions of the Development except as may be expressly permitted
under the Lease. Landlord reserves the right to restrict and regulate
the use of the common areas of the Development and Building by invitees
of tenants providing services to tenants on a periodic or daily basis
including food and beverage vendors. Such restrictions may include
limitations on time, place, manner and duration of access to a tenant's
premises for such purposes. Without limiting the foregoing, Landlord may
require that such parties use service elevators, halls, passageways and
stairways for such purposes to preserve access within the Building for
tenants and the general public.
5. Landlord reserves the right to require tenants to periodically
provide Landlord with a written list of any and all business invitees
which periodically or regularly provide goods and services to such
tenants at the premises. Landlord reserves the right to preclude all
vendors from entering or conducting business within the Building and the
Development if such vendors are not listed on a tenant's list of
requested vendors.
6. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 8 a.m. the following business day, or such other
hours as may be established from time to time by Landlord, and on Sundays
and legal holidays, any person unless that person is known to the person
or employee in charge of the Building or has a pass or is properly
identified. Tenant will be responsible for all persons for whom it
requests passes and will be liable to Landlord for all acts of such
persons. Landlord will not be liable for damages for any error with
regard to the admission to or exclusion from the Building of any person.
Landlord reserves the right to prevent access to the Building in case of
invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
7. The directory of the Building or the Development will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Development and the
Premises will be provided exclusively through Landlord, and except with
the written consent of Landlord, no person or persons other than those
approved by Landlord will be employed by Tenant or permitted to enter the
Development for the purpose of cleaning the same. Tenant will not cause
any unnecessary labor by carelessness or indifference to the good order
and cleanliness of the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each
entry door lock in the Premises. Landlord may make a reasonable charge
for any additional keys. Tenant shall not make or have made additional
keys, and Tenant shall not alter any lock or install any new additional
lock or bolt on any door of the Premises. Tenant, upon the termination
<PAGE>
of its tenancy, will deliver to Landlord the keys to all doors which have
been furnished to Tenant, and in the event of loss of any keys so
furnished, will pay Landlord therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm, satellite
dishes, antennae or similar services, it will first obtain Landlord's
approval, and comply with, Landlord's reasonable rules and requirements
applicable to such services, which may include separate licensing by, and
fees paid to, Landlord.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its
discretion, deems appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in
such elevators as may be designated by Landlord. Tenant's initial move
in and subsequent deliveries of bulky items, such as furniture, safes and
similar items will, unless otherwise agreed in writing by Landlord, be
made during the hours of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday.
Deliveries during normal office hours shall be limited to normal office
supplies and other small items. No deliveries will be made which impede
or interfere with other tenants or the operation of the Building.
12. Tenant will not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Landlord will have the right to reasonably
prescribe the weight, size and position of all safes, heavy equipment,
files, materials, furniture or other property brought into the Building.
Heavy objects will, if considered necessary by Landlord, stand on such
platforms as determined by Landlord to be necessary to properly
distribute the weight, which platforms will be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant,
which cause noise or vibration that may be transmitted to the structure
of the Building or to any space therein to such a degree as to be
objectionable to any tenants in the Building or Landlord, are to be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devises sufficient to eliminate noise or vibration.
Tenant will be responsible for all structural engineering required to
determine structural load, as well as the expense thereof. The persons
employed to move such equipment in or out of the Building must be
reasonably acceptable to Landlord. Landlord will not be responsible for
loss of, or damage to, any such equipment or other property from any
cause, and all damage done to the Building by maintaining or moving such
equipment or other property will be repaired at the expense of Tenant.
13. Tenant will not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office
equipment. Tenant will not use or permit to be used in the Premises any
foul or noxious gas or substance, or permit or allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors or vibrations,
nor will Tenant bring into or keep in or about the Premises any birds or
animals.
14. Tenant will not use any method of heating or air conditioning other
than that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and to comply
with any governmental energy-saving rules, laws or regulations of which
Tenant has actual notice, and will refrain from attempting to adjust
controls. Tenant will keep corridor doors closed, and shall keep all
window coverings pulled down.
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the
Building. Without the prior written consent of Landlord, which Landlord
may deny with or without cause, Tenant will not use the name, photograph
or likeness of the Building or the Development in connection with or in
promoting or advertising the business of Tenant except as Tenant's
address.
17. Tenant will close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and lighting or gas
before Tenant and its employees leave the Premises. Tenant will be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this
rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus
will not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage
resulting from any violation of this rule will be borne by the tenant
who, or whose employees or invitees, break this rule. Cleaning of
equipment of any type is prohibited. Shaving is prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant will not use the
Premises for any business or activity other than that specifically
provided for in this Lease. Tenant will not conduct, nor permit to be
conducted, either voluntarily or involuntarily, any auction upon the
Premises without first having obtained Landlord's prior written consent,
which consent Landlord may withhold in its sole and absolute discretion.
<PAGE>
20. Tenant will not install any radio or television antenna,
loudspeaker, satellite dishes or other devices on the roof(s) or exterior
walls of the Building or the Development. Tenant will not interfere with
radio or television broadcasting or reception from or in the Development
or elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations,
Tenant will not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part
thereof, except in accordance with the provisions of the Lease pertaining
to alterations. Landlord reserves the right to direct electricians as to
where and how telephone and telegraph wires are to be introduced to the
Premises. Tenant will not cut or bore holes for wires. Tenant will not
affix any floor covering to the floor of the Premises in any manner
except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
22. Tenant will not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
23. Landlord reserves the right to exclude or expel from the Development
any person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules
and Regulations of the Building.
24. Tenant will store all its trash and garbage within its Premises or
in other facilities provided by Landlord. Tenant will not place in any
trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of trash and garbage disposal. All garbage
and refuse disposal is to be made in accordance with directions issued
from time to time by Landlord.
25. The Premises will not be used for lodging or for the storage of
merchandise held for sale to the general public, or for lodging or for
manufacturing of any kind, nor shall the Premises be used for any
improper, immoral or objectionable purpose. No cooking will be done or
permitted on the Premises without Landlord's consent, except the use by
Tenant of Underwriters' Laboratory approved equipment for brewing coffee,
tea, hot chocolate and similar beverages shall be permitted, and the use
of a microwave oven for employees use will be permitted, provided that
such equipment and use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations.
26. Neither Tenant nor any of its employees, agents, customers and
invitees may use in any space or in the public halls of the Building or
the Development any hand truck except those equipped with rubber tires
and side guards or such other material-handling equipment as Landlord may
approve. Tenant will not bring any other vehicles of any kind into the
Building.
27. Tenant agrees to comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise
exclusive control over any portions of the Common Areas for the mutual
benefit of the tenants in the Building or the Development, Landlord may
do so subject to reasonable, non-discriminatory additional rules and
regulations.
30. Landlord may prohibit smoking in the Building and may require Tenant
and any of its employees, agents, clients, customers, invitees and guests
who desire to smoke, to smoke within designated smoking areas within the
Development.
31. Tenant's requirements will be attended to only upon appropriate
application to Landlord's asset management office for the Development by
an authorized individual of Tenant. Employees of Landlord will not
perform any work or do anything outside of their regular duties unless
under special instructions from Landlord, and no employee of Landlord
will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
32. These Rules and Regulations are in addition to, and will not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Landlord may waive
any one or more of these Rules and Regulations for the benefit of Tenant
or any other tenant, but no such waiver by Landlord will be construed as
a waiver of such Rules and Regulations in favor of Tenant or any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Development.
33. Landlord reserves the right to make such other and reasonable and
non-discriminatory Rules and Regulations as, in its judgment, may from
time to time be needed for safety and security, for care and cleanliness
of the Development and for the preservation of good order therein.
Tenant agrees to abide by all such Rules and Regulations herein above
stated and any additional reasonable and non-discriminatory rules and
regulations which are adopted. Tenant is responsible for the observance
of all of the foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
B. Parking Rules and Regulations. The following rules and regulations
govern the use of the parking facilities which serve the Building.
<PAGE>
Tenant will be bound by such rules and regulations and agrees to cause
its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to observe the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or
invitees to be loaded, unloaded or parked in areas other than those
designated by Landlord for such activities. No vehicles are to be left
in the parking areas overnight and no vehicles are to be parked in the
parking areas other than normally sized passenger automobiles,
motorcycles and pick-up trucks. No extended term storage of vehicles is
permitted.
2. Vehicles must be parked entirely within painted stall lines of a
single parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per
hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in
aisles or on ramps; (c) where "no parking" signs are posted; (d) in
cross-hatched areas; and (e) in such other areas as may be designated
from time to time by Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicle if such vehicle's audio theft alarm system remains
engaged for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at
such car owner's expense. Tenant agrees to use its best efforts to
acquaint its employees, subtenants, assignees, contractors, suppliers,
customers and invitees with these parking provisions, rules and
regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, must be displayed as requested and may
not be mutilated in any manner. The serial number of the parking
identification device may not be obliterated. Parking identification
devices, if any, are not transferable and any device in the possession of
an unauthorized holder will be void. Landlord reserves the right to
refuse the sale of monthly stickers or other parking identification
devices to Tenant or any of its agents, employees or representatives who
willfully refuse to comply with these rules and regulations and all
unposted city, state or federal ordinances, laws or agreements.
10. Loss or theft of parking identification devices or access cards must
be reported to the management office in the Development immediately, and
a lost or stolen report must be filed by the Tenant or user of such
parking identification device or access card at the time. Landlord has
the right to exclude any vehicle from the parking facilities that does
not have a parking identification device or valid access card. Any
parking identification device or access card which is reported lost or
stolen and which is subsequently found in the possession of an
unauthorized person will be confiscated and the illegal holder will be
subject to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord must
be reported, itemized in writing and delivered to the management office
located within the Development within ten (10) business days after any
claimed damage or loss occurs. Any claim not so made is waived.
Landlord is not responsible for damage by water or fire, or for the acts
or omissions of others, or for articles left in vehicles. In any event,
the total liability of Landlord, if any, is limited to Two Hundred Fifty
Dollars ($250.00) for all damages or loss to any car. Landlord is not
responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to
make or allow any exceptions to these rules and regulations, without the
express written consent of Landlord. Any exceptions to these rules and
regulations made by the parking operators, managers or attendants without
the express written consent of Landlord will not be deemed to have been
approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicles which are used or parked in violation of these rules
and regulations.
14. Landlord reserves the right from time to time to modify and/or adopt
such other reasonable and non-discriminatory rules and regulations for
the parking facilities as it deems reasonably necessary for the operation
of the parking facilities.
Exhibit 10.2
------------
THE SECURITIES ISSUED PURSUANT TO OR REPRESENTED BY THIS
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND
ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
AND QUALIFICATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. SUCH SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, ASSIGNED,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED AND QUALIFIED UNDER APPLICABLE FEDERAL AND STATE SECURITIES
LAWS OR UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED. ANY TRANSFER OF
SUCH SECURITIES IS SUBJECT TO OTHER RESTRICTIONS, TERMS AND CONDITIONS SET
FORTH HEREIN.
SUCH SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR
OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
OPERATING AGREEMENT
FOR
KEYBUILDER.COM, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
This Operating Agreement is made as of March 6, 2000, by and
among Simpson Manufacturing Co., Inc., a Delaware corporation ("Simpson"),
and Keymark Enterprises, Inc., an Illinois corporation ("Keymark"), with
reference to the following facts:
On March 6, 2000, Articles of Organization for the Company were
filed with the California Secretary of State. The Members and the
Directors desire to adopt and approve this Operating Agreement for the
Company.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein, the Members and Directors by this Agreement set forth
the Operating Agreement for the Company under the laws of the State of
California on the terms and subject to the conditions hereinafter
provided.
1. Definitions. When used in this Agreement, the following
capitalized terms have the following respective meanings:
1.1 "Act" means the Beverly-Killea Limited Liability
Company Act, California Corporations Code sections 17000 and following, as
the same may be amended from time to time.
<PAGE>
1.2 "Affiliate" means, with reference to a specified
Person, any Person directly or indirectly controlling, controlled by or
under common control with the specified Person, any trust or foundation to
which the specified Person has made a majority of the grants, donations or
contributions received by that trust or foundation, a Person owning or
controlling ten percent or more of the outstanding voting securities of the
specified Person, a Person ten percent or more of whose outstanding voting
securities are owned or controlled by the specified Person, any officer,
director, manager, general partner or trustee of the specified Person, and
if the specified Person is an officer, director, manager, general partner
or trustee, any corporation, limited liability company, partnership or
trust for which the specified Person acts in any such capacity.
1.3 "Articles" means the Articles of Organization for the
Company filed or to be filed with the California Secretary of State, as the
same may be amended from time to time.
1.4 "Assignee" means the owner of an Economic Interest who
has not been admitted as a Member of the Company or has ceased to be a
Member in accordance with section 7.
1.5 "Bankruptcy" of a Director or a Member means the
occurrence of any of the following events: the Director or Member makes a
general assignment for the benefit of creditors or admits his, her or its
inability to pay his, her or its debts as they become due or an order for
relief is entered against the Director or Member under any chapter of the
United States Bankruptcy Code, as amended or superseded from time to time,
or the Director or Member is adjudicated a bankrupt or insolvent or
institutes any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt or similar proceeding relating to the Director or
Member under the laws of any jurisdiction or any such proceeding is
instituted against the Director or Member and remains undismissed for a
period of sixty days.
1.6 "Call Option" has the meaning ascribed to that term in
section 7.10.
1.7 "Capital Account" means:
1.7.1 The individual Capital Account that shall be
established and maintained for each Member in accordance with the following
provisions:
(a) To the Capital Account of a Member there
shall be credited such Member's Capital Contributions, such Member's share
of Profits, any items in the nature of income or gain that are specially
allocated thereto pursuant to subsection 6.2.1 and the amount of any
Company liabilities that are personally assumed by such Member or that are
secured by any Company property distributed to such Member with respect
thereto;
(b) From the Capital Account of a Member, there
shall be debited the amount of cash and the fair market value of any
Company property distributed to such Member pursuant to any provision of
this Agreement, such Member's share of Losses, any items in the nature of
expenses or losses that are specially allocated thereto pursuant to
subsection 6.2.1 and the amount of any liabilities of such Member that are
assumed by the Company or that are secured by any property contributed by
such Member to the Company with respect thereto; and
<PAGE>
(c) In determining the amount of any liability,
there shall be taken into account Code section 752(c) and any other
applicable provisions of the Code and Regulations.
1.7.2 If any interest in the Company is transferred in
accordance with this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent that it relates to the transferred
interest.
1.7.3 The foregoing provisions and other provisions of
this Agreement relating to the maintenance of Capital Accounts are intended
to comply with Regulations section 1.704-1(b), and shall be interpreted and
applied in a manner consistent therewith. If the Directors determine that
it is prudent to modify the manner in which the Capital Accounts, or any
debits or credits thereto, are computed in order to comply with Regulations
section 1.704-1(b), the Directors may make such modification if it is not
likely to have a materially adverse effect on amounts distributable to any
Member pursuant hereto on the dissolution of the Company. The Directors
shall adjust the amounts debited or credited to Capital Accounts with
respect to any property contributed to the Company or distributed to a
Member and any liabilities secured by such contributed or distributed
property or assumed by the Company or Member in connection with such
contribution or distribution if the Directors determine that such
adjustments are necessary or appropriate under Regulations section 1.704-
1(b)(2)(iv). The Directors shall also make any appropriate modifications
if unanticipated events might cause this Agreement not to comply with
Regulations section 1.704-1(b), and the Directors shall make all elections
provided for under such Regulations.
1.8 "Capital Contribution" of a Member means the total
value of cash and the fair market value of property contributed to the
Company by that Member.
1.9 "Code" means the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of succeeding
law).
1.10 "Company" means Keybuilder.com, LLC, a California
limited liability company.
1.11 "Derivative Work" means a work that is based on one or
more pre-existing works, such as a revision, enhancement, modification,
translation, abridgement, condensation, expansion, or any other form in
which such pre-existing work may be recast, transformed or adapted, and
which, if prepared without authorization of the owner of the intellectual
property rights in such pre-existing work, including copyrights, patents,
trade secrets and other proprietary rights, would constitute infringement.
"Derivative Work" shall also include any compilation that incorporates such
pre-existing work.
