UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION PERIOD PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to ________
Commission file number 0-23970
NETWORK PERIPHERALS INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0216135
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2859 Bayview Drive
Fremont, California 94538
(Address, including zip code, of principal executive offices)
(510) 897-5000
(Registrant's telephone number, including area code)
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, $0.001 par value,
outstanding as of November 5, 1999 was 12,697,460.
<PAGE>
<TABLE>
<CAPTION>
NETWORK PERIPHERALS INC.
FORM 10-Q
TABLE OF CONTENTS
PART I - FINANCIAL INFORMATION
Page
<S> <C>
Item 1. Financial Statements (unaudited):
Consolidated Balance Sheets as of September 30, 1999 and December 31, 1998 3
Consolidated Statements of Operations for Three and Nine Months Ended
September 30, 1999 and 1998 4
Consolidated Statements of Cash Flows for Nine Months Ended
September 30, 1999 and 1998 5
Notes to Consolidated Financial Statements 6-7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 8-12
Item 3. Quantitative and Qualitative Disclosures about Market Risk 12
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 13
Signatures 14
</TABLE>
2
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
NETWORK PERIPHERALS INC.
CONSOLIDATED BALANCE SHEETS - UNAUDITED
(in thousands, except share data)
<CAPTION>
September 30, December 31,
1999 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,427 $ 5,537
Short-term investments 10,829 17,814
Accounts receivable, net of allowance for doubtful accounts and
returns of $424 and $523, respectively 1,802 3,430
Receivable from sale of assets 720 --
Inventories 2,733 3,124
Prepaid expenses and other current assets 652 742
-------- --------
Total current assets 21,163 30,647
Property and equipment, net 4,458 4,560
Other assets 402 342
-------- --------
$ 26,023 $ 35,549
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,067 $ 2,450
Accrued liabilities 1,975 2,127
-------- --------
Total current liabilities 3,042 4,577
-------- --------
Stockholders' equity:
Preferred Stock, $0.001 par value, 2,000,000 shares authorized;
no shares issued or outstanding -- --
Common Stock, $0.001 par value, 20,000,000 shares authorized;
12,689,000 and 12,292,000 shares issued and outstanding,
respectively 13 12
Additional paid-in capital 65,723 64,060
Accumulated deficit (42,755) (33,100)
-------- --------
Total stockholders' equity 22,981 30,972
-------- --------
$ 26,023 $ 35,549
======== ========
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
3
<PAGE>
<TABLE>
NETWORK PERIPHERALS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS - UNAUDITED
(in thousands, except per share data)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------------- -----------------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 2,271 $ 6,423 $ 9,447 $ 21,693
Cost of sales 2,112 3,818 8,184 12,778
-------- -------- -------- --------
Gross profit 159 2,605 1,263 8,915
-------- -------- -------- --------
Operating expenses:
Research and development 2,425 2,893 5,755 9,420
Marketing and selling 1,511 1,333 4,417 4,727
General and administrative 881 752 2,535 2,437
Gain on sale of assets -- -- (1,055) --
-------- -------- -------- --------
Total operating expenses 4,817 4,978 11,652 16,584
-------- -------- -------- --------
Loss from operations (4,658) (2,373) (10,389) (7,669)
Interest income 215 372 734 1,178
-------- -------- -------- --------
Loss before income taxes (4,443) (2,001) (9,655) (6,491)
Income taxes -- -- -- --
-------- -------- -------- --------
Net loss $ (4,443) $ (2,001) $ (9,655) $ (6,491)
======== ======== ======== ========
Net loss per share:
Basic and diluted $ (0.35) $ (0.16) $ (0.77) $ (0.53)
======== ======== ======== ========
Weighted average common shares:
Basic and diluted 12,681 12,292 12,539 12,277
======== ======== ======== ========
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
4
<PAGE>
NETWORK PERIPHERALS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - UNAUDITED
Increase (Decrease) in Cash and Cash Equivalents
(in thousands)
Nine Months Ended
September 30,
---------------------
1999 1998
-------- --------
Cash flows from operating activities:
Net loss $ (9,655) $ (6,491)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 1,367 1,480
Gain on sale of assets (1,055) --
Changes in assets and liabilities:
Accounts receivable 1,628 1,847
Inventories 391 (2,579)
Income tax refund receivable -- 3,961
Prepaid expenses and other assets 30 (14)
Accounts payable (1,383) 2,361
Accrued liabilities (152) (2,368)
-------- --------
Net cash used in operating activities (8,829) (1,803)
-------- --------
Cash flows from investing activities:
Purchases of property and equipment (1,614) (2,480)
Proceeds from sale of assets, net of expenses 684 --
Proceeds from sales of short-term investments 6,985 --
Purchases of short-term investments -- (2,229)
Holdback amount from acquisition -- (456)
-------- --------
Net cash provided by (used in) investing
activities 6,055 (5,165)
-------- --------
Cash flows from financing activities:
Proceeds from issuance of Common Stock 1,664 182
-------- --------
Net cash provided by financing activities 1,664 182
-------- --------
Net decrease in cash and cash equivalents (1,110) (6,786)
Cash and cash equivalents, beginning of period 5,537 16,094
-------- --------
Cash and cash equivalents, end of period $ 4,427 $ 9,308
======== ========
Supplemental disclosure of cash flow information
Cash paid during the period for:
Income taxes $ 51 $ 53
======== ========
Noncash investing activities:
Receivable from sale of assets $ 720 $ --
======== ========
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
NETWORK PERIPHERALS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
The accompanying unaudited consolidated financial statements of Network
Peripherals Inc. (the "Company") have been prepared in accordance with
generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not contain all of the information
and footnotes required by generally accepted accounting principles for
complete financial statements. In the opinion of management, the
accompanying unaudited consolidated financial statements reflect all
adjustments (consisting of normal recurring adjustments) considered
necessary for a fair presentation of the Company's financial condition
as of September 30, 1999 and December 31, 1998, the results of its
operations for the three-month and the nine-month periods ended
September 30, 1999 and 1998, and its cash flows for the nine-month
periods ended September 30, 1999 and 1998. These financial statements
should be read in conjunction with the audited consolidated financial
statements of the Company as of December 31, 1998 and 1997 and for each
of the three years in the period ended December 31, 1998, including
notes thereto, included in the Company's Annual Report on Form 10-K
(Commission File No. 0-23970).
Operating results for the three-month and the nine-month periods ended
September 30, 1999 are not necessarily indicative of the results that
may be expected for the year ending December 31, 1999 or for any other
future period.
2. NET LOSS PER SHARE
Basic earnings per share ("EPS") are computed as net income divided by
the weighted-average number of common shares outstanding for the
period. Diluted EPS reflects the potential dilution that could occur
from common shares issuable through stock-based compensation, including
stock options, restricted stock awards, warrants, and other convertible
securities using the treasury stock method. For the three and the nine
months ended September 30, 1999 and 1998, the Company incurred net
losses, and the inclusion of potential common shares would result in an
antidilutive per share amount. Accordingly, no adjustment is made to
basic EPS to arrive at diluted EPS.
3. INVENTORIES
The components of inventories consist of the following (in thousands):
September 30, December 31,
1999 1998
------ ------
Raw materials $1,263 $ 882
Work-in-process 592 572
Finished goods 878 1,670
------ ------
$2,733 $3,124
====== ======
6
<PAGE>
NETWORK PERIPHERALS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. PROPERTY AND EQUIPMENT, NET
Property and equipment consist of the following (in thousands):
September 30, December 31,
1999 1998
------- -------
Computer and equipment $ 7,737 $ 8,267
Furniture and fixtures 984 920
Leasehold improvements 304 306
------- -------
9,025 9,493
Accumulated depreciation (4,567) (4,933)
------- -------
$ 4,458 $ 4,560
======= =======
<TABLE>
5. ACCRUED LIABILITIES
The components of accrued liabilities consist of the following (in
thousands):
<CAPTION>
September 30, December 31,
1999 1998
------ ------
<S> <C> <C>
Research and development expenses $ 630 $ --
Salaries and benefits 500 973
Warranty 375 450
Co-op advertising and market development funds 270 386
Other 200 318
------ ------
$1,975 $2,127
====== ======
</TABLE>
6. SALE OF ASSETS
In June 1999, the Company sold its research and development office
located in Hsin Chu, Taiwan, for a total of $1,620,000, of which
$400,000 and $500,000 were received in June and July 1999,
respectively, and the remaining balance is to be received in July 2000.
In connection therewith, the Company recorded a net gain of $1,055,000,
after accounting for a write-off of related assets of $349,000 and
payments of broker fees and severance of $216,000.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following forward-looking statements are made in reliance upon the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995. The
future events described in such statements involve risks and uncertainties,
including:
o the timely development and market acceptance of new products;
o the market demand by customers for the Company's existing products,
including demand by OEM customers for custom products;
o competitive actions, including pricing actions and the introduction of new
competitive products, that may affect the volume of sales of the Company's
products;
o uninterrupted supply of key components, including semiconductor devices and
other materials, some of which may be sourced from a single supplier;
o the ability of the Company to recruit, train and retain key personnel,
including engineers and other technical professionals;
o the development of new technologies rendering existing technologies and
products obsolete;
o the economies of countries where the Company's products are distributed;
and
o general market conditions.
In evaluating these forward-looking statements, consideration should also be
given to the Business Risks discussed below in this interim report.
RESULTS OF OPERATIONS
Net Sales
Net sales for the three months ended September 30, 1999 (the "quarter") were
$2.3 million, compared to $6.4 million for the three months ended September 30,
1998 (the "comparable quarter"). Net sales for the nine months ended September
30, 1999 (the "nine-month period") were $9.4 million, compared to $21.7 million
for the nine months ended September 30, 1998 (the "comparable period"). The
decrease in net sales for the quarter and for the nine-month period was due to
declining demand for products based on FDDI technology and price competition in
the Layer 2 Fast Ethernet market. The FDDI and Layer 2 Fast Ethernet product
represent the Company's legacy products. Because of this unfavorable market
landscape, the Company diverted nearly all of its investments and resources away
from the legacy products throughout 1999, including the sale of its Hsin Chu
office which was the research and development center for Layer 2 Fast Ethernet
products, and focused its efforts on the commercialization of its NuWave
products (discussed later). Consequently, net sales of FDDI products for the
quarter decreased to $1.3 million from $4.0 million for the comparable quarter,
while net sales for the nine-month period decreased to $4.8 million from $13.5
million for the comparable period. The balance of the decrease in total net
sales was attributed to a decrease in sales of Layer 2 Fast Ethernet switching
products.
Sales to OEM customers were $1.3 million for the quarter, reflecting a 70%
decrease from the comparable quarter. For the nine-month period, sales to OEM
customers were $5.0 million, reflecting a 66% decrease from the comparable
period. The balance of the sales was made to distribution channels. Distribution
sales were $1.0 million and $4.4 million for the quarter and the nine-month
period, respectively, reflecting a decrease of 54% and 35% from the comparable
quarter and the comparable period, respectively.
Categorizing sales by geography, sales to North America and international
customers during the quarter decreased to $1.4 million and $0.9 million,
respectively, from $4.6 million and $1.8 million for the comparable quarter. For
the nine-month period, sales to North America and international customers
declined to $5.3 million and $4.1 million, respectively, from $15.1 million and
$6.6 million, respectively, for the comparable period.
8
<PAGE>
The decrease in sales to OEM customers and customers in North America was
primarily attributed to decreased demand of FDDI products as discussed above and
a significant reduction of orders from a major OEM customer. The decrease in
distribution sales, as well as international sales, reflected the saturation of
and diminished demand for the Layer 2 Fast Ethernet switching products.
