<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
------------ SECURITIES EXCHANGE ACT OF 1934. For the Quarterly
Period ended September 30, 1997.
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
------------- SECURITIES EXCHANGE ACT OF 1934. For the transition
Period from N/A to .
Commission File No. 1-8467
BMC INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
MINNESOTA 41-0169210
(State of Incorporation) (IRS Employer Identification No.)
TWO APPLETREE SQUARE, MINNEAPOLIS, MINNESOTA 55425
(Address of Principal Executive Offices) (Zip Code)
(612) 851-6000
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for at least the past 90 days.
X Yes No
-------- --------
BMC Industries, Inc. has outstanding 27,749,672 shares of common stock as of
November 10, 1997. There is no other class of stock outstanding.
Page 1 of 81
Exhibit Index Begins at Page 11.
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PART I: FINANCIAL INFORMATION
BMC INDUSTRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
(in thousands)
Item 1: Financial Statements
SEPTEMBER 30 DECEMBER 31
ASSETS 1997 1996
- -------------------------------------------------------------------------------
Current Assets
Cash and cash equivalents $ 2,138 $ 2,544
Trade accounts receivable, net of allowances 34,450 24,979
Inventories 62,080 50,451
Deferred income taxes 6,655 5,372
Other current assets 7,483 8,354
- -------------------------------------------------------------------------------
Total Current Assets 112,806 91,700
- -------------------------------------------------------------------------------
Property, Plant and Equipment 277,788 220,489
Less Accumulated Depreciation 99,171 96,644
-------- --------
Property, Plant and Equipment, Net 178,617 123,845
-------- --------
Deferred Income Taxes 4,783 5,797
Other Assets, Net 13,636 11,627
- -------------------------------------------------------------------------------
Total Assets $309,842 $232,969
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
- -------------------------------------------------------------------------------
Current Liabilities
Short-term borrowings $ 1,195 $ 1,355
Accounts payable 20,398 19,434
Income taxes payable 1,902 7,657
Accrued expenses and other liabilities 17,914 21,900
- -------------------------------------------------------------------------------
Total Current Liabilities 41,409 50,346
- -------------------------------------------------------------------------------
Long-Term Debt 75,688 16,634
Other Liabilities 18,233 19,421
Deferred Income Taxes 2,685 2,460
Stockholders' Equity
Common stock 61,452 56,551
Retained earnings 112,137 84,629
Cumulative translation adjustment (1,010) 3,974
Other (752) (1,046)
- -------------------------------------------------------------------------------
Total Stockholders' Equity 171,827 144,108
- -------------------------------------------------------------------------------
Total Liabilities and Stockholders' Equity $ 309,842 $ 232,969
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
See accompanying Notes to Condensed Consolidated Financial Statements.
Page 2
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<TABLE>
<CAPTION>
BMC INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share amounts)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
----------------------------------------------------------------
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $ 79,086 $ 68,158 $ 236,470 $ 204,633
Cost of products sold 61,813 53,840 181,356 158,792
- -----------------------------------------------------------------------------------------------------------------------
Gross margin 17,273 14,318 55,114 45,841
Selling 3,042 2,334 8,616 7,451
Administrative 1,006 1,210 3,634 3,725
- -----------------------------------------------------------------------------------------------------------------------
Income from Operations 13,225 10,774 42,864 34,665
- -----------------------------------------------------------------------------------------------------------------------
Other Income and (Expense)
Interest expense (403) (246) (707) (436)
Interest income 45 60 143 210
Other income 71 89 300 120
- -----------------------------------------------------------------------------------------------------------------------
Earnings before Income Taxes 12,938 10,677 42,600 34,559
Income Taxes 4,063 3,520 13,853 11,377
- -----------------------------------------------------------------------------------------------------------------------
Net Earnings $ 8,875 $ 7,157 $ 28,747 $ 23,182
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Net Earnings Per Share $ 0.31 $ 0.25 $ 1.01 $ 0.82
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Number of Shares Included in Per Share Computation 28,619 28,390 28,524 28,346
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Dividends Declared Per Share $ 0.015 $ 0.0125 $ 0.045 $ 0.0375
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
Page 3
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BMC INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30
------------------------------
1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Net Cash Provided by Operating Activities
Net earnings $ 28,747 $ 23,182
Depreciation and amortization 10,527 7,661
Changes in operating assets and liabilities (33,647) (17,622)
- ----------------------------------------------------------------------------------------------
Total 5,627 13,221
- ----------------------------------------------------------------------------------------------
Net Cash Used in Investing Activities
Additions to property, plant and equipment (68,203) (32,908)
Business acquisitions, net of cash acquired (1,817) --
- ----------------------------------------------------------------------------------------------
Total (70,020) (32,908)
- ----------------------------------------------------------------------------------------------
Net Cash Provided by Financing Activities
Net increase (decrease) in short-term borrowings (81) 3,139
Net increase in long-term debt 60,278 3,941
Common stock issued 4,901 2,639
Cash dividends paid (1,234) (1,020)
Other 294 462
- ----------------------------------------------------------------------------------------------
Total 64,158 9,161
- ----------------------------------------------------------------------------------------------
Effect of Exchange Rate Changes on Cash and Cash Equivalents (171) (78)
- ----------------------------------------------------------------------------------------------
Net Decrease in Cash and Cash Equivalents (406) (10,604)
Cash and Cash Equivalents at Beginning of Period 2,544 15,874
- ----------------------------------------------------------------------------------------------
Cash and Cash Equivalents at End of Period $ 2,138 $ 5,270
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
Page 4
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BMC INDUSTRIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(in thousands, except per share amounts)
1. Financial Statements
In the opinion of management, the accompanying
unaudited condensed consolidated financial
statements contain all adjustments necessary to
present fairly the financial position of the
Company as of September 30, 1997, and the results
of operations and the cash flows for the periods
ended September 30, 1997 and 1996. Such
adjustments are of a normal recurring nature.