1.12 "Dissolution Event" means, with respect to a Director,
one or more of the following: the death, insanity, resignation, removal or
Bankruptcy of that Director.
<PAGE>
1.13 "Director" means a natural person initially appointed
or subsequently elected as a Director pursuant to section 5.4. A Director
need not be a Member, a resident of the State of California or a citizen of
the United States.
1.14 "Economic Interest" means a Member's or Assignee's
right to share in one or more of the Profits, Losses, or similar items of,
and to receive distributions from, the Company, pursuant to this Agreement
and the Act, but does not include any other rights of a Member, including,
without limitation, the right to vote or consent or participate in
management, or, except as provided in section 9.2, any right to information
concerning the business and affairs of the Company.
1.15 "Fiscal Year" means the period commencing on the date
the Company commences business or commencing on any subsequent January 1,
and ending on the succeeding December 31, or, if earlier, the date of
dissolution and termination of the Company.
1.16 "Keymark License" has the meaning ascribed to that term
in subsection 3.1.2.
1.17 "Keymark Technology" means the proprietary software
program for designing and engineering roof trusses and systems, walls,
floor systems, and take-offs for building construction, owned by Keymark
and described more fully in Exhibit A attached hereto, and all intellectual
property rights, including copyrights, patents, trade secrets and other
proprietary rights, that are embodied in or used in connection with the
Keymark Technology. Keymark also has an adaptation of the proprietary
software program for use with light gauge steel construction ("Keymark
Steel Technology"). The Keymark Steel Technology is included in the
Keymark Technology and accordingly is included within the scope of the
Keymark License, except that the Keymark License shall be non-exclusive to
the Company with respect to the Keymark Steel Technology. Keymark shall
have the continuing right to adapt and use the Keymark Technology,
including future modifications and improvements thereof developed by or for
the Company, for steel applications in both internet and non-internet
environments, and such right shall be exclusive to Keymark with respect to
non-internet applications and non-exclusive to Keymark with respect to
internet applications.
1.18 "License Agreement" means the License Agreement between
the Company and Keymark or an Affiliate of Keymark to which Keymark shall
have contributed the Keymark Technology, in substantially the form of
Exhibit B attached hereto.
1.19 "Majority in Interest" of the Members means Members
whose Percentage Interests, on the date of determination, aggregate more
than fifty percent of the Percentage Interests of all Members on that date.
1.20 "Member" means each Person who is an initial signatory
to this Agreement, is subsequently admitted to the Company as a Member in
accordance with this Agreement or is an Assignee that becomes a Member in
accordance with section 7 and who, in any such case, shall not have ceased
to be a Member.
<PAGE>
1.21 "Membership Interest" of a Member means a Member's
entire interest in the Company, including, without limitation, the Member's
Economic Interest, the right to vote or consent or participate in the
management of the Company and any right to information concerning the
business and affairs of the Company provided hereby or by the Act.
1.22 "Option" and "Options" have the meanings ascribed to
those terms in section 7.10.
1.23 "Percentage Interest" of a Member means the percentage
set forth opposite the name of such Member under the heading "Percentage
Interest" in Exhibit A attached hereto, as such percentage may be changed
from time to time pursuant to this Agreement.
1.24 "Person" means a natural person, general partnership,
limited partnership, trust, estate, association, corporation, limited
liability company or other entity, whether domestic or foreign.
1.25 "Profits" and "Losses" mean, for each Fiscal Year or
other period, an amount equal to the Company's taxable income or loss for
such Fiscal Year or other period, determined in accordance with Code
section 703(a) (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code section
703(a)(1) shall be included in taxable income or loss), with the following
adjustments:
1.25.1 Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in computing
Profits or Losses pursuant to this section 1.25 shall be added to such
taxable income or loss;
1.25.2 Any expenditures of the Company described in
Code section 705(a)(2)(B) or treated as Code section 705(a)(2)(B)
expenditures pursuant to Regulations section 1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits and Losses pursuant to
this section 1.25 shall be subtracted from such taxable income or loss; and
1.25.3 Notwithstanding any other provision of this
section 1.25, any items that are specially allocated pursuant to subsection
6.2.1 or 6.2.2 shall not be taken into account in computing Profits and
Losses.
1.26 "Put Option" has the meaning ascribed to that term in
section 7.10.
1.27 "Regulations" means the Income Tax Regulations
promulgated under the Code, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
1.28 "Securities Act" means the Securities Act of 1933, as
amended from time to time.
1.29 "Successor" of a Member means any transferee,
successor, assign or legal representative of that Member.
<PAGE>
1.30 "Tax Matters Partner" means Simpson or its successor
designated pursuant to section 9.6.
1.31 "Transfer" means any sale, assignment, transfer,
encumbrance, pledge, hypothecation, gift or other disposition or
alienation, voluntarily, involuntarily, by operation of law or otherwise
(including, but not limited to, on death, Bankruptcy or divorce of a
Member), except a sale to the Company.
1.32 "Transferring Member" has the meaning ascribed to that
term in section 7.4.
2. Organizational Matters.
2.1 Formation. Pursuant to the Act, the Members hereby
agree to the formation and organization of the Company as a limited
liability company under the Act by the filing of the Articles with the
California Secretary of State and entering into this Agreement. The
Members agree that the Directors shall promptly cause the Articles to be
filed under the laws of each jurisdiction where such filing may be required
and shall cause to be filed any certificate of amendment or any additional,
supplemental or amended certificates, fictitious business name statements
and other documents as the Directors may deem necessary or advisable in
accordance herewith. The Company shall be deemed to have been formed on
and as of the date of the initial filing of the Articles with the
California Secretary of State. The rights, duties, obligations and
liabilities of the Members shall be determined pursuant to, and the
business, management and affairs of the Company shall be governed
exclusively by, this Agreement and the Act. If and to the extent that any
provision of this Agreement is inconsistent with any provision of the Act,
this Agreement shall govern to the extent permitted by the Act.
2.2 Name. The name of the Company shall be
"Keybuilder.com, LLC." The business of the Company may be conducted under
that name or, on compliance with applicable laws, any other name that the
Directors deem appropriate or advisable.
2.3 Term. The term of the Company shall be deemed to
commence or to have commenced on the initial filing of the Articles with
the California Secretary of State and shall continue until dissolved as
provided in this Agreement.
2.4 Office and Agent. The Company shall continuously
maintain an office and registered agent in the State of California as
required by the Act. The principal office of the Company shall be at 4637
Chabot Drive, Suite 200, Pleasanton, CA 94588-0789, or at such other
location as the Directors may determine. The registered agent shall be as
stated in the Articles or as otherwise determined by the Directors.
2.5 Purpose of Company. The purpose of the Company is to
engage in any lawful activity for which a limited liability company may be
organized under the Act. Without limiting the generality of the foregoing,
the Company is being formed in part for the specific purposes of designing,
developing and marketing software relating to internet-based building
design and engineering systems. In connection therewith, the Company will
use its best reasonable efforts to develop and maintain service centers for
the purpose of facilitating the conversion of design and engineering data
<PAGE>
of customers and third parties into formats that are compatible with the
Company's systems. To these ends, the Company may enter into, make and
perform all contracts and other undertakings and engage in all activities
and transactions as the Directors or a duly authorized officer may consider
necessary to carry out the foregoing purposes. The parties hereto intend
that, at such time and on such terms as the Directors deem advisable and in
the Company's best interests, the Company or its successor may participate
directly or indirectly (through a Member other than Simpson or Keymark) in
an initial public offering of the securities of the Company or its
successor.
2.6 Addresses of Members and Directors. The respective
addresses of the Members and the Directors shall be set forth on Exhibit A.
Each Member or Director shall promptly notify the Company of any change in
his, her or its address set forth on Exhibit A.
2.7 Changes in Exhibit A. The Directors shall cause
Exhibit A to be revised from time to time to reflect changes in accordance
with this Agreement in the information set forth in Exhibit A.
3. Capital Contributions and Admission of Additional Members.
3.1 Initial Capital Contributions.
3.1.1 Capital Contributions. Each Member has
contributed, or shall have contributed not later than such time as the
Directors may fix, to the capital of the Company the aggregate amount set
forth opposite that Member's name on Exhibit A. If a contribution is
other than in cash, the agreed value of such Capital Contribution shall be
set forth in Exhibit A.
3.1.2 Keymark License.
(a) In lieu of a cash Capital Contribution,
Keymark agrees that Keymark or any Affiliate of Keymark to which Keymark
shall have contributed the Keymark Technology shall grant to the Company a
worldwide, royalty-free license (the "Keymark License") to use the Keymark
Technology, or any part thereof (solely in connection with the
establishment and operation of an internet-based business consisting of the
processing and/or distribution over the internet of data pertaining to
building design and engineering systems), to make, have made, use, sell,
offer for sale, import, improve, modify, copy, adopt, create Derivative
Works of, publicly display, publicly perform, publish, distribute and
otherwise transfer, components and materials relating to internet-based
building design and engineering systems, which may incorporate all or part
of the Keymark Technology. The Keymark License shall include the right of
the Company to grant sublicenses of the Keymark Technology or any part
thereof and to assign the Keymark License, in whole or in part, if the
Directors reasonably believe the same is in the best interests of the
Company, all without Keymark's consent. The Keymark License shall not
grant the Company any right to use the Keymark Technology in applications
for the non-internet environment, and Keymark retains all right, title and
interest in and to non-internet applications of the Keymark Technology,
including future modifications and improvements thereof developed by or for
the Company. The Keymark License shall be exclusive to the Company (except
as it applies to the Keymark Steel Technology, with respect to which the
Keymark License shall be non-exclusive to the Company) for as long as the
<PAGE>
Company makes monthly payments to Keymark pursuant to section 3.3. If the
Company fails to timely make any such monthly payment with respect to any
of the 24 consecutive months commencing with February 2000, and such
failure is not remedied within ten days after written notice thereof from
Keymark to the Company, the Keymark License shall become non-exclusive.
If the Company fails to timely make any such monthly payment with respect
to any month after January 2002, and such failure is not remedied within
ten days after written notice thereof from Keymark to the Company, the
Keymark License shall terminate. This Agreement shall become effective
only upon the execution by Keymark and the Company of a License Agreement
that sets forth in detail the terms of the Keymark License, which License
Agreement shall be attached hereto as Exhibit B.
(b) Keymark agrees to transfer to the Company
(by license, assignment, contribution or otherwise), for no additional
consideration, all such additional rights in and to the Keymark Technology
for use in internet applications (except as otherwise noted below) as the
Directors shall request, upon a determination by the Directors, subject to
section 5.1.1, that such transfer is necessary in order for the Company to
obtain financing from third parties on suitable terms. Keymark also
agrees to transfer to the Company (by license, assignment, contribution or
otherwise), for no additional consideration, on such date and in such
manner as the Directors shall determine, subject to section 5.1.1, prior to
any sale of the Company or its successor or parent entity or the initial
public offering under the Securities Act of any securities of the Company
or its successor or a Member (other than Simpson and Keymark), all such
additional rights in and to the Keymark Technology for use in internet
applications (except as otherwise noted below) as the Directors conclude is
reasonably necessary in connection with such transaction. The Company
agrees that any such transfer shall be made on terms consistent with
Keymark's retaining exclusive rights in and to applications of the Keymark
Technology in the non-internet environment. The Keymark Steel Technology
shall not be included in the Keymark Technology that is transferred to the
Company pursuant to the first two sentences of this section 3.1(b), and
instead, concurrently with any such transfer, Keymark shall grant the
Company a worldwide, perpetual, irrevocable, royalty-free, non-exclusive
license to use the Keymark Steel Technology for applications in the
internet environment
(c) The parties contemplate that Keymark may
contribute the Keymark Technology to an Affiliate of Keymark, in which case
Keymark shall cause such Affiliate to grant the Keymark License to the
Company or transfer the Keymark Technology to the Company on the terms set
forth in sections 3.1.2(a) and (b).
3.2 Additional Capital Contributions by Members. No Member
shall be required to make any additional Capital Contribution. The
Directors, in accordance with section 5.1.1, may permit the Members to make
additional Capital Contributions from time to time in amounts and on terms
and conditions (including equitable adjustments in the Percentage
Interests) deemed appropriate by the Directors; provided that, except as
provided in section 3.4, if any Member is permitted to make an additional
Capital Contribution, all Members shall be permitted to make at the same
time additional Capital Contributions on the same terms and conditions in
proportion to their Percentage Interests.
<PAGE>
3.3 Software Support, Maintenance and Development.
Beginning in February 2000, and continuing for the longer of 23 months
thereafter or as long as the monthly payments described in this section 3.3
are timely made, Keymark shall provide to the Company such software
support, maintenance and development services as the Directors may request
from time to time. Such maintenance services shall consist at a minimum
of Keymark's best efforts to promptly correct any defects, bugs or non-
conformities in any software developed by Keymark and used by the Company
or made available by the Company to its customers. All software developed
by Keymark pursuant to this Agreement that consists of modifications and
improvements to the Keymark Technology shall be deemed to be part of the
Keymark Technology. The Company shall pay Keymark an amount equal to
$100,000 per calendar month for the services described in this section 3.3,
which amount shall be paid in advance on the first day of each month
beginning on February 1, 2000, and shall be subject to all standard
deductions and withholding required by tax authorities. The Company shall
not be required to pay or reimburse Keymark any additional amount for any
expenses Keymark incurs in performing the services described above in this
section 3.3. The Company shall be responsible for establishing and
operating customer support centers throughout the country and training and
support of support center personnel (with Keymark providing software
support for such centers and personnel), and performing data entry, web
site development, and sales and marketing services. To the extent that
Keymark, with the Company's prior approval, incurs expenses, including but
not limited to personnel expenses, to perform functions that are the
Company's responsibility as described in this section 3.3, the Company will
reimburse Keymark for such reasonable and documented expenses, including
any equitably burdened payroll expense. After January 2001, the Company
may, at its option, discontinue the monthly $100,000 payments to Keymark,
in which event the Keymark License will continue but become non-exclusive.
Whether or not the Company continues the monthly payments after January
2001, however, Keymark will continue to be responsible, through January
2002, for the software support, maintenance and development services
described in the first two sentences of this section 3.3. Beginning on
February 1, 2002, the Keymark License and Keymark's software support,
maintenance and development obligations will continue only as long as the
Company continues to timely make the $100,000 monthly payments to Keymark
and will terminate if the Company fails to timely make any such payment and
such failure is not remedied within ten days after written notice thereof.
3.4 Key Employees. The Directors may, at any time or
times, cause the Company to grant to any employee of the Company whom the
Directors determine to be a key employee of the Company the right or option
to purchase or otherwise acquire an Economic Interest and to be admitted to
the Company as a Member, in each case on making such Capital Contribution
or no Capital Contribution, with such Percentage Interest and on such other
terms and conditions as the Directors may determine; provided that the
aggregate Percentage Interests of all such employees who do not make
corresponding Capital Contributions (that is, Capital Contributions in the
same proportion to the total net market value of the Company immediately
after such purchase or other acquisition, as such market value is
determined by the Directors, in their exclusive discretion, as their
Percentage Interests bear to 100 percent) shall not exceed five percent.
3.5 Additional Funds; Other Investors. If at any time or
from time to time the Directors determine that additional funds are needed
for the business of the Company, the Directors may cause the Company to (a)
<PAGE>
sell assets of the Company, (b) borrow all or part of the amount needed
from one or more financial institutions, Members or others and encumber by
pledge or otherwise some or all of the assets of the Company to secure
repayment thereof, (c) invite Members to make additional Capital
Contributions of the amount needed and accept such Capital Contributions as
provided in section 3.2, or (d) admit additional Members on terms and
conditions approved by the Directors providing for Capital Contributions by
such additional Members constituting all or part of the amount needed. As
of the date of this Agreement, Simpson and Keymark anticipate that the
Company may solicit additional investments in the Company from developer-
builders and other Persons, in the Directors' exclusive discretion, and
admit such Persons as Members, although the Directors shall have no
obligation to do so. Except as provided in section 3.4, any Person
admitted to the Company as a Member shall make a Capital Contribution in an
amount determined by the Directors and pay such Capital Contribution in the
manner and at the time determined by the Directors. The Directors shall
assign any Person admitted as a Member a Percentage Interest equal to such
Person's Capital Contribution divided by the total net market value of the
Company at the time of such Capital Contribution, as determined by the
Directors in their exclusive discretion. Upon the admission of any
additional Member, the Percentage Interests of the existing Members shall
be reduced pro rata to reflect the Percentage Interest of the new Member;
that is, the Percentage Interest of each existing Member shall be reduced
by a percentage equal to the Percentage Interest of the new Member. As of
the date of this Agreement, Simpson and Keymark anticipate that additional
Members, if any, shall be admitted only on such terms as permit Simpson to
retain voting and management control of the Company.
