<PAGE>
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
[ X ] QUARTERLY REPORT SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended MARCH 31, 1998
-------------------
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
Commission File Number 0-21537
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PACIFIC BIOMETRICS, INC.
- --------------------------------------------------------------------------------
(Exact name of small business issuer specified in its charter)
Delaware 93-1211114
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1370 Reynolds Avenue, Suite 119, Irvine, CA 92614
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(Address of principal executive offices)
714-263-9933
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(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months, and (2)
has been subject to such filing requirements for the past 90 days.
Yes ( X ) No ( )
As of May 15, 1998 shares of common stock outstanding of the issuer were
3,709,671.
Transitional Small Business Disclosure Format (check one) Yes ( ) No ( X )
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PACIFIC BIOMETRICS, INC.
INDEX TO FORM 10-QSB
PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Page
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<S> <C>
ITEM 1 - FINANCIAL STATEMENTS
Consolidated Balance Sheet ....................................... 2
Consolidated Statements of Operations............................. 3
Condensed Consolidated Statements of Cash Flows................... 5
Notes to Consolidated Financial Statements........................ 7
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS............................................... 12
PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS........................................ 21
ITEM 2 - CHANGES IN SECURITIES AND USE OF PROCEEDS................ 21
ITEM 3 - DEFAULTS UPON SENIOR SECURITIES.......................... 23
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS...... 23
ITEM 5 - OTHER INFORMATION........................................ 23
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K......................... 23
</TABLE>
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PACIFIC BIOMETRICS, INC.
(a Delaware corporation)
(a company in the development stage)
CONSOLIDATED BALANCE SHEET
March 31, 1998
(unaudited)
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Current assets:
Cash and cash equivalents $ 872,589
Investments 1,494,870
Accounts receivable, net of allowance for doubtful
accounts of $22,137 497,952
Inventory 181,734
Prepaid expenses and other 226,116
------------
Total current assets 3,273,261
Property and equipment, net 917,894
Other assets:
Technology license, net 2,886,647
Prepaid financing costs 72,586
Restricted cash 100,000
Deposit and other 3,249
------------
Total assets $ 7,253,637
------------
------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable to related parties $ 253,663
Accounts payable 173,856
Accrued liabilities 488,819
Advances from customers 124,730
Technology license payable 2,318,102
Capital lease obligations 197,272
------------
Total current liabilities 3,556,442
------------
Technology license payable - long term portion 202,664
Capital lease obligations - long term portion 454,728
------------
Total long term liabilities 657,392
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Stockholders' equity:
Preferred stock, $0.01 par value, 5,000,000 shares
authorized, 925,000 shares issued and outstanding 9,250
Common stock, $0.01 par value, 30,000,000 shares
authorized, 3,709,671 shares issued and outstanding 37,097
Additional paid-in capital Common Stock 13,816,516
Additional paid-in capital Preferred Stock 3,791,006
Deficit accumulated during the development stage (14,614,066)
------------
Total stockholders' equity 3,039,803
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Total liabilities and stockholders' equity $ 7,253,637
------------
------------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
2
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PACIFIC BIOMETRICS, INC.
(a Delaware corporation)
(a company in the development stage)
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Month Periods Ended March 31, 1998 and 1997
(unaudited)
<TABLE>
<CAPTION>
Three Month Period Ended March 31,
----------------------------------
1998 1997
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<S> <C> <C>
Revenues $ 558,309 $ 648,550
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Operating expenses:
Laboratory expense and cost of goods sold 474,829 462,133
Research and product development 907,340 299,086
General and administrative 597,453 389,898
----------- -----------
Total operating expenses 1,979,622 1,151,117
----------- -----------
Operating loss (1,421,313) (502,567)
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Other income (expense):
Interest expense (15,927) (4,607)
Interest income 26,247 59,359
Grant and other income 96,474 8,789
----------- -----------
106,794 63,541
----------- -----------
Net loss $(1,314,519) $ (439,026)
----------- -----------
----------- -----------
Net loss applicable to common shareholders $(3,268,463) $ (439,026)
----------- -----------
----------- -----------
Basic and diluted loss per share $ (0.88) $ (0.12)
----------- -----------
----------- -----------
Number of shares used in per-share calculation 3,709,671 3,651,353
----------- -----------
----------- -----------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
3
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PACIFIC BIOMETRICS, INC.
(a Delaware corporation)
(a company in the development stage)
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Nine Month Periods Ended March 31, 1998 and 1997,
and For the Period from Inception (December 1992) to March 31, 1998
(unaudited)
<TABLE>
<CAPTION>
For the Period
Nine Month Period Ended March 31, from Inception
--------------------------------- (December 1992) to
1998 1997 March 31, 1998
----------- ----------- --------------
<S> <C> <C> <C>
Revenues $ 2,067,946 $ 1,873,773 $ 7,080,628
----------- ----------- ------------
Operating expenses:
Laboratory expense and cost of goods sold 1,602,144 1,220,482 5,177,630
Research and product development 1,950,630 714,721 4,364,158
General and administrative 1,559,739 1,173,129 5,533,862
Manufacturing relocation expense 0 100,000 100,000
Purchased in-process research and development 0 0 6,373,884
Amortization of goodwill 0 0 428,368
----------- ----------- ------------
Total operating expenses 5,112,513 3,208,332 21,977,902
----------- ----------- ------------
Operating loss (3,044,567) (1,334,559) (14,897,274)
----------- ----------- ------------
Other income (expense):
Interest expense (45,091) (135,717) (256,940)
Interest income 107,704 99,360 261,232
Grant and other income 102,499 100,386 278,916
----------- ----------- ------------
165,112 64,029 283,208
----------- ----------- ------------
Net loss $(2,879,455) $(1,270,530) $(14,614,066)
----------- ----------- ------------
----------- ----------- ------------
Net loss applicable to common shareholders $(4,833,399) $(1,270,530) $(16,568,010)
Basic and diluted loss per share $ (1.30) $ (0.40) $ (10.53)
----------- ----------- ------------
----------- ----------- ------------
Number of shares used in per-share calculation 3,707,188 3,150,918 1,574,137
----------- ----------- ------------
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The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
4
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PACIFIC BIOMETRICS, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
FOR THE THREE MONTH PERIODS ENDED MARCH 31, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
Three Month Period
Ended March 31,
----------------------------
1998 1997
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<S> <C> <C>
Cash used by operations $ (1,294,862) $ (503,772)
Cash used by investing activities (876,756) (57,454)
Cash (used ) provided by financing activities 1,761,733 (5,000)
------------- ------------
Decrease in cash and cash equivalents (409,885) (566,226)
Cash and cash equivalents:
Beginning of period 1,282,474 5,074,858
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End of period $ 872,589 $ 4,508,632
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</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
5
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PACIFIC BIOMETRICS, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
FOR THE NINE MONTH PERIODS ENDED MARCH 31, 1998 AND 1997,
AND FOR THE PERIOD FROM INCEPTION (DECEMBER 1992) TO MARCH 31, 1998
(UNAUDITED)
<TABLE>
<CAPTION>
For the Period
Nine Month Period Ended March 31, from Inception
--------------------------------- (December 1992) to
1998 1997 March 31, 1998
--------------- --------------- ------------------
<S> <C> <C> <C>
Cash used by operations $ (2,566,279) $ (1,318,793) $ (6,527,919)
Cash used by investing activities (1,113,980) (119,593) (2,310,546)
Cash provided by financing activities 1,636,153 5,754,120 9,711,054
--------------- --------------- --------------
Increase (decrease) in cash and cash equivalents (2,044,106) 4,315,734 872,589
Cash and cash equivalents:
Beginning of period 2,916,695 192,898 0
--------------- --------------- --------------
End of period $ 872,589 $ 4,508,632 $ 872,589
--------------- --------------- --------------
--------------- --------------- --------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
6
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PACIFIC BIOMETRICS, INC.
(A DELAWARE CORPORATION)
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND BASIS OF PRESENTATION
Pacific Biometrics, Inc. (the "Company") was incorporated in Delaware in
May 1996. PBI-Delaware was formed in connection with the acquisitions of
BioQuant, Inc. ("BioQuant"), a Michigan corporation, and Pacific Biometrics,
Inc. ("PBI"), a Washington corporation. On June 28, 1996, the Company
completed the mergers whereby BioQuant and PBI became wholly-owned
subsidiaries of the Company in separate stock-for-stock exchange transactions.
The unaudited financial statements of the Company presented herein, have
been prepared pursuant to the rules of the Securities and Exchange Commission
for quarterly reports on Form 10-QSB and do not include all of the
information and footnote disclosures required by generally accepted
accounting principles. These statements should be read in conjunction with
the financial statements and notes thereto for the year ended June 30, 1997
included in the Company's Form 10-KSB.
In the opinion of management, the financial statements include all
adjustments (consisting solely of normal, recurring adjustments) necessary
for a fair presentation of results for these interim periods.
The Company is at an early stage of development. Revenues are primarily
from the laboratory business. The Company's potential products are currently
in research and development, and no material revenues have been generated
from these potential products to date. Consequently, the Company is a
development stage enterprise.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
RECLASSIFICATIONS
Certain reclassifications, not impacting previously reported net loss,
have been made to the consolidated financial statements for the first, second
and third quarters of fiscal 1997 and for the period from inception to March
31, 1998 in order to conform to the presentation of the consolidated
financial statements for the first, second and third quarters of fiscal 1998
contained in the Company's quarterly reports on Form 10-QSB and fiscal year
1997 contained in the Company's report on Form 10-KSB.
7
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TECHNOLOGY LICENSES
Amounts paid to Sudormed (Note 3) are capitalized and amortized over
their estimated useful life.
STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NOT YET ADOPTED
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income". SFAS No. 130, which is effective for fiscal years beginning after
December 15, 1997 and requires restatement of earlier periods presented,
establishes standards for the reporting and display of comprehensive income
and its components in a full set of general purpose financial statements.
Comprehensive income is defined as the change in equity of a business
enterprise during a period from transactions and other events and
circumstances from non-owner sources. The implementation of SFAS No. 130 is
not expected to have a material effect on the Company's results of operations.
In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments
of an Enterprise and Related Information". SFAS No. 131, which is effective
for fiscal years beginning after December 15, 1997 and requires restatements
of earlier periods presented, establishes standards for the way that a public
enterprise reports information about key revenue-producing segments in the
annual financial statements and selected information in interim financial
reports. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. The
implementation of SFAS No. 131 is not expected to have a material effect on
the Company's current reporting.
3. COMMITMENTS AND CONTINGENCIES
SPINPRO-Registered Trademark-
The Company is currently evaluating its alternatives for continuing
production of its SPINPRO-Registered Trademark- product. The Company
estimated the total cost of the relocation of manufacturing operations to be
$100,000, which has been charged to the accompanying consolidated statement
of operations for the three month period ending December 31, 1996. As of
March 31, 1998, a liability of approximately $63,000 remains in order to
cover the remaining costs of identifying a manufacturer, placing equipment
and personnel, and resuming production. This amount is included in accrued
liabilities on the accompanying consolidated balance sheet.
The Company is not a party to any material legal proceedings. However,
the former manufacturer of SPINPRO-Registered Trademark- has demanded
arbitration in connection with alleged breaches of the contract relating to
manufacture of SPINPRO-Registered Trademark-. The Company does not believe
that the claims have any merit and believes that the ultimate outcome of this
proceeding will not
8
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have a material impact on the Company. The Company is vigorously contesting
such claims and the Company has asserted counterclaims against such former
manufacturer.
SUDORMED
In December 1997, the Company executed a definitive agreement with
Sudormed, Inc., which provides the Company an exclusive worldwide license to
all medical diagnostic applications of Sudormed's skin patch technology. In
addition, the license allows for the development of all other potential
applications, except for those relating to alcohol and drugs of abuse.
Sudormed is the licensor of the skin patch technology for the application of
measuring bone loss markers in sweat which is the basis for the Company's
Osteopatch-TM- system which has been submitted as a 510(k) to the United
States Food and Drug Administration ("FDA").
In exchange for the rights described above, the Company will pay
Sudormed approximately $3 million over a twenty month period plus an ongoing
royalty payment based on the amount of sales of products developed under this
license. Such payments include a lump-sum payment of $1.6 million in December
1998. Through the quarter ended March 31, 1998 the Company has paid $509,911.
The Company believes that it will be able to expand the use of the patch
technology, thereby broadening its platform technology, building on its
research expertise from the Osteopatch-TM- development, and strengthening its
position in the non-invasive testing marketplace. Amounts paid to Sudormed
will be capitalized and amortized on a straight line basis over four years
for accounting purposes.
4. SALE OF CONVERTIBLE PREFERRED STOCK
On February 20, 1998, the Company consummated the sale of 925,000 shares
of Series A Convertible Preferred Stock (the "Preferred Stock") with an
institutional investor for an aggregate purchase price of $1,850,000. In
addition, the Company granted such institutional investor an option (the
"Option") to purchase an additional 625,000 shares of Preferred Stock until
May 20, 1998 for a purchase price of $1,250,000. Subsequent to the quarter
ended March 31, 1998 the institutional investor exercised the Option. The
Preferred Stock is convertible into shares of the Company's Common Stock at
the option of the holder at any time on a one-for-one basis, subject to
adjustment for stock splits, dividends and the like. The Preferred Stock
provides for a cumulative cash divided payable quarterly in arrears at an
annual rate of 8%. The Company has the right to force conversion of the
Preferred Stock in the event the price per share of the Common Stock is $8.00
or more for twenty consecutive trading days. The Company has agreed to use
commercially reasonable efforts to effect the registration of the Common
Stock into which Preferred Stock is convertible no later than August 18,
1998. The Company will use the proceeds of the sale of the Preferred Stock
and exercise of the Option to ensure timely payment of the Company's
obligations to Sudormed with respect to the licensing by the Company of the
patch technology for all applications other than drugs of abuse, and for
general working capital purposes. See Note 6 for calculation of beneficial
conversion and imputed preferred stock dividend.
9
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5. REVOLVING LINE OF CREDIT
On March 18, 1998 the Company and its subsidiaries entered into a Loan
and Security Agreement (the "Loan and Security Agreement") relating to a $1
million term loan (the "Loan") with Silicon Valley Bank (the "Bank"). The
Company can draw loan advances through March 6, 1999, after which the Loan
(plus accrued interest) will be repaid in forty-eight (48) equal monthly
installments through March 6, 2003. The Loan bears interest at the per annum
rate of one percent over the prime rate announced by the Bank. The Loan is
collateralized by substantially all of the Company's presently existing and
hereafter acquired assets including, but not limited to, the Company's goods,
equipment, inventory, contract rights, general intangibles and accounts (the
"Collateral"). The Company is required to maintain adequate insurance
covering the Collateral and is required to deliver to the Bank certain
financial statements and other reports. Moreover, the Company must comply
with certain minimum financial standards and ratios, including a minimum
stated net worth and a liquidity coverage ratio, and other non-financial
restrictions. Upon any event of default, as defined in the Loan, the Bank
may declare all outstanding Loan advances and all accrued interest thereon
immediately due and payable, and may also claim, recover and sell the
Collateral. No amounts were outstanding under this facility at March 31,
1998.
In connection with the Loan, the Company granted the Bank a warrant (the
"Bank Warrant") to purchase 15,094 shares of the Company's Common Stock until
March 6, 2003 for an exercise price of $3.3125 per share (which was the
market price per share of the Company's Common Stock on the date of the grant
determined using a five day average price per share). The Company will use
the proceeds of the Loan and exercise of the Bank Warrants, if any, to
finance a portion of the Company's recent acquisition from Sudormed of the
rights to a proprietary skin patch technology. No amounts have been recorded
for the Bank Warrant as amounts are deemed immaterial.
6. EARNINGS PER SHARE
The Company has adopted SFAS No. 128 "Earnings Per Share" which requires
the presentation of "basic" and "diluted" earnings per share, as defined, on
the face of the statement of operations for entities whose capital structure
includes convertible securities and options. For the quarter ended March 31,
1998, no amounts were included in the weighted average shares calculation for
convertible securities, options or warrants as the impact would have been
anti-dilutive. Prior periods have not been restated.
Net loss applicable to common stockholders includes $16,444 in
cumulative dividends on the convertible preferred stock during the quarter
ended March 31, 1998, and $1,937,500 for the non-cash imputed dividend
related to the beneficial conversion feature on the convertible preferred
stock and preferred stock option. The beneficial conversion feature is
computed as the difference between the quoted market price of a share of
common stock on the date of issue and the conversion price times all shares
of preferred stock sold and under option.
10
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The imputed dividends are a non-cash one-time charge based on the immediate
conversion feature. The basic and dilluted loss per share calculation is
illustrated in the following table.
<TABLE>
<CAPTION>
For the Period
Three Month Period Nine Month Period from Inception
3/31/98 3/31/97 3/31/98 3/31/97 to 3/31/98
--------------------------- --------------------------- ---------------
<S> <C> <C> <C> <C> <C>
Net Loss $(1,314,519) $( 439,026) $(2,879,455) $(1,270,530) $(14,614,066)
Preferred Stock (16,444) 0 (16,444) 0 (16,444)
cummulative dividend
Imputed dividend
on Preferred
Stock issued (1,156,250) 0 (1,156,250) 0 (1,156,250)
Imputed dividend
on Preferred Stock
Option Granted (781,250) 0 (781,250) 0 (781,250)
------------ ----------- ------------ ------------ -------------
Net Loss available
to Common
Shareholders $(3,268,463) $ (439,026) $(4,833,399) $(1,270,530) $(16,568,010)
------------ ----------- ------------ ------------ -------------
------------ ----------- ------------ ------------ -------------
Basic and diluted
loss per share $ (0.88) $ (0.12) $ (1.30) $ (0.40) $ (10.53)
------------ ----------- ------------ ------------ -------------
------------ ----------- ------------ ------------ -------------
Number of shares
used in per-share
calculation 3,709,671 3,651,353 3,707,188 3,150,918 1,574,137
------------ ----------- ------------ ------------ -------------
------------ ----------- ------------ ------------ -------------
</TABLE>
11
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the preceding consolidated financial statements and notes in this Form 10-QSB.