Certain items in the financial statements for the
periods ended September 30, 1996 have been
reclassified to conform to the presentation for
the periods ended September 30, 1997. The results
of operations for the three-month and nine-month
periods ended September 30, 1997 are not
necessarily indicative of the results to be
expected for the full year. The balance sheet as
of December 31, 1996 is derived from the audited
balance sheet as of that date. For further
information, refer to the financial statements and
footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended December
31, 1996.
2. Derivative Financial Instruments
In January 1997, the SEC issued new rules related to
disclosures about derivative financial instruments.
The new rules, effective for all financial statements
issued for periods ending after June 15, 1997, require
accounting policy disclosures about derivative
financial instruments used by the Company. Effective
for periods ending after June 15, 1998, the new rules
also require quantitative and qualitative disclosures
about exposures to market risk from derivative
financial instruments.
Derivative financial instruments are used by the
Company to reduce foreign exchange and interest rate
risks.
Foreign Currency Exchange Options - As of September 30,
1997, the Company had approximately $8.1 million of
outstanding foreign currency exchange options to
exchange U.S. dollars for German marks at a set
exchange rate. These foreign exchange options do not
expose the Company to financial risk as the contracts
provide an option to exchange the currencies, but do
not obligate the Company to make a foreign currency
exchange. Premiums paid for foreign currency exchange
options are amortized to Other Expense over the life of
the options. Upon exercise of foreign currency
exchange options, gains are included in income.
Interest Rate Swap Agreement - As of September 30,
1997, the Company had entered into an interest rate
swap agreement that allows the Company to swap a
variable interest rate for a fixed interest rate of
6.365% on $15 million of notional debt for a period of
two years ending March, 1999. The notional amount of
debt is not a measure of the Company's exposure to
credit or market risks and is not included in the
condensed consolidated balance sheet. Fixing the
interest rate minimizes the Company's exposure
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to the uncertainty of floating interest rates during this two
year period. Amounts to be paid or received under the
interest rate swap agreement are accrued and recorded
as an adjustment to Interest Expense during the term of
the interest rate swap agreement.
3. New Accounting Standards
In June 1997, the Financial Accounting Standards
Board (FASB) issued Statement of Financial Accounting
Standards (SFAS) No. 130, REPORTING COMPREHENSIVE
INCOME, which requires disclosure of comprehensive
income and its components in the Company's financial
statements. Additionally, the FASB issued SFAS
No. 131, DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE
AND RELATED INFORMATION. Both statements require
additional disclosure only, and as such, are not
expected to change net income or shareholders' equity
as previously reported by the Company. The statements
are effective for the Company's fiscal year ended
December 31, 1998.
4. Inventories
SEPTEMBER 30, 1997 DECEMBER 31, 1996
------------------ -----------------
Raw materials $ 19,359 $ 15,461
Work in process 13,722 9,807
Finished goods 28,999 25,183
--------- ----------
Total Inventories $ 62,080 $ 50,451
--------- ----------
--------- ----------
5. Earnings Per Share
Primary earnings per share is computed using the
weighted average number of common and common
equivalent shares outstanding during the period.
Common stock equivalents include dilutive stock
options using the treasury stock method. Fully
diluted earnings per share did not differ
significantly from primary earnings per share in
any period.
Currently, earnings per share calculations are
performed pursuant to Accounting Principles Board
Opinion No. 15, EARNINGS PER SHARE. The Company
will be required to present earnings per share
data in accordance with Statement of Accounting
Standards No. 128, EARNINGS PER SHARE, commencing
with the fourth quarter of 1997. Statement No.
128 will require the presentation of basic
earnings per share and diluted earnings per share.
Basic earnings per share is calculated as net
earnings divided by the weighted average
outstanding common shares. Diluted earnings per
share includes the effect of all outstanding
dilutive securities, such as stock options, and is
calculated similarly to the current fully-diluted
earnings per share. While early adoption of
Statement No. 128 is not permitted, the following
pro-forma supplemental data is presented using the
Statement No. 128 approach:
Three months ended Nine months ended
September 30 September 30
------------------ -----------------
1997 1996 1997 1996
---- ---- ---- ----
Basic $ 0.32 $ 0.26 $ 1.04 $ 0.85
Diluted 0.31 0.25 1.01 0.82
Page 6
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6. Legal Matters
In July 1997, the Company executed a de minimus
settlement with the Envirotek II/Roblin Steel Site PRP
Group for a nominal amount in settlement of its
liablility as a potentially responsible party at this
site in Tonawanda, New York. There are no material changes
in the status of any other legal proceeding, including
the Barth Industries legal proceeding, or environmental
matter described in the Company's Annual Report on Form
10-K for the year ended December 31, 1996.
Page 7
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BMC INDUSTRIES, INC.
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
Total revenues for the third quarter of 1997 increased $10.9
million or 16% from the third quarter of 1996. Revenues of
the Precision Imaged Products group for the third quarter
increased 22% due to the continued sales mix shift to higher
margin products, including over $6 million of high
resolution computer monitor mask sales from the Company's
German monitor mask line. Sales of large (25-29 inches)
television aperture masks increased 19% over third quarter
1996 sales, while invar and jumbo mask sales lagged 1996
third quarter sales. The strength of the U.S. dollar versus
the German mark had an immaterial impact on earnings but
reduced sales, as compared with the prior year quarter, by
approximately $4 million. Buckbee-Mears St. Paul had record
sales and profits in the quarter. Net sales of the Optical
Products group increased 5% over the prior year quarter.
Sales growth was driven by a 27% increase in high end
products (polycarbonate, progressive, high index and
polarizing sun lenses) over the prior year.
Cost of sales were 78% of net sales for the third quarter of
1997 compared to 79% in the same period of 1996.