3.6 Provisions Applicable in All Cases. Anything herein to
the contrary notwithstanding: (a) no Person shall be admitted to the
Company as a Member unless and until such Person shall have agreed in
writing (by signing a counterpart of this Agreement, or otherwise, as the
Directors may approve) to become a party to this Agreement and to assume
and perform all of the obligations and responsibilities of a Member
hereunder and shall have paid or delivered to the Company such Person's
agreed Capital Contribution, if any; (b) no admission of any Person as a
Member shall require any consent or approval of any other Member, as such;
(c) on the admission of any new Member pursuant to any provision of this
Agreement, the Directors shall cause appropriate adjustments to be made for
purposes of applying the accounting and allocation provisions of this
Agreement; (d) on any change in the Percentage Interest of any Member or
Assignee and on each admission of a new Member to the Company, pursuant to
any provision of this Agreement, the Percentage Interests of all other
Members and Assignees shall be adjusted proportionately so that the
Percentage Interests at all times total 100 percent.
3.7 Capital Accounts. The Company shall establish and
maintain an individual Capital Account for each Member in accordance with
section 1.7 and Regulations section 1.704-1(b).
3.8 No Withdrawal; No Interest. Except as specifically
provided in this Agreement or as approved by the Directors, (a) no Member
may withdraw such Member's Capital Contribution from the Company, and (b)
no Member shall be entitled to receive any interest, salary or drawing on
such Member's Capital Contributions or with respect to its Capital Account,
or for services rendered on behalf of the Company, or otherwise in its
<PAGE>
capacity as a Member, except as specifically provided in the New Software
Technology Development and Marketing Agreement.
3.9 Company Records. On each contribution, distribution or
withdrawal of capital as contemplated by this Agreement, the Directors
shall cause the Company's records to reflect accurately such contribution,
distribution or withdrawal.
3.10 No Other Contributions. Without the consent of the
Directors, no Member shall contribute any funds or other property to the
capital of the Company except as expressly required or permitted by this
Agreement.
4. Members.
4.1 Limited Liability. Except as and to the extent
required under the Act notwithstanding this Agreement and except as
expressly provided in this Agreement, the debts, duties, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, duties, obligations and liabilities of the
Company, and no Member, Director or officer of the Company shall be
personally liable for any debt, duty, obligation or liability of the
Company solely by reason of being a Member, Director or officer of the
Company.
4.2 Meetings of Members. No regular, annual, special or
other meetings of Members are required to be held. If held, any such
meeting shall be noticed, held and conducted in the manner provided in the
Act; provided that (a) any such meeting shall be held at the Company's
principal executive office or at any other place selected by the Directors
and set forth in the notice of meeting, (b) a meeting shall be held only
when called by the Directors, and (c) the attendance of a Majority in
Interest of the Members represented in person or by proxy shall be
necessary to constitute a quorum at any meeting to consider a matter on
which Members may take action. Any action that may be taken at a meeting
of Members may be taken without a meeting by written consent as provided in
section 17104(i) of the Act.
4.3 Members Have No Managerial Authority. The Members, as
such, shall have no power to participate in the management of the Company
except as expressly authorized by this Agreement or the Articles and except
as and to the extent expressly required by the Act notwithstanding this
Agreement. Unless expressly and duly authorized in writing to do so by the
Directors, no Member, as such, shall have any power or authority to sign
for, bind or act on behalf of the Company in any way, to pledge the
Company's credit, or to render the Company liable for any purpose.
4.4 Voting Rights. Except as expressly provided in this
Agreement or the Articles, Members shall have no voting, approval or
consent rights.
4.5 Other Activities.
4.5.1 Insiders. Except as approved in advance by the
Directors, neither Keymark nor Simpson shall, or shall permit its
respective Affiliates to, and no employee of the Company shall, engage or
participate in any capacity in any business competitive with any business
or activity in which the Company is engaged or may be interested in
<PAGE>
engaging; provided that nothing herein shall prohibit Keymark from engaging
in a business that applies the Keymark Technology in non-internet
environments or from engaging in any business involving the Keymark Steel
Technology, as long as Keymark keeps the Directors reasonably informed
regarding the activities and scope of any such business and new business.
4.5.2 Others. Except as provided in subsection 4.5.1,
any Member and such Member's Affiliates may engage in any activities,
whether or not related to the business of the Company, the Members
specifically recognizing that each of them and their Affiliates are engaged
in various businesses, both for their own accounts and for others, and such
Members may continue, or initiate further, such activities. Each Member
agrees that, except as provided in subsection 4.5.1, any Member and any
Affiliate of any Member (a) may engage in or possess an interest, direct or
indirect, in any business venture of any nature or description for his, her
or its own account, independently or with others, including, without
limitation, any business, industry or activity in which the Company may be
interested in engaging or may also be engaged and (b) may do so without any
obligation to report the same to the Company or any other Member or
Director or to afford the Company or any other Member any opportunity to
participate therein. Neither the Company nor any other Member shall have
any right in or to any such independent venture or activity or any revenues
or profits derived therefrom.
4.6 Waiver of Conflicts. Subject to any express
prohibition in this Agreement, the fact that any Member or Director, or any
Affiliate of any Member or Director, or a member of his or her family, is
employed by, or is directly or indirectly interested in or connected with,
any Person employed or engaged by the Company to render or perform a
service, or from whom the Company may make any purchase, or to whom the
Company may make any sale, or from or to whom the Company may obtain or
make any loan or enter into any contract or lease or other arrangement,
shall not prohibit the Company from engaging in any transaction with such
Member, Director or Person or create any additional duty of legal
justification by such Member, Director or Person, beyond that of an
unrelated party. Neither the Company nor any other Member or Director
shall have any right in or to any revenues or profits derived from such
transaction by such Member, Director, Affiliate or Person.
4.7 Expenses. The Company shall reimburse each Member and
such Member's Affiliates for the cost of goods and materials paid by such
Member or Affiliate and used for or by the Company. With respect to
Keymark, such reimbursement shall be in addition to any amounts the Company
pays to Keymark pursuant to section 3.3 for software support, maintenance
and development services. The Company shall also pay or reimburse each
Member and such Member's Affiliates for expenses incurred in the formation
and organization of the Company, including, without limitation, the
preparation of the Articles and this Agreement.
4.8 Costs of Special Services. Any costs incurred in
connection with special services requested by a Member will be required to
be paid by that Member. Such services would include, for example, those
that would benefit the Member but would not benefit the Company, such as a
special evaluation or financial accounting.
5. Management and Control of the Company.
5.1 Management of the Company by Directors.
<PAGE>
5.1.1 In General. The Directors acting as such shall
be deemed to be the "managers" of the Company, as that term is defined in
section 17001(w) of the Act. Subject only to provisions of the Articles
and this Agreement relating to matters required to be approved by the
Members, the business, property and affairs of the Company shall be managed
and all powers of the Company shall be exercised exclusively, by or under
the direction of the Directors, acting as a board of directors by the vote
or consent of a majority of the Directors; provided that, subject to
subsection 5.1.2, only such Directors, officers of the Company or other
Persons as are designated by the Directors shall have authority to endorse
checks, drafts and other evidences of indebtedness made payable to the
order of the Company, to sign checks, drafts and other instruments
obligating the Company to pay money, and to sign contracts and obligations
on behalf of the Company; and provided further that the consent of the both
the Director elected by Keymark and the Directors elected by Simpson shall
be required to (a) appoint the President of the Company, (b) approve the
terms of any debt or equity financing for the Company, including any
capital contributions by existing or new Members, (c) approve the terms of
any sale of the Company or its successor or parent entity, or any initial
public offering of the securities of the Company or its successor or Member
(other than Simpson or Keymark), and (d) approve the terms of any transfer
of the Keymark Technology to the Company pursuant to section 3.1(b). The
Directors may delegate any such authority to any Person, as the Directors
consider advisable. Any and all rights, powers, authority and discretion
of the Directors under this Agreement or the Act shall be exercisable by
the Directors, acting as a board of directors, in their absolute and
exclusive discretion, and the Directors are authorized and empowered to
grant or give any consent, approval or authorization, make any
determination or do or perform any other act or thing conditionally or
unconditionally, arbitrarily, or inconsistently in varying or similar
circumstances, without any accountability to the Company or any Member,
except only as otherwise specifically and expressly provided in this
Agreement or provided by the Act notwithstanding this Agreement.
5.1.2 Limitations. Notwithstanding any provision of
this Agreement to the contrary, the Directors shall not, without the
written consent of a Majority in Interest of the Members, have authority
hereunder to cause the Company (a) to sell, exchange or otherwise dispose
of all or substantially all of the Company's assets as part of a single
transaction or plan, except in the orderly liquidation and winding up of
the business of the Company on its duly authorized dissolution, or (b) to
be merged with another limited liability company or a limited partnership,
corporation or general partnership.
5.2 Duties of Directors.
5.2.1 Matters to Be Addressed. The Directors shall
consider and act on any matter specified in this Agreement for their
consideration or action and any matter submitted to them by any officer of
the Company, other than any matter expressly reserved hereby for
consideration or action by all or a Majority in Interest of the Members or
any class or group of Members; provided that the Directors may delegate to
any officer or officers of the Company any power or authority reserved to
the Directors in this Agreement.
5.2.2 Binding Effect. Any vote, consent or other
action of the Directors that is authorized by this Agreement shall, in the
absence of fraud and bad faith, be final, binding and conclusive on all
Members for all purposes.
<PAGE>
5.2.3 Fiduciary Duty. Each Director and each Person
appointed to serve as an officer of the Company from time to time shall
perform his or her duties hereunder in good faith, in a manner that he or
she believes to be in the best interests of the Company and the Members
generally and with such care, including reasonable inquiry, as an
ordinarily prudent person in a like position would use under similar
circumstances. Each Director shall have fiduciary duties to the Company
and the Members of like tenor to the fiduciary duties of a director of a
California corporation to his or her corporation and its shareholders, and
each Person appointed to serve as an officer of the Company shall have
fiduciary duties to the Company and the Members of like tenor to the
fiduciary duties of an officer of a California corporation to his or her
corporation and its shareholders.
5.3 Number. The authorized number of Directors
shall not be fewer than three or more than nine. The exact authorized
number of Directors shall be fixed from time to time within those limits by
the vote or consent of the Directors or a Majority in Interest of the
Members; provided that no reduction in the authorized number of Directors
shall reduce that number to a number that is fewer than the number of
Persons then serving as Directors. Subject to the foregoing provisions for
changing the authorized number of Directors, the authorized number of
Directors is initially fixed at three.
5.4 Election. Two Directors shall be elected by Simpson,
and one Director shall be elected by Keymark. At such time, if any, as
more than three Directors are authorized, each Director in excess of three
shall be elected by a Majority in Interest of the Members (without
cumulative voting). Each Director shall be elected at each meeting of the
Members called for that purpose, to hold office until the next meeting of
Members called for that purpose. Each Director, including a Director
elected to fill a vacancy, shall hold office until the next such meeting
and until a successor is elected and qualifies. Initially, the Directors
shall be Thomas J Fitzmyers and Stephen B. Lamson (who shall be deemed to
have been elected by Simpson) and Keith Dietzen (who shall be deemed to
have been elected by Keymark).
5.5 Vacancies. A vacancy or vacancies in the office of
Director shall be deemed to exist in the event of the death, resignation or
removal of any Director or in the event of an increase in the authorized
number of Directors as provided in section 5.3 Such vacancies may be
filled by a majority of the Directors then in office, whether or not less
than a quorum, or by a sole remaining Director. A Majority in Interest of
the Members may elect a Director at any time to fill any vacancy not filled
by the Directors. If, after the filling of any vacancy by the Directors,
the Directors then in office who have been elected by a Majority in
Interest of the Members (other than the Directors elected by Simpson and
Keymark, as provided in the first sentence of section 5.4) shall constitute
less than a majority of the Directors then in office and not elected by
Simpson and Keymark, one or more Members representing ten percent or more
of the aggregate Percentage Interests held by Members may call a meeting of
Members to elect all of the Directors (other than such Directors elected by
Simpson and Keymark). The term of office of any Director shall terminate
on election of such Director's successor as provided in this Agreement.
5.6 Resignation and Removal. A Director may resign as such
at any time by notice to the remaining Directors, without prejudice to the
<PAGE>
rights, if any, of the Company under any contract to which the resigning
Director is a party. The resignation of any Director shall take effect on
receipt of the notice or at such later time as shall be specified in the
notice, and, unless otherwise specified in the notice, acceptance of the
resignation shall not be necessary to make it effective. Any one or more
Directors (other than the Directors elected by Simpson and Keymark, as
provided in the first sentence of section 5.4) may be removed (with or
without cause) from office at any time by a Majority in Interest of the
Members and shall be deemed to have been removed on the happening of a
Dissolution Event with respect to such Director. The resignation or
removal of a Director shall not affect that Director's rights or
obligations, if any, as a Member and shall not constitute such Director's
withdrawal as a Member.
5.7 Meetings.
5.7.1 Regular Meetings. Regular meetings of the
Directors shall be held at least quarterly, without call, on such date and
at such time and place as they may fix. No notice of regular meetings of
the Directors need be given; provided that notice of any change in the time
or place of a regular meeting shall be given to all of the Directors in the
same manner as notice for special meetings of the Directors.
5.7.2 Special Meeting; Notice. A special meeting of
the Directors for any purpose or purposes may be called at any time by any
Director. Notice of the time and place of a special meeting shall be
delivered in the manner provided in section 14 or by telephone. In case
such notice is mailed, it shall be deposited with the United States Postal
Service as first class mail at least four days prior to the time of the
holding of the meeting. In case such notice is telegraphed or sent by
facsimile or e-mail, it shall be delivered to a common carrier for
transmission to the Director or actually transmitted by the Person giving
the notice by electronic means to the Director at least forty-eight hours
prior to the time of the holding of the meeting. In case such notice is
delivered personally or by telephone, it shall be so delivered at least
twenty-four hours prior to the time of the holding of the meeting. Any
notice given personally or by telephone may be communicated either to the
Director or to a Person at the office of the Director whom the Person
giving the notice has reason to believe will promptly communicate it to the
Director. Such deposit in the mail, delivery to a common carrier,
transmission by electronic means or delivery, personally or by telephone,
as above provided, shall be due, legal and personal notice to such
Director. The notice need not specify the purpose of the meeting.
5.7.3 Waiver of Notice. Notice of a meeting need not
be given to any Director who signs a waiver of notice or a consent to
holding the meeting or an approval of the minutes thereof, whether before
or after the meeting, or who attends the meeting without protesting in
writing, prior thereto or at its commencement, the lack of notice to such
Director. All such waivers, consents and approvals shall be filed with the
Company's records or made a part of the minutes of the meeting.
5.7.4 Adjourned Meeting. A majority of the Directors
present, whether or not a quorum is present, may adjourn any meeting to
another time and place. If the meeting is adjourned for more than twenty-
four hours, notice of any adjournment to another time or place shall be
given prior to the time of the adjourned meeting to the Directors who were
not present at the time of the adjournment.
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5.7.5 Telephone Meetings. Directors may participate
in a meeting through use of conference telephone or similar communications
equipment, so long as all Directors participating in such meeting can hear
one another. Participation in a meeting pursuant to this paragraph
constitutes presence in person at such meeting.
5.7.6 Quorum. A majority of the number of Persons
serving as Directors constitutes a quorum of the Directors for the
transaction of business. Every act or decision done or made by a majority
of the Directors present at a meeting duly held at which a quorum is
present is the act of the Directors, unless a greater number is required by
this Agreement. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of Directors,
if any action taken is approved by at least a majority of the required
quorum for such meeting.
5.7.7 Action without a Meeting. Any action required
or permitted to be taken by the Directors may be taken without a meeting,
if a majority of the Directors shall individually or collectively consent
in writing to such action. Such written consent or consents shall be filed
with the minutes of the proceedings of the Directors. Such action by
written consent shall have the same force and effect as a vote of a
majority of the Directors at a meeting at which a quorum is present.