OVERVIEW
The Company was incorporated in Delaware in May 1996 in connection with
the acquisitions of BioQuant and PBI, a Washington corporation. On June 28,
1996, the Company completed the mergers whereby BioQuant and PBI became
wholly-owned subsidiaries of the Company in separate stock-for-stock exchange
transactions.
The Company, through its wholly-owned subsidiaries, develops diagnostic
and laboratory products and provides laboratory services primarily in the
fields of cardiovascular disease and osteoporosis laboratory testing. The
Company's strategy is to focus on the development of cost-effective,
non-invasive diagnostic tests and improved laboratory techniques in order to
achieve early diagnosis, prevention, and therapeutic monitoring with respect
to certain diseases. The Company plans to (i) finalize development and
commercialize a patented skin patch product that measures bone loss
markers(1) in human perspiration (the "Osteopatch-TM-"); (ii) expand its
specialty reference laboratory business; (iii) evaluate the feasibility
of non-invasive testing for various applications using SalivaSac-Registered
Trademark-, its patented saliva collection device and (iv) evaluate and
develop various applications using the skin patch technology.
To date, the Company's revenues have consisted primarily of fees charged
by the laboratory for services provided to customers, a nominal amount of
sales from the SPINPRO-Registered Trademark- cholesterol testing device, and
other income from U.S. Government grants awarded to the Company under the
National Institute of Health Small Business Innovative Research ("SBIR")
programs to support research activities. Expenses consist, and are expected
to continue to consist, primarily of operating expenses necessary to conduct
the commercial laboratory operation, research and development costs for
products under development, ongoing clinical trials, marketing,
administrative expenses and payment of license and royalty fees to acquire
and maintain the Company's intellectual property rights.
Through March 31, 1998, the Company had an accumulated deficit of
$14,614,066 which included a one-time charge of $6,373,884 for the value of
purchased research and development expenses relating to the Company's merger
with BioQuant in 1996 and a one-time charge of $428,368 relating to a prior
merger involving PBI in 1995.
- ----------
(1) Certain specific molecules produced from the degradation of
bone proteins, which are delivered to blood and then to urine and sweat; the
amount of the bone molecules measured in these fluids in a specified interval
is related to the amount of bone degraded or lost in that time.
12
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RESULTS OF OPERATIONS:
Comparison of the three and nine month periods ending March 31, 1998 and 1997:
<TABLE>
<CAPTION>
Rounded to Nearest Three Nine Comments on increase or decrease from
Thousand Dollars Months Months Fiscal 1997 to Fiscal 1998
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues:
Ending 3/31/98 $ 558 $ 2,068 Results consist mainly of laboratory revenue.
Ending 3/31/97 $ 649 $ 1,874 Two large studies, which increased revenue for the
$ variance $ (91) $ 194 nine month period, concluded in this quarter and
% variance (14%) 10% were not fully replaced, resulting in decreased three
month period revenue.
Laboratory expenses and cost of sales:
Ending 3/31/98 $ 475 $ 1,602 The increased expense for the nine month period
Ending 3/31/97 $ 462 $ 1,220 represents higher activity levels and higher supply
$ variance $ 13 $ 382 costs pertaining to one of the completed studies.
% variance 3% 31%
Research and product development:
Ending 3/31/98 $ 907 $ 1,951 Three and nine month expenditures increased
Ending 3/31/97 $ 299 $ 715 primarily due to the Osteopatch Clinical Trials
$ variance $ 608 $ 1,236 which concluded in February 1998 with the 510(K)
% variance 203% 173% submission to the FDA and technology license
amortization. Research and development spending
will continue at similar levels.
General and administration expenses:
Ending 3/31/98 $ 598 $ 1,560 Increased three and nine month expenditures resulted
Ending 3/31/97 $ 390 $ 1,273 from costs incurred to support laboratory sales and
$ variance $ 208 $ 287 marketing as well as increased administrative costs
% variance 53% 23% to support the Company's research and development
effort.
Total other income:
Ending 3/31/98 $ 107 $ 165 The three and nine month figures include
Ending 3/31/97 $ 64 $ 64 grant income of $95,000, which was for an SBIR
$ variance $ 43 $ 101 study concluded in March 1998. All of this SBIR
% variance 67% 158% income was received in the third quarter of 1998.
Net loss:
Ending 3/31/98 $ (1,315) $ (2,879) Approximately two-thirds of the increased net loss
Ending 3/31/97 $ (439) $ (1,271) is due to the expanded research and development
$ variance $ (876) $ (1,608) expenditures incurred during the three and nine
% variance 200% 127% month periods.
</TABLE>
13
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LIQUIDITY AND CAPITAL RESOURCES:
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. Except for historical
matters, the information presented in this Form 10-QSB contain
forward-looking statements that involve risks and uncertainties. The
following section contains forward-looking statements of management's beliefs
based on, among other things, assumptions made by, and information currently
available to management, including management's own knowledge and assessment
of the Company's industry, competition and current regulatory environment.
Such forward-looking statements involve risk and uncertainties that could
cause actual results to differ materially.
The Registration Statement pertaining to the Company's initial public
offering was declared effective by the Securities and Exchange Commission on
October 29, 1996. Net proceeds from such public offering were $6.3 million.
The Company used approximately $1.2 million of such proceeds to repay debt.
The Company has used the remaining net proceeds of approximately $5.1 million
for product development activities relating to the Osteopatch-TM-, for
funding the growth of its central reference laboratory operations and for
working capital.
The Company believes that successful future operations depend primarily
upon the Company's ability to complete development of the Osteopatch-TM-
product, obtain FDA clearance, and achieve successful product
commercialization. Although the number of people at risk of osteoporosis is
large in both the United States and worldwide, there can be no assurance that
the Company will be able to meet its objective to develop and commercialize a
cost effective osteoporosis related diagnostic product. The risks facing the
Company include the ability to obtain regulatory approval which is dependent
upon such factors as the results of clinical trials, the discretion of
regulatory officials, and potential changes in regulations, all of which may
be beyond the control of the Company. In addition, successful
commercialization of any product will be dependent upon market acceptance,
competition, technological change, dependence on collaborators for research,
development and marketing assistance, and continued access to capital.
The Company believes that future operations also depend on its ability to
grow a profitable reference laboratory operation. Although the Company has
increased laboratory revenues in the past, operated the laboratory at
positive gross margin and has established cardiovascular and osteoporosis
expertise, there can be no assurances that the Company will be able to
continue such revenue growth or maintain profitability. In addition,
contracts for lab services are entered into for a specified period (usually
less than a year) but can be canceled at any time. Accordingly, the
laboratory operation is dependent on a few large contracts and on the
Company's ability to replace such contracts upon expiration or termination,
of which there can be no assurance.
14
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During fiscal 1997, the Company received a commitment of $1.5 million
from TransAmerica Business Credit for the purchase of equipment. The Company
has drawn down approximately $706,000 on the credit line and is currently
authorized to draw down an additional $370,000 for the three month period
ending June 30, 1998. Payments on funds advanced are made at approximately a
9% annual rate. The Company's has the option to purchase the equipment at the
end of the lease term for an amount equal to its then fair market value.
During fiscal 1997, the Company received notification of the termination
of its manufacturing agreement relating to the manufacture of the
SPINPRO-Registered Trademark- product. As a result of this termination, the
Company has reimbursed the manufacturer for the value of molds and production
equipment. As of March 31, 1998, the remaining inventory, molds and
production equipment, had been relocated to a storage facility.
The Company is currently evaluating its alternatives for continuing
production of the SPINPRO-Registered Trademark- product. The Company
estimated the total cost of the relocation to be $100,000, which was charged
to the accompanying consolidated statement of operations in second quarter of
fiscal 1997. As of March 31, 1998, a liability of approximately $63,000
remains in order to cover the remaining costs of identifying a manufacturer,
placing equipment and personnel, and resuming production. This amount is
included in accrued liabilities on the accompanying consolidated balance
sheet.
On September 26, 1997 the Company received from the former manufacturer
of SPINPRO-Registered Trademark- a demand for arbitration in connection with
alleged breaches of the contract relating to the manufacture of
SPINPRO-Registered Trademark-. The Company does not believe that the claims
have any merit and believes that the ultimate outcome of this proceeding will
not have a material impact on the Company. The Company is vigorously
contesting such claims, has filed counterclaims against the former
manufacturer and is conducting discovery. The Company has also filed for
arbitration against a former vendor relating to SPINPRO-Registered
Trademark-, seeking damages for alleged breach of contract with respect to
the manufacture of molds for SPINPRO-Registered Trademark- parts.
In August 1997, the Company announced an agreement with Segix Italia,
S.p.A. ("Segix") for a market and technical evaluation of the Company's
Osteopatch-TM- diagnostic system for the Italian market. At the end of the
evaluation period (May 1998), Segix has the option to exercise an exclusive
long term supply and distribution agreement with the Company for the Italian
market. Exercise of Segix's option to execute the supply and distribution
agreement will give the Company access to the Italian market through Segix's
70 person direct sales force.
In December 1997, the Company executed a definitive agreement with
Sudormed, Inc., which provides the Company an exclusive worldwide license to
all medical diagnostic
15
<PAGE>
applications of Sudormed's skin patch technology. In addition, the license
allows for the development of all other potential applications, except for
those relating to alcohol and drugs of abuse. Sudormed is the licensor of
the skin patch technology for the application of measuring bone loss markers
in sweat which is the basis for the Company's Osteopatch-TM- system which has
been submitted as a 510(k) to the United States Food and Drug Administration
("FDA").
In exchange for the rights described above, the Company will pay Sudormed
approximately $3 million over a twenty month period plus an ongoing royalty
payment based on the amount of sales of products developed under this
license. Such payments include a lump-sum payment of $1.6 million in December
1998. Through the quarter ended March 31, 1998 the Company has paid $509,911.
The Company believes that it will be able to expand the use of the patch
technology, thereby broadening its platform technology, building on its
research expertise from the Osteopatch-TM- development, and strengthening its
position in the non-invasive testing marketplace. Amounts paid to Sudormed
will be capitalized and amortized on a straight line basis over four years
for accounting purposes.
In December 1997, the Company entered into a Technical Development and
License Agreement with ActiMed Laboratories, Inc. ("ActiMed"). This agreement
provides the Company with exclusive worldwide rights to ActiMed's patented
analyte(2) detection technology in the field of saliva glucose testing. This
technology will be combined with the Company's patented SalivaSac-Registered
Trademark- technology to develop a saliva glucose testing system, with
applications in screening for and monitoring of diabetes.
In addition to, and in consideration of, receiving exclusive rights to
ActiMed's proprietary technology for non-invasive saliva glucose testing, the
Company has entered into a development program with ActiMed for the purpose
of developing two potential products. The Company will fund the development
based on a mutually agreed budget by ActiMed and the Company. One potential
product, a screening product, is intended to detect diabetes in the general
population using a saliva sample in a singe use, disposable, non-instrumented
device which incorporates the Company's SalivaSac-Registered Trademark-
technology and ActiMed's thin film and dye technology. A second potential
product, incorporating the same technologies plus a hand held meter, is
intended to produce detailed quantitative measurements of glucose levels to
enable diabetics to monitor glucose levels throughout the day. This
collaboration has started in the third quarter of fiscal year 1998. The
Company will pay ActiMed a royalty based on future sales of products
developed under this arrangement. There can be no assurance, however, that
either of these products will be successfully developed, or if developed,
will be approved for use by the FDA, achieve market acceptance or contribute
significantly to the Company's revenues and profits.
- ----------
(2) A chemistry term denoting a biological substance or drug that is measured
to indicate some physiological or health state; e.g., glucose is the analyte
of interest in monitoring treatment of diabetics.
16
<PAGE>
In December 1997, the Board of Directors extended the expiration date of
the 1,700,000 warrants issued in conjunction with the Company's initial
public offering of its securities until June 30, 1998. All other terms of
such warrants remains unchanged.
In February 1998, the Company announced that it had submitted to the FDA
a 510(k) pre-market notification filing for a test to measure an indicator of
bone resorption using the Company's proprietary SweatPatch system. Recent
studies have indicated that high bone resorption is a risk factor for
osteoporosis. The Osteopatch-TM- is the first application of Pacific
Biometrics' SweatPatch system. The Osteopatch-TM- system consists of a
patented transdermal(3) sweat collection device, proprietary assays(4) for
the detection of biochemical markers of bone loss in sweat, and a proprietary
method for laboratory analysis. A combined total of over two hundred
patients at fourteen facilities were evaluated in the Clinical Utility Study
used to support the Company's 510(k) submission.
On May 8, 1998 the Company announced that it received a letter from the
FDA with respect to the Company's 510(k) application relating to the
Osteopatch-TM-. Based on this letter and subsequent discussions with the FDA,
the Company will provide the FDA with additional information.
Depending on the review of such information by the FDA, the Company may
have to expand existing clinical studies or conduct additional clinical
studies. In that event, the Company may decide to resubmit its 510(k)
application. While the Company was hopeful for a determination of substantial
equivalence by the FDA during the third calendar quarter of 1998, it is
likely, depending on the extent of additional information requests by the
FDA, that such determination will be delayed until at least the fourth
calendar quarter of 1998.
If the Company experiences significant delays beyond the fourth quarter,
there can be no assurance that the Company will be able to meet all of its
current financial and business objectives, in which event, the Company may be
forced to curtail certain projects. The proceeding sentence and paragraph
contain forward-looking statements with respect to the extent and timing of
the FDA process, which is subject to many variables, some of which are beyond
the Company's control, including, among other things, the technical and
financial ability of the Company to comply with the FDA's informational
requests and to conduct additional clinical studies if necessary, and the
classification of the Osteopatch-TM- product as a 510(k) device.
Osteoporosis is one of the fastest growing and debilitating diseases
affecting the aging population today and new ways of preventing, diagnosing
and managing the disease are urgently needed. The disease is characterized
by low bone mass and deterioration of
- ----------
(3) Movement of substances from blood across the skin (dermis), chiefly in
sweat; transdermal also refers to the movement of substances from the surface
of the skin to the underlying tissues and blood.
(4) A System by which the amount of a biological substance is measured;
includes, e.g., immunoassays, the measurement of a substance from its
interaction with a specific antibody.
17
<PAGE>
bone structure that can lead to bone fracture. According to the National
Osteoporosis Foundation ("NOF"), 28 million people in the U.S. are at risk of
osteoporosis and that number is projected to grow to 41 million by the year
2015. Additionally, the NOF estimates that the U.S. spends approximately $14
billion annually on osteoporosis related fractures.
On February 20, 1998, the Company consummated the sale of 925,000 shares
of Series A convertible Preferred Stock (the "Preferred Stock") with an
institutional investor for an aggregate purchase price of $1,850,000. In
addition, the Company granted such institutional investor an option (the
"Option") to purchase an additional 625,000 shares of Preferred Stock until
May 20, 1998 for a purchase price of $1,250,000. Subsequent to the quarter
ended March 31, 1998 the institutional investor exercised the Option. The
Preferred Stock is convertible into shares of the Company's Common Stock at
the option of the holder at any time on a one-for-one basis, subject to
adjustment for stock splits, dividends and the like. The Preferred Stock
provides for a cumulative cash divided payable quarterly in arrears at an
annual rate of 8%. The Company has the right to force conversion of the
Preferred Stock in the event the price per share of the Common Stock is $8.00
or more for twenty consecutive trading days. The Company has agreed to use
commercially reasonable efforts to effect the registration of the Common
Stock into which Preferred Stock is convertible no later than August 18,
1998. The Company will use the proceeds of the sale of the Preferred Stock
and exercise of the Option, if any, to ensure timely payment of the
Company's obligations to Sudormed with respect to the licensing by the
Company of the patch technology for all applications other than drugs of
abuse, and for general working capital purposes.
On March 18, 1998 the Company and its subsidiaries entered into a Loan
and Security Agreement (the "Loan and Security Agreement") relating to a $1
million term loan (the "Loan") with Silicon Valley Bank (the "Bank"). The
Company can draw loan advances through March 6, 1999, after which the Loan
(plus accrued interest) will be repaid in forty-eight (48) equal monthly
installments through March 6, 2003. The Loan bears interest at the per annum
rate of one percent over the prime rate announced by the Bank. The Loan is
collateralized by substantially all of the Company's presently existing and
hereafter acquired assets including, but not limited to, the Company's goods,
equipment, inventory, contract rights, general intangibles and accounts (the
"Collateral"). The Company is required to maintain adequate insurance
covering the Collateral and is required to deliver to the Bank certain
financial statements and other reports. Moreover, the Company must comply
with certain minimum financial standards and ratios, including a minimum
stated net worth and a liquidity coverage ratio, and other non-financial
restrictions. Upon any event of default, as defined in the Loan, the Bank
may declare all outstanding Loan advances and all accrued interest thereon
immediately due and payable, and may also claim, recover and sell the
Collateral. No amounts were outstanding under this facility at March 31,
1998.
The Company's per share loss for the quarter ended March 31, 1998
included a one-time non-cash accounting adjustment of ($0.52) per share for
imputed dividends associated with the Company's Preferred Stock and Option.