The Company currently expects volume shipment of its NuWave products, which are
Layer 3 gigabit Ethernet switches, to commence late in the fourth quarter of
1999. Accordingly, net sales in the fourth quarter are expected to increase from
the current level due to the shipment of NuWave products, partially offset by a
continuous decrease in shipments of FDDI and Layer 2 Fast Ethernet switching
products. At the initial launch of NuWave products, distribution sales may
exceed OEM sales; however, the Company anticipates that a substantial majority
of sales of NuWave products in fiscal 2000 will be to OEM customers.
Gross Profit/Margin
Gross margin was 7% for the quarter and 13% for the nine-month period, compared
to 41% for both of the corresponding periods in 1998. The gross margin was
exceptionally low in 1999 primarily due to significant decrease in sales of
higher-margin FDDI products, compounded with competitive pricing on Layer 2 Fast
Ethernet switching products. In addition, the low level of sales in 1999
significantly reduced the gross profit contribution to absorb the fixed overhead
portion of the cost of sales, which negatively impacted the gross margin. The
Company expects the gross margin to improve from the current level when volume
shipment of NuWave products commences.
Research and Development
Research and development expenses were $2.4 million for the quarter, compared to
$2.9 million for the comparable quarter. For the nine-month period and the
comparable period, research and development expenses were $5.8 million and $9.4
million, respectively. An overall decrease in expenses in 1999 reflected a
significant reduction in payroll and overhead costs as a result of eliminating
certain non-critical personnel in the third quarter of 1998. In addition, the
decrease in expenses for the quarter was also attributed to the divestiture of
the research and development office in Hsin Chu, Taiwan, in June 1999. Such
decrease was partially offset by an increase in non-recurring engineering
charges relating to developing the prototype for NuWave products. The
divestiture of the Hsin Chu office reduced the Company's investment in its
legacy products and enabled the Company to focus its resources on the
commercialization of NuWave products.
The Company continues to invest a substantial amount of its resources in
developing NuWave family of products. The Company expects such investment to
continue through the first half on 2000 as new features are added to NuWave
products and programs to reduce the cost of products proceed.
Marketing and Selling
Marketing and selling expenses were $1.5 million for the quarter and $1.3
million for the comparable quarter. For the nine-month period and the comparable
period, marketing and selling expenses were $4.4 million and $4.7 million,
respectively. Marketing and selling expenses for the quarter increased slightly
due to an increase in marketing expenses, which was partially offset by a
decrease in selling expenses. The increase in marketing expenses was due to
increased spending in advertising and other marketing activities in preparing
for the launch of NuWave products, while the decrease in selling expenses was
related to a decrease in commission and promotional expenses due to lower sales.
For the nine-month period, marketing and selling expenses decreased from the
comparable period primarily because of a decrease in commission and promotional
expenses due to lower sales.
The Company expects marketing and selling expenses to gradually increase from
the current level. Higher commission and promotional expenses are expected when
volume shipment of NuWave products commences. In addition, the Company expects
to intensify its advertising campaigns and other marketing activities in
connection with the launch of its NuWave products.
9
<PAGE>
General and Administrative
General and administrative expenses were $881,000 for the quarter, compared to
$753,000 for the comparable quarter. For the nine-month and the comparable
periods, general and administrative expenses were $2.5 million and $2.4 million,
respectively. The Company expects a moderate increase in general and
administrative expenditures in the fourth quarter due to relocation of its
corporate headquarters at the end of October 1999.
Gain on sale of assets
In connection with the sale of its research and development office in Hsin Chu,
Taiwan, in June 1999, the Company recorded a gain on sale of assets of
$1,055,000, representing proceeds of $1,620,000 (of which $900,000 has been
received to date, with the remainder payable in July 2000), less the net book
value of fixed assets sold and payments of broker fees and severance totaling
$565,000.
Interest Income
Interest income for the quarter and the nine-month period were $215,000 and
$734,000, respectively, compared to $373,000 and $1.2 million in the
corresponding periods in 1998. The decrease was primarily due to a lower
aggregate balance of cash, cash equivalents and short-term investments.
Income Taxes
The Company did not record a tax benefit associated with the net loss incurred
in 1999 and 1998, as the realization of deferred tax assets is deemed uncertain
based on evidence currently available. Accordingly, a full valuation allowance
has been provided.
Year 2000 Compliance
Many computer systems were designed using two digits rather than four digits to
define a specific year. Thus as the Year 2000 approaches, the improper
identification of the year could result in system failures or erroneous
calculations. To address this issue, the Company has conducted a program (the
Program) to assess and address Year 2000 issues for its products, information
systems, operational infrastructure, and suppliers.
The Company has completed an assessment of its current and installed base of
products. The Company believes that substantially all products manufactured on
or after August 1, 1997 are Year 2000 compliant, with the exception of the EIFO
family of switches, which sold minimally in 1997, 1998 and 1999. For the older
products and the EIFO products, which are deemed not in compliance, the Company
believes they will continue to perform all essential and material functions
after the year 2000; but in limited circumstances, they may incorrectly display
or report the date within the network management software. Given that the
installed base of non-compliant products has diminished as time elapsed and that
these non-compliant products will perform their standard functions, the Company
expects most of its end-users will not have material problems with the year 2000
arising from non-compliance in our products.
The Company has substantially completed its assessment and remediation of its
information systems. With the recently implemented ERP (enterprise resource
planning) system and standardization of its network and desktop applications
completed in 1998, the Company has determined that its information systems in
its headquarters are in compliance with year 2000. Similarly, the Company's
remote locations, in New York, in the Netherlands, and in Taiwan have completed
an update of its information systems and are also in compliance.
In 1998, the Company purchased and put into operation a new SMT (surface mount
technology) line in its manufacturing facility where substantially all of its
manufacturing will be performed in 2000 and beyond. The manufacturer of the
equipment has certified that such equipment is Y2K compliant.
The Company's telecommunication systems, security system, electrical power
system and other mission critical systems in its operational infrastructure in
all locations appear to be in compliance as certified by the respective vendor.
10
<PAGE>
The Company has completed a survey of all its critical suppliers and third
parties for their year 2000 readiness. All respondents have declared that they
are prepared for Y2K.
A contingency plan is being established and is expected to be completed by
November 1999. As the Company's Program is substantially complete, the
incremental cost to fully complete the Program in 1999 is expected to be
immaterial.
Despite the Company's efforts (1) to identify the Year 2000 compliance of its
products and the effects of any non-compliance, (2) to assess and mitigate
non-compliance of its information systems and its operational infrastructure,
and (3) to address suppliers readiness, the Company cannot be certain that all
areas have been identified or that the solution implemented to address
non-compliance will be successful. There remains a risk that the failures and
difficulties encountered in the Program may disrupt operations and cause
material adverse effects on the Company's results of operations and financial
condition.
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital was $18.1 million and $26.1 million at September
30, 1999 and December 31, 1998, respectively, and the current ratio (ratio of
current assets to current liabilities) was 7.0 to 1 and 6.7 to 1, respectively.
The aggregate balance of cash, cash equivalents and short-term investments
decreased to $15.3 million at September 30, 1999 from $23.4 million at December
31, 1998. Such decrease was primarily related to net cash used in the Company's
operations and for capital expenditures, partially offset by $1.7 million of
proceeds from issuance of its Common Stock upon exercise of stock options by
employees.
For the nine months ended September 30, 1999, net cash used in operating
activities was $8.8 million, which was principally attributed to the net loss of
$9.7 million, gain on sale of assets of $1.1 million, and a decrease in accounts
payable and accrued liabilities of $1.5 million, partially offset by
depreciation and amortization of $1.4 million and a decrease in accounts
receivable of $1.6 million. For the nine months ended September 30, 1998, net
cash used in operating activities was $1.8 million, which was primarily
attributed to the net loss of $6.5 million, partially offset by an income tax
refund of $4.0 million. The Company expects negative cash flows from operations
to continue until after the volume shipment of NuWave products starts in the
fourth quarter of 1999 and overall sales begin to improve.
The Company's capital expenditures totaled $1.6 million and $2.5 million for the
nine months ended September 30, 1999 and 1998, respectively, and were related to
purchases of equipment used in production and development activities and other
computer software and equipment for the upgrade and enhancement of the
information systems. During the remainder of 1999, the Company plans to incur
capital expenditures of approximately $700,000, of which $500,000 was related to
leasehold improvements of the new corporate headquarters.
The Company's principal sources of liquidity are its cash, cash equivalents and
short-term investments. The Company also has a revolving line-of-credit
agreement, which provides for borrowings up to $5 million, none of which has
been drawn down. The Company is in compliance with all financial covenants under
the line-of-credit agreement. The Company believes that its current balance of
cash, cash equivalents, and short-term investments and its borrowing capacity
are sufficient to satisfy the Company's working capital and capital expenditure
requirements for the next 12 months.
BUSINESS RISKS
In addition to the factors addressed in the preceding sections, certain
characteristics and dynamics of the Company's markets, technologies and
operations create risks to the Company's long-term success and to predictable
quarterly results. These risks will also affect the Company's ability to achieve
the results anticipated by the forward-looking statements contained in this
report. The Company's quarterly results have in the past varied and are expected
in the future to vary significantly as a result of factors such as the timing
and shipment of significant orders, new product introductions or technological
11
<PAGE>
advances by the Company and its competitors, market acceptance of new or
enhanced versions of the Company's products, changes in pricing policies by the
Company and its competitors, the mix of distribution channels through which the
Company's products are sold, the mix of products sold, the accuracy of
resellers' and OEM's forecast of end-user demand, the ability of the Company to
obtain sufficient supplies of sole or limited source components for the
Company's products, and general economic conditions. In response to competitive
pressures or new product introductions, the Company may take certain pricing or
marketing actions that could materially and adversely affect the Company's
operating results. In the event of a reduction in the prices of its products,
the Company has committed to providing retroactive price adjustments on
inventories held by its distributors, which could have the effect of reducing
margins and operating results. In addition, changes in the mix of products sold
and the mix of distribution channels through which the Company's products are
sold may cause fluctuations in the Company's gross margins. The Company's
expense levels are based, in part, on its expectations of its future revenue
and, as a result, net income would be disproportionately affected by a reduction
in revenue. Due to the potential quarterly fluctuation in operating results, the
Company believes that quarter-to-quarter comparisons of its results of
operations are not necessarily meaningful and should not be relied upon as
indicators of future performance.
The markets for the Company's products are characterized by rapidly changing
technology, evolving industry standards, frequent new product introductions and
short product life cycles. These changes can adversely affect the business and
operating results of industry participants. The Company's success will depend
upon its ability to enhance its existing products and to develop and introduce,
on a timely and cost-effective basis, new products that keep pace with
technological developments and emerging industry standards and address
increasingly sophisticated customer requirements. The inability to develop and
manufacture new products in a timely manner, the existence of reliability,
quality or availability problems in the products or their component parts,
failure by its foundry to fabricate and supply proprietary ASICs, the failure to
obtain reliable subcontractors for volume production and testing of mature
products, or the failure to achieve market acceptance would have a material
adverse effect on the Company's business and operating results.