5.8 Devotion of Time. A Director is not obligated to
devote all of his or her time or business efforts to the affairs of the
Company, but shall devote to the business and affairs of the Company such
time, effort and skill as he or she reasonably deems appropriate.
5.9 Competing Activities. No Director shall, or shall
permit any of that Director's agents or employees to, engage or participate
in, independently or with others, any business activity of any type or
description that might be the same as or similar to the Company's business
or that might be in direct or indirect competition with the Company;
provided that the foregoing shall apply to Keymark's designated director
and such director's agents and employees only with respect to business
activities that might compete directly with the Company by use of internet-
based applications of the Keymark Technology. A Director shall present any
investment or business opportunity to the Company that is of a character
that could be taken by the Company, but if the Directors decline to cause
the Company to pursue such opportunity, or do not determine to cause the
Company to pursue such opportunity within thirty days of its presentation
to the Company, the Director presenting such opportunity shall have no
further duty or obligation to the Company with respect to such opportunity
and shall have the right to hold or take such opportunity for that
Director's own account and to recommend such opportunity to Persons other
than the Company. The Members acknowledge that any Director and that
Director's agents, employees and Affiliates may own or manage other
businesses, and, except as provided in the first sentence of this section
5.9, the Members hereby waive any and all rights and claims that they may
otherwise have against any Director and that Director's agents, employees
and Affiliates as a result of any of such activities.
5.10 Transactions between Company and Directors.
Notwithstanding that it may constitute a conflict of interest, the
Directors may, and may cause their respective Affiliates to, engage in any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service, or the
<PAGE>
establishment of any salary or other compensation or other terms of
employment) with the Company, so long as such transaction is not expressly
prohibited by this Agreement, and so long as the terms and conditions of
such transaction, on an overall basis, are fair and reasonable to the
Company and are at least as favorable to the Company as those that are
generally available from Persons capable of similarly performing them and
in similar transactions between parties operating at arm's length.
5.11Expenses. The Company shall reimburse each Director and
his or her Affiliates for the cost of goods and materials paid by such
Director and used for or by the Company. With respect to Keymark, such
reimbursement shall be in addition to any amounts the Company pays to
Keymark pursuant to section 3.3 for software support, maintenance and
development services. The Company shall also pay or reimburse each
Director and his or her Affiliates for expenses incurred in the formation
and organization of the Company, including, without limitation, the
preparation of the Articles and this Agreement.
5.12 Officers.
5.12.1 Appointment of Officers. The Directors may
appoint one or more officers at any time. The officers of the Company, if
deemed necessary by the Directors, may include a president, one or more
vice presidents, a secretary, one or more assistant secretaries, a chief
financial officer, one or more deputy financial officers and such other
officers as the Directors may designate. The officers, if any, shall serve
at the pleasure of the Directors, subject to all rights, if any, of an
officer under any contract of employment. Any natural person, including a
Member or Director or any Affiliate of a Member or Director, may hold any
number of offices. No officer need be a Member, a resident of the State of
California or a citizen of the United States. The officers shall exercise
such powers and perform such duties as are specified in this Agreement and
as shall be determined from time to time by the Directors. Generally, each
officer shall have the authority, powers, duties and responsibilities
usually vested in like titled officers of a California corporation and
shall perform such other duties and have such other responsibilities,
authority and powers as the Directors may from time to time prescribe.
5.12.2 Removal, Resignation and Filling of Vacancy of
Officers. Subject to the rights, if any, of an officer under a contract of
employment, any officer may be removed, with or without cause, by the
Directors at any time. Any officer may resign at any time by notice to the
Company, and the resignation shall take effect on receipt of such notice by
the Directors or at a later time specified in such notice. Unless
otherwise specified in that notice, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Company under any contract to which
the officer is a party. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled in
the manner prescribed in this Agreement for regular appointments to that
office.
5.12.3 Salaries of Officers. The salaries of officers
and agents of the Company shall be fixed by the Directors.
5.12.4 President. The president, if any, shall be the
chief executive officer of the Company and shall, subject to the control
<PAGE>
and supervision of the Directors, be responsible for the day-to-day
management of the business of the Company and shall see that all orders and
resolutions of the Directors are carried into effect. Anything herein to
the contrary notwithstanding, no Person shall be appointed as the president
without the approval of both the Director elected by Keymark, if any, and a
majority of the Directors.
5.12.5 Vice President. The vice president, if any, or
if there shall be more than one, the vice presidents in the order
determined by the Directors, shall, in the absence or disability of the
president, perform the duties and exercise the powers of the president.
5.12.6 Secretary. The secretary, if any, shall attend
all meetings of the Directors and the Members and shall record all the
proceedings of such meetings in a book to be kept for that purpose, and
shall perform like duties for the standing committees, if any, when
required. The secretary, if any, shall give, or cause to be given, notice
of all meetings of the Members. The secretary, if any, shall keep, or
cause to be kept, at the principal executive office of the Company, a
register, or a duplicate register, showing the names of all Members and
their addresses, Capital Contributions and Percentage Interests.
5.12.7 Chief Financial Officer. The chief financial
officer, if any, shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Company, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital
and Economic Interests. The books of account shall at all times be open to
inspection by the Directors. The chief financial officer, if any, shall
deposit all moneys and other valuable effects in the name and to the credit
of the Company in such depositories as may be designated by the Directors.
5.12.8 Acts of Officers as Conclusive Evidence of
Authority. Any note, mortgage, evidence of indebtedness, contract,
certificate, statement, conveyance or other instrument in writing, and any
assignment or endorsement thereof, executed or entered into between the
Company and any other Person, when signed by the president, any vice
president, the secretary or the chief financial officer of the Company, is
not invalidated as to the Company by any lack of authority of the signing
officer in the absence of actual knowledge on the part of the other Person
that the signing officer had no authority to execute the same.
5.13 Limited Liability. No Director and no Person serving
as an officer of the Company shall be personally liable under any judgment
of a court, or in any other manner, for any debt, duty, obligation or
liability of the Company, whether arising in contract, tort or otherwise,
solely by reason of being a Director or an officer of the Company.
5.14 Buy-Out of Noncontributing Member. Any Member other
than Keymark who shall not have made a Capital Contribution that is, as a
percentage of the total net market value of the Company as determined by
the Directors at the time that such Member is admitted to the Company,
equal to or greater than such Member's Percentage Interest, may be required
by the Directors to withdraw from the Company as a Member, with or without
cause, for any reason or no reason, at any time, effective at any time
specified by the Directors; provided that no Member may be required so to
withdraw more than five years after such Member is first admitted to the
<PAGE>
Company as a Member. In any such event, the withdrawing Person's
Percentage Interest shall be reduced to zero, and the Percentage Interests
of the other Members and Assignees shall be increased proportionately, so
that all Percentage Interests continue to total 100 percent. From and
after any such withdrawal, neither the Company nor any other Member shall
have any further obligation to the withdrawn Person, and the withdrawn
Person shall have no further rights under this Agreement, except that the
Company shall promptly distribute to the withdrawn Person an amount in cash
equal to such Person's Capital Account at the beginning of the Fiscal Year
during which such withdrawal is effective after being adjusted as provided
in section 6.2; provided that such distribution shall be subject to the
provisions of sections 6.4, 6.5, 6.7, 6.8 and 6.9, and if the Company
cannot make such distribution at that time in accordance with those
provisions, the Company's obligation to make such distribution shall be
deferred until such time as it is able to do so in accordance with those
provisions, whereupon it shall make such distribution, without interest;
and provided further that the Directors may adopt and implement such other
or additional plans, procedures and programs for the payment or provision
of other benefits to employees of the Company that are Members on their
being required by the Directors to withdraw as Members.
5.15 Administrative Services. Beginning on the date of this
Agreement and continuing for the first three full months after such date,
Simpson shall provide to the Company such employee benefits, accounting,
finance, billing, purchasing and other administrative services and sales
and marketing services as the Directors may request from time to time.
The Company shall pay Simpson an amount equal to $5,000 per month for such
services, which amount shall be paid in advance on the first day of each
month and shall be subject to all standard deductions and withholding
required by tax authorities. If this Agreement is made as of a date other
than the first day of a month, such amount shall be pro-rated for the first
partial month. At the end of such three-month period, this arrangement
shall terminate unless the Directors elect, in their exclusive discretion,
to continue it, in which case it shall continue for such additional period
and on such terms as Simpson and the Directors shall approve.
6. Allocations of Profits and Losses; Distributions and Withdrawals.
6.1 Allocations. Profits and Losses shall be allocated
each Fiscal Year to the Members and Assignees as follows:
6.1.1 Losses. All Losses for each Fiscal Year shall
be allocated to the Members in proportion to the Capital Account balances
of the Members and, once all such Capital Account balances have been
reduced to zero, then in proportion to Percentage Interests.
6.1.2 Profits. All Profits for each Fiscal Year shall
be allocated first to any Members that theretofore shall have been
allocated Losses, in proportion to and to the extent of the amount by which
such Losses theretofore respectively allocated to such Members shall exceed
all Profits theretofore respectively allocated to such Members under this
clause, and then to the Members in proportion to their Percentage
Interests.
6.2 Special Capital Account Allocations. Notwithstanding
anything in section 6.1 to the contrary, the following special allocations
shall be made in allocating Profits and Losses:
<PAGE>
6.2.1 Section 704 Allocations. Any special
allocations necessary to comply with the requirements in section 704 of the
Code and the corresponding Regulations, including the qualified income
offset and minimum gain chargeback provisions contained therein, shall be
made.
6.2.2 Tax Allocations. Notwithstanding any provision
in this section 6 to the contrary, in accordance with Code section 704(c)
and the Regulations promulgated thereunder, income, gain, loss and
deduction with respect to any property contributed to the capital of the
Company shall, solely for tax purposes, be allocated among the Members and
Assignees to take account of any variation between the adjusted basis of
such property to the Company for federal income tax purposes and its fair
market value on the date of contribution. Allocations pursuant to this
subsection 6.2.2 are solely for purposes of federal, state and local taxes
and shall not affect, or in any way be taken into account in computing, any
Capital Account or share of Profits, Losses or other items of any Member or
Assignee, or distributions to any Member or Assignee, pursuant to any
provision of this Agreement.
6.2.3 Other Allocation Rules.
(a) Generally, all Profits and Losses shall be
allocated among the Members and Assignees as provided in section 6.1 and
this section 6.2. If Members are admitted to the Company on different
dates during any Fiscal Year, the Profits or Losses allocated among the
Members and Assignees for each such Fiscal Year shall be allocated in
proportion to their respective Capital Accounts from time to time during
such Fiscal Year in accordance with Code section 706, using any convention
permitted by law and selected by the Directors.
(b) For purposes of determining the Profits,
Losses or any other items allocable to any period, Profits, Losses and any
such other items shall be determined on a daily, monthly or other basis, as
determined by the Directors, using any permissible method under Code
section 706 and the Regulations thereunder.
(c) The Members and Assignees acknowledge that
they are aware of the income tax consequences of the allocations made by
section 6.1 and this section 6.2 and hereby agree to be bound by section
6.1 and this section 6.2 in reporting their shares of Profits and Losses
for income tax purposes.
(d) Notwithstanding any of the foregoing
provisions to the contrary, if taxable gain to be allocated includes income
resulting from the sale or disposition of Company property or property of a
limited partnership, limited liability company or joint venture in which
the Company owns an interest that is treated as ordinary income, such gain
so treated as ordinary income shall be allocated to and reported by each
Member and Assignee in proportion to allocations to that Member or Assignee
of the items that shall have given rise to such ordinary income, and the
Company shall keep records of such allocations. In the event of the
subsequent admission of any new Member, any item that would constitute
"unrealized receivables" under Code section 751 and the Regulations
thereunder shall not be shared by the newly admitted Members, but rather
shall remain allocated to existing Members and Assignees.
<PAGE>
6.2.4 Provisional Allocation. If any amount claimed
by the Company to constitute a deductible expense in any Fiscal Year is
treated by any federal, state or local taxing authority as a payment made
to a Member in such Member's capacity as a Member of the Company for income
tax purposes, with regard to such authority, items of income and gain of
the Company for such Fiscal Year shall first be allocated to such Member to
the extent of such payment.
6.3 Valuation. The value of the assets and liabilities of
the Company shall be determined by the Directors in good faith, and such
determination shall be conclusive and binding on all of the Members and all
parties claiming through or under them.
6.4 Distributions. Subject to applicable law and any
limitations elsewhere in this Agreement (including, without limitation,
section 6.5), the Directors shall determine the amount and timing of all
distributions by the Company and whether such distributions will be in cash
or in kind or partly in cash and partly in kind. Except as otherwise
provided herein, all distributions shall be made in proportion to the
respective Percentage Interests of the Members and Assignees on the date of
the distribution. All such distributions shall be made only to the Persons
who, according to the books and records of the Company, are the owners of
the Economic Interests in respect of which such distributions are made on
the date of distribution. None of the Company, the Directors or the
Members shall incur any liability for making distributions in accordance
with this section 6.4.
6.5 Form of Distribution. No Member or Assignee has the
right to demand and receive any distribution from the Company in any form
other than money; provided that on dissolution of the Company prior to the
sale of the Company or its successor or parent entity and prior to the
initial public offering under the Securities Act of any securities of the
Company or its successor or a Member (other than Simpson or Keymark),
Keymark shall be entitled to distribution in kind, to the extent consistent
with section 6.4, of all Company software developed by Keymark for the
Company pursuant to section 3.3 of this Agreement. No Member or Assignee
may be compelled to accept from the Company a distribution of any asset in
kind in lieu of a proportionate distribution of money being made to other
Members or Assignees except on the dissolution and winding up of the
Company.
6.6 Capital Withdrawals by Members. No Member or Assignee
shall have any right or power at any time to withdraw all or any part of
such Member's or Assignee's Capital Account, except with the consent of the
Directors.
6.7 Withholding. Each Member and Assignee acknowledges and
agrees that the Company may be required to deduct and withhold tax or to
fulfill other obligations of such Member or Assignee on any allocation,
withdrawal or distribution under section 5.14, this section 6 or section 7.
All amounts withheld with respect to any withdrawal or distribution to a
Member or Assignee shall be treated as amounts withdrawn or distributed to
such Member or Assignee for all purposes under this Agreement as of the
effective date of the related withdrawal or distribution.
<PAGE>
6.8 Restriction on Distributions and Withdrawals. No
distribution or withdrawal shall be made if and to the extent prohibited by
the Act notwithstanding this Agreement.
6.9 Return of Distributions. Except for distributions made
in violation of the Act or this Agreement, no Member or Assignee shall be
obligated to return any distribution to the Company or pay the amount of
any distribution for the account of the Company or to any creditor of the
Company. The amount of any distribution returned to the Company by a
Member or Assignee or paid by a Member or Assignee for the account of the
Company or to a creditor of the Company shall be added to the account or
accounts from which it was subtracted when it shall have been distributed
to the Member or Assignee.
7. Transfer and Assignment of Interests; Repurchases in Certain
Events.
7.1 Transfer and Assignment of Interests. Except as
provided in section 7.4 and 7.10, no Member shall Transfer all or any part
of a Membership Interest except with the prior consent of the Directors.
Any attempted or purported Transfer in violation of this section 7 shall be
void. After the consummation of any Transfer of a Membership Interest, the
Membership Interest so Transferred shall continue to be subject to the
terms and conditions of this Agreement, and any further Transfers shall
comply with all terms and conditions of this Agreement.
7.2 Further Restrictions on Transfer of Interests. In
addition to other restrictions in this Agreement, no Member shall Transfer
any Membership Interest or any interest in any Membership Interest (a)
without compliance with section 12, and (b) if the Membership Interest or
interest to be Transferred, when added to all other Membership Interests
Transferred in the preceding twelve months, would cause the termination of
the Company under the Code.
7.3 Substitution of Members. A Transferee of a Membership
Interest shall have the right to become a substitute Member only if (a) the
requirements of sections 7.1, 7.2 and 7.4 are met, (b) such Transferee
executes an instrument satisfactory to the Directors accepting and adopting
the terms and conditions of this Agreement and (c) such Transferee pays any
reasonable expenses in connection with that Transferee's admission as a new
Member. The admission of a substitute Member shall not result in the
release from any liability of the Person who shall have assigned the
Membership Interest.