The imputed dividend is calculated as the difference between the quoted
market price on the date of issue and the conversion price times all shares
covered by the Preferred Stock and Option.
18
<PAGE>
In connection with the Loan, the Company granted the Bank a warrant (the
"Bank Warrant") to purchase 15,094 shares of the Company's Common Stock until
March 6, 2003 for an exercise price of $3.3125 per share (which was the
market price per share of the Company's Common Stock on the date of the grant
determined using a five day average price per share). The Company will use
the proceeds of the Loan and exercise of the Bank Warrants, if any, to
finance a portion of the Company's recent acquisition from Sudormed of the
rights to a proprietary skin patch technology.
In March 1998, the Company leased a new corporate office and lab facility
in Lake Forest, California which has approximately 10,776 square feet
pursuant to a five year lease at an average annual rental of $140,000. The
facility will be ready for occupancy near the end of the fourth quarter of
fiscal 1998 and the lease will expire on June 30, 2003.
The Company owns or is the exclusive licensee of rights under thirteen
issued U.S. patents and four pending U.S. patents with respect to the
Company's Osteopatch-TM- system, Sudormed's skin patch technology and the
Company's SalivaSac-Registered Trademark- technology.
The Company believes that year 2000 issues will have no material impact
on the Company, its financial condition or capital expenditures.
The Company expects to continue to incur significant and increasing
operating losses for at least the next eighteen months due to anticipated
increases in research and development activities associated with the
Osteopatch-TM- product, increased research and development activities related
to SalivaSac-Registered Trademark-, establishment of a marketing programs for
both the Osteopatch-TM- product and the reference laboratory, technology
license amortization and general and administrative expenses. Based upon
its current plans, the Company believes that its anticipated cash flows from
operations, together with the proceeds from the Preferred Stock sale and
existing and anticipated debt and equity arrangements, will be sufficient to
meet the Company's operating expenses and capital requirements for
approximately nine months. The previous sentences are considered
forward-looking statements for purposes of the "safe harbor" provisions of
the Private Securities Litigation Reform Act of 1995 that involves risks and
uncertainties that could cause actual results to differ materially. Such
statements are based on, among other things, assumptions made by, and
information currently available to management, including management's own
knowledge and assessment of the Company's industry, competition and current
regulatory environment. Additionally, the adequacy of the Company's
available cash equivalents and revenue from operations to sustain current and
anticipated levels of operations are subject to a number of variables
including maintaining and increasing existing laboratory revenues and
profitability, performance of products in clinical trials, the level and
timing of research and development costs necessary to obtain FDA clearance of
the Osteopatch-TM- and other products under development, the costs and timing
associated with commercial production and marketing of such products, the
execution of definitive agreements with key partners, intensified
competition, third party reimbursement, technology obsolescence prior to
successful commercialization, and the acceptability of terms related to
anticipated sources of debt or equity capital.
19
<PAGE>
If the Company's current and projected needs change due to unanticipated
events or otherwise, the Company may be required to obtain additional
capital. The Company intends to seek such additional funding through public
or private financing or collaborative or other arrangements with corporate
partners. There can be no assurance, however, that additional financing will
be available from any of these sources, or if available, will be available on
acceptable terms. If adequate funds are not available, the Company may be
required to delay, scale back or eliminate one or more of its research and
development programs, including but not limited to the development of the
Osteopatch-TM-, or to obtain funds through entering into arrangements with
collaborative partners or others that may require the Company to relinquish
rights to certain of its technologies or potential products that the Company
would not otherwise relinquish.
20
<PAGE>
PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
The Company is not a party to any material legal proceedings. However,
the former manufacturer of SPINPRO-Registered Trademark- has demanded
arbitration in connection with alleged breaches of the contract relating to
the manufacture of SPINPRO-Registered Trademark-. The Company does not
believe that the claims have any merit and believes that the ultimate outcome
of this proceeding will not have a material impact on the Company. The
Company is vigorously contesting such claims and has filed counterclaims
against the former manufacturer. The Company has also filed for arbitration
against a former vendor relating to SPINPRO-Registered Trademark- seeking
damages for alleged breach of contract with respect to the manufacture of
molds for SPINPRO-Registered Trademark- parts.
ITEM 2 - CHANGES IN SECURITIES AND USE OF PROCEEDS
The following information is provided with respect to the use of proceeds
from the Company's IPO:
1. Name of issuer: Pacific Biometrics, Inc.
2. a) Effective date of the registration statement: October 29, 1996
b) Commission file number assigned to issuer: 333-11551
3. Offering commencement date: October 29, 1996
4. Managing underwriter: Paradise Valley Securities, Inc.
5. Title of each class of security
(a) Common stock, par value $.01 per share ("Common Stock").
(b) Redeemable Common Stock Purchase Warrants (the "Warrants"). Each
Warrant is exerciseable into one share of Common Stock at an exercise
price of $12 at any time up until June 30, 1998.
6. Amount and aggregate offering price
(a) Common Stock and Warrants:
<TABLE>
<S> <C>
Amount registered (1) 3,825,000 Shares
Aggregate price of offering amount registered (2) $10,255,250
Amount sold 1,700,000 Units
Aggregate offering price of amount sold (2) $ 8,075,000
</TABLE>
(1) Includes 1,700,000 units (the "Units") (each Unit consisting of one share
of Common Stock and one Warrant), the underwriter's over-allotment option
(which was not exercised) for 255,000 Units, and a Warrant to purchase
170,000 shares of Common Stock at $5.70 per share that was issued to the
underwriter. The amount registered includes 1,955,000 shares of common
stock underlying Warrants contained in the Units (including the
over-allotment option).
21
<PAGE>
(2) Does not include exercise price of Warrants outstanding, none of which
have been exercised to date.
<TABLE>
<CAPTION>
Direct or indirect payments to Direct or indirect
directors, officers, general payments to
partners of the issuer or their others
associates; to persons owning
ten percent or more of any class
For the period ending March 31, 1998 of equity securities of the issuer;
and to affiliates
<S> <C> <C>
7. Costs of offering:
(01) Underwriting discounts and commissions 807,500
(02) Finder's fees 0
(03) Expenses paid to or for underwriters 242,250
(04) Other expenses 740,540
(05) Total expenses 1,790,290
8. Net offering proceeds after expenses in item 7: 6,284,710
9. Use of net offering proceeds:
(01) Construction of plant, building and facilities 0
(02) Purchase of machinery and equipment 219,885
(03) Purchase of real estate 0
(04) Acquisition of other business(es) 0
(05) Repayment of indebtedness 60,193 1,115,774
(06) Working capital (250,494)
(07) Government securities - greater than 90 days 1,494,870
(08) Cash and investments - less than 90 days 972,589
(11) Research & development 2,671,893
10. Do the use(s) of proceeds in Item 9 represent a material change in the / / YES
use(s) of proceeds described in the prospectus? /X/ NO
11. This will be the final submission of form S-R. The IPO funds have been fully
deployed.
</TABLE>
22
<PAGE>
ITEM 3 - DEFAULTS UPON SENIOR SECURITIES - Not Applicable.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS - Not Applicable.
ITEM 5 - OTHER INFORMATION - Not Applicable.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
(10.29) Lease dated January 5, 1998 between the Company and Makena
Commercentre II, LLC with respect to the Company's office
at 25651 Atlantic Ocean Drive, A1-A, Lake Forest,
California, 92630.
(27.1) Financial Data Schedule.
(b) The following reports on Form 8-K were filed during the quarter
ended March 31, 1998:
(i) February 27, 1998 with respect to the sale of 925,000 shares
of Preferred Stock to an institutional investor for an
aggregate purchase price of $1,850,000 and an option to
purchase an additional 625,000 shares of Preferred Stock until
May 20, 1998.
(ii) March 27, 1998 with respect to the execution of a Loan and
Security Agreement relating to a $1,000,000 term loan with
Silicon Valley Bank.
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.
DATED: May 15, 1998
/s/PAUL G. KANAN President and Chief Executive
- --------------------------------- Officer
Paul G. Kanan
/s/ PETER B. LUDLUM Vice President and Chief Financial
- --------------------------------- Officer (Principal Financial
Peter B. Ludlum and Accounting Officer)
23
<PAGE>
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE---MODIFIED NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. BASIS PROVISIONS ("BASIC PROVISIONS")
1.1 PARTIES: This lease ("LEASE"), dated for reference purpose only,
January 5, 1998 is made by and between Makena Commercentre II, LLC, a California
limited liability company ( "LESSOR") and Pacific Biometrics Inc., a Delaware
Corporation ("LESSEE") (collectively the "PARTIES", or individually a "PARTY").
1.2(a) PREMISES: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this Lease,
commonly known by the street address of 25651 Atlantic Ocean Dr. A1-A8 , located
in the City of Lake Forest, County of Orange, State of California, with zip code
92630, as outlined on Exhibit A attached hereto ("PREMISES"). The "BUILDING"
is that certain building containing the Premises and generally described as
(describe briefly the nature of the Building):
approximately 10,776 rentable Square Feet located in Building A, part of a 2
building multi-tenant project in Makena Commercentre II totaling 53,828 sq. ft.
In addition to Lessee's rights to use and occupy the Premises as hereinafter
specified, Lessee shall have non-exclusive rights to the Common Areas (as
defined in Paragraph 2.7 below) as hereinafter specific, but shall not have any
rights to the roof, exterior walls or utility raceways of the Building or to any
other buildings in the Industrial Center. The Premises, the Building, the Common
Areas, the land upon which they are located, along with all other buildings and
improvements thereon, are herein collectively referred to as the "INDUSTRIAL
CENTER" (Also see Paragraph 2.)
1.2(b) PARKING: thirty six (36) unreserved vehicle parking spaces
("UNRESERVED PARKING SPACES"); and no reserved vehicle parking spaces ("RESERVED
PARKING SPACES"). (Also see Paragraph 2.6)
1.3 TERM: Five years and zero months ("ORIGINAL TERM") commencing see
addendum 1.3 "Term" ("COMMENCEMENT DATE") and ending ___________________________
("EXPIRATION DATE"). (Also see Paragraph 3.)
1.4 EARLY POSSESSION: N/A ("EARLY POSSESSION DATE"). (Also see
Paragraphs 3.2 and 3.3.)
1.5 BASE RENT: $11,314.80 per month ("BASE RENT"), payable on the
first day of each month commencing See addendum 1.3 (Also see Paragraph 4.)
[x] If this box is checked, this lease provides for the Base Rent to be
adjusted per Addendum 4.1.1, attached hereto.
1.6(a) BASE RENT PAID UPON EXECUTION: $11,314.80 as Base Rent for the
period of the first month.
1.6(b) LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES: 18.59% percent
( %) (LESSEE'S SHARE) as determined by
[x] prorata square footage of the Premises as compared to the total square
footage of the Industrial Center.
1.7 SECURITY DEPOSIT: $11,314.80 ("SECURITY DEPOSIT"). (Also see
Paragraph 5.)
1.8 PERMITTED USE: General office, warehouse, laboratory, production
and assembly. ("PERMITTED USE") (Also see Paragraph 6.)
1.9 INSURING PARTY. Lessor is the "INSURING PARTY". (Also see
Paragraph 8.)
1.10(a) REAL ESTATE BROKERS. The following real estate broker(s)
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
[x] VOIT Commercial (Sam Olmstead) 2.5% represents Lessor exclusively
("LESSOR'S BROKER");
[x] CB Commercial 2.5% represents Lessee exclusively ("LESSEE'S BROKER");OR
[ ] ____________________ represents both Lessor and Lessee ("DUAL AGENCY").
(Also see Paragraph 15.)
1.10(b) PAYMENT TO BROKERS. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s) jointly, or in such separate shares
as they may mutually designate in writing, a fee as set forth in a separate
written agreement between Lessor and said Broker(s) (or in the event there is no
separate written agreement between Lessor and said Broker(s), the sum of $ per
the existing agreement ) for brokerage services rendered by said Broker(s) in
connection with this transaction.
1.11 GUARANTOR. The obligations of the Lessee under this Lease are to
be guaranteed by _____________________________________________
_______________________________________ ("GUARANTOR"). (Also see Paragraph 37.)
1.12 ADDENDA AND EXHIBITS. Attached hereto is an Addendum.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, the Premises, for the term, at the rental, and upon all of
the terms, convenants and conditions set forth in the Lease. Unless otherwise
provided herein, any statement of square footage set forth in the Lease, or that
may have been used in calculating rental and/or Common Area Operating Expenses,
is an approximation which Lessor and Lessee agree is reasonable and the rental
and Lessee's Share (as defined in Paragraph 1.6(b)) based thereon is not subject
to revision whether or not the actual square footage is more or less.
2.2 CONDITION. (This section has been deleted from this Lease).
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE.
Lessor warrants that any improvements (other than those constructed by Lessee
or at Lessee's direction) on or in the Premises shall comply with all
applicable covenants or restrictions of record and applicable building codes,
regulations and ordinances in effect on the Commencement Date. Lessor
further warrants to Lessee that Lessor has no knowledge of any claim having
been made by any governmental agency that a violation or violations of
applicable building codes, regulations, or ordinances exist with regard to
the Premises as of the Commencement Date. Said warranties shall not apply to
any Alterations or Utility Installations (defined in Paragraph 7.3(a)) made
or to be made by Lessee. If the Premises do not comply with said warranties,
Lessor shall, except as otherwise provided in this Lease, promptly after
receipt of written notice from Lessee given within six (6) months following
the Commencement Date and setting forth with specificity the nature and
extent of such non-compliance, take such action, at Lessor's expense, as may
be reasonable or appropriate to rectify the non-compliance. Lessor makes no
warranty that the Permitted Use in Paragraph 1.8 is permitted for the
Premises under Applicable Laws ( as defined in Paragraph 2.4).
2.4 ACCEPTANCE OF PREMISES. (This section has been deleted from this
Lease).
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by Lessor in
this Paragraph 2 shall be of no force or effect if immediately prior to the date
set forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises. In
such event, Lessee shall, at Lessee's sole cost and expense, correct any
non-compliance of the Premises with said warranties.
Initials
-----
-----
<PAGE>
2.6 VEHICLE PARKING: Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no larger than
full-size passenger automobiles or pick-up trucks, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to
or are controlled by Lessee or Lessee's employees, suppliers, shippers
customers, contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
(c) Lessor shall at the Commencement Date of this Lease, provide
the parking facilities required by Applicable Law.
2.7 COMMON AREAS - DEFINITION. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior boundary
line of the Industrial Center and interior utility raceways within the Premises
that are provided and designated by the Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other lessees of the Industrial Center
and their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways, and landscaped areas.
2.8 COMMON AREAS - LESSEE'S RIGHTS. Lessor hereby grants to Lessee,
for the benefit of Lessee and its employees, suppliers, shippers, contractors,
customers and invitees, during the term of this Lease, the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Lessor under the terms hereof or under the terms of any rules and regulations
or restrictions governing the use of the Industrial Center. Under no
circumstances shall the right herein granted to use the Common Areas be deemed
to include the right to store any property, temporarily or permanently, in the
Common Areas. Any such storage shall be permitted only by the prior written
consent of the Lessor or Lessor's designated agent, which consent may be revoked
at any time. In the event that any unauthorized storage shall occur then Lessor
shall have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the cost to
Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 COMMON AREAS - RULES AND REGULATIONS. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and management
of the Common Areas and shall have the right, from time to time, to establish,
modify, amend and enforce reasonable Rules and Regulations with respect thereto
in accordance with Paragraph 40. Lessee agrees to abide by and conform to all
such Rules and Regulations, and to cause its employees, suppliers, shippers,
customers, contractors and invitees to so abide and conform. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations
by other lessees of the Industrial Center.
2.10 COMMON AREAS - CHANGES. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitations, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the
Industrial Center to be part of the Common Areas;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; and
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Industrial Center as
Lessor may, in the exercise of sound business judgment, deem to be appropriate.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term
of this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after the
Early Possession Date but prior to the Commencement Date, the obligation to pay
Base Rent shall be abated for the period of such early occupancy. All other
terms of this Lease, however, (including but not limited to the obligations to
pay Lessee's Share of Common Area Operating Expenses and to carry the insurance
required by Paragraph 8) shall be in effect during such period. Any such early
possession shall not affect nor advance the Expiration Date of the Original
Term.
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by the
Commencement Date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of the Lease, or the obligations of
Lessee hereunder, or extend the term hereof, but in such case, Lessee shall not,
except as otherwise provided herein, be obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease until Lessor delivers
possession of the Premises to Lessee. If possession of the Premises is not
delivered to Lessee within sixty (60) days after the Commencement Date, Lessee
may, at its option, by notice in writing to Lessor within ten (10) days after
the end of said sixty (60) day period, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect. Except as may be otherwise
provided, and regardless of when the Original Term actually commences, if
possession is not tendered to Lessee when required by this Lease and Lessee does
not terminate this Lease, as aforesaid, the period free of the obligation to pay
Base Rent, if any, that Lessee would otherwise have enjoyed shall run from the
date of delivery of possession and continue for a period equal to the period
during which the Lessee would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Lessee.
4. RENT.
4.1 BASE RENT. Lessee shall pay Base Rent and other rent or charges,
as the same may be adjusted from time to time, to Lessor in lawful money of the
United States, without offset or deduction, on or before the day on which it is
due under the terms of the Lease. Base Rent and all other rent and charges for
any period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designate in writing to Lessee.