Profitability of the Mask Operations increased due to the
continued sales mix shift to higher margin products, but was
depressed by lower yields on the manufacturing lines at the
Company's Cortland, New York facility. The Cortland plant
also incurred significant start-up and part qualification
expenses on their two new manufacturing lines during the
third quarter. These significant start-up expenses were
partially offset by $1.5 million of operating profit
generated from the final completion of a long-term mask
equipment and technology contract during the third quarter.
With the completion of the expansion at the
Cortland Facility, depreciation expense will increase in the
fourth quarter of 1997 and thereafter. Due to the strong sales
growth of high end products, Optical Product's gross profit
increased despite one-time expenses related to the shut down
of the Ft. Lauderdale plastic lens manufacturing facility which
ceased operations in July. The Optical Products group also incurred
expenses related to the start-up of the new polycarbonate
manufacturing, centralized distribution and research and
development facilities, as well as increased research and development
spending. The increase in gross profit was also offset by
increased advertising and promotional expenses, primarily
related to polycarbonate lenses.
Despite an increased debt level, interest expense in the
third quarter of 1997 was only slightly higher than the
prior year quarter due to the capitalization of interest
costs in connection with the Company's expansion projects.
With the completion of the expansion at the Cortland Facility,
the Company will no longer be able to capitalize interest
related to this expansion project; therefore, interest expense
will increase in the fourth quarter of 1997 and thereafter.
The provision for income taxes was 31% of pre-tax income in
the third quarter of 1997 compared to 33% in the third
quarter of 1996. The lower income tax rate was caused by an
income shift between domestic and foreign earnings.
COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
Total revenues for the first nine months of 1997 increased
$31.8 million or 16% from the first nine months of 1996.
Revenues of the Precision Imaged Products group increased
20% for the first nine months due primarily to sales of
large (25-29 inches) and invar television aperture
page 8
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masks increasing 27% and 9%, respectively, over 1996 sales.
Jumbo mask sales continue to lag 1996 sales for the nine
months, which is a difficult comparison following a 51%
increase over 1995. The first nine months included over $11
million of computer monitor mask sales. Net sales of the
Optical Products group increased 6% due to higher sales in all
major product lines, except for glass. Sales of high end
products increased 23% over the same period in the prior year.
Cost of sales were 77% of net sales for the first nine
months of 1997 compared to 78% in the same period of 1996.
Profitability of the Mask Operations increased due to the
continued sales mix shift to higher margin products, but was
depressed by lower yields on the manufacturing lines at the
Cortland facility. Mask operations has incurred significant
start-up and part qualification expenses during the first
nine months of 1997. These expenses were partially offset
by $2.5 million of income recognized upon completion of a
long-term mask equipment and technology contract. As
discussed above, the gross profit generated from the strong
sales growth for the high end products in the Optics Products
group increased despite one-time expenses related to
the shut down of the Ft. Lauderdale plastic lens
manufacturing facility, start-up of the new polycarbonate
manufacturing, centralized distribution and research and
development facilities, as well as increased research and
development spending. The increase in gross profit was also
offset by increased advertising and promotional expenses,
primarily related to polycarbonate lenses.
Despite an increased debt level, interest expense in the
first nine months of 1997 was only slightly higher than the
prior year due to the capitalization of interest costs in
connection with the Company's expansion projects.
The provision the income taxes was 33% of pre-tax income in
the first nine months of 1997 and 1996.
FINANCIAL POSITION AND LIQUIDITY
Cash and cash equivalent balances decreased $0.4
million and debt increased $58.9 million during the
first nine months of 1997. The increased debt level
was the result of $70 million of capital
expenditures relating primarily to the expansion of the
Company's aperture mask manufacturing facilities and
increased inventory and accounts receivable levels,
offset partially by increased accounts payable
balances. The Company has now substantially completed
the two-line aperture mask manufacturing expansion at
the Cortland facility. Total expenditures on this
expansion during 1997 were approximately $50 million.
The increased inventory levels were due primarily to
the new aperture mask production lines at the Cortland
facility and the acquisition of P.T. Vision-Ease Asia early
in 1997. The increased accounts receivable levels were
the result of the increased sales. The increased
accounts payable balance was due primarily to payables
related to the Cortland expansion project and increased
raw material requirements to support the higher sales
levels. Due primarily to the increases in accounts
receivable and inventory, working capital was $71.4
million at September 30, 1997 compared to $41.4 million
at December 31, 1996. The current ratio was 2.72 at
September 30, 1997, compared to 1.82 at December 31,
1996. The ratio of debt to equity increased to 0.45 at
September 30, 1997 compared to 0.12 at December 31,
1996 due to the increased debt levels.
In addition to the $70 million of capital expenditures
mentioned above, the Company expects to spend approximately
$10 million during the fourth quarter of 1997. The Company
has $88 million in
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revolving credit facilities which will provide the funds
needed for capital spending related to the Cortland expansion
and the Company's new polycarbonate facility in Ramsey,
Minnesota. The Company's $80 million acquisition credit
facility will provide funds in the event the Company
encounters a strategic acquisition opportunity. As of
September 30, 1997, the Company had commitments of
approximately $8 million related to capital projects.
The revolving credit facilities along with cash
generated from operations should be sufficient to meet
the Company's expected future capital and operating
requirements.
FOREIGN CURRENCY
Fluctuations in foreign currency exchange rates,
principally the German mark versus the U.S. dollar, may
affect the Company's financial results. The Company's
German subsidiary has a large portion of its sales
denominated in U.S. dollars. As most of the German
subsidiary's expenses are denominated in the German
mark, this represents the most significant element of
the Company's exposure to currency rate fluctuations.
This exposure is generally addressed as needed through
the purchase of forward contracts and options. As of
September 30, 1997, the Company had approximately $8.1
million of outstanding foreign exchange options to
exchange U.S. dollars for German marks at a set
exchange rate. These options mature at various
intervals through March 1998.