7.4 Right of First Refusal. Without limiting any rights or
obligations under any other provision of this section 7, each time a Member
proposes to Transfer any interest in the Company other than pursuant to
section 7.10, such Member (the "Transferring Member") shall first offer
such interest to the Company in accordance with this section 7.4; provided,
however, that if the Transferring Member is Simpson, Simpson shall first
offer such interest to Keymark in accordance with this section 7.4, and if
the Transferring Member is Keymark, Keymark shall first offer such interest
to Simpson in accordance with this section 7.4, and if Keymark or Simpson,
as the case may be, declines to purchase such interest in accordance with
this section 7.4, the Transferring Member shall then offer such interest to
the Company in accordance with this section 7.4. Notwithstanding the
<PAGE>
foregoing, Simpson shall be entitled to transfer portions of its Membership
Interest without complying with the provisions of this section 7.4,
provided that the aggregate Percentage Interest of the Membership Interests
so transferred does not at any time exceed 15% of the total Percentage
Interests in the Company. Notwithstanding the foregoing, Keymark shall be
entitled to transfer to its key employees and consultants portions of its
Membership Interest without complying with the provisions of this section
7.4, provided that the aggregate Percentage Interest of the Membership
Interests so transferred does not at any time exceed 10% of the total
Percentage Interests in the Company.
7.4.1 Sale Notice. The Transferring Member shall
deliver a notice (the "Sale Notice") to the Company stating (a) the
Transferring Member's bona fide intention to make such Transfer, (b) the
name and address of the proposed transferee, (c) the interest to be
transferred, (d) the purchase price, terms of payment and other terms and
conditions of the proposed Transfer and (e) whether the proposed transferee
is related to or affiliated with the Transferring Member, including but not
limited to, as an Affiliate.
7.4.2 Election. Within thirty days after delivery of
the Sale Notice, the Directors on behalf of the Company shall notify the
Transferring Member of the Company's election to purchase or not to
purchase all (but not less than all) of the interest being so transferred
at the price and on the terms stated in the Sale Notice; provided that, if
the Transfer is for no consideration or consideration other than cash or
cash equivalents, the Sale Notice shall so state and the purchase price
shall be an amount equal to the Capital Account balance of the Transferring
Member insofar as it relates to the interest being transferred. The
failure of the Directors to give such notice within such thirty-day period
shall constitute an election by the Directors not to purchase such
interest, but shall not constitute the prior consent of the Directors
required by section 7.1.
7.4.3 onsummation. On the election of the Company to
purchase the interest specified in the Sale Notice, the Directors shall
cause the Company to pay the purchase price as provided in subsection 7.4.2
on the other terms and conditions stated in the Sale Notice. On any
purchase by the Company under this section 7.4, the consideration to be
paid shall be paid to the Transferring Member or such Member's Successor,
if any. If the Transferring Member shall have died, the decedent's
Successor shall apply for and obtain any necessary court approval or
confirmation of the sale pursuant to this section 7.4 and, notwithstanding
any other provision of this Agreement to the contrary, if such court
approval is necessary to authorize the sale, the other rights and
obligations of all parties under this section 7.4 shall be postponed until
such approval is obtained. On the Company's exercise of its option under
this section 7.4, the Company and the Transferring Member or the
Transferring Member's Successor shall do all things and execute and deliver
all papers as may be necessary to consummate fully such purchase and sale
in accordance with this Agreement.
7.4.4 Nonexercise. If the Company elects not to
purchase all of the interest specified in the Sale Notice, the Transferring
Member may Transfer all of such interest to the transferee named in the
Sale Notice on exactly the terms and conditions specified in the Sale
Notice, within thirty days after the expiration of the Company's right to
purchase such interest; provided that the requirements of section 7.1, 7.2
and 7.3 shall have been fully satisfied. If such interest is not so
transferred within such time, any other or subsequent Transfer of such
interest by such Transferring Member shall be subject to this section 7 as
if no Sale Notice had ever been given.
7.4.5 Assignments. Any of the foregoing provisions of
this section 7.4 to the contrary notwithstanding, the Company may, pursuant
to the authority of the Directors, within the thirty-day period specified
in subsection 7.4.2, assign the Company's rights and delegate its duties
under this section 7.4 to any Person, in which event, such Person shall
thereupon be substituted for the Company for all purposes of this section
7.4.
7.5 Transfer to Hold Co. At such time as the Directors may
specify, each of Keymark and Simpson shall Transfer a portion of its
Membership Interest to a corporation that the Directors may cause the
Company to organize ("Hold Co."). Such portion so transferred by each of
them shall be equivalent to a ten percent Percentage Interest and shall
include the Transfer of the equivalent portion of such Member's Capital
Account balance at the time of such Transfer. Hold Co. shall thereupon be
substituted for Keymark and Simpson as Members with respect to the portions
of their Membership Interests so Transferred. Such Transfers shall be
effected in exchange for common stock issued by Hold Co. on its initial
organization and Keymark and Simpson shall thereupon receive equal numbers
of shares of such common stock. Such Transfers shall not be limited by or
subject to any provision of sections 7.1 through 7.4, except for clause (b)
of section 7.2, clause (b) of the first sentence of section 7.3 and the
second sentence of section 7.3, all of which shall apply to the Transfers
under this section 7.5.
7.6 Effective Date of Permitted Transfers. Any permitted
Transfer of all or any portion of a Membership Interest other than pursuant
to section 7.10 shall be effective as of midnight of the last day of the
calendar month following the date on which the applicable requirements of
either sections 7.1, 7.2, 7.3 and 7.4 or section 7.5, as the case may be,
shall have been met. Any Transferee of a Membership Interest shall take
and hold such Membership Interest subject to the restrictions on Transfer
imposed by this Agreement.
7.7 Rights of Legal Representatives. Subject to the
foregoing provisions of this section 7, (a) if a Member who is a natural
person dies or is adjudged by a court of competent jurisdiction to be
incompetent to manage such Member's person or property, such Member's
executor, administrator, guardian, conservator or other legal
representative may exercise all of such Member's rights for the purpose of
settling such Member's estate or administering such Member's property,
including any power such Member has under the Articles or this Agreement to
give an Assignee the right to become a Member, and (b) if a Member is a
corporation, trust or other entity and is dissolved or terminated, the
powers of that Member may be exercised by its legal representative or
Successor.
7.8 No Effect to Transfers in Violation of Agreement. Any
attempted or purported Transfer of a Membership Interest without compliance
with all provisions of this Agreement shall be void and of no effect,
except only as and to the extent otherwise expressly required by applicable
law.
7.9 Transfer of Economic Interest Only. On and
contemporaneously with any Transfer (whether arising out of an attempted
charge on a Member's Economic Interest by operation of law, judicial
process, a foreclosure by a creditor of the Member or otherwise) of an
Economic Interest that does not at the same time Transfer the other rights
associated with the Membership Interest transferred by that Member
<PAGE>
(including, without limitation, the rights of that Member to vote, consent
or participate in the management of the business, property and affairs of
the Company), the Company shall purchase from that Member or Successor, and
that Member or Successor shall sell to the Company, for a purchase price of
$100, all remaining rights and interests retained by that Member or
Successor that immediately before the Transfer shall have been associated
with the transferred Economic Interest. Each Member acknowledges and
agrees that the right of the Company to purchase such remaining rights and
interests is reasonable under the circumstances existing as of the date
hereof and represents a bona fide, good faith attempt to determine the fair
market value of the interests retained by the transferring Member.
7.10 Simpson Purchase/Keymark Sale Option.
7.10.1 Call Option and Put Option. If by the fifth
anniversary of the date of this Agreement, the Company or its successor or
parent entity has not been sold and an initial public offering under the
Securities Act of any securities of the Company or its successor or a
Member (other than Keymark or Simpson) has not occurred, then Simpson shall
have the option (the "Call Option") to purchase from Keymark all (but not
less than all) of Keymark's Membership Interest, and Keymark shall have the
option (the "Put Option") to cause Simpson to purchase all (but not less
than all) of Keymark's Membership Interest. Each of the Call Option and
the Put Option is sometimes referred to herein as an "Option," and
collectively they are sometimes referred to as the "Options." Each Option
shall be exercisable on the terms set forth below.
7.10.2 Exercise of Option. To exercise the Call
Option, Simpson shall deliver written notice of exercise to Keymark within
the thirty days beginning on the fifth anniversary of this Agreement. To
exercise the Put Option, Keymark shall deliver written notice of exercise
to Simpson within such thirty-day exercise period. Upon delivery of notice
of exercise of one Option, the other Option shall terminate. If neither
Option is exercised within the thirty-day exercise period, both Options
shall terminate.
7.10.3 Exercise Price. The exercise price for either
Option shall be the fair market value of Keymark's Membership Interest on
the date of the notice of exercise, determined as follows. Within ten
days following the date the notice of exercise is delivered, each of
Simpson and Keymark shall designate one individual to serve as an
appraiser. Within thirty days after being notified of and accepting his
or her designation, each such appraiser shall deliver to the Company,
Simpson and Keymark a written determination of the fair market value of
Keymark's Membership Interest as of the date of the notice of exercise,
together with the appraiser's opinion and the considerations on which such
opinion is based. The appraised value of Keymark's Membership Interest
shall be determined based on Keymark's Percentage Interest of the
enterprise value of the entire Company and shall not be reduced by
discounts based on Keymark's lack of control or the illiquidity of
Keymark's Membership Interest. If the higher of the two appraisals is no
more than ten percent greater than the lower appraisal, then the average of
the two appraisals shall be deemed to be the fair market value of Keymark's
Membership Interest for the purpose of this section 7.10. If the higher
appraisal is more than ten percent higher than the lower appraisal, then
the two appraisers shall jointly appoint a third appraiser (the
"Independent Appraiser"). The Independent Appraiser shall be an investment
banker, appraiser or certified public accountant who is neither affiliated
<PAGE>
with nor has had any prior business relationship with Simpson, Keymark or
the Company and who is experienced in evaluating closely held businesses.
The first two appraisals shall not be disclosed to the Independent
Appraiser. Within thirty days after being notified of and accepting his
or her appointment as Independent Appraiser, the Independent Appraiser
shall deliver to the Company, Simpson and Keymark a written determination
of the fair market value of Keymark's Membership Interest as of the date of
the notice of exercise, together with the Independent Appraiser's opinion
and the considerations on which such opinion is based. If the Independent
Appraiser's appraisal falls between the first two appraisals, then the
average of the Independent Appraiser's appraisal and the nearer of the
first two appraisals shall be deemed to be the fair market value of
Keymark's Membership Interest as of the date of the notice of exercise. If
the Independent Appraiser's appraisal does not fall between the first two
appraisals, then the nearer of the first two appraisals to the Independent
Appraiser's appraisal shall be deemed to be the fair market value of
Keymark's Membership Interest. The determination of the fair market value
of Keymark's Membership Interest pursuant to this subsection 7.10.3 shall
be final, binding and conclusive. Each of Keymark and Simpson shall pay
the fees and expenses of the appraiser designated by such party, and one-
half of the fees and expenses of the Independent Appraiser.
7.10.4 Effective Date of Transfer. The transfer of
Keymark's Membership Interest from Keymark to Simpson pursuant to the
exercise of either Option shall be deemed to have occurred as of the date
of the notice of exercise of such Option, notwithstanding that the exercise
price of such Option shall not have been determined and the exercise price
shall not have been paid as of that date. Therefore, all of Keymark's
rights as a Member of the Company shall terminate as of the date as of
which either Option is exercised.
7.10.5 Payment of Exercise Price. Simpson shall pay
the exercise price to Keymark or its legal representative within thirty
days following the final determination of the exercise price pursuant to
subsection 7.10.3. At least twenty percent of the exercise price shall be
paid in cash, with the remainder evidenced by a promissory note secured by
Keymark's Membership Interest and having such terms as are mutually
agreeable to Simpson and Keymark. On the exercise of either Option,
Simpson and Keymark shall do all things and execute and deliver all papers
as may be necessary to consummate fully such exercise in accordance with
this Agreement.
8. Consequences of Dissolution Event. On the occurrence of a
Dissolution Event with respect to a sole remaining Director, the Company
shall dissolve unless a Majority in Interest of the Members consent within
ninety days of the Dissolution Event to the continuation of the business of
the Company. The death, insanity, disability, withdrawal, resignation,
expulsion, dissolution or Bankruptcy of a Member, or any event that
terminates a Member's Membership Interest, shall not cause the Company to
dissolve unless such Member is the sole remaining Director and such event
is a Dissolution Event.
9. Accounting, Records, Reporting by Members.
9.1 Books and Records. The Directors shall cause to be
maintained complete and accurate accounts in proper books of all
transactions of or on behalf of the Company and shall cause to be entered
therein a full and accurate account of all transactions on behalf of the
Company. The Company's books and accounting records shall be kept in
accordance with generally accepted accounting principles (which shall be
<PAGE>
consistently applied throughout each accounting period). The Company shall
maintain at its office in the State of California all of the following:
9.1.1 A current list of the full name and last known
business or residence address of each Member, Director and Assignee set
forth in alphabetical order, together with the Capital Contributions,
Capital Account balance and Percentage Interest of each Member or Assignee;
9.1.2 A copy of the Articles and any and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which the Articles or any amendments thereto shall have been
executed;
9.1.3 Copies of the Company's federal, state and local
income tax or information returns and reports, if any, for the six most
recent taxable years;
9.1.4 A copy of this Agreement and any and all
amendments hereto, together with executed copies of any powers of attorney
pursuant to which this Agreement or any amendments hereto shall have been
executed;
9.1.5 Copies of the financial statements of the
Company, if any, for the six most recent Fiscal Years; and
The Company's books and records as they relate to the internal affairs of
the Company for at least the current and past four Fiscal Years.
9.2 Delivery to Members and Inspection. On the request of
any Member or Assignee for purposes reasonably related to the interest of
that Person as a Member or Assignee, the Directors shall promptly cause to
be delivered to the requesting Member or Assignee, at the expense of the
Company, a copy of the information required to be maintained by subsections
9.1.1, 9.1.3 and 9.1.4. Each Member, Director or Assignee has the right,
on reasonable request for purposes reasonably related to the interest of
the Person as a Member, Director or Assignee to: (a) inspect and copy
during normal business hours any of the Company's records described in
subsections 9.1.1 through 9.1.6; and (b) obtain from the Directors promptly
after their becoming available, copies of the Company's federal, state and
local income tax or information returns for each Fiscal Year. Any request,
inspection or copying by a Member or Assignee under this section 9.2 may be
made by that Member or Assignee or that Member's or Assignee's agent or
attorney.
9.3 Accountings. As soon as is reasonably practicable after
the close of each Fiscal Year, and in any event within ninety days after the
end of such Fiscal Year, the Directors shall make or cause to be made a full
and accurate inventory and accounting of the affairs of the Company as of
the close of that Fiscal Year and shall prepare or cause to be prepared a
balance sheet as at the end of such Fiscal Year, a profit and loss statement
for that Fiscal Year and a statement of Members' equity showing the
respective Capital Accounts of the Members as of the close of such Fiscal
Year and the distributions, if any, to Members during such Fiscal Year, and
any other statements and information necessary for a complete and fair
presentation of the financial condition of the Company, all of which the
<PAGE>
Directors shall furnish to each Member. In addition, the Directors shall
furnish to each Member information regarding the Company necessary for such
Member to complete such Member's federal and state income tax returns. The
Directors shall also furnish copies of the Company's federal and state
income tax or information returns to any Member requesting the same. On
such accounting being made, Profits and Losses during such Fiscal Year shall
be ascertained and credited or debited, as the case may be, in the books of
account of the Company to the respective Members as herein provided. All
decisions as to accounting matters, except as otherwise specifically set
forth herein, shall be made by the Directors. The Directors may rely on the
advice of accountants whether such decisions are in accordance with the
accounting principles employed by the Company.
9.4 Filings. The Directors shall cause the income tax or
information returns for the Company to be prepared and timely filed with the
appropriate authorities. The Directors shall also cause to be prepared and
timely filed with appropriate federal and state regulatory and
administrative bodies amendments to, or restatements of, the Articles and
all reports required to be filed by the Company with those entities under
the Act or other applicable laws, rules and regulations. The Company shall
cause to be filed at least annually with the California Secretary of State
the statement required under section 17060 of the Act. If the Directors are
required by the Act to execute or file any document and fail, after demand,
to do so within a reasonable time or refuse to do so, any Member may
prepare, execute and file that document with the California Secretary of
State.