4.2 COMMON AREA OPERATING EXPENSES. Lessee shall pay to Lessor
during the term hereof, in addition to the Base Rent, Lessee's Share (as
specified in Paragraph 1.6(b)) of all Common Area Operating Expenses, as
hereinafter defined, during each calendar year of the term of this Lease, in
accordance with the following provisions:
(a) "COMMON AREA OPERATING EXPENSES" are defined, for purposes
of this Lease, as all costs incurred by Lessor relating to the ownership and
operation of the Industrial Center, including, but not limited to, the
following:
(i) The operation, repair and maintenance, in neat,
clean, good order and condition, of the following:
(aa) The Common Areas, including parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, walkways, park-
ways, driveways, landscaped areas, striping, bumpers, irrigation systems, Common
Area lighting facilities, fences and gates, elevators and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone
to service the Common Areas.
(iii) Trash disposal, property management and security
services and the costs of any environmental inspections.
(iv) Reserves set aside for maintenance and repair of
Common Areas.
(v) Real Property Taxes (as defined in Paragraph 10.2)
to be paid by Lessor for the Building and the Common Areas under Paragraph 10
hereof.
(vi) The cost of the premiums for the insurance
policies maintained by Lessor under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss
concerning the Building or the Common Areas.
(viii) Any other services to be provided by Lessor that
are stated elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real property
Taxes that are specifically attributable to the Building or to any other
building in the Industrial Center or to the operation, repair and maintenance
thereof, shall be allocated entirely to the Building or to such other building.
However, any Common Area Operating Expenses and Real Property Taxes that are not
specifically attributable to the Building or to any other building or to the
operation, repair and maintenance thereof, shall be equitably allocated by
Lessor to all buildings in the Industrial Center.
(c) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2 (a) shall not be deemed to impose an
obligation upon Lessor to either have said Improvements or facilities or to
provide those services unless the Industrial Center already has the same, Lessor
already provides the services, or Lessor has agreed elsewhere in this Lease to
provide the same or some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be
payable by Lessee within ten (10) days after a reasonably detailed statement
of actual expenses is presented to Lessee by lessor. At Lessor's option,
however, an amount may be estimated by Lessor from time to time of Lessee's
Share of annual Common Area Operating Expenses and the same shall be payable
monthly or quarterly, as Lessor shall designate, during each 12-month period of
the Lease term, on the same day as the Base Rent is due hereunder. Lessor shall
deliver to Lessee within sixty (60) days after the expiration of each calendar
year a reasonably detailed statement showing Lessee's Share of the actual Common
Area Operating Expenses incurred during the preceding year. If Lessee's
payments under this Paragraph 4.2(d) during said preceding year exceed Lessee's
Share as indicated on said statement, Lessee shall be credited the amount of
such over-
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payment against Lessee's Share of Common Area Operating Expenses next
becoming due. If Lessee's payments under this Paragraph 4.2(d) during said
preceding year were less than Lessee's Share as indicated on said statement,
Lessee shall pay to Lessor the amount of the deficiency within then (10) days
after delivery by Lessor to Lessee of said statement.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon Lessee's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security
for Lessee's faithful performance of Lessee's obligations under this Lease.
If Lessee fails to pay Base Rent or other rent or charges due hereunder, or
otherwise Defaults under this Lease (as defined in Paragraph 13.1), Lessor
may use, apply or retain all or any portion of said Security Deposit for the
payment of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost , expense, loss or damage (including attorney's fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all
or any portion of said Security Deposit, Lessee shall within ten (10) days
after written request therefore deposits monies with Lessor sufficient to
restore said Security Deposit to the full amount required by this Lease.
Lessor shall not be required to keep all or any part of the Security Deposit
separate from its general accounts. Lessor shall, at the expiration or
earlier termination of the term hereof and after Lessee has vacated the
Premises, return to Lessee (or, at Lessor's option, to the last assignee, if
any, of Lessee's interest herein), that portion of the Security Deposit not
used or applied by Lessor. Unless otherwise expressly agreed in writing by
Lessor, no part of the Security Deposit shall be considered to be held in
trust, to bear interest or other increment for its use, or to be prepayment
for any monies to be paid by Lessee under this Lease.
6. USE.
6.1 PERMITTED USE.
(a) Lessee shall use and occupy the Premises only for the
Permitted Use set forth in Paragraph 1.8, or any other legal use which is
reasonably comparable thereto, and for no other purpose. Lessee shall not use or
permit the use of the Premises in a manner that is unlawful, creates waste or a
nuisance, or that disturbs owners and/or occupants of, or causes damage to the
Premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay
its consent to any written request by Lessee, Lessee's assignees or subtenants,
and by prospective assignees and subtenants of Lessee, its assignees and
subtenants, for a modification of said Permitted Use, so long as the same will
not impair the structural integrity of the improvements on the Premises or in
the Building or the mechanical or electrical systems therein, does not conflict
with uses by other lessees, is not significantly more burdensome to the Premises
or the Building and the improvements thereon, and is otherwise permissible
pursuant to this Paragraph 6. If Lessor elects to withhold such consent, Lessor
shall within five (5) business days after such request give a written
notification of same, which notice shall include an explanation of Lessor's
reasonable objections to the change in use.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials expected to be on the
Premises, is either: (i) potentially injurious to the public health, safety or
welfare, the environment, or the Premises; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of Lessor to
any governmental agency or third party under any applicable statute or common
law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or by-products
thereof. Lessee shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Lessor and compliance in a timely
matter (at Lessee's sole cost and expense) with all Applicable Requirements (as
defined in Paragraph 6.3). "REPORTABLE USE" shall mean (i) the installation or
use of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice, registration or
business plan is required to be filed with, any governmental authority, and
(iii) the presence in, on or about the Premises of a Hazardous Substance with
respect to which any Applicable Laws require that a notice be given to persons
entering or occupying the Premises or neighboring properties. Notwithstanding
the foregoing, Lessee may, without Lessor's prior consent, but upon notice to
Lessor and in compliance with all Applicable Requirements, use any ordinary and
customary materials reasonably required to be used by Lessee in the normal
course of the Permitted Use, so long as such use is not a Reportable Use and
does not expose the Premises or neighboring properties to any meaningful risk of
contamination or damage or expose Lessor to any liability therefor. In addition,
Lessor may (but without any obligation to do so) condition its consent to any
Reportable Use of any Hazardous Substance by Lessee upon Lessee's giving Lessor
such additional assurances as Lessor, in its reasonable discretion, deems
necessary to protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability therefor, including but
not limited to the installation (and, at Lessor's option, removal on or before
Lease expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the deposit
of an additional Security Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises or the Building, other than as previously consented
to by Lessor, Lessee shall immediately give Lessor written notice thereof,
together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning the
presence, spill, release, discharge of, or exposure to, such Hazardous Substance
including but not limited to all such documents as may be involved in any
Reportable Use involving the Premises. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under or about the
Premises (including, without limitation, through the plumbing or sanitary sewer
system).
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend
and hold Lessor, its agents, employees, lenders and ground lessor, if any, and
the Premises harmless from and against any and all damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of or involving any Hazardous
Substance brought onto the Premises by or for Lessee or by anyone under Lessee's
control. Lessee's obligations under this Paragraph 6.2(c) shall include, but
not be limited to, the effects of any contamination or injury to person,
property or the environment created or suffered by Lessee, and the cost of
investigation (including consultants' and attorneys' fees and testing), removal,
remediation, restoration and/or abatement thereof, or of any contamination
therein involved, and shall survive the expiration or earlier termination of
this Lease. No termination, cancellation or release agreement entered into by
Lessor and Lessee shall release Lessee from its obligations under this Lease
with respect to Hazardous Substances, unless specifically so
agreed by Lessor in writing at the time of such agreement.
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. Lessee shall, at Lessee's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "APPLICABLE REQUIREMENTS," which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, convenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises
(including but not limited to matters pertaining to (i) industrial hygiene,
(ii) environmental conditions on, in, under or about the Premises, including
soil and groundwater conditions, and (iii) the use, generation, manufacture,
production, installation, maintenance, removal, transportation, storage,
spill, or release of any Hazardous Substance), now in effect or which may
hereafter come into effect. Lessee shall, within five (5) days after receipt
of Lessor's written request, provide Lessor with copies of all documents and
information, including but not limited to permits, registrations, manifests,
applications, reports and certificates, evidencing Lessee's compliance with
any Applicable Requirements specified by Lessor, and shall immediately upon
receipt, notify Lessor in writing (with copies of any documents involved) of
any threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee or the Premises to comply
with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE WITH LAW. Lessor, Lessor's agents,
employees, contractors and designated representatives, and the holders of any
mortgages, deeds of trust or ground leases on the Premises ("LENDERS") shall
have the right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the condition
of the Premises and for verifying compliance by Lessee with this Lease and all
Applicable Requirements (as defined in Paragraph 6.3), and Lessor shall be
entitled to employ experts and/or consultants in connection therewith to advise
Lessor with respect to Lessee's activities, including but not limited to
Lessee's installation, operation, use, monitoring, maintenance, or removal of
any Hazardous Substance on or from the Premises. The costs and expenses of any
such inspections shall be paid by the party requesting same, unless a Default or
Breach of this Lease by Lessee or a violation of Applicable Requirements or a
contamination, caused or materially contributed to by Lessee, is found to exist
or to be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In such case, Lessee shall upon request reimburse Lessor or
Lessor's Lender, as the case may be, for the costs and expenses of such
inspections.
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at
Lessee's sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition and repair (whether or not such portion of
the Premises requiring repair, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's use, any prior use, the elements or the
age of such portion of the Premises), including, without limiting the generality
of the foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities, boilers, fired or unfired pressure vessels, fire hose connections if
within the Premises, fixtures, interior walls, interior surfaces of exterior
walls, ceilings, floors, windows, doors, plate glass, and skylights, but
excluding any items which are the responsibility of Lessor pursuant to
Paragraph 7.2 below. Lessee, in keeping the Premises in good order, condition
and repair, shall exercise and perform good maintenance practices. Lessee's
obligations shall include restorations, replacements or renewals when necessary
to keep the Premises and all improvements thereon or a part thereof in good
order, condition and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain a contract, with copies to Lessor, in customary form and substance for
and with a contractor specializing and experienced in the inspection,
maintenance and service of the heating, air conditioning and ventilation system
for the Premises. However, Lessor reserves the right, upon notice to Lessee, to
procure and maintain the contract for the heating, air conditioning and
ventilating systems, and if Lessor so elects, Lessee shall reimburse Lessor,
upon demand, for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after the (10) days' prior
written notice to Lessee (except in the case of an emergency, in which case no
notice shall be required), perform such obligations on Lessee's behalf, and put
the Premises in good order, condition and repair; in accordance with Paragraph
13.2 below.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's
Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject
to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition
and repair the foundations, exterior walls, structural condition of interior
bearing walls, exterior roof, fire sprinkler and/or standpipe and hose (if
located in the Common Areas) or other automatic fire extinguishing system
including fire alarm and/or smoke
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detection systems and equipment, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems serving the
Common Areas and all parts thereof, as well as providing the services for which
there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor
shall not be obligated to paint the exterior or interior surfaces of exterior
walls nor shall Lessor be obligated to maintain, repair or replace windows,
doors or plate glass of the Premises. Lessee expressly waives the benefit of
any statute now or hereafter in effect which would otherwise afford Lessee the
right to make repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the Building, Industrial Center or Common Areas in good
order, condition and repair.
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "Utility
Installations" is used in this Lease to refer to all air lines, power panels,
electrical distribution, security, fire protection systems, communications
systems, lighting fixtures, heating, ventilating and air conditioning equipment,
plumbing, and fencing in, on or about the Premises. The term "TRADE FIXTURES"
shall mean Lessee's machinery and equipment which can be removed without doing
material damage to the Premises. The term "ALTERATIONS" shall mean any
modification of the improvements on the Premises which are provided by Lessor
under the terms of this Lease, other than Utility Installations or Trade
Fixtures. "LESSEE-OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined
as Alterations and/or Utility Installations made by Lessee that are not yet
owned by Lessor pursuant to Paragraph 7.4 (a). Lessee shall not make nor cause
to be made any Alterations or Utility Installations in, on, under or about the
Premises without Lessor's prior written consent. Lessee may, however, make
non-structural Utility Installations to the interior of the Premises (excluding
the roof) without Lessor's consent but upon notice to Lessor, so long as they
are not visible from the outside of the Premises, do not involve puncturing,
relocating or removing the roof or any existing walls, or changing or
interfering with the fire sprinkler or fire detection systems and the cumula-
tive cost thereof during the term of this Lease as extended does not exceed
$5,000.00.
(b) CONSENT. Any Alterations or Utility Installations that
Lessee shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with detailed plans. All consents given by
Lessor, whether by virtue of Paragraph 7.3 (a) or by subsequent specific
consent, shall be deemed conditioned upon: (i) Lessee's acquiring all
applicable permits required by governmental authorities; (ii) the furnishing of
copies of such permits together with a copy of the plans and specifications for
the Alteration or Utility Installation to Lessor prior to commencement of the
work thereon; and (iii) the compliance by Lessee with all conditions of said
permits in a prompt and expeditious manner. Any Alterations or Utility
Installations by Lessee during the term of this Lease shall be done in a good
and workmanlike manner, with good and sufficient materials, and be in compliance
with all Applicable Requirements. Lessee shall promptly upon completion thereof
furnish Lessor with as-built plans and specifications therefor. Lessor may, (but
without obligation to do so) condition its consent to any requested Alteration
or Utility Installation that costs $5,000 or more upon Lessee's providing Lessor
with a lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) LIEN PROTECTION. Lessee shall pay when due all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in, on, or about the Premises, and Lessor shall have
the right to post notices of non-responsibility in or on the Premises as
provided by law. If Lessee shall, in good faith, contest the validity of any
such lien, claim or demand, then Lessee shall, at its sole expense, defend and
protect itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises. If Lessor shall
require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in
an amount equal to one and one-half times the amount of such contested lien
claim or demand, indemnifying Lessor against liability for the same, as required
by law for the holding of the Premises free from the effect of such lien or
claim. In addition, Lessor may require Lessee to pay Lessor's attorneys' fees
and costs in participating in such action if Lessor shall decide it is to its
best interest to do so.
7.4 OWNERSHIP, REMOVAL, SURRENDER, AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their
removal and to cause Lessee to become the owner thereof as hereinafter provided
in this Paragraph 7.4, all Alterations and Utility Installations made to the
Premises by Lessee shall be the property of and owned by Lessee, but considered
a part of the Premises. Lessor may, at any time and at its option, elect in
writing to Lessee to be owner of all or any specified part of the Lessee-Owned
Alterations and Utility Installations. Unless otherwise instructed per
Subparagraph 7.4(b) hereof, all Lessee-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may
require that any or all Lessee-Owned Alterations or Utility Installations be
removed by the expiration or earlier termination of this Lease, notwithstanding
that their installation may have been consented to by Lessor. Lessor may
require the removal at any time of all or any part of any Alterations or Utility
Installations made without the required consent of Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises
by the end of the last day of the Lease term or any earlier termination date,
clean and free of debris and in good operating order, condition and state of
repair, ordinary wear and tear excepted. Ordinary wear and tear shall not
include any damage or deterioration that would have been prevented by good
maintenance practice or by Lessee performing all of its obligations under this
Lease. Except as otherwise agreed or specified herein, the Premises, as
surrendered, shall include the Alterations and Utility Installations. The
obligation of Lessee shall include the repair of any damage occasioned by the
installation, maintenance or removal of Lessee's Trade Fixtures, furnishings,
equipment, and Lessee-Owned Alterations and Utility Installations, as well as
the removal of any storage tank installed by or for Lessee, and the removal,
replacement, or remediation of any soil, material or ground water contaminated
by Lessee, all as may then be required by Applicable Requirements and/or good
practice. Lessee's Trade Fixtures shall remain the property of Lessee and shall
be removed by Lessee subject to its obligation to repair and restore the
Premises per this Lease.
8. INSURANCE; INDEMNITY.
8.1 PAYMENTS OF PREMIUMS. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph 8 shall be a Common Area
Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy periods
commencing prior to, or extending beyond, the term of this Lease shall be pro-
rated to coincide with the corresponding Commencement Date or Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy of Insurance
protecting Lessee, Lessor and any Lender(s) whose names have been provided to
Lessee in writing (as additional insured) against claims for bodily injury, per-
sonal injury and property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $1,000,000 per occurrence with
an "Additional Insured-Managers or Lessors of Premises" endorsement and contain
the "Amendment of the Pollution Exclusion" endorsement for damage caused by
heat, smoke or fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed under this Lease as an "INSURED CONTRACT"
for the performance of Lessee's indemnity obligations under this Lease. The
limits of said insurance required by this Lease or as carried by Lessee shall
not, however, limit the liability of Lessee nor relieve Lessee of any
obligation hereunder. All insurance to be carried by Lessee shall be primary to
and not contributory with any similar insurance carried by Lessor, whose
insurance shall be considered excess insurance only.
(b) CARRIED BY LESSOR. Lessor shall also maintain liability
Insurance described in Paragraph 8.2 (a) above, in addition to and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be
named as an additional insured therein.