The markets in which the Company competes are also characterized by intense
competition. Several of the Company's competitors have significantly broader
product offerings and greater financial, technical, marketing and other
resources than the Company. These larger competitors may also be able to obtain
higher priority for their products from distributors and other resellers that
carry products of many companies. A number of the Company's competitors were
acquired by larger companies in the past few years, and one competitor recently
had an initial public offering of its common stock. As a result, these
competitors are able to devote significantly greater resources to the
development and marketing of competitive products. These competitive pressures
could adversely affect the Company's business and operating results.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There have been no changes in financial market risk as originally discussed in
the Company's Annual Report on Form 10-K for the year ended December 31, 1998.
12
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits Description of Document
3.1 (1) Amended and Restated Certificate of Incorporation.
3.2 (1) By-Laws.
10.46 Lease Agreement dated August 31, 1999
27 Financial Data Schedule.
(1) Incorporated by reference to the
corresponding exhibit in the Registrant's
Registration Statement on Form S-1.
(b) Reports on Form 8-K
None
13
<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.
NETWORK PERIPHERALS INC.
Date: November 12, 1999 By: \s\ Wilson Cheung
----------------------------
Wilson Cheung
Vice President of Finance and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
14
[California Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this ____31st__day of ___August______,
1999 between ProLogisLimited Partnership-I, a Delaware Limited Partnership
("Landlord"), and the Tenant named below.
<TABLE>
<CAPTION>
<S> <C>
Tenant: Network Peripherals, Inc., a Delaware Corporation
Tenant's representative, Mr. Wilson Cheung
address, and phone no.: 1371 McCarthy Blvd.
Milpitas, CA 95035
408/321-7247
Premises: That portion of the Building, containing
approximately 22,500 rentable square feet,
as determined by Landlord and commonly known
as 2859 Bayview Drive, Fremont, CA as shown
on Exhibit A.
Project: Gateway Corporate Center
Building: Building #7
Tenant's Proportionate Share
of Project: 12.44%
Tenant's Proportionate Share
of Building: 48.39%
Lease Term: Beginning on the Commencement Date and ending on the last day of the 60th full
calendar month thereafter.
Commencement Date: November 1, 1999 (or subject to substantial completion of improvements)
Initial Monthly Base Rent: Twenty Five Thousand Four Hundred Twenty Five $25,425
Initial Estimated Monthly 1. Common Area Charges: $1,029
Operating Expense Payments:
(estimates only and subject to 2. Taxes: $2,821
adjustment to actual costs and
expenses according to the 3. Insurance: $56
provisions of this Lease)
4. Management Fee: $369
Initial Estimated Monthly
Operating Expense Payments: $4,275
Initial Monthly Base Rent and
Operating Expense Payments:
$29,700
Security Deposit: $85,848
Broker: Ken Tsukahara / Colliers International
Addenda: Addendum I and II III, IV, Exhibit A, B, B-1, and C
</TABLE>
1. Granting Clause. In consideration of the obligation of Tenant to pay
rent as herein provided and in consideration of the other terms, covenants, and
conditions hereof, Landlord leases to Tenant, and Tenant takes from Landlord,
the Premises, to have and to hold for the Lease Term, subject to the terms,
covenants and conditions of this Lease.
2. Acceptance of Premises. Tenant shall accept the Premises in its
condition as of the Commencement Date, subject to all applicable laws,
ordinances, regulations, covenants and restrictions. Landlord has made no
representation or warranty as to the suitability of the Premises for the conduct
of Tenant's business, and Tenant waives any implied warranty that the Premises
are suitable for Tenant's intended purposes. Except as provided in Paragraph 10,
in no event shall Landlord have any obligation for any defects in the Premises
or any limitation on its use. The taking of possession of the Premises shall be
conclusive evidence that Tenant accepts the Premises and that the Premises were
in good condition at the time possession was taken except for items that are
Landlord's responsibility under Paragraph 10 and any punchlist items agreed to
in writing by Landlord and Tenant.
3. Use. The Premises shall be used only for the purpose of marketing
and testing of electronic equipment, receiving, storing, shipping and selling
(but limited to wholesale sales) products, materials and merchandise made and/or
distributed by Tenant and for such other lawful purposes as may be incidental
thereto; provided, however, with Landlord's prior written consent, Tenant may
also use the Premises for light manufacturing. Tenant shall not conduct or give
notice of any auction, liquidation, or going out of business sale on the
Premises. Tenant will use the Premises in a careful, safe and proper manner and
will not commit waste, overload the floor or structure of the Premises or
subject the Premises to use that would damage the Premises. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise, or
vibrations to emanate from the Premises, or take any other action that would
constitute a nuisance or would disturb, unreasonably interfere with, or endanger
Landlord or
<PAGE>
any tenants of the Project. Outside storage, including without limitation,
storage of trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant, at its sole expense, shall use and occupy the Premises
in compliance with all laws, including, without limitation, the Americans With
Disabilities Act, orders, judgments, ordinances, regulations, codes, directives,
permits, licenses, covenants and restrictions now or hereafter applicable to the
Premises (collectively, "Legal Requirements"). The Premises shall not be used as
a place of public accommodation under the Americans With Disabilities Act or
similar state statutes or local ordinances or any regulations promulgated
thereunder, all as may be amended from time to time. Tenant shall, at its
expense, make any alterations or modifications, within or without the Premises,
that are required by Legal Requirements related to Tenant's use or occupation of
the Premises. Tenant will not use or permit the Premises to be used for any
purpose or in any manner that would void Tenant's or Landlord's insurance,
increase the insurance risk, or cause the disallowance of any sprinkler credits.
If any increase in the cost of any insurance on the Premises or the Project is
caused by Tenant's use or occupancy of the Premises, or because Tenant vacates
the Premises, then Tenant shall pay the amount of such increase to Landlord. Any
occupation of the Premises by Tenant prior to the Commencement Date shall be
subject to all obligations of Tenant under this Lease.
4. Base Rent. Tenant shall pay Base Rent in the amount set forth above.
The first month's Base Rent, the Security Deposit, and the first monthly
installment of estimated Operating Expenses (as hereafter defined) shall be due
and payable on the date hereof, and Tenant promises to pay to Landlord in
advance, without demand, deduction or set-off, monthly installments of Base Rent
on or before the first day of each calendar month succeeding the Commencement
Date. Payments of Base Rent for any fractional calendar month shall be prorated.
All payments required to be made by Tenant to Landlord hereunder shall be
payable at such address as Landlord may specify from time to time by written
notice delivered in accordance herewith. The obligation of Tenant to pay Base
Rent and other sums to Landlord and the obligations of Landlord under this Lease
are independent obligations. Tenant shall have no right at any time to abate,
reduce, or set-off any rent due hereunder except as may be expressly provided in
this Lease. Tenant waives and releases all statutory liens and offset rights as
to rent. If Tenant is delinquent in any monthly installment of Base Rent or of
estimated Operating Expenses beyond 5 days after the due date thereof, and after
notice as provided below, Tenant shall pay to Landlord on demand a late charge
equal to 5 percent of such delinquent sum, to help defray the additional costs
and expenses to Landlord for processing such late payment. Tenant shall not be
obligated to pay the late charge until Landlord has given Tenant 3 days written
notice of the delinquent payment (which may be given at any time during the
delinquency); provided, however, that such notice shall not be required more
than twice in any 12-month period or four times over the Lease Term. The
provision for such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as a penalty.
5. Security Deposit. The Security Deposit shall be held by Landlord as
security for the performance of Tenant's obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon each occurrence of an Event of Default
(hereinafter defined), Landlord may use all or part of the Security Deposit to
pay delinquent payments due under this Lease, and the cost of any damage,
injury, expense or liability caused by such Event of Default, without prejudice
to any other remedy provided herein or provided by law. Tenant shall pay
Landlord on demand the amount that will restore the Security Deposit to its
original amount. Landlord's obligation respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but shall be paid to Tenant when
Tenant's obligations under this Lease have been completely fulfilled. Landlord
shall be released from any obligation with respect to the Security Deposit upon
transfer of this Lease and the Premises to a person or entity assuming
Landlord's obligations under this Paragraph 5.
6. Operating Expense Payments. During each month of the Lease Term, on
the same date that Base Rent is due, Tenant shall pay Landlord an amount equal
to 1/12 of the annual cost, as estimated by Landlord from time to time, of
Tenant's Proportionate Share (hereinafter defined) of Operating Expenses for the
Project. Payments thereof for any fractional calendar month shall be prorated.
The term "Operating Expenses" means all costs and expenses incurred by Landlord
with respect to the ownership, maintenance, and operation of the Project
including, but not limited to costs of: Taxes (hereinafter defined) and fees
payable to tax consultants and attorneys for consultation and contesting taxes;
insurance; utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads, roofs,
alleys, and driveways, mowing, landscaping, exterior painting, utility lines,
heating, ventilation and air conditioning systems, lighting, electrical systems
and other mechanical and building systems; amounts paid to contractors and
subcontractors for work or services performed in connection with any of the
foregoing; charges or assessments of any association to which the Project is
subject; reasonable property management fees payable to a property manager,
including any affiliate of Landlord, or if there is no property manager, an
administration fee of 15 10 percent of Operating Expenses payable to Landlord;
security services, if any; trash collection, sweeping and removal; and additions
or alterations made by Landlord to the Project or the Building in order to
comply with Legal Requirements (other than those expressly required herein to be
made by Tenant) or that are appropriate to the continued operation of the
Project or the Building as a bulk warehouse facility in the market area,
provided that the cost of additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized on a straight
line basis over a period equal to the lesser of the useful life thereof for
federal income tax purposes or 10 years. Operating Expenses do not include
costs, or expenses, depreciation or amortization for capital repairs and capital
replacements required to be made by Landlord under Paragraph 10 of this Lease,
debt service under mortgages or ground rent under ground leases, costs of
restoration to the extent of net insurance proceeds received by Landlord with
respect thereto, leasing commissions, or the costs of renovating space for
tenants.
<PAGE>
If Tenant's total payments of Operating Expenses for any year
are less than Tenant's Proportionate Share of actual Operating Expenses for such
year, then Tenant shall pay the difference to Landlord within 30 days after
demand, and if more, then Landlord shall retain such excess and credit it
against Tenant's next payments. For purposes of calculating Tenant's
Proportionate Share of Operating Expenses, a year shall mean a calendar year
except the first year, which shall begin on the Commencement Date, and the last
year, which shall end on the expiration of this Lease. With respect to Operating
Expenses which Landlord allocates to the entire Project, Tenant's "Proportionate
Share" shall be the percentage set forth on the first page of this Lease as
Tenant's Proportionate Share of the Project as reasonably adjusted by Landlord
in the future for changes in the physical size of the Premises or the Project;
and, with respect to Operating Expenses which Landlord allocates only to the
Building, Tenant's "Proportionate Share" shall be the percentage set forth on
the first page of this Lease as Tenant's Proportionate Share of the Building as
reasonably adjusted by Landlord in the future for changes in the physical size
of the Premises or the Building. Landlord may equitably increase Tenant's
Proportionate Share for any item of expense or cost reimbursable by Tenant that
relates to a repair, replacement, or service that benefits only the Premises or
only a portion of the Project or Building that includes the Premises or that
varies with occupancy or use. The estimated Operating Expenses for the Premises
set forth on the first page of this Lease are only estimates, and Landlord makes
no guaranty or warranty that such estimates will be accurate.