9.5 Bank and Brokerage Accounts. The Directors shall
maintain the funds of the Company in one or more separate bank or securities
brokerage accounts in the name of the Company, and shall not permit the
funds of the Company to be commingled in any fashion with the funds of any
other Person.
9.6 Tax Matters Partner. The Directors may remove and
replace the Tax Matters Partner at any time or times. The Directors shall
from time to time cause the Company to make such tax elections as they deem
to be in the interests of the Company and the Members generally. The Tax
Matters Partner, as defined in Code section 6231, shall represent the
Company (at the Company's expense) in connection with all examinations of
the Company's affairs by tax authorities, including resulting judicial and
administrative proceedings, and shall expend Company funds for professional
services and costs associated therewith.
10 Dissolution and Winding Up.
10.1 Dissolution. The Company shall be dissolved, its assets
shall be disposed of, and its affairs shall be wound up on the first to
occur of (a) the vote or consent of a Majority in Interest of the Members to
dissolve the Company, (b) the entry of a decree of judicial dissolution
pursuant to section 17351 of the Act, (c) the occurrence of a Dissolution
Event with respect to a sole remaining Director, unless a Majority in
Interest of the Members consent within ninety days of such occurrence to
continue the business of the Company, and (d) the determination by the
Directors, in their exclusive discretion, that a sale of the Company or its
successor or parent entity, or an initial public offering of the securities
of the Company or its successor or a Member (other than Simpson or Keymark),
on acceptable terms is not feasible within an acceptable time frame.
<PAGE>
10.2 Certificate of Dissolution. As soon as practicable
after the occurrence of an event specified in section 10.1, the Directors
or, if none, the Members conducting the winding up of the affairs of the
Company, shall execute or cause to be executed a Certificate of Dissolution
in such form as shall be prescribed by the California Secretary of State and
file such Certificate as required by the Act.
10.3 Winding Up. On the occurrence of an event specified in
section 10.1, the Company shall continue solely for the purpose of winding
up its affairs in an orderly manner, liquidating its assets and satisfying
the claims of its creditors. The Directors or, if there is no remaining
Director, a Person or Persons designated by the consent of a Majority in
Interest of the Members (the "Liquidating Person") shall be responsible for
overseeing the winding up and liquidation of Company, shall take full
account of the assets and liabilities of Company, shall cause such assets to
be sold or distributed, and shall cause the proceeds therefrom, to the
extent sufficient therefor, to be applied and distributed as provided in
section 10.5. The Directors or the Liquidating Person shall give notice of
the commencement of winding up by mail to all known creditors and claimants
whose addresses appear on the records of the Company. The Directors or the
Liquidating Person shall be entitled to reasonable compensation for such
services.
10.4 Distributions in Kind. Any noncash assets distributed
to the Members shall first be valued at their fair market value to determine
the Profit or Loss that would have resulted if such assets were sold for
such value, pursuant to section 6.3. Such Profit or Loss shall then be
allocated pursuant to section 6, and the Members' Capital Accounts shall be
adjusted to reflect such allocations. The amount distributed and charged
against the Capital Account of each Member receiving an interest in a
distributed asset shall be the fair market value of such interest (net of
any liability secured by such asset that such Member assumes or takes
subject to). The fair market value of such asset shall be determined by the
Directors or the Liquidating Person, or if any Member objects, by an
independent appraiser (and any such appraiser must be recognized as an
expert in valuing the type of asset involved) selected by the Directors or
the Liquidating Person and approved by a Majority in Interest of the
Members.
10.5 Order of Payment of Liabilities on Dissolution. After a
determination that all known debts and liabilities of the Company in the
process of winding up, including, without limitation, debts and liabilities
to Members who are creditors of the Company, shall have been paid or
adequately provided for, the remaining assets shall be distributed to the
Members in proportion to their positive Capital Account balances, after
taking into account income and loss allocations for the Company's taxable
year during which liquidation occurs. The payment of a debt or liability,
whether the whereabouts of the creditor is known or unknown, shall have been
adequately provided for if payment thereof shall have been assumed or
guaranteed in good faith by one or more financially responsible Persons or
by the United States government or any agency thereof, and the provision,
including the financial responsibility of the Person, shall have been
determined in good faith and with reasonable care by the Members or
Directors to be adequate at the time of any distribution of the assets
pursuant to this section 10.5. This section 10.5 shall not prescribe the
exclusive means of making adequate provision for debts and liabilities.
10.6 Compliance with Regulations. All payments to the
Members on the winding up and dissolution of Company shall be strictly in
accordance with the positive capital account balance limitation and other
requirements of Regulations section 1.704-1(b)(2)(ii)(d).
<PAGE>
10.7 Limitations on Payments. Except as otherwise
specifically provided in this Agreement, each Member shall look solely to
the assets of Company for the return of such Member's positive Capital
Account balance and shall have no recourse for such Member's Capital
Contribution or share of Profits (on dissolution or otherwise) against any
other Member.
10.8 Certificate of Cancellation. The Directors or Members
who file the Certificate of Dissolution shall cause to be filed in the
office of, and on a form prescribed by, the California Secretary of State, a
certificate of cancellation of the Articles on the completion of the winding
up of the affairs of the Company.
10.9 No Action for Dissolution. Except as expressly
permitted by this Agreement, no Member, as such, shall take any voluntary
action with the purpose or effect of dissolving the Company. The Members
acknowledge that irreparable damage would be done to the goodwill and
reputation of the Company if any Member should initiate or seek to maintain
an action to dissolve the Company under circumstances where dissolution is
not required by section 10.1. This Agreement has been drawn carefully to
provide fair treatment of all parties and equitable payment in liquidation
of the Economic Interests. Accordingly, except in the case that the Company
is not liquidated as required by this section 10, each Member hereby waives
and renounces such Member's right to initiate or maintain any legal action
or arbitration for the appointment of a receiver or trustee to liquidate the
Company, for a decree of judicial dissolution of the Company or for
partition, whether on the ground that it is not reasonably practicable to
carry on the business of the Company in conformity with the Articles or this
Agreement or the ground that dissolution is reasonably necessary for the
protection of the rights or interests of the complaining Member or any other
grounds. Damages for breach of this section 10.9 may be offset against
distributions by the Company to which such Member would otherwise be
entitled.
11. Indemnification and Insurance.
11.1 Indemnity and Limitation of Liability. Each Director or
other Person acting on behalf of the Company pursuant to authority delegated
by the Directors (each, an "Indemnified Person"), (a) shall be held
harmless, defended and indemnified by the Company from and against any
claim, liability, loss, damage or expense (including, without limitation,
all attorneys' fees and expenses, expert witness fees and expenses and costs
of investigation) suffered or incurred by an Indemnified Person by virtue of
any action of such Indemnified Person as or on behalf of a Director or the
Company in connection with the Company's activities and in substantial
compliance with this Agreement, and (b) shall not be liable to the Company,
the Directors or any Member for any claim, liability, loss, damage or
expense; provided that, if such claim, liability, loss, damage or expense
arises out of any action or inaction of any such Indemnified Person, such
Indemnified Person must have reasonably believed at the time of such action
or inaction that such action or inaction was in the best interests of the
Company and such action or inaction must not have constituted fraud, deceit,
gross negligence, recklessness or intentional misconduct by such Indemnified
Person; and provided further that such indemnification or amounts
<PAGE>
recoverable under the foregoing agreement to hold harmless shall only be
recoverable out of the assets of the Company, and no Director or Member
shall be personally liable therefor. The Company shall advance funds for
attorneys' fees and expenses, expert witnesses' fees and expenses and other
costs incurred by an Indemnified Person in connection with any such claim,
liability, loss, damage or expense if the following conditions are
satisfied: (i) the legal action relates to the performance of duties or
services for the Company by such Indemnified Person; and (ii) the
Indemnified Person that is requesting such advance undertakes to repay, and
provides security satisfactory to the Company for the repayment of, the
advanced funds to the Company in cases in which that Indemnified Person
would not be entitled to indemnification under this section 11.1. The
rights granted under this section 11.1 shall not be affected by, and shall
survive, any dissolution or termination of the Company and the death,
disability, incapacity, resignation, withdrawal, insolvency or dissolution
of any Director or Member.
11.2 Insurance. The Company shall have the power to purchase
and maintain insurance on behalf of any Person who is or was a Director or
an agent of the Company or the Directors against any liability asserted
against such Person and incurred by such Person in any such capacity, or
arising out of such Person's status as a Director or an agent of the
Company, whether or not the Company would have the power to indemnify such
Person against such liability under section 11.1 or under applicable law.
12 Investment Representations. Each Member hereby
represents and warrants to, and agrees with, the Directors, the other
Members and the Company, with respect to such Member and the Membership
Interest of such Member, as follows:
12.1 No Advertising. The offer to sell the Membership
Interest was directly communicated to the Member by the Company in a manner
that the Member was able to ask questions of and receive answers from the
Company concerning the terms and conditions of such transaction. At no time
was the Member presented with or solicited by any leaflet, public
promotional material, newspaper, magazine, radio or television article or
advertisement, or any other form of advertising or general solicitation.
12.2 Investment Intent. The Membership Interest is being
purchased by the Member and not by any other Person, with the Member's own
funds and not with the funds of any other Person, and for the account of the
Member, not as a nominee or agent and not for the account of any other
Person. No other Person has or will have any interest, beneficial or
otherwise, in the Membership Interest. The Member is purchasing the
Membership Interest for investment for an indefinite period, not with a view
to the sale or distribution of any part or all thereof by public or private
sale or other disposition. The Member has no intention of selling, granting
any participation in or otherwise distributing or disposing of the
Membership Interest or any interest therein. The Member does not intend to
subdivide the Member's purchase of the Membership Interest with any Person.
12.3 Accredited Investor. The Member is an "accredited
investor" as defined in Rule 501 promulgated by the Securities and Exchange
Commission under the Securities Act.
<PAGE>
12.4 Economic Risk. Understanding that investment in the
Membership Interest is highly speculative, the Member is able to bear the
economic risk of such investment, including the total loss thereof, for an
indefinite period.
12.5 No Registration of Membership Interests. The Member
understands that the Membership Interest has not been registered under the
Securities Act, or registered or qualified under any other securities law,
on the grounds, among others, that no distribution or public offering of
Membership Interests is to be effected and that Membership Interests are
being issued by the Company in transactions that do not involve any public
offering within the meaning of section 4(2) of the Securities Act, under the
rules and regulations of the Securities and Exchange Commission thereunder
and under comparable exemptive provisions of other applicable securities
laws, rules and regulations. The Member understands that the Company is
relying in part on the Member's representations as set forth herein for
purposes of claiming such exemptions and that the basis for such exemptions
may not be present if, notwithstanding the Member's representations, the
Member has in mind merely acquiring the Membership Interest for resale on
the occurrence or nonoccurrence of some predetermined event. The Member has
no such intention.
12.6 Membership Interest Is Restricted Security. The Member
understands that the Membership Interest is a "restricted security" under
the Securities Act and, accordingly, that the Membership Interest must be
held indefinitely unless it is subsequently registered under the Securities
Act and registered or qualified under any other applicable securities law
or exemptions from such registration and qualification are available. The
Member understands that the Company is under no obligation so to register
or qualify the Membership Interest under the Securities Act or under any
other securities law, or to comply with the Regulation A or any other
exemption under the Securities Act or any other law. The Member
understands that Rule 144 is not available for any sale of the Membership
Interest and will not be available for a substantial period of time.
12.7 Company May Refuse to Transfer. If, in the opinion of
counsel for the Company, the Member at any time hereafter acts in a manner
inconsistent with such Member's representations, warranties and agreements
in this Agreement, the Company may, without limiting any other remedy or
relief available to the Company, refuse to Transfer the Member's Membership
Interest until such time as counsel for the Company is of the opinion that
such Transfer will not require registration of any Membership Interest
under the Securities Act or registration or qualification of any Membership
Interest under any other securities law. The Member understands and agrees
that the Company may refuse to acknowledge or permit any disposition that
is not in all respects in compliance with this Agreement and that the
Company intends to make an appropriate notation in its records to that
effect.
12.8 No Disposition in Violation of Law. Without limiting
the representations set forth herein, and without limiting section 7, the
Member shall not Transfer any Membership Interest or any interest therein,
or receive any consideration therefor, unless and until, prior to any
proposed Transfer, the Member shall comply with all requirements and
conditions in this Agreement and:
<PAGE>
(a) a registration statement on Form S-1 under the
Securities Act (or any other form appropriate for the purpose under the
Securities Act or any form replacing any such form) with respect to the
Membership Interest or any part thereof proposed to be so disposed of shall
be then effective, and such disposition shall have been appropriately
registered or qualified in accordance with any other applicable securities
law; or
(b) (1) the Member shall have furnished the Company
with a detailed explanation of the proposed disposition; (2) the Member
shall have furnished the Company with an opinion of the Member's counsel in
form and substance satisfactory to the Company to the effect that the
proposed Transfer (i) complies with applicable provisions of the Securities
Act and any other securities laws and will not require registration of the
Member's Membership Interest or any part thereof under the Securities Act
or registration or qualification thereof under any other securities law,
and (ii) except as otherwise permitted by section 7, will not result in the
termination of the Company for federal income tax purposes; and (3) counsel
for the Company shall have concurred in such opinion and the Directors
shall have advised the Member of such concurrence.
12.9 Legends. The Member understands and agrees that any
instrument or certificate representing or relating to the Membership
Interest may bear such legends as the Directors may consider necessary or
advisable to facilitate compliance with the Securities Act and any other
securities law, including, without limitation, legends stating that the
Membership Interest has not been registered under the Securities Act and
setting forth the limitations on dispositions imposed by this Agreement.
12.10 Investment Experience. The Member, either alone or
with the Member's professional advisers who are unaffiliated with, have no
equity interest in and are not compensated by the Company or a Director or
any affiliate or selling agent of the Company or a Director, directly or
indirectly, has such knowledge and experience in financial and business
matters that the Member is capable of evaluating the merits and risks of an
investment in the Membership Interest and has the capacity to protect the
Member's own interests in connection with the Member's investment in the
Membership Interest.
12.11 Information Reviewed. The Member has received and
reviewed all information the Member considers necessary or appropriate for
deciding whether to acquire the Membership Interest. The Member has
carefully reviewed all such information and is thoroughly familiar with the
existing and proposed management, business, operations, properties and
financial condition of the Company and has discussed with the Directors any
questions the Member may have had with respect thereto. The Member
understands:
(a) the risks involved in this offering, including the
speculative nature of the investment;
(b) the financial hazards involved in this offering,
including the risk of losing the Member's entire investment;
<PAGE>
(c) the lack of liquidity and restrictions on
Transfers of the Membership Interest; and
(d) the tax consequences of this investment.
The Member has consulted with the Member's own legal, accounting, tax,
investment and other advisers with respect to the tax treatment of an
investment by the Member in the Membership Interest and the merits and
risks of an investment in the Membership Interest.
12.12 No Representations. No Director, no agent or employee
of the Company or of a Director, and no other Person has at any time
expressly or implicitly represented, guaranteed or warranted to the Member
that the Member may freely Transfer the Membership Interest, that a
percentage of profit or amount or type of consideration will be realized as
a result of an investment in the Membership Interest, that past performance
or experience on the part of the Member or the Member's Affiliates or any
other Person in any way indicates the predictable results of the ownership
of the Membership Interest or of the overall Company business, that any
cash distributions from the Company will be made to the Members by any
specific date or will be made at all or that any tax benefits will accrue
as a result of an investment in the Company.
12.13 Authority. This Agreement constitutes a legal, valid
and binding agreement of the Member, enforceable against the Member in
accordance with its terms. The Member, if not a natural person, is
empowered and duly authorized to enter into this Agreement under every
applicable governing document, partnership agreement, operating agreement,
trust instrument, pension plan, charter, certificate or articles of
incorporation, bylaw provision or the like. The Person, if any, signing
this Agreement on behalf of the Member is empowered and duly authorized to
do so by the governing document, partnership agreement, operating
agreement, trust instrument, pension plan, charter, certificate or articles
of incorporation, bylaw provision, board of directors or stockholder
resolution or the like.