8.3 PROPERTY INSURANCE-BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor shall obtain and keep in
force during the term of this Lease a policy or policies in the name of Lessor,
with loss payable to Lessor and to any Lender(s), insuring against loss or
damage to the Premises. Such insurance shall be for full replacement cost, as
the same shall exist from time to time, or the amount required by any Lender(s),
but in no event more than the commercially reasonable and available insurable
value thereof if, by reason of the unique nature or age of the improvements
involved, such latter amount is less than full replacement cost. Lessee-Owned
Alterations and Utility Installations, Trade Fixtures and Lessee's personal
property shall be insured by Lessee pursuant to Paragraph 8.4. If the coverage
is available and commercially appropriate, Lessor's policy or policies shall
insure against all risks of direct physical loss or damage (except the perils of
flood and/or earthquake unless required by a Lender), including coverage for any
additional costs resulting from debris removal and reasonable amounts of
coverage for the enforcement of any ordinance or law regulating the
reconstruction or replacement of any undamaged sections of the Building required
to be demolished or removed by reason of the enforcement of any building,
zoning, safety or land use laws as the result of a covered loss, but not
including plate glass insurance. Said policy or policies shall also contain an
agreed valuation provision in lieu of any co-insurance clause, waiver of
subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest where the Premises are located.
(b) RENTAL VALUE. Lessor shall also obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor, with
loss payable to Lessor and any Lender(s), insuring the loss of the full rental
and other charges payable by all lessees of the Building to Lessor for one year
(including all Real Property Taxes, insurance costs, all Common Area Operating
Expenses and any scheduled rental increases). Said insurance may provide that
in the event the Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of the completion
of repairs or replacement of the Premises, to provide for one full year's loss
of rental revenues from the date of any such loss. Said insurance shall contain
an agreed valuation provision in lieu of any co-insurance clause, and the amount
of coverage shall be adjusted annually to reflect the projected rental income,
Real Property Taxes, insurance premium costs and other expenses, if any,
otherwise payable, for the next 12-month period. Common Area Operating Expenses
shall include any deductible amount in the event of such loss.
(c) ADJACENT PREMISES. Lessee shall pay for any increase in the
premiums for the property insurance of the Building and for the Common Areas
or other buildings in the Industrial Center if said increase is caused by
Lessee's acts, omissions, use or occupancy of the Premises.
(d) LESSEE'S IMPROVEMENTS. Since Lessor is the Insuring Party,
Lessor shall not be required to insure Lessee-Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall either by separate policy or, at
Lessor's option, by endorsement to a policy already carried, maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures and Lessee-Owned
Alterations and Utility Installations in, on, or about the Premises similar in
coverage to that carried by Lessor as the Insuring Party under Paragraph 8.3(a).
Such insurance shall be full replacement cost coverage with a deductible not to
exceed $1,000 per occurrence. The proceeds from any such insurance shall be
used by Lessee for the replacement of personal property and the restoration of
Trade Fixtures and Lessee-Owned Alterations and Utility Installations. Upon
request from Lessor, Lessee shall provide Lessor with written evidence that such
insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises are
located, and maintaining during the policy term a "General Policyholders Rating"
of at least B+, V, or such other rating as may be required by a Lender, as set
forth in the most current of "Best's Insurance Guide". Lessee shall not do or
permit to be done anything which shall invalidate the insurance policies
referred to in
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this Paragraph 8. Lessee shall cause to be delivered to lessor, within seven
(7) days after the earlier of the Early Possession Date or the Commencement
Date, certified copies of, or certificates evidencing the existence and amounts
of, the insurance required under Paragraph 8.2(a) and 8.4. No such policy shall
be cancelable or subject to modification except after thirty (30) days' prior
written notice to Lessor. Lessee shall at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages (whether in contract or in tort) against
the other, for loss or damage to their property arising out of or incident to
the perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of
express warranties, Lessee shall indemnify, protect, defend and hold harmless
the Premises, Lessor and its agents, Lessor's master or ground lessor, partners,
and Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in connection
with, the occupancy of the Premises by Lessee, the conduct of Lessee's business,
any act, omission or neglect of Lessee, its agents, contractors, employees or
invitees, and out of any Default or Breach by Lessee in the performance in a
timely manner of any obligation on Lessee's part to be performed under this
Lease. The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and whether
or not (in the case of claims made against Lessor) litigated and/or reduced to
judgment. In case any action or proceeding be brought against Lessor by reason
of any of the foregoing matters, Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid
any such claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable
for injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees, customers, or any
other person in or about the Premises, whether such damage or injury is caused
by or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from any
other cause, other than the willful misconduct of Lessor, whether said injury or
damage results from conditions arising upon the Premises or upon other portions
of the Building of which the Premises are a part, from other sources or places,
and regardless of whether the cause of such damage or injury or the means of
repairing the same is accessible or not. Lessor shall not be liable for any
damages arising from any act or neglect of any other lessee of Lessor nor from
the failure by Lessor to enforce the provisions of any other lease in the
Industrial Center. Notwithstanding Lessor's negligence or breach of this Lease,
Lessor shall under no circumstances be liable for injury to Lessee's business or
for any loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction
to the Premises, other than Lessee-Owned Alterations and Utility Installations,
the repair cost of which damage or destruction is less than fifty percent (50%)
of the then Replacement Cost (as defined in Paragraph 9.1 (d)) of the Premises
(excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is fifty percent
(50%) or more of the then Replacement Cost of the Premises (excluding Lessee-
Owned Alterations and Utility Installations and Trade Fixtures) immediately
prior to such damage or destruction. In addition, damage or destruction to the
Building, other than Lessee-Owned Alterations and Utility Installations and
Trade Fixtures of any lessees of the Building, the costs of which damage or
destruction is fifty percent (50%) or more of the then Replacement Cost
(excluding Lessee-Owned Alterations and Utility Installations and Trade Fixtures
of any lessees of the Building) of the Building shall, at the option of Lessor,
be deemed to be Premises Total Destruction.
(c) "INSURED LOSS" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations and
Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a) irrespective of any deductible amounts
or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvement owned by Lessor at the time of the occurrence to
their condition existing immediately prior thereto, including demolition,
debris removal and upgrading required by the operation of applicable building
codes, ordinances or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCES CONDITION" shall mean the occurrence
or discovery of a condition involving the presence of, or a contamination by,
a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PREMISES PARTIAL DAMAGE - INSURED LOSS. If Premises Partial
Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense,
repair such damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations
and Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect. In the event, however, that there is a
shortage of insurance proceeds and such shortage is due to the fact that, by
reason of the unique nature of the improvements in the Premises, full
replacement cost insurance coverage was not commercially reasonable and
available, Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Premises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within then (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, Lessor shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within said period, Lessor may
nevertheless elect by written notice to Lessee within ten (10) days thereafter
to make such restoration and repair as is commercially reasonable with Lessor
paying any shortage in proceeds, in which case this Lease shall remain in full
force and effect. If Lessor does not receive such funds or assurance within such
ten (10) day period, and if Lessor does not so elect to restore and repair, then
this Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Unless otherwise agreed, Lessee shall in no event have
any right to reimbursement from Lessor for any funds contributed by Lessee to
repair any damage or destruction. Premises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage, but the net proceeds
of any such insurance shall be made available for the repairs if made by either
Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If Premises Partial Damage that
is not an insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage totally at Lessee's expense and without
reimbursement from Lessor. Lessee shall provide Lessor with the required funds
or satisfactory assurance thereof within thirty (30) days following such
commitment from Lessee. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice of
termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof,
if Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall but, subject to paragraph 8.6 above, have the right to
recover Lessor's damages from Lessee except as released and waived in Paragraph
9.7
9.5 DAMAGE NEAR THE END OF TERM. If at any time during the last six
(6) months of the term of this Lease there is damage for which the cost to
repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may
at Lessor's option terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease or (ii)
the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during such period, then this
Lease shall terminate as of the date set forth in the first sentence of this
Paragraph 9.5.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event of (i) Premises Partial Damage of (ii) Hazardous
Substance Condition for which Lessee is not legally responsible, the Base Rent,
Common Area Operating Expenses and other charges, if any, payable by Lessee
hereunder for the period during which such damage or condition, its repair,
remediation or restoration continues, shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired, but not in excess of
proceeds from insurance required to be carried under Paragraph 8.3(b). Except
for abatement of Base Rent, Common Area Operating Expenses and other charges, if
any, as aforesaid, all other obligations of Lessee hereunder shall be performed
by Lessee, and Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Lessee may, at any
time prior to the commencement of such repair or restoration, give written
notice to Lessor and to any Lenders of which Lessee has actual notice of
Lessee's election to terminate this Lease on a date not less than sixty (60)
days following the giving of such notice. If Lessee gives such notice to Lessor
and such Lenders and such repair or restoration is not commenced within thirty
(30) days after receipt of such notice, this Lease shall terminate as of the
date specified in said notice. If Lessor or a Lender commences the repair or
restoration of the Premises within thirty (30) days after the receipt of such
notice, this Lease shall continue in full force and effect. "Commence" as used
in this Paragraph 9.6 shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on the
Premises, whichever occurs first.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance
Condition occurs, unless Lessee is legally responsible therefor (in which case
Lessee shall make the investigation and remediation thereof required by
Applicable Requirements and this Lease shall continue in full force and effect,
but subject
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to Lessor's right under Paragraph 6.2(c) and Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) if the
estimated cost to investigate and remediate such condition exceeds twelve (12)
times the then monthly Base Rent or $100,000 whichever is greater, give written
notice to Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the excess costs of (a) investigation and remediation of such
Hazardous Substance Condition to the extent required by Applicable Requirements,
over (b) an amount equal to twelve (12) times the then monthly Base Rent or
$100,000, whichever is greater. Lessee shall provide Lessor with the funds
required of Lessee or satisfactory assurance thereof within thirty (30) days
following said commitment by Lessee. In such event this Lease shall continue in
full force and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessors notice of termination.
9.8 TERMINATION-ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been, or is not then required to be, used by Lessor under the terms of this
Lease.
9.9 WAIVER OF STATUTES. Lessor and Lessee agree that the terms of
this Lease shall govern the effect of any damage to or destruction of the
Premises and the Building with respect to the termination of this Lease and
hereby waive the provisions of any present of future statute to the extent it is
inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and except as
otherwise provide in Paragraph 10.3, any such amounts shall be included in the
calculation of Common Area Operating Expenses in accordance with the provisions
of Paragraph 4.2
10.2 REAL PROPERTY TAX DEFINITION. As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Industrial Center by any
authority having the direct or indirect power to tax, including any city,
state or federal government, or any school, agricultural, sanitary, fire,
street, drainage or other improvement district thereof, levied against any
legal or equitable interest of Lessor in the Industrial Center or any portion
thereof, Lessor's right to rent or other income therefrom, and/or Lessor's
business of leasing the Premises. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring, or changes in Applicable Law taking
effect, during the term of this Lease, including but not limited to a change
in the ownership of the Industrial Center or in the improvements thereon, the
execution of this Lease, or any modification, amendment or transfer thereof,
and whether or not contemplated by the Parties. In calculating Real Property
Taxes for any calendar year, the Real Property Taxes for any real estate tax
year shall be included in the calculation of Real Property Taxes for such
calendar year based upon the number of days which such calendar year and tax
year have in common.
10.3 ADDITIONAL IMPROVEMENTS. Common Areas Operating Expenses shall
not include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees or by Lessor for the exclusive enjoyment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable proportion
of the Real Property Taxes for all of the land and improvements included within
the tax parcel assessed, such proportion to be determined by Lessor from the
respective valuations assigned in the assessor's work sheet or such other
information as may be reasonably available. Lessor's reasonable determination
thereof, in good faith, shall be conclusive.
10.5 LESSEE'S PROPERTY TAXES. Lessee shall pay prior to delinquency
all taxes assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center.
When possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. UTILITIES. Lessee shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone
security, gas and cleaning of the Premises, together with any taxes thereon. If
any such utilities of services are not separately metered to the Premises or
separately billed to the Premises, Lessee shall pay to Lessor a reasonable
proportion to be determined by Lessor of all such charges jointly metered or
billed with other premises in the Building, in the manner and within the time
periods set forth in Paragraph 4.2(d).
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or
sublet all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent given under and subject to the terms of
Paragraph 36.
(b) This section deleted from this lease.
(c) The involvement of Lessee or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee, below one
million ($1,000,000) dollars. "Net Worth of Lessee" for purposes of this Lease
shall be the net worth of Lessee (excluding any Guarantors) established under
generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this
Lease without Lessor's specific prior written consent shall, at Lessor's
option, be a Default curable after notice per Paragraph 13.1, or a non
curable Breach without the necessity of any notice and grace period. If
Lessor elects to treat such unconsented to assignment or subletting as a
non-curable Breach, Lessor shall have the right to either:(i) terminate this
Lease, or (ii) upon thirty (30) days' written notice ("Lessor's Notice"),
increase the monthly Base Rent for the Premises to the greater of the then
fair market rental value of the Premises, as reasonably determined by Lessor,
or one hundred ten percent (110%) of the Base Rent then in effect. Pending
determination of the new fair market rental value, if disputed by Lessee,
Lessee shall pay the amount set forth in Lessor's Notice, with any
overpayment credited against the next installment(s) of Base Rent coming due,
and any underpayment for the period retroactively to the effective date of
the adjustment being due and payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment, (i) the
purchase price of any option to purchase the Premises held by Lessee shall be
subject to similar adjustment to the then fair market value as reasonably
determined by Lessor (without the Lease being considered an encumbrance or
any deduction for depreciation or obsolescence, and considering the Premises
at its highest and best use and in good condition) or one hundred ten percent
(110%) of the price previously in effect, (ii) any index-oriented rental or
price adjustment formulas contained in this Lease shall be adjusted to
require that the base index be determined with reference to the index
applicable to the time of such adjustment, and (iii) any fixed rental
adjustments scheduled during the remainder of the Lease term shall be
increased in the same ratio as the new rental bears to the Base Rent in
effect immediately prior to the adjustment specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING
(a) Regardless of Lessor's consent, any assignment or subletting
shall not (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligation from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of any rent for performance shall constitute a
waiver or estoppel of Lessor's right to exercise its remedies for the Default or
Breach by Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignments or subletting by Lessee
or to any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto without
notifying Lessee or anyone else liable under this Lease or the sublease and
without obtaining their consent, and such action shall not relieve such persons
from liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation
under this Lease, Lessor may proceed directly against Lessee, any Guarantors or
anyone else responsible for the performance of the Lessee's obligations under
this Lease, including any sublessee, without first exhausting Lessor's remedies
against any other person or entity responsible therefor to Lessor, or any
security held by Lessor.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together with a non-refundable deposit of $1,000 or ten percent (10%) of the
monthly Base Rent applicable to the portion of the Premises which is the
subject of the proposed assignment or sublease, whichever is greater, as
reasonable consideration for Lessor's considering and processing the request for
consent. Lessee agrees to provide Lessor with such other or additional
information and/or documentation as may be reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be deemed,
for the benefit of Lessor, to have assumed and agreed to conform and comply with
each and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
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(h) Lessor, as a condition to giving its consent to any
assignment or subletting, may require that the amount and adjustment schedule of
the rent payable under this Lease be adjusted to what is then the market value
and/or adjustment schedule for property similar to the Premises as then
constituted, as determined by Lessor.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease of all or
portion of the Premise heretofore or hereafter made by Lessee, and Lessor may
collect such rent and income and apply same toward Lessee's obligations under
this Lease; provided, however, that until a Breach (as defined in Paragraph
13.1) shall occur in the performance of Lessee's obligations under this Lease,
Lessee may, except as otherwise provided in this Lease, receive, collect and
enjoy the rents accruing under such sublease. Lessor shall not, by reason of the
foregoing provision or any other assignment of such sublease to Lessor, nor by
reason of the collection of the rents from a sublessee, be deemed liable to the
sublessee for any failure of Lessee to perform and comply with any of Lessee's
obligations to such sublessee under such Sublease. Lessee hereby irrevocably
authorizes and directs any such sublessee, upon receipt of a written notice from
Lessor stating that a Breach exists in the performance of Lessee's obligations
under this Lease, to pay to Lessor the rents and other charges due and to become
due under the sublease. Sublessee shall rely upon any such statement and request
from Lessor and shall pay such rents and other charges to Lessor without any
obligation or right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against such sublessee, or, until the Breach has
been cured, against Lessor, for any such rents and other charges so paid by said
sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior defaults
or breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall
further assign or sublet all or any part of the Premises without Lessor's prior
written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in said
notice as rent due and payable to cure said default. A "Default" by Lessee is
defied as a failure by Lessee to observe, comply with or perform any of the
terms, covenants, conditions or rules applicable to Lessee under this Lease. A
"Breach" by Lessee is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is specified
herein, the failure by Lessee to cure such Default prior to the expiration of
the applicable grace period, and shall entitle Lessor to pursue the remedies set
forth in Paragraphs 13.2 and/or 13.3:
(a) The abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent, Lessee's Share of Common
Area Operating Expenses, or any other monetary payment required to be made by
Lessee hereunder as and when due, the failure by Lessee to provide Lessor
with reasonable evidence of insurance or surety bond required under this Lease,
or the failure of Lessee to fulfill any obligation under this Lease which
endangers or threatens life or property, where such failure continues for a
period of three (3) days following written notice thereof by or on behalf of
Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1 (b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination of
this Lease per Paragraph 30, (vi) the guaranty of the performance of Lessee's
obligations under this Lease if required under Paragraphs 1.11 and 37, (vii) the
execution of any document requested under Paragraph 42 (easements), or (viii)
any other documentation or information which Lessor may reasonably require of
Lessee under the terms of this lease, where any such failure continues for a
period of ten (10) days following written notice by or on behalf of Lessor to
Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions
or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof
that are to be observed, complied with or performed by Lessee, other than those
described in Subparagraph 13.1 (a), (b), or (c), above where such Default
continues for a period of thirty (30) days after written notice thereof by or
on behalf of Lessor to Lessee; provided, however that if the nature of Lessee's
Default is such that more than thirty (30) days are reasonably required for its
cure, then it shall not be deemed to be a Breach of this Lease by Lessee if
Lessee commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the
making by Lessee of any general arrangement or assignment for the benefit of
creditors; (ii) Lessee's becoming a "debtor" as defined in 11 U.S. Code Section
101 or any successor statue thereto (unless, in the case of a petition filed
against Lessee, the same is dismissed within sixty (60) days); (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within thirty (30) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of
Lessee or of any Guarantor, given to Lessor by Lessee or any Guarantor, was
materially false.