7. Utilities. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash collection,
and other utilities and services used on the Premises, all maintenance charges
for utilities, and any storm sewer charges or other similar charges for
utilities imposed by any governmental entity or utility provider, together with
any taxes, penalties, surcharges or the like pertaining to Tenant's use of the
Premises. Landlord may cause at Tenant's expense any utilities to be separately
metered or charged directly to Tenant by the provider. Tenant shall pay its
share of all charges for jointly metered utilities based upon consumption, as
reasonably determined by Landlord. No interruption or failure of utilities shall
result in the termination of this Lease or the abatement of rent. Tenant agrees
to limit use of water and sewer for normal restroom use.
8. Taxes. Landlord shall pay all taxes, assessments and governmental
charges (collectively referred to as "Taxes") that accrue against the Project
during the Lease Term, which shall be included as part of the Operating Expenses
charged to Tenant. Landlord may contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens thereof. All capital
levies or other taxes assessed or imposed on Landlord upon the rents payable to
Landlord under this Lease and any franchise tax, any excise, transaction, sales
or privilege tax, assessment, levy or charge measured by or based, in whole or
in part, upon such rents from the Premises and/or the Project or any portion
thereof shall be paid by Tenant to Landlord monthly in estimated installments or
upon demand, at the option of Landlord, as additional rent; provided, however,
in no event shall Tenant be liable for any net income taxes imposed on Landlord
unless such net income taxes are in substitution for any Taxes payable
hereunder. If any such tax or excise is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same at such
times and in such manner as the taxing authority shall require. Tenant shall be
liable for all taxes levied or assessed against any personal property or
fixtures placed in the Premises, whether levied or assessed against Landlord or
Tenant.
9. Insurance. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it may
deem necessary, including, but not limited to, commercial liability insurance
and rent loss insurance. All such insurance shall be included as part of the
Operating Expenses charged to Tenant. The Project or Building may be included in
a blanket policy (in which case the cost of such insurance allocable to the
Project or Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant, at its expense, shall maintain during the Lease Term:
all risk property insurance covering the full replacement cost of all property
and improvements installed or placed in the Premises by Tenant at Tenant's
expense; worker's compensation insurance with no less than the minimum limits
required by law; employer's liability insurance with such limits as required by
law; and commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in any
such limits. The commercial liability policies shall name Landlord as an
additional insured, insure on an occurrence and not a claims-made basis, be
issued by insurance companies which are reasonably acceptable to Landlord, not
be cancelable unless 30 days' prior written notice shall have been given to
Landlord, contain a hostile fire endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the Lease Term and upon each renewal of
said insurance.
The all risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. Neither party nor
its officers, directors, employees, managers, agents, invitees or contractors
shall be liable to the other for loss or damage caused by any risk coverable by
all risk property insurance, and each party waives any claims against the other
party, and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims against
such
<PAGE>
parties for, business interruption and losses occasioned thereby sustained by
Tenant or any person claiming through Tenant resulting from any accident or
occurrence in or upon the Premises or the Project from any cause whatsoever,
including without limitation, damage caused in whole or in part, directly or
indirectly, by the negligence of Landlord or its agents, employees or
contractors.
10. Landlord's Repairs. Landlord shall maintain, at its expense,
underground piping and/ or conduit and electrical service panels on the outside
of the building and the structural soundness of the roof, foundation, and
exterior walls of the Building in good repair, reasonable wear and tear and
uninsured losses and damages caused by Tenant, its agents and contractors
excluded. The term "walls" as used in this Paragraph 10 shall not include
windows, glass or plate glass, doors or overhead doors, special store fronts,
dock bumpers, dock plates or levelers, or office entries. Tenant shall promptly
give Landlord written notice of any repair required by Landlord pursuant to this
Paragraph 10, after which Landlord shall have a reasonable opportunity to
repair.
11. Tenant's Repairs. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas and
other common areas of the Building, including, but not limited to driveways,
alleys, landscape and grounds surrounding the Premises. Subject to Landlord's
obligation in Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at its
expense, shall repair, replace and maintain in good condition all portions of
the Premises and all areas, improvements and systems exclusively serving the
Premises including, without limitation, dock and loading areas, truck doors,
plumbing, water, and sewer lines up to points of common connection, fire
sprinklers and fire protection systems, entries, doors, ceilings and roof
membrane, windows, interior walls, and the interior side of demising walls, and
heating, ventilation and air conditioning systems. Such repair and replacements
include capital expenditures and repairs whose benefits may extend beyond the
Term. Heating, ventilation and air conditioning systems and other mechanical and
building systems serving the Premises shall be maintained at Tenant's expense
pursuant to maintenance service contracts entered into by Tenant or, at
Landlord's election, by Landlord. The scope of services and contractors under
such maintenance contracts shall be reasonably approved by Landlord. At
Landlord's request, Tenant shall enter into a joint maintenance agreement with
any railroad that services the Premises. If Tenant fails to perform any repair
or replacement for which it is responsible, Landlord may perform such work and
be reimbursed by Tenant within 10 days after demand therefor. Subject to
Paragraphs 9 and 15, Tenant shall bear the full cost of any repair or
replacement to any part of the Building or Project that results from damage
caused by Tenant, its agents, contractors, or invitees and any repair that
benefits only the Premises.
12. Tenant-Made Alterations and Trade Fixtures. Any alterations,
additions, or improvements made by or on behalf of Tenant to the Premises
("Tenant-Made Alterations") shall be subject to Landlord's prior written
consent. Tenant shall cause, at its expense, all Tenant-Made Alterations to
comply with insurance requirements and with Legal Requirements and shall
construct at its expense any alteration or modification required by Legal
Requirements as a result of any Tenant-Made Alterations. All Tenant-Made
Alterations shall be constructed in a good and workmanlike manner by contractors
reasonably acceptable to Landlord and only good grades of materials shall be
used. All plans and specifications for any Tenant-Made Alterations shall be
submitted to Landlord for its approval. Landlord may monitor construction of the
Tenant-Made reimburse Landlord's right to review plans and specifications and to
monitor construction shall be solely for its own benefit, and Landlord shall
have no duty to see that such plans and specifications or construction comply
with applicable laws, codes, rules and regulations. Tenant shall provide
Landlord with the identities and mailing addresses of all persons performing
work or supplying materials, prior to beginning such construction, and Landlord
may post on and about the Premises notices of non-responsibility pursuant to
applicable law. Tenant shall furnish security or make other arrangements
satisfactory to Landlord to assure payment for the completion of all work free
and clear of liens and shall provide certificates of insurance for worker's
compensation and other coverage in amounts and from an insurance company
satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any
Tenant-Made Alterations, Tenant shall deliver to Landlord sworn statements
setting forth the names of all contractors and subcontractors who did work on
the Tenant-Made Alterations and final lien waivers from all such contractors and
subcontractors. Upon surrender of the Premises, all Tenant-Made Alterations and
any leasehold improvements constructed by Landlord or Tenant shall remain on the
Premises as Landlord's property, except to the extent Landlord requires removal
at Tenant's expense of any such items or Landlord and Tenant have otherwise
agreed in writing in connection with Landlord's consent to any Tenant-Made
Alterations. Tenant shall repair any damage caused by such removal.
Tenant, at its own cost and expense and without Landlord's
prior approval, may erect such shelves, bins, machinery and trade fixtures
(collectively "Trade Fixtures") in the ordinary course of its business provided
that such items do not alter the basic character of the Premises, do not
overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies with
all Legal Requirements and with Landlord's requirements set forth above. Tenant
shall remove its Trade Fixtures and shall repair any damage caused by such
removal.
13. Signs. Tenant shall not make any changes to the exterior of the
Premises, install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door lettering,
placards, decorations, or advertising media of any type which can be viewed from
the exterior of the Premises, without Landlord's prior written consent. Upon
surrender or vacation of the Premises, Tenant shall have removed all signs and
repair, paint, and/or replace the building facia surface to which its signs are
attached. Tenant shall obtain all applicable governmental permits and approvals
for sign and exterior treatments. All signs, decorations, advertising media,
blinds, draperies and other window treatment or bars or other security
installations visible from outside the Premises shall be subject to Landlord's
approval and conform in all respects to Landlord's requirements.
<PAGE>
14. Parking. Tenant shall be entitled to park in common with other
tenants of the Project in those areas designated for nonreserved parking.
Landlord may allocate parking spaces among Tenant and other tenants in the
Project if Landlord determines that such parking facilities are becoming
crowded. Landlord shall not be responsible for enforcing Tenant's parking rights
against any third parties. The parking ratio has been determined to be 4/1000.
15. Restoration. If at any time during the Lease Term the Premises are
damaged by a fire or other casualty, Landlord shall notify Tenant within 60 45
days after such damage as to the amount of time Landlord reasonably estimates it
will take to restore the Premises. If the restoration time is estimated to
exceed 6 months, either Landlord or Tenant may elect to terminate this Lease
upon notice to the other party given no later than 30 days after Landlord's
notice. If neither party elects to terminate this Lease or if Landlord estimates
that restoration will take 6 months or less, then, subject to receipt of
sufficient insurance proceeds, Landlord shall promptly restore the Premises
excluding the improvements installed by Tenant or by Landlord and paid by
Tenant, subject to delays arising from the collection of insurance proceeds or
from Force Majeure events. Tenant at Tenant's expense shall promptly perform,
subject to delays arising from the collection of insurance proceeds, or from
Force Majeure events, all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, either party may
terminate this Lease if the Premises are damaged during the last year of the
Lease Term and Landlord reasonably estimates that it will take more than one
month to repair such damage. Tenant shall pay to Landlord with respect to any
damage to the Premises the amount of the commercially reasonable deductible
under Landlord's insurance policy (currently $10,000) within 10 days after
presentment of Landlord's invoice. If the damage involves the premises of other
tenants, Tenant shall pay the portion of the deductible that the cost of the
restoration of the Premises bears to the total cost of restoration, as
determined by Landlord. Base Rent and Operating Expenses shall be abated for the
period of repair and restoration in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total area of the
Premises. Such abatement shall be the sole remedy of Tenant, and except as
provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
16. Condemnation. If any part of the Premises or the Project should be
taken for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would prevent or materially
interfere with Tenant's use of the Premises or in Landlord's judgment would
materially interfere with or impair its ownership or operation of the Project,
then upon written notice by Landlord this Lease shall terminate and Base Rent
shall be apportioned as of said date. If part of the Premises shall be Taken,
and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as may
be fair and reasonable under the circumstances. In the event of any such Taking,
Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord
Tenant's interest, if any, in such award. Tenant shall have the right, to the
extent that same shall not diminish Landlord's award, to make a separate claim
against the condemning authority (but not Landlord) for such compensation as may
be separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's Trade Fixtures, if a separate award for such items is made to Tenant.
17. Assignment and Subletting. Without Landlord's prior written
consent, which Landlord shall not unreasonably withhold, Tenant shall not assign
this Lease or sublease the Premises or any part thereof or mortgage, pledge, or
hypothecate its leasehold interest or grant any concession or license within the
Premises and any attempt to do any of the foregoing shall be void and of no
effect. For purposes of this paragraph, a transfer of the ownership interests
controlling Tenant shall be deemed an assignment of this Lease unless such
ownership interests are publicly traded. Notwithstanding the above, Tenant may
assign or sublet the Premises, or any part thereof, to any entity controlling
Tenant, controlled by Tenant or under common control with Tenant (a "Tenant
Affiliate"), without the prior written consent of Landlord. Tenant shall
reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in
connection with any assignment or sublease. Upon Landlord's receipt of Tenant's
written notice of a desire to assign or sublet the Premises, or any part thereof
(other than to a Tenant Affiliate), Landlord may, by giving written notice to
Tenant within 30 days after receipt of Tenant's notice, terminate this Lease
with respect to the space described in Tenant's notice, as of the date specified
in Tenant's notice for the commencement of the proposed assignment or sublease.