Exposure to foreign currency exchange rate fluctuations
also may exist with respect to intercompany payables or
receivables with the Company's foreign subsidiaries.
The Company minimizes this exposure by holding such
balances at low levels.
ENVIRONMENTAL
In July 1997, the Company executed a de minimus settlement
agreement with the Envirotek II/Roblin Steel Site PRP Group
for a nominal amount in settlement of its liability as a
potentially responsible party at this site in Tonawanda,
New York. There are no other material changes in the
status of the legal proceedings and environmental matters
described in the Company's Annual Report on Form 10-K
for the year ended December 31, 1996.
CAUTIONARY STATEMENTS
Certain statements included in this Discussion and
Analysis of Financial Condition and Results of
Operations by the Company or its representatives, as
well as other communications, including reports to
shareholders, news releases and presentations to
securities analysts or investors, contain forward-looking
statements made in good faith by the Company
pursuant to the "Safe Harbor" provisions of the PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995. These
statements relate to non-historical information which
are subject to certain risks and uncertainties that
could cause actual results to differ materially from
those presently anticipated or projected. The Company
wishes to caution the reader not to place undo reliance
on any such forward-looking statements. These
statements are qualified by important factors listed
separately in "Item 1 - Business" of the Company's Form
10-K for the year ended December 31, 1996, which in
some cases have affected and in the future could
adversely affect the Company's actual results and could
cause the Company's actual financial performance to
differ materially from that expressed in any forward-looking
statement. These factors should not, however,
be considered an exhaustive list. The Company does not
undertake the responsibility to update any forward-looking
statement that may be made from time to time by or on behalf
of the Company.
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Part II: OTHER INFORMATION
ITEM 1. With regard to legal proceedings and
certain environmental matters, see "Management's
Discussion and Analysis of Financial
Condition and Results of Operations" on page 10
and Note 6 of the "Notes to Condensed
Consolidated Financial Statements" on page 7.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) EXHIBITS PAGE
-------- ----
10.1 Amendment of the Product Manufacturing and
Sales Agreement, dated August 11, 1997, between
Polycore Optical, PTE. Ltd. and Vision-Ease
Lens, Inc............................................ 13
10.2 Second Declaration of Amendment, dated August 8,
1997, to the BMC Industries, Inc. 1994 Stock
Incentive Plan....................................... 16
10.3 Lease, dated October 29, 1997, by and among the
Company and Meridian Crossings LLC
(d/b/a Told Development Company)..................... 17
11.1 Computation of Net Earnings per Share................ 75
27. Financial Data Schedule (filed only in electronic
format)
99.1 News Release, dated October 22, 1997, announcing the
third quarter 1997 operating results................. 76
99.2 News Release, dated September 5, 1997, announcing
quarterly dividend................................... 80
99.3 News Release, dated August 15, 1997, announcing intent
to establish a Brazilian joint venture............... 81
(b) REPORTS ON FORM 8-K
The Company did not file any reports on Form 8-K during the quarter ended
September 30, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities and wExchange
Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly
authorized.
BMC INDUSTRIES, INC.
/s/ Jeffrey L. Wright
----------------------------------------
Jeffrey L. Wright
Controller (Principal Accounting Officer)
Dated: November 14, 1997
Page 12
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AMENDMENT
OF
PRODUCT MANUFACTURING
AND SALES AGREEMENT
THIS AMENDMENT OF THE PRODUCT MANUFACTURING AND SALES AGREEMENT
(this "Amendment") is made and entered into as of the 11th day of August,
1997 between POLYCORE OPTICAL, PTE. LTD. ("Seller") and VISION-EASE LENS,
INC., successor in interest to Vision-Ease, a unit of BMC Industries, Inc.
("Buyer").
RECITALS
WHEREAS, Buyer's predecessor, Vision-Ease, a unit of BMC
Industries, Inc., and Seller are parties to that certain Product
Manufacturing and Sales Agreement dated as of the 17th day of October, 1994
(the "Agreement");
WHEREAS, Buyer and Seller desire to amend the Agreement upon the
terms and conditions, and in the manner set forth below; and
WHEREAS, it is intended by this Amendment to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1) SPECIFICATIONS. Section 3.2 of the Agreement is hereby amended such
that the words "Buyer's Vice President of Sales and Marketing" are
replaced with "Buyer's Vice President of International Sales".
2) PRICE. Section 5.1(b) of the Agreement is hereby amended such that
the words "each of years two and three of this contract" are replaced
with "year 2 of this Amendment".
3) CUSTOMER RETURNS. Section 6.2 of the Agreement is hereby amended by
adding the words", at Seller's expense," to line 3 of such section
following "forwarded to Seller".
4) IMPROVEMENTS. Section 7.2 of the Agreement is hereby amended such
that the word "U.S." is replaced with "worldwide".
5) PATENT INDEMNIFICATION. Buyer agrees that it will indemnify and hold
harmless Seller from and against any loss, damage, cost including
attorney fees or liability which may be incurred by Seller, based on a
claim that the manufacturign process used for any of the Products
furnished hereunder infringes any patent of the United States or any
other country, and that Buyer, will, at its own expense, defend any
action, suit or proceeding which is based on an allegation that the
manufacturing process used for any Product manufactured by Seller and
sold to Buyer hreunder constitutes an infringement of any patent of
the United States or any other county; provided, that:
a) Seller immediately notifies Buyer in writing of the existence of
any notice or claim or inforingement and of any such action, suit
or proceeding upon Seller's discovery of the exitence thereof.
b) Seller gives Buyer full control of the defense of any such suit,
including appeals from any judgment therein and any negotiations
for the settlement or compromise thereof with full authority to
enter into a binding settlement or compromise; and
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c) Sller cooperates with Buyer, at Buyer's expense, in the defense
thereof.