(g) If the performance of Lessee's obligations under this Lease
is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance with
the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the
subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the
guaranty, or (v) a Guarantor's breach of its guaranty obligation on an
anticipatory breach basis, and Lessee's failure, within sixty (60) days
following written notice by or on behalf of Lessor to Lessee of any such event,
to provide Lessor with written alternative assurances of security, which, when
coupled with the then existing resources of Lessee, equals or exceeds the
combined financial resources of Lessee and the Guarantors that existed at the
time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency without notice), Lessor may at
its option (but without obligation to do so), perform such duty or obligation
on Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or government licenses, permits or
approvals. The costs and expenses or any such performance by Lessor shall be
due and payable by Lessee to Lessor upon invoice therefor. If any check
given to Lessor by Lessee shall not be honored by the bank upon which it is
drawn, Lessor, at its own option, may require all future payments to be made
under this Lease by Lessee to be made only by cashier's check. In the event
of a Breach of this Lease by Lessee (as defined in Paragraph 13.1), with or
without further notice or demand, and without limiting Lessor in the exercise
of any right or remedy which Lessor may have by reason of such Breach, Lessor
may:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Premises to Lessor. In
such event Lessor shall be entitled to recover from Lessee; (i) the worth at the
time of award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possessions of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorney's fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of
award of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Franciso or the Federal Reserve Bank District in
which the Premises are located at the time of award plus one percent (1%).
Efforts by Lessor to mitigate damages caused by Lessee's Default or Breach of
this Lease shall not waive Lessor's right to recover damages under this
Paragraph 13.2. If termination of this Lease is obtained through the
provisional remedy of unlawful detainer, Lessor shall have the right to recover
in such proceeding the unpaid rent and damages as are recoverable therein, or
Lessor may reserve the right to recover all or any part thereof in a separate
suit for such rent and/or damages. If a notice and grace period required under
Subparagraph 13.1(b), (c) or (d) was not previously given, a notice to pay rent
or quit, or to perform or quit, as the case may be, given to Lessee under any
statue authorizing the forfeiture of leases for unlawful detainer shall also
constitute the applicable notice for grace period purposes required by
Subparagraph 13.1(b), (c), or (d). In such case, the applicable grace period
under the unlawful detainer statue shall run concurrently after the one such
statutory notice, and the failure of Lessee to cure the Default within the
greater of the two (2) such grace periods shall constitute both an unlawful
detainer and a Breach of this Lease entitling Lessor to the remedies provided
for in this Lease and/or by said statute,
(b) Continue the Lease and Lessee's right to possession in
effect (in California under California Civil Code Section 1951.4) after Lessee's
Breach and recover the rent as it becomes due, provided Lessee has the right to
sublet or assign, subject only to reasonable limitations. Lessor and Lessee
agree that the limitations on assignment and subletting in this Lease are
reasonable. Acts of maintenance or preservations, efforts to relet the
Premises, or the appointment of a recover to protect the Lessor's interest
under this Lease, shall not constitute a termination of the Lessee's right to
possession.
(c) Pursue any other remedy now of hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
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(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the
Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Lessor
for free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions" shall be
deemed conditioned upon Lessee's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach (as defined in Paragraph 13.1) of this Lease by Lessee, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor, as additional rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance
by Lessor of rent or the cure of the Breach which initiated the operation of
this Paragraph 13.3 shall not be deemed a waiver by Lessor of the provisions of
this Paragraph 13.3 unless specifically so stated in writing by Lessor at the
time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by the Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or deed of trust covering the
Premises. Accordingly, if any installment of rent or other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Lessee,
Lessee shall pay to Lessor a late charge equal to six percent (6%) of such
overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's Default or Breach with respect to such overdue
amount, nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) consecutive installments of
Base Rent, then notwithstanding Paragraph 4.1 or any other provision of this
Lease to the contrary, Base Rent shall, at Lessor's option, become due and
payable quarterly in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt by
Lessor, and by any Lender(s) whose name and address shall have been furnished to
Lessee in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) day period
after such notice are reasonably required for its performance, then Lessor
shall not be in breach of this Lease if performance is commenced within such
thirty (30) day period and thereafter diligently pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date to condemning authority takes
title or possession, whichever first occurs. If more than ten percent (10%) of
the floor area of the Premises, or more than twenty-five percent (25%) of the
portion of the Common Areas designated for Lessee's parking, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing within
ten (10) days after Lessor shall have given Lessee written notice of such taking
(or in the absence of such notice, within ten (10) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the Base
Rent shall be reduced in the same proportion as the rentable floor area of the
Premises taken bears to the total rentable floor area of the Premises. No
reduction of Base Rent shall occur if the condemnation does not apply to any
portion of the Premises. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution of value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any compensation, separately awarded to Lessee for Lessee's
relocation expenses and/or loss of Lessee's Trade Fixtures. In the event that
this Lease is not terminated by reason of such condemnation, Lessor shall to the
extent of its net severance damages received, over and above Lessee's Share of
the legal and other expenses incurred by Lessor in the condemnation matter,
repair any damage to the Premises caused by such condemnation authority. Lessee
shall be responsible for the payment of any amount in excess of such net
severance damages required to complete such repair.
15. BROKER'S FEES.
15.1 PROCURING CAUSE. The Broker(s) named in Paragraph 1.10 is/are
the procuring cause of this Lease.
15.2 ADDITIONAL TERMS. This portion of this lease has been
eliminated.
15.3 ASSUMPTION OF OBLIGATION. This portion of this lease has been
eliminated.
15.4 REPRESENTATIONS AND WARRANTIES. Lessee and Lessor each represent
and warrant to the other that it has had no dealings with any person, firm,
broker or finder other than as named in Paragraph 1.10(a) in connection with the
negotiation of this Lease and/or the consummation of the transaction contemplat-
ed hereby, and that no broker or other person, firm or entity other than said
named Broker(s) is entitled to any commission or finder's fee in connection with
said transaction. Lessee and Lessor do each hereby agree to indemnify, protect,
defend and hold the other harmless from and against liability for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings or actions of the Indemnifying Party,
including any costs, expenses, and/or attorneys' fees reasonably incurred with
respect thereto.
16. TENANCY AND FINANCIAL STATEMENTS.
16.1 TENANCY STATEMENT. Each Party (as "Responding Party") shall
within ten (10) days after written notice from the other Party (the "Requesting
Party") execute, acknowledge and deliver to the Requesting Party a statement in
writing in a form similar to the then most current "Tenancy Statement" form
published by the American Industrial Real Estate Association, plus such
additional information, confirmation and/or statements as may be reasonably
requested by the Requesting Party.
16.2 FINANCIAL STATEMENT. If Lessor desires to finance, refinance, or
sell the Premises or the Building, or any part thereof, Lessee and all
Guarantors shall deliver to any potential lender or purchaser designated by
Lessor such financial statements of Lessee and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Lessee's financial statements for the past three (3) years. All such financial
statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises. In the
event of a transfer of Lessor's title or interest in the Premises or in this
Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit)
any unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (10) days
following the date on which it was due, shall bear interest from the date due at
the prime rate charged by the largest state chartered bank in the state in which
the Premises are located plus four percent (4%) per annum, but not exceeding the
maximum rate allowed by law, in addition to the potential late charge provided
for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and charger of the Premises. Brokers have no
responsibility with respect thereto or with respect to any default or breach
hereof by either Party. Each Broker shall be an intended third party
beneficiary of the provisions of this Paragraph 22.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or registered
mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission during normal business hours, and shall be deemed sufficiently
given if served in a manner specified in this Paragraph 23. The addresses noted
adjacent to a Party's signature on this Lease shall be that Party's address for
delivery or mailing or notice purposes. Either Party may by written notice to
the other specify a different address for notice purposes, except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for the purpose of mailing and delivering notices to Lessee. A
copy of all notices required or permitted to be given to Lessor hereunder shall
be concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to Lessee.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If
sent by regular mail, the notice shall be deemed given forty-eight (48) hours
after the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day
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delivery shall be deemed given twenty-four (24) hours after delivery of the same
to the United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via delivery or mail.
If notice is received on a Saturday or Sunday or a legal holiday, it shall be
deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any such act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent
or similar act by Lessee, or be construed as the basis of an estoppel to enforce
the provision or provisions of this Lease requiring such consent. Regardless of
Lessor's knowledge of a Default or Breach at the time of accepting rent, the
acceptance of rent by Lessor shall not be a waiver of any Default or Breach by
Lessee of any provision hereof. Any payment given Lessor by Lessee may be
accepted by Lessor on account of moneys or damages due Lessor, notwithstanding
any qualifying statements or conditions made by Lessee in connection
therewith, which such statements and/or conditions shall be of no force or
effect whatsoever unless specifically agreed to in writing by Lessor at or
before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and after the time of the expiration or
earlier termination of this Lease shall be increased to one hundred fifty
percent (150%) of the Base Rent applicable during the month immediately
preceding such expiration or earlier termination. Nothing contained herein shall
be construed as a consent by Lessor to any holding over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies as
law or in equity .
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be governed
by the laws or the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
country in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security devise (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.5. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall
give written notice thereof to Lessee, this Lease and such Options shall be
deemed prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not; (i)
be liable to any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership, (ii) be subject to any offsets or
defenses which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term thereof, will not be disturbed so long as Lessee is not in Breach
hereof and attorns to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that upon written request from Lessor or a Lender in connection with a
sale, financing, or refinancing of Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document any
such subordination or non-subordination, attornment and/or non-disturbance
agreement as is provided for herein.
31. ATTORNEY'S FEES. If any Party and Broker brings an action or proceeding
to enforce the terms hereof or declare rights hereunder, the Prevailing Party
(as hereafter defined) in any such proceeding, action, or appeal thereon, shall
be entitled to reasonable attorney's fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party or Broker who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise, settlement, judgment,
or the abandonment by the other Party or Broker of its claim or defense. The
attorney's fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred. Lessor shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting Breach. Broker(s) shall be intended
third party beneficiaries of this Paragraph 31.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agent
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times for the purpose of showing the same
to prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may reasonably deem necessary. Lessor may at any time place on or about the
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or
about the Premises any ordinary "For Lease" signs. All such activities of Lessor
shall be without abatement of rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
or reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the exterior of the Premises
or the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business so long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. The installation of any sign
on the Premises by or for Lessee shall be subject to the provisions of Paragraph
7 (Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Lessor reserves all rights to the use
of the roof of the Building, and the right to install advertising signs on the
Building, including the roof, which do not unreasonably interfere with the
conduct of Lessee's business; Lessor shall be entitled to all revenues from such
advertising signs.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
of Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any
such event to make a written election to the contrary by written notice to the
holder of any such lesser interest, shall constitute Lessor's election to have
such constitute the termination of such interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to an
act by or for the other Party, such consent shall not be unreasonably withheld
or delayed. Lessor's actual reasonable costs and expenses (including but not
limited to architects', attorneys', engineers' and other consultants' fees)
incurred in the consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment, a subletting or the presence or use of a
Hazardous Substance, shall be paid by Lessee to Lessor upon receipt of an
invoice and supporting documentation therefor. In addition to the deposit
described in Paragraph 12.2(e), Lessor may, as a condition to considering any
such request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering and
responding to Lessee's request. Any unused portion of said deposit shall be
refunded to Lessee without interest. Lessor's consent to any act, assignment of
this Lease or subletting of the Premises by Lessee shall not constitute an
acknowledgment that no Default or Breach by Lessee of this Lease exists, nor
shall such consent be deemed a waiver of any then existing Default or Breach,
except as may be otherwise specifically in writing by Lessor at the time as such
consent.
(b) All conditions to Lessor's consent authorized by this Lease
are acknowledged by Lessee as being reasonable. The failure to specify herein
any particular condition to Lessor's consent shall not preclude the impositions
by Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. GUARANTOR.
37.1 FORM OF GUARANTY. If there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have the same
obligations as Lessee under this lease, including but not limited to the
obligation to provide the Tenancy Statement and information required in
Paragraph 16.
37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. It shall constitute a
Default of the Lessee under this Lease if any such Guarantor fails or refuses,
upon reasonable request by Lessor to give: (a) evidence of the due execution
of the guaranty called for by this Lease, including the authority of the
Guarantor (and of the party signing on Guarantor's behalf) to obligate such
Guarantor on said guaranty, and resolution of its board of directors authorizing
the making of such guaranty, together with a certificate of incumbency showing
the signatures of the persons authorized to sign on its behalf, (b) current
financial statements of Guarantor as may from time to time be requested by
Lessor, (c) a Tenancy Statement, or (d) written confirmation that the guaranty
is still in effect.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises
and the performance of all of the covenants, conditions and provisions on
Lessee's part to be observed and performed under this Lease, Lessee shall have
quiet possession of the Premises for the entire term hereof subject to all of
the provisions of this Lease.
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<PAGE>
39. OPTIONS.
39.1 DEFINITION. As used in this Lease, the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor; (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to
Lessee in this Lease is personal to the original Lessee named in Paragraph 1.1
hereof, and cannot be voluntarily or involuntarily assigned or exercised by any
person or entity other than said original Lessee while the original Lessee is in
full and actual possession of the Premises and without the intention of
thereafter assigning or subletting. The Options, if any, herein granted to
Lessee are not assignable, either as a part of any assignment of this Lease or
separately or apart therefrom, and no Option may be separated from this Lease in
any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later option cannot be exercised unless
the prior Options to extend or renew this Lease have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default under Paragraph
13.1 and continuing until the noticed Default is cured, or (ii) during the
period of time any monetary obligation due Lessor from Lessee is unpaid (without
regard to whether notice thereof is given Lessee), or (iii) during the time
Lessee is in Breach of this Lease, or (iv) in the event that Lessor has given to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during the twelve (12) month period immediately preceding the exercise of the
Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during any twelve (12) month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. RULES AND REGULATIONS. Lessee agrees that it will abide by, and keep
and observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way,
utility raceways, and dedications that Lessor deems necessary, and to cause
the recordation of parcel maps and restrictions, so long as such easements,
rights or way, utility raceways, dedications, maps and restrictions do not
reasonably interfere with the use of the Premises by Lessee. Lessee agrees
to sign any documents reasonably requested by Lessor to effectuate any such
easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the provi-
sions hereof, the Party against whom the obligation to pay the money is asserted
shall have the right to make payment "under protest" and such payment shall not
be regarded as a voluntary payment and there shall survive the right on the part
of said Party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part of said Party to pay
such sum or any part thereof, said Party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general
or limited partnership, each individual executing this Lease on behalf of
such entity represents and warrants that he or she is duly authorized to
execute and deliver this Lease on its behalf. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty (30) days after request by
Lessor, deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provision shall be controlled by the typewritten
or handwritten provisions.
46. OFFER. Presentation of this Lease by either Lessor or Lessee or
Lessor's agent or Lessee's agent and submission of same to Lessee or Lessor
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an Institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provide herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all person or entities named herein as such Lessor or Lessee.
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<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR
ATTORNEY'S REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO
EVALUATE THE CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS,
UNDERGROUND STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY
THE REAL ESTATE BROKERS OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE
OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF
THE SUBJECT PROPERTY IS IN A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE
STATE WHERE THE PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
<TABLE>
<CAPTION>
<S> <C>
Executed at: Executed at:
-------------------------------------- --------------------------------
on: on:
----------------------------------------------- -----------------------------------------
BY LESSOR: BY LESSEE:
Makena Commercentre II, LLC, a California limited Pacific Biometrics Inc., a
- --------------------------------------------------- ---------------------------------------------
liability company Delaware corporation
- --------------------------------------------------- ---------------------------------------------
By: /s/ Norm Nowell By: /s/ Paul G. Kanan
----------------------------------------------- -----------------------------------------
Name Printed: Norman N. Nowell Name Printed: Paul Kanan
------------------------------------- -------------------------------
Title: Managing Member Title: President
-------------------------------------------- --------------------------------------
By: By: / s/ Peter Ludlum
----------------------------------------------- -----------------------------------------
Name Printed: Name Printed: Peter Ludlum
------------------------------------- -------------------------------
Title: Title: Secretary
-------------------------------------------- --------------------------------------
Address: Address:
------------------------------------------ ------------------------------------
- --------------------------------------------------- ---------------------------------------------
Telephone:( ) Telephone:( )
----------------------------------- -----------------------------
Facsimile: ( ) Facsimile: ( )
---------------------------------- ----------------------------
BROKER: BROKER:
Executed at: Executed at:
-------------------------------------- --------------------------------
on: on:
----------------------------------------------- -----------------------------------------
By: By:
----------------------------------------------- -----------------------------------------
Name Printed: Name Printed:
------------------------------------- -------------------------------
Title: Title:
-------------------------------------------- --------------------------------------
Address: Address:
------------------------------------------ ------------------------------------
- --------------------------------------------------- ---------------------------------------------
Telephone:( ) Telephone:( )
----------------------------------- -----------------------------
Facsimile: ( ) Facsimile: ( )
---------------------------------- ----------------------------
</TABLE>
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 700 South Flower
Street, Suite 600, Los Angeles, CA 90017. (213) 687-8777.