If Landlord so terminates the Lease, Landlord may enter into a lease directly
with the proposed sublessee or assignee. Tenant may withdraw its notice to
sublease or assign by notifying Landlord within 10 days after Landlord has given
Tenant notice of such termination, in which case the Lease shall not terminate
but shall continue.
It shall be reasonable for the Landlord to withhold its
consent to any assignment or sublease in any of the following instances: (i) an
Event of Default has occurred and is continuing that would not be cured upon the
proposed sublease or assignment; (ii) the assignee does not have a net worth
calculated according to generally accepted accounting principles at least equal
to the greater of the net worth of Tenant immediately prior to such assignment
or sublease or the net worth of the Tenant at the time it executed the Lease;
(iii) the intended use of the Premises by the assignee or sublessee is not
reasonably satisfactory to Landlord; (iv) the intended use of the Premises by
the assignee or sublessee would materially increase the pedestrian or vehicular
traffic to the Premises or the Project; (v) occupancy of the Premises by the
assignee or sublessee would, in Landlord's opinion, violate an agreement binding
upon Landlord or the Project with regard to the identity of tenants, usage in
the Project, or similar matters; (vi) the identity or business reputation of the
assignee or sublessee will, in the good faith judgment of Landlord, tend to
damage the goodwill or reputation of the Project; (vii) the assignment or sublet
is to another tenant in the Project and is at rates which are below those
charged by Landlord for comparable space in the Project; (viii) in the case of a
sublease, the subtenant has not acknowledged that the Lease controls over any
inconsistent provision in the sublease; (ix) the proposed assignee or sublessee
is a governmental agency; or (x) there is vacant space in the Premises suitable
for lease to the proposed sublessee or assignee. Tenant and Landlord acknowledge
that each of the
<PAGE>
foregoing criteria are reasonable as of the date of execution of this Lease. The
foregoing criteria shall not exclude any other reasonable basis for Landlord to
refuse its consent to such assignment or sublease. Any approved assignment or
sublease shall be expressly subject to the terms and conditions of this Lease.
Tenant shall provide to Landlord all information concerning the assignee or
sublessee as Landlord may request.
Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignments or
sublettings). In the event that the rent due and payable by a sublessee or
assignee (or a combination of the rental payable under such sublease or
assignment plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, then Tenant shall be bound and
obligated to pay Landlord as additional rent hereunder all such excess rental
and other excess consideration within 10 days following receipt thereof by
Tenant.
If this Lease be assigned or if the Premises be subleased
(whether in whole or in part) or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in part
by anyone other than Tenant, then upon a default by Tenant hereunder Landlord
may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom
the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding paragraph, apply
the amount collected to the next rent payable hereunder; and all such rentals
collected by Tenant shall be held in trust for Landlord and immediately
forwarded to Landlord. No such transaction or collection of rent or application
thereof by Landlord, however, shall be deemed a waiver of these provisions or a
release of Tenant from the further performance by Tenant of its covenants,
duties, or obligations hereunder.
18. Indemnification. Except for the negligence of Landlord, its agents,
employees or contractors, and to the extent permitted by law, Tenant agrees to
indemnify, defend and hold harmless Landlord, and Landlord's agents, employees
and contractors, from and against any and all losses, liabilities, damages,
costs and expenses (including attorneys' fees) resulting from claims by third
parties for injuries to any person and damage to or theft or misappropriation or
loss of property occurring in or about the Project and arising from the use and
occupancy of the Premises or from any activity, work, or thing done, permitted
or suffered by Tenant in or about the Premises or due to any other act or
omission of Tenant, its subtenants, assignees, invitees, employees, contractors
and agents. The furnishing of insurance required hereunder shall not be deemed
to limit Tenant's obligations under this Paragraph 18.
19. Inspection and Access. Landlord and its agents, representatives,
and contractors may enter the Premises at any reasonable time upon 24 hours oral
or written notice and subject to any reasonable security precautions of Tenant,
except in the event of an emergency, to inspect the Premises and to make such
repairs as may be required or permitted pursuant to this Lease and for any other
business purpose. Landlord and Landlord's representatives may enter the Premises
during business hours for the purpose of showing the Premises to prospective
purchasers and, during the last year of the Lease Term, to prospective tenants.
Landlord may erect a suitable sign on the Premises stating the Premises are
available to let or that the Project is available for sale. Landlord may grant
easements, make public dedications, designate common areas and create
restrictions on or about the Premises, provided that no such easement,
dedication, designation or restriction materially interferes with Tenant's use
or occupancy of the Premises. At Landlord's request, Tenant shall execute such
instruments as may be necessary for such easements, dedications or restrictions.
20. Quiet Enjoyment. If Tenant shall perform all of the covenants and
agreements herein required to be performed by Tenant, Tenant shall, subject to
the terms of this Lease, at all times during the Lease Term, have peaceful and
quiet enjoyment of the Premises against any person claiming by, through or under
Landlord.
21. Surrender. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the Premises
to Landlord in the same condition as received, broom clean, ordinary wear and
tear and casualty loss and condemnation covered by Paragraphs 15 and 16
excepted. Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned and
may be stored, removed, and disposed of by Landlord at Tenant's expense, and
Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Lease Term shall
survive the termination of the Lease Term, including without limitation,
indemnity obligations, payment obligations with respect to Operating Expenses
and obligations concerning the condition and repair of the Premises.
22. Holding Over. If Tenant retains possession of the Premises after
the termination of the Lease Term, unless otherwise agreed in writing, such
possession shall be subject to immediate termination by Landlord at any time,
and all of the other terms and provisions of this Lease (excluding any expansion
or renewal option or other similar right or option) shall be applicable during
such holdover period, except that Tenant shall pay Landlord from time to time,
upon demand, as Base Rent for the holdover period, an amount equal to 150% the
Base Rent in effect on the termination date, computed on a monthly basis for
each month or part thereof during such holding over. All other payments shall
continue under the terms of this Lease. In addition, Tenant shall be liable for
all damages incurred by Landlord as a result of such holding over. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided, and this Paragraph 22
shall not be construed as consent for Tenant to retain possession of the
Premises.
<PAGE>
23. Events of Default. Each of the following events shall be an event
of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent or
any other payment required herein when due, and such failure shall
continue for a period of 5 days after written notice from Landlord to
Tenant.
(ii) Tenant or any guarantor or surety of Tenant's obligations
hereunder shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to
have an order for relief entered on its behalf as a debtor or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it
or its debts or seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or of any substantial part
of its property (collectively a "proceeding for relief"); (C) become
the subject of any proceeding for relief which is not dismissed within
60 days of its filing or entry; or (D) die or suffer a legal disability
(if Tenant, guarantor, or surety is an individual) or be dissolved or
otherwise fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall expire
or shall be reduced or materially changed, except, in each case, as
permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises or
shall fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in monetary or
other default under this Lease.
(v) Tenant shall attempt or there shall occur any assignment,
subleasing or other transfer of Tenant's interest in or with respect to
this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon the
Premises in violation of this Lease within 30 days after any such lien
or encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this
Lease other than those specifically referred to in this Paragraph 23,
and except as otherwise expressly provided herein, such default shall
continue for more than 30 days after Landlord shall have given Tenant
written notice of such default, unless the nature of the default is
such that it cannot be reasonably cured within 30 days, in which event
Tenant shall not be in default hereunder so long as Tenant commences
the cure within 30 days and thereafter diligently prosecutes such cure
to completion, but, subject to Paragraph 33, in no event shall such
cure period extend beyond 90 days.
24. Landlord's Remedies. Upon each occurrence of an Event of Default
and so long as such Event of Default shall be continuing, Landlord may at any
time thereafter at its election: terminate this Lease or Tenant's right of
possession (but Tenant shall remain liable as hereinafter provided), and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
Except as otherwise provided in the next paragraph, if Tenant
breaches this Lease and abandons the Premises prior to the end of the term
hereof, or if Tenant's right to possession is terminated by Landlord because of
an Event of Default by Tenant under this Lease, this Lease shall terminate. Upon
such termination, Landlord may recover from Tenant the following, as provided in
Section 1951.2 of the Civil Code of California: (i) the worth at the time of
award of the unpaid Base Rent and other charges under this Lease that had been
earned at the time of termination; (ii) the worth at the time of award of the
amount by which the reasonable value of the unpaid Base Rent and other charges
under this Lease which would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; (iii) the worth at the time of award by which the
reasonable value of the unpaid Base Rent and other charges under this Lease for
the balance of the term of this Lease after the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided; and
(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 that in the ordinary course of things would be likely to result
therefrom. As used herein, the following terms are defined: (a) The "worth at
the time of award" of the amounts referred to in Sections (i) and (ii) is
computed by allowing interest at the lesser of 18 percent per annum or the
maximum lawful rate. The "worth at the time of award" of the amount referred to
in Section (iii) 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;
(b) The "time of award" as used in clauses (i), (ii), and (iii) above is the
date on which judgment is entered by a court of competent jurisdiction; (c) The
"reasonable value" of the amount referred to in clause (ii) above is computed by
determining the mathematical product of (1) the "reasonable annual rental value"
(as defined herein) and (2) the number of years, including fractional parts
thereof, between the date of termination and the time of award. The "reasonable
value" of the amount referred to in clause (iii) is computed by determining the
mathematical product of (1) the annual Base Rent and other charges under this
Lease and (2) the number of years including fractional parts thereof remaining
in the balance of the term of this Lease after the time of award.
<PAGE>
Even though Tenant has breached this Lease and abandoned the
Premises, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession, and Landlord may enforce all its rights
and remedies under this Lease, including the right to recover rent as it becomes
due. This remedy is intended to be the remedy described in California Civil Code
Section 1951.4, and the following provision from such Civil Code Section is
hereby repeated: "The Lessor has the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations)." Any such payments due Landlord
shall be made upon demand therefor from time to time and Tenant agrees that
Landlord may file suit to recover any sums falling due from time to time.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect in writing to terminate this Lease for such previous breach.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord and Tenant. Any law, usage, or custom to the contrary notwithstanding,
Landlord shall have the right at all times to enforce the provisions of this
Lease in strict accordance with the terms hereof; and the failure of Landlord at
any time to enforce its rights under this Lease strictly in accordance with same
shall not be construed as having created a custom in any way or manner contrary
to the specific terms, provisions, and covenants of this Lease or as having
modified the same. Tenant and Landlord further agree that forbearance or waiver
by Landlord to enforce its rights pursuant to this Lease or at law or in equity,
shall not be a waiver of Landlord's right to enforce one or more of its rights
in connection with any subsequent default. A receipt by Landlord of rent or
other payment with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach, and no waiver by Landlord of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord. To the greatest extent permitted by law, Tenant waives the
service of notice of Landlord's intention to re-enter as provided for in any
statute, or to institute legal proceedings to that end, and also waives all
right of redemption in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge. The terms "enter," "re-enter," "entry" or
"re-entry," as used in this Lease, are not restricted to their technical legal
meanings. Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any tenant
and leasing any or all other portions of the Project before reletting the
Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished, because of Landlord's failure to relet the Premises or
collect rent due in respect of such reletting.