In the event that the manufacturing process used for any such
Products are held to constitute an infringement and the use,
possession, sales, reproduction or distribution thereof is
enjoined, Buyer shall use its best efforts to replace such
infringing process during the terms of this Agreement with
non-infringing process at Buyer's expense.
6) TERM. The term of the Agreement as set forth in Section 10.1 of the
Agreement shall be extended for an additional period of two years,
which shall commence as of the date of the expiration of the original
term of the Agreement.
7) TERMINATION FOR BREACH. Section 10.2 of the Agreement is hereby
amended by deleting the words "without further notice," and by adding
the words "if Buyer fails to cure such default within five (5)
business days of written demand of Seller" following "to immediately
terminate this Agreement".
8) OTHER TERMINATION. Section 10.3 of the Agreement is hereby amended by
adding the following language at the end of such section:
In case of the breach of contractual commitment by Vision-Ease or
any affiliated entity or new principal as described in 10.3,
Polycore Optical has the right to sell back to Vision-Ease at then
present net book value, the molds, lenses, equipment, and other
facilities which are related in one way or another to the
manufacturing of lenses for Vision-Ease."
9) CONFIDENTIALITY. Section 12.1 of the Agreement is hereby amended by
relettering subsection (d) as (e) and adding the following as the new
subsection (d):
"is independently developed by the employees or other affiliates of
the receiving party without access to the confidential
information; or"
10) PUBLICITY. The following sentence is added at the end of Section
13.1:
"Notwithstanding the foregoing, Buyer shall have authority to
disclose such terms as required under law or court order upon the
opinion of counsel that such disclosure is required."
11) NOTICES. Section 13.2 is hereby amended by adding the words "Lens,
Inc." following the words "Vision-Ease". All notices should be sent
to the attention of the Vice President of International Sales. The
telecopier number is (612) 536-8789.
12) ASSIGNMENT; BINDING AFFECT. Section 13.3 of the Agreement is hereby
amended by adding the words "to an affiliated entity or" following the
word "except".
13) EXHIBITS. Exhibits A through G of the Agreement shall be superceded
in their entirety and replaced with Exhibits A through G attached to
this Amendment effective as of the expiration of the original term of
the Agreement and concurrent with the beginning of the term extension
set forth in Section 7 of this Amendment.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to be duly
executed as of the date first above written.
POLYCORE OPTICAL, PTE. LTD. VISION-EASE LENS, INC.
By: /s/Dr. Sammy Sumargo By: /s/Richard J. Montag
Its: Managing Director Its: Vice President International Sales
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AMENDMENT NO. 2
1994 STOCK INCENTIVE PLAN
Effective August 8, 1997, Section 6.7(d) of the BMC Industries, Inc. 1994
Stock Incentive Plan shall be amended in its entirety as follows and shall
apply to all future and currently outstanding Options granted to Non-Employee
Directors:
6. OPTIONS.
7 AUTOMATIC GRANTS TO NON-EMPLOYEE DIRECTORS.
(d) EFFECT OF TERMINATION OF DIRECTORSHIP. In the event a
Non-Employee Director's service as a director of the Company is
terminated for any reason other than death, Disability or
Retirement, all such Options then held by the Non-Employee
Director will continue to become exercisable and expire in
accordance with their terms. In the event a Non-Employee
Director's service as a director of the Company is terminated
due to death, Disability or Retirement in accordance with the
Board's then current Retirement policy, all Options then held
by the Non-Employee Director will become immediately
exercisable in full and will expire in accordance with their
terms. Such Options will not be subject to the termination
provisions of Section 11 of the Plan.
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LEASE
MERIDIAN CROSSINGS I
THIS INDENTURE OF LEASE dated October 29, 1997, by and between MERIDIAN
CROSSINGS LLC, a Minnesota limited liability company (d/b/a TOLD Development
Company) ("Landlord"), and BMC Industries, Inc., a Minnesota corporation
("Tenant").
WITNESSETH:
FOR AND IN CONSIDERATION of the rents and covenants hereinafter set forth
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
DATA SHEET
The following terms shall have the meanings set forth in this section,
unless otherwise specifically modified by provisions of this Lease:
(a) "FACILITY" OR "PROJECT": The Building and the Property including
all appurtenant easements and personal property used in connection with the
Building or Property located therein and thereon.
(b) "BUILDING": The approximately 184,718 rentable square foot
building which is located on the Property, the floor plan of which is attached
hereto as Exhibit A.
(c) "PROPERTY": The real property, known as Meridian Crossings I,
Richfield, Minnesota, more particularly described on Exhibit "B".
(d) "PREMISES": The area outlined on Exhibit A. For purposes of
this Lease, Landlord and Tenant agree that the Premises shall be deemed to
contain approximately 11,124 rentable square feet of space, located on the
eighth (8th) floor of the Building, subject to the initial expansion rights of
Tenant set forth in Article XXI hereof.
(e) "COMMENCEMENT DATE": April 1, 1998, or such later date as set
forth in Article IV.
(f) "EXPIRATION DATE": March 31, 2003, or such later date such that
the Term ends five (5) full years after the Commencement Date, unless earlier
terminated by Tenant in accordance with Article XXV herein.
(g) "TERM": Five (5) full years.
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(h) "BASE RENT":
With respect to the follow- Annual Base Rent shall Payable in advance in
ing years of the term: be as follows: equal monthly
installments as
follows:
- ----------------------------- ----------------------- ---------------------
1 - 5 $17.60 per rentable 1/12 per month
square foot of Premises
(i) "ADDITIONAL RENT": Tenant's Share of Operating Expenses,
Tenant's Share of Taxes, Service Charges and other payments to be made by
Tenant to Landlord pursuant to this Lease.
(j) "TENANT'S PERCENTAGE": Six and two hundredths Percent (6.02%).