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<PAGE>
ADDENDUM TO STANDARD INDUSTRIAL/COMMERCIAL
MULTI-TENANT LEASE-MODIFIED NET (AIREA 1993)
This Addendum is made as of January 5, 1998 by and between Makena
Commercentre II, LLC, a California limited liability company ("Lessor") and
Pacific Biometrics Inc., a Delaware corporation ("Lessee"), with respect to
the Standard Industrial/Commercial Multi-Tenant Lease-Modified Net (American
Industrial Real Estate Association (1993)) between Lessor and Lessee dated
concurrently herewith ("AIREA Lease"). The AIREA Lease as amended hereby is
hereafter referred to as the "Lease". To the extent that the provisions of
this Addendum are inconsistent with the terms and conditions of the AIREA
Lease, such inconsistencies shall take priority as follows: (i) printed or
written inserts to this Addendum, (ii) typed, printed or written inserts to
the AIREA Lease, (iii) this Addendum, and (iv) the printed form AIREA Lease.
Addendum paragraph references are numbered to correspond to the paragraph
references in the AIREA Lease. All capitalized terms not otherwise defined
herein shall have the meaning set forth in the AIREA Lease.
1.2(c) The "Industrial Center" currently consists of two buildings which
Lessor and Lessee agree for purposes of this Lease contain a total of 53,828
Square Feet. The term "Industrial Center" means the portion owned by Lessor
from time to time. Lessor reserves the right to sell or convey portions of the
Industrial Center to third parties from time to time; whereupon Lessee's Share
shall be adjusted proportionally. "Square Feet or Footage" means the number of
ground floor and mezzanine rentable square feet of the premises, measured to the
exterior of exterior walls or if applicable to the dripline of any overhang, and
to the middle of common walls, as determined by Lessor and applied on a
consistent basis throughout the Project in accordance with the Building Owners
and Managers Association International standards (ANSI/BOMA Z65.1-1996).
1.3 TERM. Five (5) "Lease Years" after the Commencement Date. The
first Lease Year is the period from the Commencement Date to the end of the
calendar month in which the first anniversary of the Commencement Date occurs;
each Lease Year thereafter is each succeeding 12 calendar month period. The
Commencement Date shall be the earlier of actual occupancy or upon substantial
completion of tenant improvements. Upon the Commencement Date, the parties
shall execute the Commencement Date Memorandum in the form attached hereto as
Exhibit B.
2.2 Lease PARA 2.2 is deleted. The "Substantial Completion Date" is the
date that final inspection of the improvements to be constructed pursuant to
PARA 51 have been approved by the appropriate governmental building official.
Within three business days after receipt of a notice from the Lessor that the
Premises are substantially completed, Lessee shall inspect the Premises with
Lessor and deliver a punchlist of any construction defects and items to be
completed to achieve substantial completion ("Punchlist"). Upon delivery of the
Punchlist, Lessee shall be deemed to have accepted the Premises and such
improvements in an "AS IS" condition, subject only to (i) completion of the
Punchlist, and (ii) latent construction defects, and (iii) Patent defects
reported to Lessor within six (6) months after Substantial Completion Date.
Lessor shall diligently complete any Punchlist items in accordance with the
Working Plans with all due diligence.
2.4 Lease PARA 2.4 is deleted. Lessee shall accept the Improvements
when and as provided in Addendum PARA 1.3, PARA 2.2 and PARA 51.4(b). Except as
provided in the Lease, Lessee acknowledges that Lessor and its brokers and
agents have made no representations or warranties to Lessee, except as set
forth in the AIREA Lease as amended by this Addendum.
2.81 COMMON AREAS - LESSEE'S RIGHTS. Lessee's right to use the Common Areas
Shall Include, without limitation the irrevocable, non-exclusive right (seven
days a week, twenty-four hours a day during the term of this Lease) (a) of
ingress and egress to and from the Premises, and (b) to use the Unreserved
Parking Spaces for parking.
2.10 COMMON AREAS CHANGES. Notwithstanding the forgoing, Lessor shall not
take any action under this Paragraph 2.10 which has a material adverse Impact
on Lessee's rights under this Lease (including, without limitation, Lessee's
right of ingress and egress and right to receive all utility and other
services that Lessor is required to provide to the Premises) or Lessee's
ability to operate its business in and from the Premises.
1
<PAGE>
4.1.1 BASE RENT. Base Rent per month shall be as follows:
<TABLE>
<CAPTION>
Lease Year Base Rent Per Square Foot
---------- -------------------------
<S> <C>
1 (months 1-3) Free Rent
1 (months 4-12) $1.05 ($11,314.80 NNN)
2 $1.09 ($11,745.84 NNN)
3 $1.13 ($12,176.88 NNN)
4 $1.18 ($12,715.68 NNN)
5 $1.23 ($13,254.48 NNN)
</TABLE>
4.2(e) OTHER OPERATING EXPENSES. Operating Expenses shall also include,
without limitation: sweeping and maintenance services; repairs to and
replacement of asphalt paving, bumpers, striping; light bulbs, light standards
and lighting systems; guard and directional signs, planters, landscaping and
sprinkler systems and services in planting areas; costs of compliance with law,
rule, regulations enacted or adopted after the date of this Lease; repair and
maintenance of roofs and roof membranes (excluding structural items); exterior
building painting and cleaning; employment of such personnel as Lessor may deem
reasonably necessary, if any, to direct parking and police the Common Area;
employment of personnel used in connection with the operation, maintenance and
repair of the Common Area including payment or provision for unemployment
insurance, workers' compensation insurance and other employee costs; a
management fee to Lessor equal to 3% of total gross rental revenues for the
Industrial Center; HVAC maintenance contracts and normal maintenance of the
HVAC; any and all assessments levied against the Project pursuant to any
covenants, conditions and restrictions or other similar documents which affect
the Project; security services; the costs of any environmental inspections in
the event Lessor reasonably suspects that Lessee may have violated PARA 6.2 or
person other than lessor or its employees may have deposited has any Hazardous
Substance on or about the Project; the cost of bookkeeping and accounting and
legal services provided in connection with the operation and maintenance of the
Common Area by Lessor. If any expenditure which otherwise qualifies as an
Operating Expense (in excess of prior reserves therefor pursuant to
PARA 4.2(a)(iv)) must be capitalized pursuant to GAAP or sound accounting
practice, then such expenditure shall nonetheless be an Operating Expense, but
shall be amortized in equal monthly installments with interest thereon at 10%
per annum over its reasonably estimated useful life.
4.2(e) OPERATING EXPENSES CAP. Notwithstanding anything to the contrary,
Lessee's Share of Operating Expenses (i) for the first Lease Year shall not
exceed $0.20 Square Foot, and (ii) for each Lease Year thereafter shall not
exceed $0.20 Square Foot escalated as 5% per annum at the end of each Lease
Year. Any portions of Lessee's Share of Operating Expenses not charged pursuant
to this PARA 4.2(e) shall not be carried forward to future period, and shall be
non-cumulative except for insurance costs which can be carried forward.
6.2(d) EXCULPATION OF LESSOR. Other tenants of the Industrial Center may
be using, handling or storing certain Hazardous Substances in connection with
such tenants' use of their premises. The failure of another tenant to comply
with applicable laws and procedures could result in a release of Hazardous
Substances and contamination to improvements within the Industrial Center or the
soil and ground water thereunder. In the event of such release, the tenant
which is responsible for the release, and not Lessor, shall be solely
responsible for any claim, damage or expense incurred by Lessee by reason of
such contamination. Lessee waives any right it may have under California Civil
Code Section 1542 to later assert that the foregoing release does not cover
unknown claims.
6.2(e) SURVIVAL. The obligations of the Lessee under PARA6.2 shall
survive the expiration or earlier termination of the Lease without any
limitation, and shall constitute obligations that are independent and severable
from Lessee's covenants and obligations to pay rent under the Lease.
6.4.1 FUTURE LAWS. With respect to any laws enacted after the date of
this Lease and requiring modification, alteration or betterment to or of the
Premises or the Common Area, including, without limitation, building codes, the
ADA and environmental protection laws and laws requiring installation of
monitoring equipment measuring air, soil or groundwater quality or extraordinary
waste disposal facilities or equipment or modifications to existing waste
treatment facilities and equipment, Lessor and Lessee shall allocate the costs
thereof ("Compliance Costs") as follows. Lessee shall pay the Compliance Cost
if it relates to or arises in connection with: (i) any portion of the Premises
to be maintained by Lessee, or to be maintained by Lessor subject to
2
<PAGE>
reimbursement by Lessee, or (ii) any particular use of the Premises by Lessee
(as opposed to industrial/warehouse uses in general). Lessor shall pay the
Compliance Cost if it relates to or arises in connection with: (i) any law in
effect on the date of this Lease, or (ii) any portion of the Premises to be
maintained by Lessor at its expense. Lessor shall pay the Compliance Cost, but
shall charge it as an Operating Expense if it relates or arises in connection
with to the Common Area.
6.4.2 LIMITATION ON FUTURE LAWS COST. Notwithstanding PARA 6.4.1, if (a)
the aggregate of (i) Compliance Costs to be paid by Lessee relating to or
arising in connection with any portion of the Premises to be maintained by
Lessee, or to be maintained by Lessor subject to reimbursement by Lessee
(provided that such costs shall be amortized by Lessee over the shorter of
the useful life thereof or the remainder of the term), plus (ii) Lessee's
share of Compliance Costs to be paid by Lessor and charged as an Operating
Expense, exceeds $0.15 per month per rentable square foot in the Premises
("Excess"), and (b) if Lessor is unwilling to pay such Excess; then Lessee
shall have the right to terminate this Lease effective thirty (30) days after
delivery of written notice of such termination. Lessee must exercise such
option by delivery of such written termination notice within fifteen (15)
days after written notice from Lessor of, or Lessee's determination of the
existence of, an Excess; and such option shall terminate automatically if
not timely exercised within such fifteen (15) day period.
7.5 LIMITATIONS ON LESSEE'S REPAIR DUTIES. Notwithstanding anything to the
contrary in AIREA Lease PARA 7.1 or PARA 7.2, the following shall apply:
(a) Lessee's repair and maintenance obligations under AIREA Lease PARA 7.1
shall exclude and Lessor shall maintain and repair pursuant to AIREA Lease
PARA 7.2: (i) any common utility lines and equipment serving the Premises
and other premises; (ii) the roof foundation, exterior walls and any
exterior or interior structural portions of the Premises; and (iii) the
HVAC system serving the Premises. Lessor's cost to repair and maintain the
items above and pursuant to AIREA Lease PARA 7.2 shall constitute Common
Area Operating Expenses.
(b) Lessee's repair and maintenance obligations under AIREA Lease
PARA 7.1 shall include, without limitation: (i) any utility lines, or
the portion thereof, exclusively serving the Premises, including
plumbing, sewer, water, gas and electrical lines and whether located
within the Premises, Premises walls or outside of the Premises; (ii)
interior and exterior windows and doors; and (iii) exterior painting.
8.6.1 WAIVER OF SUBROGATION. The second sentence of PARA 8.6 is deleted.
The waiver of subrogation in PARA 8.6 shall be limited to the extent of actual
insurance proceeds payable under the applicable insurance policy.
8.7 INDEMNIFICATION OF LESSOR BY LESSEE. Lease PARA 8.7 modified as
follows: (i) "Except as waived by Lease PARA 8.6" is added to the beginning;
(ii), "involving or in Connection with," in line 3 is deleted; (iii)"act,
omission or neglect" in line 4 is deleted and "negligent act or omission or
willful misconduct" is substituted; and (iv)"or invitees" in line 4 is deleted.
9.5.1 DAMAGE NEAR END OF TERM. In Lease PARA 9.5 (i) "one month's Base
Rent" in line 2 is deleted and $10,000 multiplied by the number of months
remaining in the term "is substituted; and (ii) "Lessor may, at Lessor's
option" in line 2 is deleted and "either party, at its option" is
substituted; and (iii) "Lessee of Lessor's" in line 3 is deleted and "the
other party of such party's" is substituted.
9.6.1.(b) RECONSTRUCTION. Lease PARA 9.6.(b) is deleted. If Lesor shall be
obligated to repair or restore the Premises under the provisions of this PARA 9
and shall not: (i) commence such repairs within 15 days after receipt of a
building permit' (ii) diligently prosecute such repairs to completion, or (iii)
complete such repairs within 120 days after receipt of a building permit plus
any FORCE MAJEURE delays, then Lessee may give Lessor and Lenders written notice
of such default and Lessee's election to terminate (which notice must be given
prior to actual commencement of such work in the case of subparagraph (i)
above). If Lessor fails to cure such default within thirty (30) days, then
this Lease shall terminate effective as of such Lessee notice.
3
<PAGE>
12.2(h)SUBLEASE OR ASSIGNMENT PROFITS. Lease PARA 12.2(h) is deleted. In
lieu thereof, Lessor shall be entitled to 50% of the "Profits" from the
assignment or sublease of any or all of the Premises. Profits shall equal: (i)
the sum of all considerations received by Lessee from such sublessee or assignee
for or relating to the Premises; plus (ii) in the case of a sublease, the
excess, if any, of all sublease rentals over Lease rentals; less (iii) direct,
out-of-pocket costs incurred in effecting such sublease or assignment. Lessee
shall provide all information reasonably requested by Lessor relating to the
determination of such Profits.
13.3 INDUCEMENT RECAPTURE LIMITATION. As used in AIREA Lease PARA 13.3, the
term "Inducement provisions" shall mean and be limited to a maximum of (i) three
(3) months' Base Rent, plus (ii) Lessor's Cost of tenant improvements pursuant
to PARA 51.2 in excess of $25.00 per usable square foot.
13.5.1 LIMITATION ON LESSEE REMEDIES. Lessee acknowledges and agrees that
in the event of a Lessor default, Lessee's sole and exclusive remedies shall be
to seek (i) monetary damages, provided that under no circumstances shall Lessor
be liable for loss of business profits or consequential damages, and (ii)
injunctive relief. Lessee expressly waives all remedies except those
specifically set forth in PARA 13.5.1, including without limitation: specific
performance, any right to terminate the Lease for any reason whatsoever
(including without limitation California Civil Code Section Section 1932(2),
1933(4) and 1941 or any other current or future law), statutory, legal or
equitable self help remedy (including without limitation California Civil Code
Section 1942 or any other current or future law), and Lessee waives any right of
offset, demand or deduction against rent pursuant to California Code of Civil
Procedure ("CCP") Section 431.70 or otherwise. Lessee waives any right of
redemption or relief from forfeiture under any present of future law, if
Lessee is evicted or Lessor takes possession of the Premises by reason of any
default by Lessee hereunder. No delay or omission in the exercise of any right
or remedy accruing to Lessor upon any breach by Lessee under this Lease shall
impair such right or remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring.
15.2 Deleted.
15.3 Deleted.
17. The phrase in PARA 17, line 3 "Except as expressly provided in
paragraph 15.3" is deleted.
21. RENT. The term "rent" means each and every payment required to be
made by Lessee pursuant to this Lease including without limitation Base Rent,
Lessee's Share of Operating Expenses, utilities, taxes, insurance premiums, late
charges and interest and utility charges, repairs and maintenance incurred by
Lessor on Lessee's behalf. All rent shall be paid when due and without notice
except as expressly provided to the contrary in this Lease. All rent
constitutes "rent" or "rental" under the unlawful detainer statutes (CCP Section
1161 ET SEQ.)
25.1 MEMO OF LEASE. Only Lessor shall be entitled to record a memorandum
of the Lease.
30.3 NON-DISTURBANCE AND SUBORDINATION. AIREA Lease PARA 30.3 is deleted.
Lessor shall have the right to cause this Lease to be and remain subject and
subordinate to any and all mortgages, deeds of trust and groups leases, if any
("Encumbrances") that are now or may hereafter be executed covering the
Premises, or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances,
together with interest thereon and subject to all the terms and provisions
thereof, provided only, that in the event of termination of any such ground
lease or upon the foreclosure of any such mortgage of deed of trust, so long as
lessee is not in default, the holder thereof ("Holder") shall agree to recognize
Lessee's rights under this Lease as long as Lessee shall pay the Rent and
observe and perform all the provisions of this Lease to be observed and
performed by Lessee. Within ten (10) days after Lessor's written request. Lessee
shall execute, acknowledge and deliver any and all reasonable documents required
by Lessor or the Holder to effectuate such subordination; provided, however,
that such documents shall include the agreement of the Holder to recognize
Lessee's rights under this Lease as long as Lessee shall pay the Rent and
observe and perform all the provisions of this Lease to be observed and
performed by Lessee. If Lessee fails to do so, such failure shall constitute a
Default by Lessee under this Lease. Notwithstanding anything to the contrary set
forth in this Paragraph 30.3, Lessee hereby attorns and agrees to attorn to any
person or entity purchasing or otherwise acquiring the Premises at any sale or
proceeding or pursuant to the exercise of any other rights, powers or
4
<PAGE>
remedies under such Encumbrance; provided, however, that if the Lease is subject
and subordinate to such Encumbrance, Lessee's agreement to attorn shall be
subject to the agreement (procured without out of pocket expense to Lessee) of
such person or entity to recognize Lessee's rights under this Lease as long as
Lessee shall pay the Rent and observe and perform all the provisions of this
Lease to be observed and performed by Lessee.