12.14 Indemnification. The Member hereby agrees to
indemnify and defend the Company, the Directors and their respective
Affiliates, employees, agents, partners, members, shareholders, officers
and directors and hold them harmless from and against any and all claims,
liabilities, damages, costs and expenses (including, without limitation,
court costs and attorneys' fees and expenses) suffered or incurred on
account of or arising out of:
(a) any breach of or inaccuracy in the Member's
representations, warranties or agreements herein, including, without
limitation, the defense of any claim based on any allegation of fact
inconsistent with any of such representations, warranties or agreements;
(b) any Transfer of the Membership Interest contrary
to any of such representations, warranties or agreements; or
<PAGE>
(c) any action, suit or proceeding based on (i) a
claim that any of such representations, warranties or agreements were
inaccurate or misleading or otherwise cause for obtaining damages or
redress under the Securities Act or any other securities law, or (ii) any
Transfer of any part or all of the Membership Interest.
13 Legal Counsel. Each Member acknowledges and understands
that this Agreement and related documents have been prepared by counsel for
Simpson and that such counsel has not represented or been engaged to
provide services to the Company or any other Member. Such Member
acknowledges and understands that such counsel or other counsel may
hereafter be engaged by the Company or by the Directors to provide legal
services and representation as the Directors may determine, and in such
event, such counsel or other counsel may concurrently represent one or more
of the Members, the Directors and the Company, and the Directors may
execute on behalf of the Company and the Members any consent to such
concurrent representation that such counsel or other counsel may request
pursuant to the applicable rules of professional conduct for lawyers. Each
Member acknowledges and understands that counsel for the Company or any
other Member does not represent any Member in the absence of a clear and
explicit agreement to that effect between such Member and such counsel, and
in the absence of such agreement, such counsel shall owe no duties to any
Member. Each Member agrees that in the event of any dispute between any of
the Members and the Company, or between any of the Members or the Company,
on the one hand, and a Director or any of his or her Affiliates represented
by counsel for the Company, on the other hand, counsel for the Company may
represent the Company or the Directors or such Affiliates, or both, in such
dispute to the extent permitted by such rules, and such Member hereby
consents to such representation. Each Member further acknowledges that
counsel for Simpson has not represented the interest of any Member other
than Simpson in the preparation and negotiation of this Agreement and that,
while communications with such counsel concerning the Company, the
Directors and the Members may be confidential with respect to third
parties, such Member has no expectation that such communications are
confidential with respect to other Members. Each Member represents and
warrants that such Member has consulted with such Member's own counsel
regarding this Agreement, to the extent that such Member considered
advisable or appropriate.
14 Notices. Except as otherwise expressly provided herein, any
notice, consent, authorization or other communication to be given hereunder
shall be in writing and shall be deemed duly given and received when
delivered personally, when transmitted by facsimile, one business day after
being deposited for next-day delivery with a nationally recognized
overnight delivery service, or three business days after being mailed by
first class mail, charges and postage prepaid, properly addressed to the
party to receive such notice at the last address or facsimile number
furnished for such purpose by the party to whom notice is directed.
15 Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement, or the application of such provision to
Persons or circumstances other than those to which it is held to be invalid
or unenforceable, shall not be affected thereby.
16 Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
California.
<PAGE>
17 Binding Effect. Subject to section 7, this Agreement shall
bind and inure to the benefit of the parties and their respective
Successors.
18 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19 Entire Agreement. This Agreement (which includes the
exhibits hereto) contains the entire agreement of the parties and
supersedes all prior or contemporaneous written or oral negotiations,
correspondence, understandings and agreements between or among the parties,
regarding the subject matter hereof.
20 Further Assurances. Each Member shall provide such further
information with respect to that Member and any of its beneficial owners as
the Company may request, and shall do or perform such acts and things and
execute and deliver such other and further certificates, instruments and
other documents, as may be necessary and proper to implement, complete and
perfect the transactions contemplated by this Agreement.
21 Headings; Gender; Number; References. The headings of the
sections hereof are solely for convenience of reference and are not part of
this Agreement. As used herein, each gender includes each other gender,
and the singular includes the plural and vice versa, as the context may
require. All references to sections and subsections are intended to refer
to sections and subsections of this Agreement, except as otherwise
indicated.
22 Arbitration. THE MEMBERS AND THE DIRECTORS WAIVE THEIR
RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING ANY RIGHT TO A JURY TRIAL. The
Members and the Directors agree that in the event of any dispute between or
among any of them or any of their Affiliates arising out of, relating to or
in connection with this Agreement or the Company or its organization,
formation, business or management, such dispute shall be resolved
exclusively by arbitration to be conducted only in the county and state of
the principal office of the Company at the time of such dispute in
accordance with the rules of JAMS ("JAMS") applying the laws of California.
The Members and the Directors agree that such arbitration shall be
conducted by a retired judge, that discovery shall be permitted as required
by the rules of JAMS, that the arbitration award shall include factual
findings and conclusions of law, and that no punitive damages shall be
awarded. The Members and the Directors understand that any party's right
to appeal or to seek modification of any ruling or award of the arbitrator
is severely limited. Any award rendered by the arbitrator shall be final
and binding, and judgment may be entered on it in any court of competent
jurisdiction in the county and state of the principal office of the Company
at the time such award is rendered or as otherwise provided by law.
23 Parties in Interest. Except as expressly provided in the
Act, nothing in this Agreement shall confer any rights or remedies under or
by reason of this Agreement on any Person other than the Members and the
Directors and their respective Successors nor shall anything in this
Agreement relieve or discharge the obligation or liability of any third
Person to any party to this Agreement, nor shall any provision give any
third Person any right of subrogation or action over or against any party
to this Agreement.
<PAGE>
24 Amendments. All amendments to this Agreement or the
Articles shall be in writing, approved by the Directors and signed or
otherwise adopted or approved in writing by a Majority in Interest of the
Members.
25 Attorneys' Fees. If any dispute between or among any of the
Company, the Members and the Directors or any of their respective
Affiliates should result in litigation or arbitration, the prevailing party
or parties in such dispute shall be entitled to recover from the other
party or parties all reasonable fees, costs and expenses of enforcing any
right of the prevailing party or parties, including, without limitation,
reasonable attorneys' fees and expenses, all of which shall be deemed to
have accrued on the commencement of such action and shall be paid whether
or not such action is prosecuted to judgment. Any arbitration award,
judgment or order entered in such action shall contain a specific provision
providing for the recovery of attorneys' fees and costs incurred in
enforcing such award or judgment and an award of prejudgment interest from
the date of the breach at the maximum rate allowed by law. For the
purposes of this section 25, (a) attorneys' fees shall include, without
limitation, fees incurred in postaward or postjudgment motions, contempt
proceedings, garnishment, levy, and debtor and third party examinations,
discovery, and bankruptcy litigation, and (b) prevailing party shall mean
the party that is determined in the arbitration or proceeding to have
prevailed or who prevails by dismissal, default or otherwise.
26 Power of Attorney. Each Member irrevocably constitutes and
appoints each Director, with full power of substitution and resubstitution,
such Member's true and lawful attorney, for such Member and in such
Member's name, place and stead, and for such Member's use and benefit, to
sign, execute, deliver, certify, acknowledge, swear to, file, record and
publish (a) the Articles and any amendment thereto or to this Agreement as
provided herein, (b) any other certificates, instruments, agreements and
documents necessary to qualify or continue the Company as a limited
liability company that is taxed as a partnership in the states or other
jurisdictions where the Directors deem necessary or desirable, (c) all
conveyances, assignments, documents of transfer or other instruments and
documents necessary to effect the assignment of an interest in the Company,
the substitution of a Member or the dissolution and termination of the
Company in accordance with this Agreement and (d) all filings and
submissions pursuant to any applicable law, regulation, rule, order, decree
or judgment which, in the reasonable opinion of the Directors, may be
necessary or advisable in connection with the business of the Company;
provided that such action shall be in accordance with this Agreement and
authorized by the Directors. The power of attorney granted herein is
coupled with an interest, shall be irrevocable, shall survive the death,
disability or incapacity of any Person, shall be deemed given by each and
every assignee and successor of each Member and may be exercised by any
Director by listing, or attaching a list of, any or all of the names of the
Members and signing such amendments, certificates, instruments and other
documents with the single signature of such Director as attorney-in-fact
for all of the persons whose names are so listed.
27 Remedies Cumulative. The remedies under this Agreement are
cumulative and shall not exclude any other remedies to which any Person may
be lawfully entitled.
<PAGE>
IN WITNESS WHEREOF, this Operating Agreement has been duly
executed by or on behalf of the parties hereto as of the date first above
written.
SIMPSON MANUFACTURING CO., INC.
By: /s/THOMAS J FITZMYERS
----------------------------------
Thomas J Fitzmyers, President
KEYMARK ENTERPRISES, INC.
By: /s/KEITH DIETZEN
----------------------------------
Keith Dietzen, President
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
KEYBUILDER.COM, LLC
NAMES, ADDRESSES, CAPITAL CONTRIBUTIONS, AGREED VALUES AND
PERCENTAGE INTERESTS OF MEMBERS AS OF March 6, 2000
Agreed Value of
Capital Noncash Capital Percentage
Member Address Contributions Contributions Interest
- ------------- ----------------------- --------------- --------------- ----------
<S> <C> <C> <C> <C>
Simpson 4637 Chabot Drive, $3,000,000 60.0%
Manufacturing Suite 200, Pleasanton,
Co., Inc. CA 94588-0789
Keymark Keymark $0 40.0%
Enterprises, License
Inc.
</TABLE>
<PAGE>
EXHIBIT B
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as
of March 6, 2000 (the "Effective Date"), by and between Keybuilder.com, a
California limited liability company (the "Company"), and Keymark
Enterprises, Inc., an Illinois corporation ("Keymark"), with reference to
the following facts:
RECITALS
A. Keymark has developed and owns a proprietary software program
for designing and engineering roof trusses and systems, walls, floor
systems, and take-offs for building construction (the "Keymark
Technology"). The Keymark Technology includes specialized software
programs developed pursuant to specifications of Simpson Manufacturing
Co., Inc., a Dealware corporation ("Simpson"), under the First Amended and
Restated Software Development and Marketing Agreement dated as of May 1,
1997, between Keymark and Simpson (the "Development Agreement").
B. Keymark has the right to grant licenses of the Keymark
Technology, and the Company desires to obtain a license to the Keymark
Technology on the terms and conditions herein. The Keymark Technology is
defined in the LLC Agreement and described in more detail in Exhibit A
hereto.
C. Keymark is a Member of the Company and, as contemplated by the
Company's LLC Operating Agreement dated as of March 6, 2000 (the "LLC
Agreement"), to which this Agreement is attached as Exhibit B. Keymark
desires to make a capital contribution to the Company in the form of a
license to the Company of the Keymark Technology.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions herein, the parties agree as follows:
1. Definitions. Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings ascribed to them in the LLC
Agreement. For the purposes of this Agreement, the following words and
phrases have the following meanings:
1.1 Change in Control of a corporation means:
(a) a consolidation or merger with any other Person, in
which all voting securities of such corporation outstanding immediately
prior thereto represent (either by remaining outstanding or being
converted into voting securities of the surviving corporation) less than
fifty percent of the voting power of such corporation or the surviving
entity outstanding immediately thereafter;
(b) the sale or disposition by such corporation (in one
transaction or a series of related transactions) of all or substantially
all of its assets;
(c) the approval by the stockholders of such corporation
of a plan of liquidation or dissolution;
<PAGE>
(d) the acquisition, directly or indirectly, by any Person
(other than a trustee or other fiduciary holding securities under an
employee benefit plan of such corporation or an entity that is owned
directly or indirectly by the stockholders of such corporation in
substantially the same proportions as their ownership of stock of such
corporation) of voting securities of such corporation representing more
than fifty percent of the voting power of such corporation; or
(e) any share exchange, extraordinary dividend,
acquisition, disposition or recapitalization (or series of related
transactions of such nature, other than a merger or consolidation) in
which the holders of voting securities of such corporation immediately
before such event own less than fifty percent of the voting power of such
corporation or any successor entity immediately thereafter.
1.2 Company Business means the business of designing,
developing and marketing an internet-based building design and engineering
service.
1.3 Effective Date means the date first written above.
1.4 Force Majeure Event means any decree of a Governmental
Authority, natural disaster, such as storms, floods or earthquakes, other
acts of God, fires, explosions, riots, war or civil disturbances, strikes
or other labor unrest, governmental actions or regulations, delays in
transportation, or inability to obtain necessary labor, governmental
permits, supplies or manufacturing facilities, which in any such case
would delay or preclude either Party from performing its obligations under
this Agreement.
1.5 Governmental Authority means any court, public or private
arbitral tribunal, administrative agency, commission or other governmental
or regulatory authority or agency.
1.6 Intellectual Property or IP means patents, patent
applications, patent rights, utility models, inventions (whether
patentable or not), trademarks, trademark applications, trademark rights,
service marks, business marks, trade names, brand names, all other names
and slogans embodying business or product good will, copyright
registrations, copyrights (including those in computer programs),
software, including all source code and object code, development
documentation, circuit board layouts, printed circuit boards or cards or
logic diagrams or schematics, programming tools, drawings, specifications
and data, trade secrets, know-how, mask works, industrial designs,
blueprints, formulae, processes and technical information, and
documentation thereof and any rights under licenses to any of the
foregoing, whether or not subject to statutory registration or protection.
1.7 License is defined in section 2.1.
1.8 Party means the Company or Keymark, excluding their
Affiliates.
1.9 Person means any natural person, corporation, partnership,
trust, joint venture, limited liability company or other entity.
<PAGE>
2. Grant of License.
2.1 License of Keymark Technology to the Company. Subject to
the terms and conditions in this Agreement, Keymark hereby grants to the
Company a worldwide, royalty-free license and right (the "License") to use
the Keymark Technology to develop, make, have made, use, sell, offer for
sale, import, improve, modify, copy, adopt, create Derivative Works of,
publicly display, publicly perform, publish, distribute and otherwise
transfer, components and materials relating to the Company Business, which
components and materials may incorporate all or part of the Keymark
Technology, and to use the Keymark Technology for all other purposes
concerning the Company Business. The License further includes the
Company's right and license to grant sublicenses of the Keymark Technology
to any other Person, provided that such sublicenses shall terminate
concurrently with the License unless Keymark's express written consent is
obtained, and to disclose and make available to sublicensees the Keymark
Technology to enable such sublicensees to develop, make, have made, use,
sell, offer for sale, import, improve, modify, copy, adopt, create
Derivative Works of, publicly display, publicly perform, publish,
distribute and otherwise transfer, components and materials relating to
the Company Business.
2.2 Restriction on Scope. The License applies only to
applications of the Keymark Technology in the internet environment and
does not grant the Company any license or right to use the Keymark
Technology in applications for the non-internet environment.
2.3 Exclusivity. The License is exclusive to the Company
except with respect to the Keymark Steel Technology, with respect to which
the License is non-exclusive to the Company; provided that if the Company
fails to make any monthly payment to Keymark in accordance with section
3.3 of the LLC Agreement with respect to any of the twenty-four
consecutive months commencing with February 2000, and such failure is not
remedied within ten days after written notice thereof from Keymark to the
Company, the License shall become non-exclusive for all applications, both
in the internet and the non-internet environments, and otherwise shall
continue in effect unchanged.
2.4 Sublicenses. The Company's right to grant sublicenses to
third Persons pursuant to the License, and the right to determine the
terms and conditions thereof, shall be exercisable by the Company at the
Company's sole and exclusive discretion without the need for any further
or additional consent or approval of Keymark. Any such sublicense shall
terminate concurrently with the License unless Keymark's prior written
approval is obtained.
2.5 Title. Title to the Keymark Technology shall remain in the
name of Keymark, except as otherwise provided in section 3.1 of the LLC
Agreement.
2.6 Acknowledgement of Consideration. Keymark hereby
represents, warrants and agrees that the Company's issuance of Membership
Interests to Keymark constitutes good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, for the rights,
licenses, agreements and other covenants granted or included in this
Agreement, and further acknowledges that it is in the best interests of
Keymark to enter into this Agreement.