Tenant's Percentage shall be adjusted in the event of a change in the number
of rentable square feet of space in the Premises or the Building and as set
forth in Article 2 herein.
(k) "PERMITTED USE": For general office and related purposes and
for no other purpose.
(l) NOTICE AND PAYMENT ADDRESSES:
Landlord: Meridian Crossings LLC
c/o TOLD Development Company
6900 Wedgwood Road, Suite #100
Maple Grove, MN 55311
Ph: #(612)420-9000
Tenant:
PRIOR TO COMMENCEMENT DATE: BMC Industries, Inc.
Two Appletree Square, Suite #400
Minneapolis, MN 55425
Attn: Director of Legal Services
AFTER COMMENCEMENT DATE: BMC Industries, Inc.
1205 West 77th Street, Suite
Richfield, MN 55423
Attn: Director of Legal Services
(m) "LEASE YEAR": The twelve-month period commencing
January 1 and ending December 31, adjusted for partial Lease Years
during which the Term commences and terminates.
(n) "LANDLORD'S IMPROVEMENTS": Improvements to the
Premises to be performed by Landlord as set forth in Exhibit D.
(o) "TENANT REPRESENTATIVE": The Keewaydin Group, Inc.
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<PAGE>
(p) EXHIBITS: the following exhibits are attached to this
Lease and are incorporated herein by reference:
Rider
Exhibit A - Premises Exhibit E - Services
Exhibit B - Legal Description Exhibit F - Storage Space Lease
Exhibit C - Rules and Regulations Exhibit G - Reserved Parking Lease
Exhibit D - Intentionally Deleted Exhibit H - Landlord's Improvements
Exhibit I - Estoppel Certificate
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<PAGE>
ARTICLE I
BASE RENT
1.01 Rent Reserved and Monthly Payments. In consideration of the
leasing of the Premises, Tenant agrees to pay to Landlord without setoff,
deduction or demand, unless specifically provided for herein, at the address
set forth in the Data Sheet, or at such other place as Landlord from time to
time may designate in writing, Base Rent as set forth in Article 2,
commencing on the Commencement Date and continuing on the first day of each
and every month thereafter for the next succeeding months during the balance
of the Term. If the Term commences on a date other than the last day of a
calendar month, monthly rent for such partial month, as the case may be,
shall be obtained by multiplying the number of days in the term within such
month by a fraction, the numerator of which is the annual Base Rent and the
denominator of which is 365.
ARTICLE II
ADDITIONAL RENT
2.01 Additions to Base Rent. In addition to the Base Rent payable by
Tenant under the provisions of Article 1 hereof, Tenant shall pay to Landlord
"Additional Rent" as hereinafter provided.
2.02 Definitions. For purposes of this Article 2, the parties hereto
agree upon the following definitions:
A. The term "Taxes" shall mean and include all personal property
taxes of Landlord relating to Landlord's personal property located in the
Facility and used or useful in connection with the operation and maintenance
thereof, real estate taxes and installments of special assessments, including
interest thereon, relating to the Property and Facility, and all other
governmental charges, general and special, ordinary and extraordinary,
foreseen as well as unforeseen, of any kind and nature whatsoever, or other
tax, however described, that is levied or assessed by the United States of
America or the state in which the Facility is located or any political
subdivision thereof, against Landlord or all or any part of the Facility as a
result of Landlord's ownership of the Property or Facility, and due and
payable during the respective Lease Year. It shall not include any gross
receipts or net income tax, estate tax, or inheritance tax of Landlord. For
purposes of this Lease during the initial five (5) year term of the Lease
only, special assessments which (i) are levied or assessed as of the date of
this Lease, and/or (ii) are to be levied and assessed pursuant to Landlord's
development agreement with the City of Richfield HRA as a part of Landlord's
initial development of the Property shall not exceed nineteen cents ($ .19)
per rentable square foot of Premises.
B. (1) The term "Operating Expenses" shall mean and
include all expenses incurred with respect to the maintenance and
operation of the Property and Facility, including without limitation
the parking areas and parking structures, as determined by Landlord's
accountant in accordance with generally accepted accounting principles
consistently followed, including, but not limited to, insurance
premiums, maintenance and repair costs, steam, electricity, water,
sewer, gas, and other utility charges; fuel, lighting, window washing,
janitorial
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services, trash and rubbish removal; actual wages payable to those workers
whose duties are related directly to the operation and maintenance of the
Property and Facility pro rated for time actually spent on the Property and
excluding any personnel above the rank of building superintendent; amounts
paid to contractors or subcontractors for work or services performed related
directly to the operation and maintenance of the Property and Facility; all
costs of uniforms, supplies and materials used in direct support of the
operation and maintenance of the Property and Facility; all payroll taxes,
unemployment insurance costs, vacation allowances, and the cost of providing
disability insurance or benefits, pensions, profit sharing benefits,
hospitalization, retirement or other so-called fringe benefits; and any other
expense imposed on Landlord, pursuant to law or pursuant to any collective
bargaining agreement covering such employees; reasonable attorney's fees, and
costs in connection with appeal or contest of real estate taxes or valuation
or other taxes or levies, and such other expenses as may be ordinarily
incurred in the operation and maintenance of an office complex, including
reasonable management fees not to exceed three percent (3%) of gross rental
income from the Facility (for the purpose of this calculation, any free or
abated rent shall be included as if rent was being paid at the amount due
immediately after expiration of said free rent period), and the cost of a
management office. Operating Expenses shall also be deemed to include
reasonable expenses incurred by Landlord in connection with city sidewalks
adjacent to the Property or other public facility to which Landlord or the
Facility is from time to time subject in connection with operations of the
Property and Facility.