25 Tenant's Remedies/Limitation of Liability. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). All obligations of Landlord hereunder shall be
construed as covenants, not conditions; and, except as may be otherwise
expressly provided in this Lease, Tenant may not terminate this Lease for breach
of Landlord's obligations hereunder. All obligations of Landlord under this
Lease will be binding upon Landlord only during the period of its ownership of
the Premises and not thereafter. The term "Landlord" in this Lease shall mean
only the owner, for the time being of the Premises, and in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon each
new owner for the duration of such owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project, and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets of
Landlord.
26 Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27 Subordination. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any first
mortgage, now existing or hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant agrees,
at the election of the holder of any such mortgage, to attorn to any such
holder. Tenant agrees upon demand to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as
shall be requested by any such holder. Tenant hereby appoints Landlord attorney
in fact for Tenant irrevocably (such power of attorney being coupled with an
interest) to execute, acknowledge and deliver any such instrument and
instruments for and in the name of the Tenant and to cause any such instrument
to be recorded. Notwithstanding the foregoing, any such holder may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to include deeds
of trust, security assignments and any other encumbrances, and any reference to
the "holder" of a mortgage shall be deemed to include the beneficiary under a
deed of trust.
<PAGE>
28 Mechanic's Liens. Tenant has no express or implied authority to
create or place any lien or encumbrance of any kind upon, or in any manner to
bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within 30 days of the filing or recording thereof;
provided, however, Tenant may contest such liens or encumbrances as long as such
contest prevents foreclosure of the lien or encumbrance and Tenant causes such
lien or encumbrance to be bonded or insured over in a manner satisfactory to
Landlord within such 30 day period.
29 Estoppel Certificates. Tenant agrees, from time to time, within 10
days after request of Landlord, to execute and deliver to Landlord, or
Landlord's designee, any estoppel certificate requested by Landlord, stating
that this Lease is in full force and effect, the date to which rent has been
paid, that Landlord is not in default hereunder (or specifying in detail the
nature of Landlord's default), the termination date of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. Tenant's
obligation to furnish each estoppel certificate in a timely fashion is a
material inducement for Landlord's execution of this Lease. No cure or grace
period provided in this Lease shall apply to Tenant's obligations to timely
deliver an estoppel certificate. Tenant hereby irrevocably appoints Landlord as
its attorney in fact to execute on its behalf and in its name any such estoppel
certificate if Tenant fails to execute and deliver the estoppel certificate
within 10 days after Landlord's written request thereof.
30 Environmental Requirements. Except for Hazardous Material contained
in products used by Tenant in de minimis quantities for ordinary cleaning and
office purposes, Tenant shall not permit or cause any party to bring any
Hazardous Material upon the Premises or transport, store, use, generate,
manufacture or release any Hazardous Material in or about the Premises without
Landlord's prior written consent. Tenant, at its sole cost and expense, shall
operate its business in the Premises in strict compliance with all Environmental
Requirements and shall remediate in manner satisfactory to Landlord any
Hazardous Materials released on or from the Project by Tenant, its agents,
employees, contractors, subtenants or invitees. Tenant shall complete and
certify to disclosure statements as requested by Landlord from time to time
relating to Tenant's transportation, storage, use, generation, manufacture, or
release of Hazardous Materials on the Premises. The term "Environmental
Requirements" means all applicable present and future statutes, regulations,
ordinances, rules, codes, judgments, orders or other similar enactments of any
governmental authority or agency regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the environment,
including without limitation, the following: the Comprehensive Environmental
Response, Compensation and Liability Act; the Resource Conservation and Recovery
Act; and all state and local counterparts thereto, and any regulations or
policies promulgated or issued thereunder. The term "Hazardous Materials" means
and includes any substance, material, waste, pollutant, or contaminant listed or
defined as hazardous or toxic, under any Environmental Requirements, asbestos
and petroleum, including crude oil or any fraction thereof, natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas). As defined in Environmental Requirements, Tenant is and shall be deemed to
be the "operator" of Tenant's "facility" and the "owner" of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees, contractors
or invitees, and the wastes, by-products, or residues generated, resulting, or
produced therefrom.
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
remediation, removal, repair, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees and including, without limitation, removal or management of any
asbestos brought into the Premises or disturbed in breach of the requirements of
this Paragraph 30, regardless of whether such removal or management is required
by law) which are brought or recoverable against, or suffered or incurred by
Landlord as a result of any release of Hazardous Materials for which Tenant is
obligated to remediate as provided above or any other breach of the requirements
under this Paragraph 30 by Tenant, its agents, employees, contractors,
subtenants, assignees or invitees, regardless of whether Tenant had knowledge of
such noncompliance. The obligations of Tenant under this Paragraph 30 shall
survive any termination of this Lease.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any rights that
Landlord holds against Tenant.
31 Rules and Regulations. Tenant shall, at all times during the Lease
Term and any extension thereof, comply with all reasonable rules and regulations
at any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached hereto.
In the event of any conflict between said rules and regulations and other
provisions of this Lease, the other terms and provisions of this
<PAGE>
Lease shall control. Landlord shall not have any liability or obligation for the
breach of any rules or regulations by other tenants in the Project.
32 Security Service. Tenant acknowledges and agrees that, while
Landlord may patrol the Project, Landlord is not providing any security services
with respect to the Premises and that Landlord shall not be liable to Tenant
for, and Tenant waives any claim against Landlord with respect to, any loss by
theft or any other damage suffered or incurred by Tenant in connection with any
unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33 Force Majeure. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord ("Force Majeure").
34 Entire Agreement. This Lease constitutes the complete agreement of
Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties hereto.
35 Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease shall
not be affected thereby. It is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is illegal, invalid
or unenforceable, there be added, as a part of this Lease, a clause or provision
as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
36 Brokers. Tenant represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than the
broker, if any, set forth on the first page of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction.
37 Miscellaneous. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease
shall be in writing and shall be sent by registered or certified mail, return
receipt requested, or by a reputable national overnight courier service, postage
prepaid, or by hand delivery addressed to the parties at their addresses below,
and with a copy sent to Landlord at 14100 East 35th Place, Aurora, Colorado
80011. Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this Lease or as
otherwise required by law, Landlord retains the absolute right to withhold any
consent or approval.
(e) At Landlord's request from time to time Tenant shall furnish
Landlord with true and complete copies of its most recent annual and quarterly
financial statements prepared by Tenant or Tenant's accountants and any other
financial information or summaries that Tenant typically provides to its lenders
or shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed by or
on behalf of Tenant in any public record. Landlord may prepare and file, and
upon request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease shall have no
binding force or effect, shall not constitute an option for the leasing of the
Premises, nor confer any right or impose any obligations upon either party until
execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
<PAGE>
(j) Any amount not paid by Tenant within 5 days after its due date in
accordance with the terms of this Lease shall bear interest from such due date
until paid in full at the lesser of the highest rate permitted by applicable law
or 15 percent per year. It is expressly the intent of Landlord and Tenant at all
times to comply with applicable law governing the maximum rate or amount of any
interest payable on or in connection with this Lease. If applicable law is ever
judicially interpreted so as to render usurious any interest called for under
this Lease, or contracted for, charged, taken , reserved, or received with
respect to this Lease, then it is Landlord's and Tenant's express intent that
all excess amounts theretofore collected by Landlord be credited on the
applicable obligation (or, if the obligation has been or would thereby be paid
in full, refunded to Tenant), and the provisions of this Lease immediately shall
be deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, so as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall be governed by
the laws of the state in which the Project is located, excluding any principles
of conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby incorporated
into this Lease and made a part hereof. In the event of any conflict between
such exhibits or addenda and the terms of this Lease, such exhibits or addenda
shall control.
38 Landlord's Lien/Security Interest.
39 Limitation of Liability of Trustees, Shareholders, and Officers of
ProLogis Trust. Any obligation or liability whatsoever of ProLogis Trust, a
Maryland real estate investment trust, which may arise at any time under this
Lease or any obligation or liability which may be incurred by it pursuant to any
other instrument, transaction, or undertaking contemplated hereby shall not be
personally binding upon, nor shall resort for the enforcement thereof be had to
the property of, its trustees, directors, shareholders, officers, employees or
agents, regardless of whether such obligation or liability is in the nature of
contract, tort, or otherwise.
<TABLE>
<CAPTION>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
<S> <C>
TENANT: LANDLORD:
Network Peripherals, Inc., a ProLogis Limited Partnership-I, a Delaware Limited
Delaware Corporation Partnership
By: \s\ Wilson Cheung By: \s\ Ned K. Anderson
--------------------------------------- ------------------------------
Title: VP, CFO Ned K. Anderson
------------------------------------ Title: Managing Director
Address: Address:
1371 McCarthy Blvd. 47775 Fremont Boulevard
Milpitas, CA 95035 Fremont, CA 94538
</TABLE>
<PAGE>
Rules and Regulations
1 The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose
other than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas
outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the offices,
halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections
in the Premises, Landlord or its agent will direct the electrician as
to where and how the wires may be introduced; and, without such
direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or boiler,
or other mechanical apparatus in the Premises, except as specifically
approved in the Lease. The use of oil, gas or inflammable liquids for
heating, lighting or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be
brought into the Project.
7. Parking any type of recreational vehicles is specifically prohibited on
or about the Project. Except for the overnight parking of operative
vehicles, no vehicle of any type shall be stored in the parking areas
at any time. In the event that a vehicle is disabled, it shall be
removed within 48 hours. There shall be no "For Sale" or other
advertising signs on or about any parked vehicle. All vehicles shall be
parked in the designated parking areas in conformity with all signs and
other markings. All parking will be open parking, and no reserved
parking, numbering or lettering of individual spaces will be permitted
except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and other
pests.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the Project.
10 Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss
of property on the Premises, however occurring, or for any damage done
to the effects of Tenant by the janitors or any other employee or
person.
11 Tenant shall give Landlord prompt notice of any defects in the water,
lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the
Premises.
12 Tenant shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping of
waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13 All moveable trash receptacles provided by the trash disposal firm for
the Premises must be kept in the trash enclosure areas, if any,
provided for that purpose.
14 No auction, public or private, will be permitted on the Premises or the
Project.
15 No awnings shall be placed over the windows in the Premises except with
the prior written consent of Landlord.
16 The Premises shall not be used for lodging, sleeping or cooking or for
any immoral or illegal purposes or for any purpose other than that
specified in the Lease. No gaming devices shall be operated in the
Premises.
17 Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account
the capacity of the electrical wiring in the Project and the Premises
and the needs of other tenants, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric equipment
shall not relieve Tenant from the obligation not to use more
electricity than such safe capacity.
18 Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage.
19 Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the
Premises.
<PAGE>
HVAC Maintenance/Service Contract Requirements
A service contract with a Landlord approved HVAC contractor must become
effective within thirty (30) days of occupancy and service visits should be
performed on a quarterly basis. The following are the approved HVAC contractors:
Thermoscape 510/445-0700
Phoenix Heating and Air Conditioning 408/487-0390
Cal-Air Conditioning 408/947-0155
We suggest that you send the following list to one of the above HVAC contractors
to be assured that these items are included in the maintenance contract:
1. Adjust belt tension;
2. Lubricate all moving parts, as necessary;
3. Inspect and adjust all temperature and safety controls;
4. Check refrigeration system for leaks and operation;
5. Check refrigeration system for moisture;
6. Inspect compressor oil level and crank case heaters;
7. Check head pressure, suction pressure and oil pressure;
8. Inspect air filters and replace when necessary;
9. Check space conditions;
10. Check condensate drains and drain pans and clean, if necessary;
11. Inspect and adjust all valves;
12. Check and adjust dampers;
13. Run machine through complete cycle.
Note: A certificate must be provided for our files not later than thirty (30)
days after mutual execution hereof. Failure to provide such certificate
or perform said services, when required, shall constitute material
default of this lease.