<PAGE>
3. Obligations and Rights of Keymark.
3.1 Additional Development. Except for proprietary development
or changes made pursuant to restriction in other agreements, Keymark
agrees promptly to disclose and make available to the Company any IP
relating to, derived from or based on the Keymark Technology, including,
but not limited to, any modifications or improvements thereto, developed,
discovered or acquired by Keymark during the term of this Agreement,
either alone or with the participation of the Company, and agrees that all
such IP shall become subject to the License, without further compensation
to Keymark of any kind, whether in the form of fee, royalty or equity
participation, or otherwise.
3.2 Maintenance of IP Rights. Keymark shall secure, maintain
and defend, at its own expense, all IP rights (such as patents,
copyrights and trademarks) relating to the Keymark Technology during the
term of this Agreement.
3.3 Source Code. Keymark shall provide the Company with one
copy of the source code of the Keymark Technology upon execution of this
Agreement. During the term of this Agreement, Keymark shall promptly
provide the Company with one copy of the source code of all
modifications, improvements and Derivative Works of the Keymark
Technology. The Company agrees that such source code shall be
confidential information of Keymark, subject to section 5. In lieu of
providing source code to the Company as required by this section 3.3,
Keymark may deposit such source code with an escrow agent acceptable to
the Company pursuant to a source code escrow agreement the terms of which
have been agreed to by Keymark and the Company.
4. Representations and Warranties.
4.1 Authority. Keymark represents and warrants to the Company
that (a) Keymark has the power and authority to enter into and perform its
obligations under this Agreement, (b) the signatory hereto on Keymark's
behalf is authorized to execute this Agreement and bind Keymark to the
terms and conditions of this Agreement, and (c) this Agreement is the
legal, valid and binding agreement of Keymark, enforceable against Keymark
in accordance with its terms.
4.2 Rights to Keymark Technology. Keymark represents and
warrants that it has, and will have at all times while this Agreement is
in effect, good title to the Keymark Technology and the full power and
right to grant the License and other rights to the Company contemplated in
this Agreement in accordance with the terms hereof. Keymark represents
and warrants that to its best knowledge as of the Effective Date or, if
later, the date it furnishes such Keymark Technology to the Company, (a)
none of the Keymark Technology that it uses or allows the Company to use
in connection with this Agreement infringes the IP rights or other
proprietary rights of any other Person, and (b) all registrations or
patents that Keymark holds with respect to the Keymark Technology are
valid and enforceable.
4.3 No Conflict with Rights of Third Persons. To the best
knowledge of Keymark as of the Effective Date, the execution, delivery and
<PAGE>
performance of this Agreement by Keymark will not violate the rights of
any other Person, violate, conflict with or constitute a default under or
a breach of any agreement with any Person, require the consent or approval
of any other Person, or result in the creation of any right that may
adversely affect the Company, the Company Business or the Company's use of
the License. Keymark represents and warrants that it does not have any
knowledge of any pending or threatened claims, suits, challenges or
similar legal actions relating to the Keymark Technology and agrees that
Keymark will promptly notify the Company if Keymark becomes aware of any
such claim, suit, challenge, or similar action. Keymark represents,
warrants and agrees that it has not used and shall not use any IP of any
other Person that is not available for use by Keymark in accordance with
the terms and conditions of this Agreement without such other Person's
prior approval.
4.4 Employees. All current and future officers, employees and
consultants of Keymark have signed or will be required to sign and deliver
to Keymark agreements regarding the nondisclosure of confidential
information and assigning such individual's rights to inventions,
innovations, copyrights and other IP to Keymark before such individual
gains access to any confidential information of the Company, or works on
development projects pursuant to this Agreement or the LLC Agreement.
4.5 Inconsistent Grants of Rights. Keymark has not granted and
shall not grant any rights to any other Person that would conflict or be
inconsistent with the rights granted by Keymark to the Company by this
Agreement.
5. Term and Termination.
5.1 Term. This Agreement shall become effective on the
Effective Date and shall continue in effect until terminated by a Party in
accordance with this section 5.
5.2 Termination.
(a) Either Party may terminate this Agreement immediately
by written notice to the other Party on the occurrence of any of the
following events:
(i) any material breach or default by the other
Party; provided that the nonbreaching Party shall have notified the
breaching Party specifying the nature of the breach or default and within
thirty days after the breaching Party's receipt of such notice, such
breach or default has not been remedied and the Parties have not agreed to
a plan for curing the breach or default; and provided further that in the
case of a breach of section 5, the foregoing cure period shall not apply,
and the nonbreaching Party may terminate this Agreement immediately on
notice to the breaching Party; or
(ii) if the other Party is adjudicated a bankrupt,
becomes insolvent or has a receiver of its assets or property appointed
because of insolvency, makes a general assignment for the benefit of
creditors, institutes any proceeding for the reorganization of its
affairs, or if any such proceeding is instituted against such other Party
and not dismissed within ninety days; or
<PAGE>
(iii) if the other Party ceases to do business or
otherwise terminates its business operations.
(b) The Company may terminate this Agreement at any time
with or without cause on thirty days' notice to Keymark.
(c) The Company may terminate this Agreement at any time
immediately on notice to Keymark if Keymark undergoes a Change in Control.
(d) Keymark may terminate this Agreement if the Company
fails to make any monthly payment due to Keymark pursuant to section 3.3
of the LLC Agreement with respect to any month after January 2002, and
such failure is not remedied within ten days after written notice thereof
from Keymark to the Company.
5.3 Effects of Termination. Except for those representations,
warranties and covenants that expressly survive the termination of this
Agreement, all licenses and rights granted herein and all obligations of
the Parties hereunder shall terminate on the effective date of termination
of this Agreement; provided that the termination of this Agreement shall
not release either Party from any liability that at the time of
termination has already accrued to the other Party or that thereafter may
accrue in respect of any act or omission prior to termination or from any
obligation that is expressly stated herein to survive termination. The
rights and obligations provided in sections 2.6, 4, 5, 6, and 7 shall not
be affected by, and shall survive, any termination of this Agreement. On
termination or expiration of this Agreement, each Party shall immediately
return to the other Party all confidential information of the other Party
in its possession. The termination rights provided in this Agreement shall
be in addition to and not in lieu of any other rights and remedies, whether
at law or in equity, available to the terminating Party.
6. Indemnification.
6.1 General Indemnification. Each Party (the "Indemnitor")
shall indemnify and hold harmless the other Party and such other Party's
Affiliates, customers and suppliers (each, an "Indemnitee") from and
against any and all losses, liabilities, costs, expenses, judgments,
assessments, penalties, damages, deficiencies, suits, settlements,
actions, claims, proceedings, demands or causes of action, including but
not limited to reasonable attorneys' fees and expenses, expert witnesses'
fees and expenses and court costs and costs of appeal ("Claims") that were
caused by, or arose as a result of, with respect to or in connection with
any of the following:
(a) Any inaccuracy in any representation or warranty or any
breach of any representation, warranty or covenant of the Indemnitor under
this Agreement, or any certificate, agreement, instrument or other
document delivered pursuant to this Agreement; or
(b) Any failure of the Indemnitor duly to perform or
observe any term, provision, covenant, or agreement to be performed or
observed by such Indemnitor pursuant to this Agreement, and any
certificate, agreement, instrument or other document entered into or
delivered pursuant to this Agreement; provided that the Indemnitee shall
<PAGE>
not be entitled to indemnification under this section 7.1 with respect to
any Claim that is based on or arises out of or is caused by any willful
misconduct, negligence or fraudulent act or omission of the Indemnitee.
6.2 IP Indemnification. Keymark shall indemnify and hold
harmless the Company and the Company's Affiliates, customers and suppliers
(each, an "Indemnitee") from and against any Claim resulting from alleged
infringement of an IP right relating to the Keymark Technology that
Keymark provided to the Indemnitee or other Persons under this Agreement;
provided that Keymark's obligations under this section 6.2 are conditioned
on the Indemnitee's agreement that if any of such IP that Keymark provided
is likely to become the subject of a Claim, the Indemnitee will permit
Keymark, at Keymark's option and expense within thirty days of notifying
the Indemnitee of such likelihood, either to procure the right for the
Indemnitee to continue using such IP, or to replace or modify such IP so
that it becomes non-infringing; and provided further that Keymark shall
not have any indemnification obligation under this section 6.2 with
respect to a Claim to the extent that (a) the Indemnitee continues
allegedly infringing activity after being notified thereof or being
informed of modifications that would have avoided the alleged
infringement, or (b) the Indemnitee's use of the Keymark Technology is not
strictly in accordance with the License granted hereunder. For purposes
of sections 6.3 and 6.4 as they relate to Claims under this section 6.2,
"Indemnitor" shall mean Keymark.
6.3 Notification and Control of Defense or Settlement.
(a) The Indemnitee shall notify the Indemnitor in writing
of any Claim for which the Indemnitor may be responsible under this
Agreement, within ten days of receiving notice of such Claim, and shall
furnish to the Indemnitor a copy of all correspondence relating to such
Claim (and shall promptly furnish to the Indemnitor all subsequent
correspondence relating to such Claim).
(b) The Indemnitor may choose whether to defend or settle
any Claim, and the Indemnitee shall cooperate with the Indemnitor (at the
Indemnitor's expense) in every reasonable way to facilitate such defense
or settlement. At the Indemnitee's request, the Indemnitor shall give the
Indemnitee, at the Indemnitee's expense, the opportunity to participate
with the Indemnitor in the defense or settlement of such claim; provided
that the Indemnitor shall control any such defense or settlement.
6.4 Forfeiture of Indemnification. Any indemnification
pursuant to section 6.1 or section 6.2 shall not apply (a) if the
Indemnitee fails to give the Indemnitor notice of any Claim it receives
within ten days of receiving such Claim and such failure materially
prejudices the Indemnitor, (b) unless the Indemnitor is given the
opportunity to solely control the defense of such Claim, or (c) with
respect to amounts in settlement of a Claim, unless the Indemnitor
approves such settlement, which approval shall not be unreasonably
withheld.
7. Miscellaneous.
7.1 Governing Law and Venue. This Agreement shall be governed
by and construed and interpreted in accordance with the laws of the State
of California, without reference to any choice of law principles of such
<PAGE>
State. With respect to any suit, action or other proceeding arising out of
this Agreement, the Parties (a) expressly waive any right they may have to
a jury trial and agree that any such proceeding shall be tried by a judge
without a jury, (b) agree to non-exclusive personal jurisdiction and venue
of the United States District Court for the Northern District of
California (and any California State Court within that District) for that
purpose, and (c) appoint the persons set forth in Section 7.5 as their
respective agents for service of process in such jurisdiction.
7.2 Entire Agreement. This Agreement, together with the LLC
Agreement, contains the entire agreement of the Parties regarding the
activities described herein and therein and supersedes all prior
negotiations, correspondence, understandings and agreements between the
Parties regarding the subject matter hereof and thereof.
7.3 Relationship of the Parties. None of Keymark's employees,
consultants, contractors, agents or Affiliates are agents, employees,
partners or joint venturers of the Company for any purpose whatsoever,
nor shall they represent to the contrary, either expressly, implicitly, by
appearance or otherwise; nor shall they make any warranties or
representations on the Company's behalf, or assume or create any
obligation on the Company's behalf.
7.4 No Third-Party Beneficiaries. Except as otherwise provided
in this Agreement, the provisions of this Agreement are for the benefit of
the Parties and not for any other Person.
7.5 Notices. Notices required or permitted hereunder shall be
in writing and shall be deemed duly given and received (a) when delivered
personally; (b) when sent by confirmed facsimile; (c) five days after
having been sent by first class mail, postage prepaid; or (d) one business
day after deposit for next day delivery with a commercial overnight
carrier with tracking capabilities and confirmation of receipt or United
States Express Mail, with written verification of receipt. Receipt shall
be rebuttably presumed in accordance with the foregoing sentence if the
communication is addressed as follows:
If to the Company: Tom Fitzmyers
Keybuilder.com, LLC.
4637 Chabot Drive, Suite 200
Pleasanton, California 94588-0789
with a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94114
Attn: Carolyn S. Reiser, Esq.
If to Keymark: Keith Dietzen
Keymark Enterprises, Inc.
2905 Wilderness Place, #202
Boulder, Colorado 80301
<PAGE>
or to such other address or addressee as a Party may hereafter specify by
notice to the other.
7.6 Amendment; Waiver. This Agreement may be amended, changed,
waived, discharged or terminated only by an instrument in writing signed
by an officer of the Party against which enforcement thereof is sought.
Any waiver of any term or condition of this Agreement or any breach hereof
shall not operate as a waiver of any other such term or condition or
breach, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision hereof.
7.7 Attorneys' Fees. In the event of any controversy, claim or
dispute between the Parties arising out of or relating to this Agreement,
or the alleged breach thereof, the prevailing Party shall, in addition to
any other relief or award, be entitled to recover its attorneys' fees and
all of the costs incurred in connection therewith.
7.8 Construction. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law. If any provision of this Agreement shall be invalid
under applicable law, such provision shall be ineffective only to the
extent of such invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement, unless the
Agreement, so construed, fails to meet the essential business purposes of
the Parties as manifested by this Agreement.
7.9 Successors. This Agreement and its terms and conditions
shall bind and inure to the benefit of the respective successors and
assigns of the Parties; provided that Keymark may not assign its rights or
delegate its obligations under this Agreement either as a whole or in
part without the prior written consent of the Company, except that no such
consent shall be required for an assignment by Keymark to one or more of
its wholly owned Affiliates. Any attempted assignment in violation of
this section 7.9 shall be void.
7.10 Counterparts. This Agreement may be executed by the
Parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
7.11 Heading and References. The headings and captions used in
this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
<PAGE>
executed this Agreement effective as of the date first written above.
KEYBUILDER.COM, LLC. KEYMARK ENTERPRISES, INC.
By: /s/Thomas J Fitzmyers By: /s/Keith Dietzen
---------------------------- ----------------------------
Title: Director Title: President
------------------------- -------------------------
Date: March 9, 2000 Date: March 9, 2000
-------------------------- --------------------------
By: /s/Steve Lamson
----------------------------
Title: Director
-------------------------
Date: March 9, 2000
--------------------------
<PAGE>
EXHIBIT A
DESCRIPTION OF KEYMARK TECHNOLOGY
The following brochures describe the Keymark Technology:
KeyBuild Brochure Form F-KBSPEC 12/99
KeyLat Brochure
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
Basic Earnings per Share
Three Months Ended
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Weighted average number of common
shares outstanding 12,020,446 11,580,828
============ ============
Net income $ 9,275,764 $ 7,648,403
============ ============
Basic net income per share $ 0.77 $ 0.66
============ ============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
DILUTED EARNINGS PER SHARE
Three Months Ended
March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Weighted average number of common
shares outstanding 12,020,446 11,580,828
Shares issuable pursuant to employee
stock option plans, less shares
assumed repurchased at the average
fair value during the period 253,381 509,039
Shares issuable pursuant to the
independent director stock option
plan, less shares assumed repurchased
at the average fair value during the
period 3,626 3,358
------------ ------------
Number of shares for computation of
diluted net income per share 12,277,453 12,093,225
============ ============
Net income $ 9,275,764 $ 7,648,403
============ ============
Diluted net income per share $ 0.76 $ 0.63
============ ============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Balance Sheet at March 31, 2000, (Unaudited)
and the Condensed Consolidated Statement of Operations for the three
months ended March 31, 2000, (Unaudited) and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 45,551,211
<SECURITIES> 0
<RECEIVABLES> 54,461,542
<ALLOWANCES> 1,568,062
<INVENTORY> 78,380,347
<CURRENT-ASSETS> 184,083,653
<PP&E> 122,445,540
<DEPRECIATION> 61,783,333
<TOTAL-ASSETS> 257,365,176
<CURRENT-LIABILITIES> 32,989,346
<BONDS> 2,886,200
0
0
<COMMON> 44,901,418
<OTHER-SE> 175,733,364
<TOTAL-LIABILITY-AND-EQUITY> 257,365,176
<SALES> 84,615,539
<TOTAL-REVENUES> 84,615,539
<CGS> 50,800,161
<TOTAL-COSTS> 50,800,161
<OTHER-EXPENSES> 19,201,449
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0<F1>
<INCOME-PRETAX> 15,257,804
<INCOME-TAX> 6,178,000
<INCOME-CONTINUING> 9,275,764
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,275,764
<EPS-BASIC> 0.77
<EPS-DILUTED> 0.76
<FN>
<F1>Interest income for the three months ended March 31, 2000,
was $643,875.
</FN>
</TABLE>