31. ATTORNEY'S FEES. AIREA Lease PARA 31 is deleted. Should any party
(which excludes Brokers) institute any action, proceeding, suit, arbitration,
appeal or other similar proceeding or other non-judicial dispute resolution
mechanism ("Action") to enforce or interpret the Lease or any provision
hereof, for damages by reason of any alleged breach of this Agreement or of
any provision hereof, or for a declaration of rights hereunder, the
prevailing party in such Action shall be entitled to receive from the other
party(s) all Fees and Costs. "Fees" means all legal fees of attorneys,
accountants and experts. "Costs" shall mean all copy, deposition, travel,
exhibits preparation and similar costs incurred by the prevailing party in
connection with the Action and preparations therefor. Fees and Costs shall
include those relating to all post-judgment activities to enforce, perfect
and execute upon any judgment (including without limitation post-judgment
motions, contempt proceedings, garnishment, levy and debtor and third party
examinations). If Lessee files for protection under, or voluntarily or
involuntarily becomes subject to, any chapter of the United States Bankruptcy
Code or similar state insolvency laws, Lessor shall be entitled to any and
all Fees and Costs incurred to protect Lessor's interest and other rights
under the Lease, whether or not such action results in a discharge.
34.1 SIGNAGE. Subject to all applicable laws, the PCC and the
Industrial Center signage criteria and covenants, conditions and restrictions
of record (collectively, "Sign Rules"), Lessee shall have the right to place
signs on the Premises exterior at its cost and expense, provided that Lessor
shall have the right to approve the size, location and aesthetics of the
signs. Lessee shall repair and maintain all signs. Upon the request of
Lessor, at the end of the Term, Lessee shall remove the sign at its expense.
Notwithstanding the above, Lessee shall be entitled to deliver a
proposed a signage plan to Lessor, which may exceed that permitted by the
Sign Rules. Lessor shall have the right to reasonably disapprove of such plan
based on aesthetic, marketing or other reasons in Lessor's reasonable
discretion. Upon Lessor's shall cooperate with Lessee and use commercially
reasonable efforts, at no out-of-pocket cost to Lessor, to seek variances
from the Sign Rules permitted the signage plan.
38.1 QUIET POSSESSION. "Quiet possession" means that Lessee's leasehold
rights to the Premises shall not be disturbed by persons claiming a right
thereto by or through Lessor.
40.1 RULES AND REGULATIONS. Exhibit C is attached hereto and incorporated
herein by this reference. Lessor shall apply the Rules and Regulations in a
non-discriminatory manner. In the event of any conflict or inconsistency between
the terms and conditions of this Lease and the Rules and Regulations, the terms
and conditions of this Lease shall govern and control.
49. DISPUTE RESOLUTION. Except as specified below, all disputes and
controversies relating to or arising out of the interpretation, construction,
performance, or breach of this Lease (including without limitation actions
sounding in tort, fraud or contract) shall be settled by arbitration pursuant to
the Commercial Arbitration Rules of the American Arbitration Association ("AAA")
as amended from time to time, except as specified to the contrary in this
PARA 49. Notwithstanding this Section, unlawful detainer actions under
California Code of Civil Procedure Section 1161 and pre-judgment provisional
remedies (other than writs of attachment) shall not be subject to arbitration
and shall be filed with the California Superior Court for the county where the
Premises are located (the "County"), and the parties submit to personal
jurisdiction of such Court. Either party requesting arbitration under this
Lease shall make a demand on the other party by registered or certified mail
with a copy to the AAA. The arbitration shall take place at a location selected
by the AAA in the county as noticed by the AAA, whether or not one of the
parties fails or refuses to participate. The arbitrators shall be empowered to
order attachments as a provisional remedy. Judgment upon the arbitrators' award
shall be binding, and the award and enforcement remedies may be entered in any
court having jurisdiction. The arbitrator(s) shall submit a written decision,
including findings of facts. The AAA shall select the arbitrator pursuant to
its rules, provided that the arbitrator shall be a licensed California real
estate attorney with not less than five (5) years of experience. Prior
to the arbitration, Lessor and Lessee shall each advance one half of the
arbitration fees of the AAA.
5
<PAGE>
If either party fails to advance the arbitration fees, then the paying party
shall advance the entire fee, but the non-paying party's claim, answer and
cross-claims (as the case may be) shall be tricken and the non-paying party
shall not be entitled to submit any evidence on its behalf or deny any claims or
contentions of the other party. It is the intention of the parties that any
dispute submitted to the procedures prescribed herein be resolved expeditiously.
Accordingly, the following procedures shall be followed in lieu of those
otherwise prescribed by the AAA: witness lists and documents to be submitted as
evidence shall be exchanged at least ten days prior to the arbitration; no
discovery shall be permitted except that Lessor and Lessee shall each be
entitled to one deposition to be held in the County. This arbitration
provision shall be construed broadly so as to mandate arbitration of the
widest range of claims, excepting only those excluded above. Any dispute
regarding whether a matter is subject to arbitration shall be arbitrated.
Should the AAA decline to accept an arbitration pursuant to this Section, such
provisions of this PARA 49 as may be unacceptable to the AAA shall be stricken,
with the remainder continuing in full force and effect, and if AAA still
declines to accept the claim, then the arbitration shall be submitted to the
JAMS/Endispute, Inc.
50. AIRCRAFT ENVIRONMENTAL IMPACT DECLARATION. Pursuant to the Conditions
of Approval imposed by the County of Orange in connection with the Pacific
Commercentre, Lessor makes the following Declaration:
We make this Declaration concerning aircraft environmental impact for the
purpose and subject to the same conditions and limitations as shown in that
certain notice concerning aircraft environmental impacts recorded
December 1, 1983, as Instrument No. 83-549335 in the Official Records of
Orange County, California. The Pacific Commercentre property is subject to
overflight, sight and sound of aircraft operating from El Toro Marine Corps
Air Station.
51. IMPROVEMENTS. Lessor shall construct the following "Improvements" on
the Premises as provided herein all at its cost and expense, except to the
extent the Interior Improvements exceed to Improvement Allowance:
51.1 TURNKEY IMPROVEMENTS. Lessor shall construct the Standard
Improvements (defined below) and all additional tenant improvements set forth in
the Plans (defined in PARA 51.3) other then Standard Improvements ("Tenant
Improvements" and collectively with Standard Improvements, the "Improvements")
on the Premises as provided herein all at its cost and expense, except as
provided below. The Improvements shall be completed in a first-class,
workmanlike manner in compliance with the Plans and all applicable laws,
building codes, zoning, environmental regulations and restrictions of record
and without liens of any kind. Lessor shall obtain customary construction
warranties from the contractors. Lessor shall pay the cost of (i) all Standard
Improvements, plus (ii) all Tenant Improvements contemplated by the Preliminary
Plans (defined in PARA 51.3 ). Lessee shall pay the cost of any deviation of
the Plans (defined in PARA 51.3) from the Preliminary Plans and any changes
requested by Lessee to the finally approved Plans ("Lessee Changes"). Except as
expressly modified by the Preliminary Plans, the term "Standard Improvements"
means a build-out to standard general warehouse specifications.
51.2 Intentionally omitted.
Section 51.3 PLANS. Lessor has caused to be prepared preliminary space
plans ("Preliminary Plans") to be utilized in the preparation of final
working drawings and specifications for the TIs. The Preliminary Plans have
been completed and delivered to Lessor and are attached hereto as Exhibit D.
Promptly upon the execution of this Lease by all parties, Lessor shall cause
its architect to prepare and submit two (2) copies of working drawings and
specifications ("Plans") consistent with the Preliminary Plans to Lessee for
its review and approval. Lessee shall advise Lessor within five (5) days of
Lessee's receipt of the Plans of any requested revisions. Lessee shall not
be allowed to make revisions to the Plans which would increase in a material
manner (as determined by Lessor in its discretion) the cost, complexity,
scope or time of construction of the TIs beyond what is shown in the
Preliminary Plans, unless Lessee agrees with Lessor to pay any increased
costs thereof and Lessor agrees (in its discretion) to any such revisions of
the Plans. Immediately upon receipt of said comments, Lessor shall make all
revisions to the Plans consistent with the preceding sentence and which have
been approved by Lessor (in its discretion) and submit two (2) copies thereof
to Lessee for its final review and approval. Concurrently with the above
review and approval process, Lessor shall submit all plans and
specifications to the City and other applicable governmental agencies in an
attempt to expedite City approval and issuance of all necessary permits and
licenses to construct the TIs as shown on the Plans.
6
<PAGE>
51.4 COMPLETION. The "Substantial Completion Date" is the date that final
inspection of the Improvements has been approved by the appropriate
governmental building official and a temporary or final certificate of occupancy
has been issued by the City of Lake Forest. Within five business days after
receipt of a notice from the Lessor that the Premises are substantially
completed, Lessee shall inspect the Premises with Lessor and deliver a
punchlist of any construction defects and items to be completed to achieve
substantial completion ("Punchlist"). Lessor shall diligently complete any
Punchlist items in accordance with the working Plans with all due diligence.
51.5 LESSEE DELAY. Notwithstanding anything to the contrary contained in
this Lease, upon the Commencement Date, Lessee shall pay to Lessor an additional
payment of a sum calculated by multiplying the per diem fixed monthly Base Rent
times the number of days of delay which are due to Lessee Delays. "Lessee
Delays" means any delay by lessee (i) in final approval of the Plans pursuant
to PARA 51.3, or (ii) in Lessor's achievement of the Substantial Completion Date
resulting from Lessee's changes to the Preliminary Plans prior to final
approval of the Plans, to the Plans after final approval thereof, or any other
interference with construction activities.
51.6 FORCE MAJEURE. The term FORCE MAJEURE means any prevention, delay or
stoppage of work to be performed or other non-monetary covenants by Lessor or
Lessee which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of nature,
governmental restrictions or regulations or controls, judicial orders, enemy or
hostile government actions, civil commotion, fire or other casualty, or other
causes beyond the reasonable control of the party obligated to perform
hereunder.
52. EXTENSION OPTION.
1. Lessee shall have one (1) option ("Options") to extend the Term of
this Lease. The option term ("Option Term") shall be for a period of five (5)
Lease Years. The Option must be exercised by irrevocable notice in writing of
such exercise, delivered by Lessee to Lessor, not later than 6 months prior to
the end of the Term or the then effective Option Term. The Base Rent for the
Option Term shall be the greater of (i) the Base Rent then in effect, or (ii)
the "Fair Market Value".
2. FAIR MARKET VALUE. The "Fair Market Value" means the then fair
market value being charged for a lease having the same term as the Option
Term for similar premises in the vicinity of the Premises for a renewal
tenant ("Vicinity Rents"). In determining Fair Market Value based on
Vicinity Rents, (A) the parties shall take into consideration, without
limitation: the cost, if any, of parking; and the comparable age and quality
of the premises, traffic, access and area amenities; and (B) the parties
shall specifically NOT take into consideration and shall not reduce the Fair
connection with Vicinity Rents; brokerage commissions saved by Lessor; the
absence of any unleased periods of time; moving allowances; tenant
improvements being offered in connection with Vicinity Rents other than
painting and carpeting, it being understood that the Premises were new as of
execution hereof and in good shape and condition. Lessor and Lessee shall
reasonably and in good faith attempt to agree on the Fair Market Value
beginning not later than three months prior to the commencement of the Option
Term. If the parties are unable to agree upon the Fair Market Value prior
within 30 days thereafter, then within five days thereafter each party, at
its cost Market Value because of, any of the following, if applicable: free
rent concessions offered in and by giving notice to the other party, shall
appoint an independent M.A.I. real estate appraiser with at least five years
full-time commercial appraisal experience in the County to determine such
Fair Market Value. If a party does not appoint an appraiser within such five
days after the other party has given notice of the name of its appraiser, the
single appraiser appointed shall be the sole appraiser and shall set the Fair
Market Value. If there are two appraisers appointed by the parties as stated
in this PARA 3.4.1, they shall met promptly and attempt to set the Fair
Market Value. If the two appraisers are unable to agree within 10 days after
the second appraiser has been appointed, they shall attempt to elect a third
appraiser meeting the above qualifications within 10 days after the last day
the two appraisers are given to set the Fair Market Value. If the two
appraisers are unable to agree on the third appraiser, either of the parties
to this Lease, by giving 10 days' notice to the other party, can apply to
the then president of the County Real Estate Board, or to the presiding judge
of the Superior Court of the County, for the selection of a third appraiser
meeting the
7
<PAGE>
qualifications stated in this section. Each of the parties shall bear one-half
of the cost of appointing the third appraiser and of paying the third
appraiser's fee. The third appraiser, however selected, shall be a person who
has not previously acted in any capacity for either party. Within 15 days
after the selection of the third appraiser, a majority of the appraisers shall
set the Fair Market Value after having been instructed to comply with the
provisions of (A) and (B) above. If a majority of the appraisers are unable to
set the Fair Market Value, the Fair Market Value shall be the average of the two
closest appraisals (unless the appraisals are equidistant, in which case, the
middle appraisal shall be the Fair Market Value).
IN WITNESS WHEREOF, the undersigned have executed this Addendum effective
as of the date set forth above.
Lessor: Makena Commercentre II, LLC, a California
limited liability company
By:
----------------------------------
Norman N. Nowell, Managing Member
Pacific Biometrics Inc.,
Lessee: a Delaware corporation
By:
----------------------------------
Paul Kanan
Title:
-------------------------------
President
By:
----------------------------------
Peter Ludlum
Title:
-------------------------------
Secretary
Exhibits A Project and Buildings Site Plan
B Commencement Date Memorandum
C Rules and Regulations
D Preliminary Plans for TIs
8
<PAGE>
Exhibit B
COMMENCEMENT DATE MEMORANDUM
THIS AGREEMENT, made this ______, 199__, by and between Makena Commercentre
II, LLC, a California limited liability company ("Lessor") and
_____________________ ("Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee have entered into that certain Standard
Industrial/Commercial Multi-Tenant Lease - Modified Net (American Industrial
Real Estate Association (1993)) dated as of ___, 199___ ("Lease").
WHEREAS, Lessor and Lessee wish to set forth their agreements as to the
commencement and expiration of the term of the Lease.
NOW, THEREFORE, in consideration of the Premises as described in the Lease
and the covenants set forth therein, Lessor and Lessee agree as follows:
1. The Commencement Date was______________, 19_____.
2. The initial or base term of the Lease shall expire on
_________, 19____.
IN WITNESS WHEREOF, the parties hereto have executed this Commencement Date
Memorandum as of the day and year first above written.
Lessor: Lessee:
Makena Commercentre II, LLC, a ___, a California ___
California limited liability company
By: By:
---------------------------------- ------------------------------------
Norman N. Nowell, Managing Member
Title:
---------------------------------
10
<PAGE>
EXHIBIT C
Rules and Regulations
GENERAL RULES
1. Tenant shall not suffer or permit the obstruction of any Common Area,
including, but not limited to, driveways, sidewalks, walkways and entrances.
2. Tenant shall not suffer or permit loitering in any part of the
Project.
3. Tenant shall not make or permit any noises, vibrations or odors that
annoy or interfere in any way with other tenants or persons having business
within the Project.
4. No animals or birds shall be kept within the Project.
5. Tenant shall not bring bicycles, motorcycles or other vehicles into
areas not designated as authorized for same.
6. Landlord reserves the right to exclude or expel from the Project any
person who Landlord in good faith judges to be 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.
7. Landlord reserves the right to refuse access to any person or persons
Landlord in good faith judges to be a threat to the safety, reputation or
property of the Project and its occupants.
8. Tenant shall be responsible for the inappropriate use of bathrooms,
plumbing or other utilities. No foreign substances, rubbish, trash, newspaper
or cleaning substances of any kind are to be inserted therein.
9. Tenant shall not suffer or permit the washing of automobiles, trucks,
equipment or other vehicles in any part of the Project.
10. Tenant shall not suffer or permit the washing down of painting
materials or other matter which will stain the pavement or leave permanent
markings within the Project. Any such damage shall be repaired at Tenant's sole
cost and expense.
11. Tenant shall deposit all trash and debris in receptacles provided
within the Project and all bins shall remain inside enclosed trash areas as
provided. If necessary, large quantities of certain types of disposable
materials such as packing boxes, pallets or containers, may be stored outside
the Building against an exterior wall next to the overhead door on the day
scheduled for special refuse pickup of these materials only. At all other
times, disposable trash and debris is to be stored inside the Building unless it
can be broken down and placed in a trash receptacle.
12. Tenant shall not suffer or permit outside work activity or storage of
any kind outside the Building. All paved areas, including parking spaces,
driveways and alleys are to be kept clean and clear at all times except for
legitimate parking of vehicles as allowed by the Lease or for temporary loading
or unloading as necessary.
13. All keys shall be obtained from Landlord. Lessee shall return all
keys to Landlord at the termination of this Lease. Lessee shall be responsible
for the cost of replacing any keys that are lost. Lessee shall not change the
locks or install other locks on the doors without Landlord's prior approval and
shall provide Landlord with a master key.
PARKING RULES
1. Tenant shall not permit or allow any vehicle that either belongs
to, or is controlled by, Tenant or Tenant's employees, suppliers, shippers,
customers or invitees to be loaded, unloaded or parked in areas other than
those designated by Landlord for such activities.
2. Users of the parking area will obey all posted signs and park only in
the areas designated for vehicle parking.
11
<PAGE>
3. Unless otherwise instructed, each person using the parking area is
required to park and lock his own vehicle. Landlord will not be responsible for
any damage to vehicles, injury to persons or loss of property, all of which
risks are assumed by the party using the parking area.
4. Validation, if established, will be permissible only by such method or
methods as Landlord and/or its licensee may establish at rates generally
applicable to visitor parking.
5. The maintenance, washing, waxing or cleaning of vehicles in the Common
Area is prohibited.
6. Tenant shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules, regulations, laws
and agreements.
12
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