<PAGE>
ADDENDUM 1
BASE RENT ADJUSTENTS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 8/31/99 BETWEEN
ProLogis Limited Partnership-I
And
Network Peripherals Inc.
Base Rent shall equal the following amounts for the respective periods set forth
below:
Period Monthly Base Rent
11/l/99 - 10/31/00 $25,425
11/1/00 - 10/31/01 $26,188
11/l/01 - 10/31/02 $26,973
11/l/02 - 10/31/03 $27,783
11/l/03 - 10/31/04 $28,616
<PAGE>
ADDENDUM II
ONE RENEWAL OPTION AT MARKET
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 8/31/99 BETWEEN
ProLogis Limited Partnership-I
and
Network Peripherals Inc.
(a) Provided that as of the time of the giving of the Extension Notice
and the Commencement Date of the Extension Term, (x) Tenant is the Tenant
originally named herein, (y) Tenant occupies all of the Premises initially
demised under this Lease and any space added to the Premises, and (z) no Event
of Default exists or would exist but for the passage of time or the giving of
notice, or both; then Tenant shall have the right to extend the Lease Term for
an additional term of three years (such additional term is hereinafter called
the "Extension Term") commencing on the day following the expiration of the
lease Term (hereinafter referred to as the "Commencement Date of the Extension
Term"). Tenant shall give Landlord notice (hereinafter called the "Extension
Notice") of its election to extend the term of the Lease Term at least six
months, but not more than nine months, prior to the scheduled expiration date of
the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the Extension
Term shall be the greater of (i) the Base Rent applicable to the last year of
the initial Lease Term and (ii) the then prevailing market rate for comparable
space in the Project and comparable buildings in the vicinity of the Project,
taking into account the size of the Lease, the length of the renewal term,
market escalations and the credit of Tenant. The Base Rent shall not be reduced
by reason of any costs or expenses saved by Landlord by reason of Landlord's not
having to find a new tenant for such premises (including, without limitation,
brokerage commissions, costs of improvements, rent concessions or lost rental
income during any vacancy period). In the event Landlord and Tenant fail to
reach an agreement on such rental rate and execute the Amendment (defined below)
at least five months prior to the expiration of the Lease, then Tenant's
exercise of the renewal option shall be deemed withdrawn and the Lease shall
terminate on its original expiration date.
(c) The determination of Base Rent does not reduce the Tenant's
obligation to pay or reimburse Landlord for Operating Expenses and other
reimbursable items as set forth in the Lease, and Tenant shall reimburse and pay
Landlord as set forth in the Lease with respect to such Operating Expenses and
other items with respect to the Premises during the Extension Term without
regard to any cap on such expenses set forth in the Lease.
(d) Except for the Base Rent as determined above, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and conditions
as are in effect immediately prior to the expiration of the initial Lease Term;
provided, however, Tenant shall have no further right to any allowances, credits
or abatements or any options to expand, contract, renew or extend the Lease.
(e) If Tenant does not give the Extension Notice within the period set
forth in paragraph (a) above, Tenant's right to extend the Lease Term shall
automatically terminate. Time is of the essence as to the giving of the
Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise improve
the Premises for the Extension Term. The Premises shall be tendered on the
Commencement Date of the Extension Term in "as-is" condition.
(g) If the Lease is extended for the Extension Term, then Landlord
shall prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto (the
"Amendment").
(h) If Tenant exercises its right to extend the term of the Lease for
the Extension Term pursuant to this Addendum, the term "Lease Term" as used in
the Lease, shall be construed to include, when practicable, the Extension Term
except as provided in (d) above.
<PAGE>
ADDENDUM III
LANDLORD'S ADA RETROFIT OBLIGATIONS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 8/31/1999 BETWEEN
ProLogis Limited Partnership-I
and
Network Peripherals, Inc.
Landlord shall make such modifications as may be required by order or
directive of applicable governmental authority in order to bring the Project and
Building (but not the Premises' interior) into compliance with the ADA as of the
Commencement Date without cost or expense to Tenant without including such cost
or expense as an Operating Expense. Any modifications made by Landlord that are
required by the ADA that become effective after the Commencement Date, that are
required by landlords generally that are not the result of the specific use of
the Premises by Tenant and that are not the result of the use of any premises in
the Building or Project by any other tenant shall be chargeable as an Operating
Expense.
<PAGE>
ADDENDUM IV
CONSTRUCTION
(ALLOWANCE)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 8/31/99 BETWEEN
ProLogis Limited Partnership-I
and
Network Peripherals, Inc.
(a) Landlord agrees to furnish or perform at Landlord's sole cost and
expense those items of construction and those improvements (the 'Tenant
Improvements") as specified on Exhibit B and consistent with the specifications
as noted in Exhibit B-1 of the work letter agreement.
Landlord shall pay for the Tenant Improvements up to a maximum amount
of $157,500, and Tenant shall pay for the cost of the Tenant Improvements in
excess of such amount. If the cost of the Tenant Improvements is estimated to
exceed such amount, such estimated overage shall be paid by Tenant before
Landlord begins construction and a final adjusting payment based upon the actual
costs of the Tenant Improvements shall be made when the Tenant Improvements are
complete.
(b) If Tenant shall desire any changes, Tenant shall so advise Landlord
in writing and Landlord shall determine whether such changes can be made in a
reasonable and feasible manner. Any and all costs of reviewing any requested
changes, and any and all costs of making any changes to the Tenant Improvements
which Tenant may request and which Landlord may agree to shall he at Tenant's
sole cost and expense and shall be paid to Landlord upon demand and before
execution of the change order.
(c) Landlord shall proceed with and complete the construction of the
Tenant Improvements. As soon as such improvements have been Substantially
Completed, Landlord shall notify Tenant in writing of the date that the Tenant
Improvements were Substantially Completed. Such date, unless an earlier date is
specified as the Commencement Date in this Lease or otherwise agreed to in
writing between Landlord and Tenant, shall be the "Commencement Date," unless
the completion of such improvements was delayed due to any act or omission of,
or delay caused by, Tenant including, without limitation, Tenant's failure to
approve plans, complete submittals or obtain permits within the time periods
agreed to by the parties or as reasonably required by Landlord, in which case
the Commencement Date shall be the date such improvements would have been
completed but for the delays caused by Tenant. The Tenant Improvements shall be
deemed substantially completed ("Substantially Completed") when, in the opinion
of the construction manager (whether an employee or agent of Landlord or a third
party construction manager), the Premises are substantially completed except for
punch list items which do not prevent in any material way the use of the
Premises for the purposes for which they were intended. After the Commencement
Date Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the Premises.
(d) The failure of Tenant to take possession of or to occupy the
Premises shall not serve to relieve Tenant of obligations arising on the
Commencement Date or delay the payment of rent by Tenant. Subject to applicable
ordinances and building codes governing Tenant's right to occupy or perform in
the Premises, Tenant shall be allowed to install its tenant improvements,
machinery, equipment, fixtures, or other property on the Premises during the
final stages of completion of construction provided that Tenant does not thereby
interfere with the completion of construction or cause any labor dispute as a
result of such installations, and provided further that Tenant does hereby agree
to indemnify, defend, and hold Landlord harmless from any loss or damage to such
property, and all liability, loss, or damage arising from any injury to the
Project or the property of Landlord, its contractors, subcontractors, or
materialmen, and any death or personal injury to any person or persons arising
out of such installations, whether or not any such loss, damage, liability,
death, or personal injury was caused by Landlord's negligence. Any such
occupancy or performance in the Premises shall be in accordance with the
provisions governing Tenant-Made Alterations and Trade Fixtures in the Lease,
and shall be subject to Tenant providing to Landlord satisfactory evidence of
insurance for personal injury and property damage related to such installations
and satisfactory payment arrangements with respect to installations permitted
hereunder. Delay in putting Tenant in possession of the Premises shall not serve
to extend the term of this Lease or to make Landlord liable for any damages
arising therefrom.
(e) Except for incomplete punch list items, Tenant upon the
Commencement Date shall have and hold the Premises as the same shall then be
without any liability or obligation on the part of Landlord for making any
further alterations or improvements of any kind in or about the Premises.
<PAGE>
EXHIBIT A
Site Plan
<PAGE>
EXHIBIT B
Floor Plan
<PAGE>
EXHIBIT B-1
WORK LETTER AGREEMENT
Construction of Initial Tenant Improvements
I. Definitions.
(a) The term "Initial Tenant Improvements" shall mean those
improvements that Landlord is obligated to construct at its sole cost and
expense except as specified in paragraph IV below in the Premises pursuant to
plans and specifications developed therefore in accordance with Paragraph II
below.
(b) The term "Tenant Improvement Costs" shall mean all sums
(i) paid to contractors, subcontractors, suppliers, and materialmen for labor
and materials furnished in connection with construction of the Initial Tenant
Improvements; (ii) paid to governmental authorities or agencies for all
necessary governmental permits, licenses, inspections and approvals related to
the Initial Tenant Improvements; (iii) engineering and architectural fees for
services required in connection with die design and construction of the Initial
Tenant Improvements. In no event shall the Tenant Improvement Costs include any
costs of procuring, constructing or installing Tenant's personal property in the
Premises.
II. Plans and Specifications. Landlord and Tenant shall prepare plans and
specifications including fully detailed working drawings (the "Plans and
Specifications") for the Initial Tenant Improvements that Tenant desires
Landlord to construct for Tenant's use in the Building. The Plans and
Specifications must be acceptable to both Landlord and Tenant. The Plans and
Specifications shall be consistent with and include those items shown on the
space plan attached hereto is Exhibit I and the tenant improvement standards as
outlined herein. Tenant shall cooperate diligently with the Landlord's architect
(the "Architect") and shall furnish all information required by the Architect
for completion of the Plans and Specifications. Landlord and Tenant shall
indicate their approval of' the Plans and Specifications (the "Approved Plans")
by initialling them and attaching them hereto as Exhibit B.
III. Initial Tenant Improvement Standards,
(a) Office Area
1. CABINETS: Coffee bar and/or lunch room base cabinet(s) shall be 6'0"
long plastic laminate with chrome wire pulls.
2. COUNTERTOPS: The coffee bar top shall have a square front edge with a
4" splash in plastic laminate.
3. LAVATORY COUNTERTOPS: Ill multiple accommodation toilet rooms with
multiple lavatories, the lavatories shall be installed in a plastic
laminated countertop with a bullnosed front edge and a 4" backsplash.
Smaller tenant spaces shall receive wall mounted lavatories.
4. ROOF INSULATION: Tile insulation above conditioned office area ceilings
shall be minimum R11 fiberglass baits.
5. THERMAL WALL INSULATION: Walls between conditioned and unconditioned
spaces shall receive minimum R-11 unfaced fiberglass batt insulation.
6. ACOUSTIC INSULATION: All toilet room walls and ceilings shall receive 3
1/2" unfaced fiberglass batt acoustic insulation.
7. DOORS AND FRAMES: 3'-0" x 7-0'x 1-3/4", solid core, birch, B-3 stain
prefinished with anodized aluminum frames or prefinished black (Timely)
steel frames.
8. INTERIOR DOOR HARDWARE: Schlage "AL" series Saturn in a brushed chrome
626 finish.
9. INTERIOR WINDOWS: None
10. MIRRORS: toilet rooms shall have mirrors the length of the lavatory top
or 24 x 36 If the lavatory is wall hung.