(2) The term "Operating Expenses" shall not include any
capital improvement to the Facility, nor shall it include repairs,
restoration or other work occasioned by fire, windstorm or other insured
casualty, expenses incurred in leasing to or procuring tenants, costs that
are separately billed to tenants and for which Landlord receives
reimbursement, leasing commissions, expenses for renovating or improving
rentable area for new tenants, legal expenses incident to enforcement by
Landlord of the terms of any lease, interest or principal payments on any
mortgage or other indebtedness of Landlord, depreciation allowance or expense
other than depreciation on Building equipment, nor any of the following:
(a) Rents, and other costs, as such, under any
ground lease in respect to the Property, but shall include
portions of such rent paid for expenses otherwise included
in Operating Expenses hereunder;
(b) Costs incurred for the original construction
(as distinguished from operation, repair and maintenance) of
the Facility or in the acquisition of the Land;
(c) Costs of correction of defects in initial
construction of the Facility or repair and replacement of
any of the original materials or equipment required as a
result of such defects, but only to the extent such costs
would ordinarily be paid by a contractor issuing a one-year
warranty in respect to such matters or otherwise occurring
during the warranty period of Landlord's original
construction contract;
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<PAGE>
(d) Cost items otherwise includable in Operating
Expenses which are reimbursed to Landlord by insurance or
otherwise, less the out-of-pocket costs of collection;
(e) Costs for utility or service charges for
utilities or services which are provided to tenants for
rentable areas over and above what is provided to tenants in
general by Landlord without direct charge above Base Rent
and Additional Rent;
(f) Bad debt loss, rent loss or reserves for bad
debts or rent loss [provided the cost of purchasing rent
loss insurance for up to twenty-four (24) consecutive months
of coverage shall not be excluded];
(g) Costs of products otherwise includable in
Operating Expenses but which represent an amount paid to an
affiliate of Landlord or an affiliate of any partner or
shareholder of Landlord, to the extent the same is in excess
of the fair market value of said item;
(h) Interest or penalties incurred as a result of
Landlord's failure to pay costs otherwise included in
Operating Expenses as the same shall become due;
(i) Costs or expenses incurred by Landlord which
represent amounts spent by Landlord in bad faith;
(j) Lease payments under leases for capital
equipment necessary to operate the Facility other than
leases of waste or garbage disposal equipment or leases of
plants and similar decorator items;
(k) Costs of preparation of Landlord's tax
returns and financial statements, other than Facility
financial statements, costs of defending any lawsuits with
any mortgagee (except as the actions of Tenant may be an
issue), costs of selling, syndication, financing, mortgaging
or hypothecating any of Landlord's interest in the Facility,
costs of any disputes between Landlord and its employees (if
any ) not engaged in operation of the Facility, disputes
between Landlord and managers of the Project and disputes
between Landlord and tenants within the project, including,
without limitation, the Tenant;
(l) Costs of capital improvements (except as
otherwise expressly provided herein) which cannot be
expensed for federal income tax purposes in the year the
improvement is made or placed in service;
(m) All capital costs related to the removal of
substances or materials from the Building or the Project
which are presently, or at any time in the future may be,
regulated and deemed hazardous to either people or the
environment, including, without limitation, any asbestos,
urea-formaldehyde,
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<PAGE>
chlorofluorocarbons (CFCs), or substances controlled by CERCLA.
In no event shall this apply to any materials hazardous or
otherwise in amounts allowed in the Building or Project under
applicable environmental laws. All capital costs related to
any remediation or capital costs incurred as a result of
retrofitting caused by cessation of use of any such materials
shall also be excluded.
(n) The cost of any repair to remedy damage
caused by or resulting from the negligence of any other
tenants in the Project for which reimbursement is received
by Landlord (Landlord shall use all reasonable efforts to
pursue reimbursement from said tenant), including their
agents, servants or employees, together with the costs and
expenses incurred by Landlord in attempting to recover such
costs.
(3) Notwithstanding the foregoing, in the event Landlord
installs equipment in or makes improvements or alterations to the Facility
that are for the purpose of reducing energy costs, maintenance costs or other
Operating Expenses or that are required under any governmental laws,
regulations, or ordinances which were not required at the date of
commencement of the term of this Lease, Landlord may include in Operating
Expenses reasonable charges for interest on such investment and reasonable
charges for depreciation on the same so as to amortize such investment over
the reasonable life of such equipment, improvement or alteration on a
straight line basis provided, however the annual amount added to Operating
Expenses for equipment or improvements or alterations for the purpose of
reducing energy costs, maintenance costs or other Operating Costs shall not
exceed Landlord's reasonable estimate (at the time of installation,
improvement or alteration) of the annual savings resulting from such
installation, alteration or improvement.
C. The terms "Tenant's Share of Taxes" and "Tenant's Share of
Operating Expenses", unless specifically otherwise defined herein, shall each
mean the percentage that the rentable area of Tenant's Premises is of the
total rentable area in the Facility, subject to adjustment as set forth in
Paragraph D. If said percentage shall change during a Lease Year, it shall
be averaged by applicable days, and the average shall be Tenant's Share for
that year.
D. Notwithstanding anything herein to the contrary, it is agreed that
(i) in the event the Facility is not fully occupied during any Lease Year, a
reasonable and equitable adjustment shall be made by Landlord to those
charges only which vary with the occupancy of the Facility in computing the
Operating Expenses for such year so that the Operating Expenses shall be
adjusted to the amount that would have been incurred had the Facility been
fully occupied during such year, and (ii) Tenant's share shall be amended for
each Lease Year to the percentage that the average rentable area of the
Premises bears to the greater of (y) ninety-five percent (95%) of the total
rentable area of the Facility for such Lease Year, or (z) to the total
average rentable area leased (pursuant to leases under which the term has
commenced) in the Facility for such Lease Year. In no event shall Landlord
collect in excess of one hundred percent (100%) of Operating Expenses
actually incurred through the operation of this Section D.
E. The term "Service Charge" shall mean any fee or other
charge for service specified in this Lease as payable by Tenant.