11. DRYWALL PARTITIONS: office walls shall be undergrid 3-5/8" x 25 Ga.
metal studs at 24" o.c. with 5/8" gypsum board.
12. DRYWALL FINISH: All drywall and exposed concrete walls within the
office and toilet rooms shall receive a skip trowel textured or smooth
finish.
13. WAINSCOT: Toilet room wet walls shall have 4'-6" high white Pionite
wainscot.
14. ACOUSTIC CEILING TILE: Office areas shall have an exposed grid acoustic
ceiling with 24" x 48" non-directional fissured tile, installed at
9'-O"
15. OFFICE CARPET: Designweave or Shaw direct glue-down, 26 oz. face weight
level loop or 30 oz cut-pile carpet without pad.
16. LUNCH ROOM: shall have vinyl composition tile (VCT) flooring 1/8"
gauge, standard grade, as manufactured by Tarkett or Armstrong.
17. RUBBER BASE: The office areas shall have a 4" high topset rubber base
as manufactured by Burke, Roppe, or Tarkett, installed in all areas
receiving floor covering except the toilet rooms.
18. TOILET ROOM: The flooring shall be sheet vinyl by Armstrong "Suffield",
"Best of Both Worlds" or "Seagate" with a 6" coved base.
<PAGE>
19. PAINT: One (1) coat of paint in a standard light color interior flat
latex, except in the toilet rooms and at the coffee bar which shall
receive one (1) coat of latex semi-gloss over one (1) coat of PVA
sealer. If the walls are smooth, they shall receive two (2) coats of
paint
20. TOILET ACCESSORIES: Napkin Disposals: Bobrick B-270 sanitary napkin
disposals in each women's toilet stall. Paper Towel Dispenser: Bobrick
B-369 (for single accommodation toilet rooms) or a Bobrick B-3944 (for
multiple accommodation toilet rooms) recessed paper towel dispenser
with a waste receptacle. Seat Cover Dispenser: Bobrick B-221 seat cover
dispenser in each toilet stall. Toilet Paper Holder: Bobrick B-686
double toilet paper holder. Grab Bars: Bobrick No. B6806-36 and
B6806-42 stainless steel handicap grab bars per code.
21. TOILET PARTITIONS: Metal, floor mounted, overhead braced toilet
partitions with a backed enamel finish by Global Steel, Knickerbocker
or equal in manufactures standard color.
22, BLINDS: All exterior windows, except storefront doors, shall receive
mini-blinds by Bali, "inside mount", in a light building standard color
with a valance.
23. PLUMBING FIXTURES AND TRIM: Lavatory for vanity: American Standard or
equal, "Oval Horizon", model 3303.013, white, self-rimming with a Delta
Model 523 WF HDF single lever type faucet assembly with a grid strainer
and bright chrome finish. Wall-hung lavatory: American Standard or
equal, "Lucerne", model 0355.012, white, wall mounted lavatory with a
Delta Model 523 WF HDF single lever type faucet assembly with a grid
strainer and bright chrome finish. Water closet: American Standard or
equal, "Cadet Aquameter", elongated, 1.5 GPF, model 3042.12, white,
with an Olsonite #95 seat and a Sloan #1 I I flush valve. Urinal:
American Standard or equal, "Allbrook", model 6540.017, white, with a
Sloan 180-1.5 flush valve. Coffee bar sink: Elkay or equal, "Peacemaker
Starlite", model PSR-1918, stainless steel, with a Delta #100 faucet.
Water heater: Sized to meet demand installed in a smitty pan draining
into a hub drain with a trap primer.
24. Fire sprinkler heads shall be chrome with white escutcheons,
semirecessed, not centered, on the ceiling tiles.
25. The HVAC system shall maintain 75 degrees indoors, on a 100 degree
outdoor day
26. The HVAC system shall be connected to a 7-day skip-a-day time clock and
include a bypass timer at each thermostat.
27. All thermostats shall have an automatic change-over feature and a
locking cover.
28. Toilet rooms shall have an exhaust fan. 29. All conditioned areas shall
have a supply register and a ducted return register. Supply and return
air registers shall be white baked enamel 2'x2' with it perforated
face, flush mounted. Supply air registers shall have a 4-xvay blow.
30. Office lighting: shall be 2'x4' three lamp lay-in fluorescent light
fixtures with standard acrylic lens and T-12 low watt type lamps, 75
foot candles at 3'A.F.F. or as permitted by code but no less than two
(2) fixtures per office.
31. Furnish and install two (2) 110V duplex receptacles in each office.
32. Furnish and install a dedicated 110 volt fourplex outlet at the
telephone board and two dedicated 110 V outlets at tile coffee bar.
33. Furnish and install a 2" diameter P.V.C. or steel (where required by
code) conduit for phone system from the building telephone service
entrance to a telephone board within the tenant space.
(b) Warehouse Area
1. FULL HEIGHT DRYWALL PARTITIONS @ tenant demising walls: Metal studs
with one layer of 5/8" type "X" gypsum board on each side fro the floor
to the roof deck.
2. OFFICE/WAREHOUSE WALL: Metal studs with two layers of 5/8" type "X"
gypsum board on each side to 6" A.F.F.
3. WAREHOUSE WALL FINISH: All drywall shall be fire taped only. Spot nails
in firetaped areas.
4. CONCRETE FLOOR SEALER: Exposed concrete floors shall receive one coat
of acrylic concrete sealer.
5. WAREHOUSE LIGHTING: Provide 16'high Output fluorescent strip light
fixtures or metal halide fixtures to achieve 15 foot candles of light
measured at 30" above the floor in the warehouse space.
<PAGE>
(c) Exclusions.
The initial tenant improvement standards do not include the following
items:
1. Electrical data gathering lines or security equipment.
2. Telephonic or other communications equipment and cabling
3. Electrical connections and distribution for production equipment.
IV. Changes to Plans for Initial Tenant Improvements. Once the Approved Plans
have been finally approved by Tenant as provided above, thereafter neither party
shall have the right to order extra work or change orders with respect to the
construction of the Initial Tenant Improvements without the prior written
consent of the other, which consent shall not be unreasonably withheld or
delayed. All extra work or change order request by Tenant shall be made in
writing, shall specify the amount of delay or the time saved resulting
therefrom, shall specify any added or reduced cost resulting therefrom and shall
become effective and a part of the Approved Plans once approved in writing by
both parties.
V. Commencement and Completion of the Initial Tenant Improvements. As soon as
(a) the Approved Plans have been developed as provided above, and (b) all
necessary governmental approvals have been obtained, Landlord shall thereafter
commence construction of such improvements and shall complete such construction
in a good and workmanlike manner.
VI. Delay in Completion Caused by Tenant. The parties hereto acknowledge that
the date on which Tenants obligations to pay all rent payable under this Lease
would otherwise commence, may be delayed because of, among other things:
(a) Tenant's request for special materials, finishes, or installations
which are not readily available unless contained in the approved plans;
(b) Change orders requested by Tenant and approved by Landlord;
(c) Tenant's failure to promptly review and approve the Plans and
Specifications, promptly provide information to the City regarding Tenant's
business and/or use of the Premises, or to complete any of its own improvement
work to the extent Tenant delays completion by appropriate governmental
authorities of their final inspection and approval of Landlord's improvements;
or
(d) Interference with Landlord's work caused by Tenant or by Tenant's
contractors or subcontractors.
It is the intent of the parties hereto that Tenant's obligations to pay
all rent payable under this Lease may not be delayed by any of such causes or by
any other act of Tenant, and in the event it is so delayed, then Tenant's
obligation to pay such rent shall commence as of the date it would otherwise
have commenced absent said delay caused by Tenant.
VII. Tenant's Requirements: Tenant acknowledges that it shall provide Landlord
with certain information regarding its specific needs relating to the Premises
which shall be incorporated into the Plans and Specifications to address those
needs. Tenant also acknowledges that it may provide some of its own equipment
for installation in the Premises. Tenant understands and agrees that Landlord
will take no independent review of any such information, designs, specifications
or equipment to determine if same adequately addresses Tenant's needs or are
suitable for the Premises; and anything in this Lease to the contrary
notwithstanding, Landlord does not warrant, either expressly or implied, the
adequacy of any such designs, specifications or equipment, or the Initial Tenant
Improvements, for Tenant's intended purpose.
<PAGE>
Exhibit C
Sign Criteria
GATEWAY CORPORATE CENTER
WINDOW IDENTIFICATION SIGNS:
Each Tenant will be allowed one window sign placed either to the left or the
right of the entrance door, whichever provides the best visibility.
Company names, logos or symbols will be allowed in this area-color and size to
be determined by the Tenant. All other copy in this area except for logos or
symbols will be white vinyl pressure sensitive letters.
Copy must start at 5' from grade, working down to no more than 3 1/2' from
grade. Sign layout including copy, sizes and color must be approved by the
building management. Management reserves the right to deny any copy or color it
considers unsuitable.
One security decal only may be applied to the front door glass in the lower
corner if the Tenant so desires. All exterior alarm bells are to be mounted to
the rear of the building only.
DIRECTORY SIGN IDENTIFICATION:
A monument directory sign has been provided for each building. If only one
Tenant occupies an entire building, that Tenant shall be allowed to utilize the
entire directory sign area for their pressure sensitive, matte, Pearl Gray vinyl
letters with a letter height suitable for the area allowed, and logo if so
desired, also in Pearl Gray. Address numbers must be utilized in layout. Both
sides of the directory sign shall be utilized in the same manner, must be
lettered identically. Tenant can use any font. The address font is Futora.
If two or more Tenants occupy a building, signs shall be shared equally by the
number of tenants within the building, utilizing pressure sensitive, matte,
Pearl Gray vinyl letters with a letter height suitable for the area allowed. A
logo will be allowed if so desired ( to be consistent with window identification
sign) of the company name also in Pearl Gray. A thin line will divide the areas
between tenants.
If three (3) or more tenants occupy the building, the sign shall be shared
equally by number of tenants. Signs shall consist of 4" Futura Bold Pearl Grey,
pressure sensitive vinyl lettering. Directory signs shall list the street number
and the company names only, no slogans or symbols allowed.
REAR LOADING SIGNS:
Each Tenant will be allowed to identify its rear door for shipping and receiving
purposes. The company name shall be placed on a 36" x 24" aluminum panel
adjacent to the rear doors.
Copy shall consist of 3" white vinyl capital letters only in Futura Bold style.
Company names and logos only are allowed.
Management reserves the right to deny any copy it considers unsuitable. Layout
is to be approved by building management. The cost of all lettering and logos
will be the responsibility of the Tenant. No other signs are allowed in the
windows or doors.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 4,427
<SECURITIES> 10,829
<RECEIVABLES> 2,226
<ALLOWANCES> (424)
<INVENTORY> 2,733
<CURRENT-ASSETS> 21,163
<PP&E> 9,025
<DEPRECIATION> (4,567)
<TOTAL-ASSETS> 26,023
<CURRENT-LIABILITIES> 3,042
<BONDS> 0
0
0
<COMMON> 13
<OTHER-SE> 22,968
<TOTAL-LIABILITY-AND-EQUITY> 26,023
<SALES> 9,447
<TOTAL-REVENUES> 9,447
<CGS> 8,184
<TOTAL-COSTS> 8,184
<OTHER-EXPENSES> 11,652
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (9,655)
<INCOME-TAX> 0
<INCOME-CONTINUING> (9,655)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (9,655)
<EPS-BASIC> (0.77)
<EPS-DILUTED> (0.77)
</TABLE>