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<PAGE>
2.03 Additional Rent Estimates: As to each Lease Year after the
initial Lease Year, Landlord shall estimate for each such Lease Year (i) the
total amount of Taxes; (ii) the total amount of Operating Expenses; (iii)
Tenant's Share of Taxes; (iv) Tenant's Share of Operating Expenses; (v) the
computation of the annual and monthly rental payable during such Lease Year
as a result of increases or decreases in Tenant's Share of Taxes and Tenant's
Share of Operating Expenses. Said estimate shall be in writing and Landlord
shall use reasonable efforts to deliver or mail same to Tenant at the
Premises within ninety (90) days of the close of each Lease Year.
2.04 Payment of Additional Rent Estimates. Tenant shall pay the
Additional Rent so estimated, in equal monthly installments, in advance, on
the first day of each month during each applicable Lease Year. In the event
that said estimate is delivered to Tenant after the first day of January of
the applicable Lease Year, said amount, so estimated, shall be payable as
Additional Rent, in equal monthly installments, in advance, on the first day
of each month over the balance of such Lease Year, with the number of
installments being equal to the number of full calendar months remaining in
such Lease Year.
2.05 Annual Determination of Additional Rent. Upon completion of each
Lease Year, Landlord shall determine the actual amount of Taxes and Operating
Expenses for such Lease Year and Tenant's Share thereof and deliver a
written, itemized certification of the amounts thereof to Tenant. If Tenant
has paid less than its Share of Taxes or its Share of Operating Expenses for
any Lease Year, Tenant shall pay the balance of its Share of the same within
twenty (20) days after the receipt of such statement. If Tenant has paid
more than its Share of Taxes or its share of Operating Expenses for any Lease
Year, Landlord shall, at Tenant's option, either (i) promptly refund such
excess, or (ii) credit such excess against the most current monthly
installment or installments due Landlord for Base Rent and Additional Rent
estimates. A pro rata adjustment shall be made for a fractional Lease Year
occurring during the term of this Lease or any renewal or extension thereof
based upon the number of days of the term of this Lease during said Lease
Year as compared to three hundred sixty-five (365) days and all additional
sums payable by Tenant or credits due Tenant as a result of the provisions of
this Article 2 shall be adjusted accordingly.
2.06 Rental Taxes. Further, Tenant shall pay, also as Additional Rent,
any tax or excise on rents, gross receipts tax, or other tax, however
described, which is levied or assessed by the United States of America or the
state in which the Facility is located or any political subdivision
thereafter, against Landlord in respect to the Base Rent, Additional Rent, or
other charges reserved under this Lease or as a result of Landlord's receipt
of such rents or other charges accruing under this Lease, all of which shall
herein be termed "Rental Taxes"; provided, however, Tenant shall have no
obligation to pay net income taxes of Landlord.
2.07 Tenant's Taxes. Tenant shall pay, prior to delinquency, all taxes
assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, and when possible, Tenant shall cause such trade
fixtures, furnishing, equipment and other personal property to be assessed
and billed separately from the property of Landlord. In the event any or all
of Tenant's trade fixtures, furnishings, equipment or other personal
property, or Tenant's occupancy of the Premises, shall be assessed and taxed
with the property of Landlord, Tenant shall pay to Landlord its share of
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such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's personal property.
ARTICLE III
OVERDUE AMOUNTS; RENT INDEPENDENT
3.01 Payment of Rent. Any installment of Base Rent, Additional Rent,
or any other charges to be paid by Tenant accruing under the provisions of
this Lease that shall not be paid when due, shall bear interest at the rate
of two (2) points over the quoted prime rate of interest charged by Norwest
Bank Minnesota, N.A. (or its successor) per annum from the date when the same
is due until the same shall be paid, but if such rate exceeds the maximum
interest rate permitted by law, such rate shall be reduced to the highest
rate allowed by law under the circumstances. Tenant's covenants to pay the
Base Rent and the Additional Rent are independent of any other covenant,
condition, provision or agreement herein contained.
3.02 No Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Base Rent, Additional Rent, Service
Charge or other charges ("Rent") stipulated herein shall be deemed to be
other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord shall
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy in this Lease.
ARTICLE IV
TERM AND COMMENCEMENT
4.01 Demise. Landlord hereby demises and leases to Tenant and Tenant
hereby rents and takes from Landlord the Premises for the Term and subject to
and with the benefit of the terms, covenants and conditions of this Lease to
be occupied and used by Tenant solely for the purposes stated on the Data
Sheet and for no other purpose. Landlord shall have the right to grant
exclusive rights to parties in the Facility to conduct service businesses
serving the Property but in no event shall this conflict with Tenant's use as
set forth on the Data Sheet.
4.02 Commencement Date. Tenant shall have and hold the same Premises,
without any liability or obligation on the part of Landlord to make any
alterations, improvements or repairs of any kind in or about the Premises,
except as expressly provided herein, for the Term set forth on the Data
Sheet, unless sooner terminated in the manner provided herein. The Term
hereof shall commence on the Commencement Date. The "Targeted Delivery Date"
is January 1, 1998. For purposes hereof, the Delivery Date shall be the date
that Tenant, if Tenant elects to construct its tenant improvements ("Tenant
Work"), is provided access to the Premises for purposes of commencing Tenant
Work. The Delivery Date shall not occur until the Premises are in
substantial compliance with the minimum shell requirement conditions more
particularly set forth on Exhibit "H" attached hereto. If Landlord is unable
to give possession of the Premises on the Targeted Delivery Date because the
construction of the Facility or the completion of Landlord's Improvements in
the Premises has not been sufficiently completed to comply with the terms of
Exhibit "H", or for any reason, Landlord shall not be subject to any claims,
damages or
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liabilities for the failure to give possession on said date (except as
specifically set forth below) provided, however in the event the Delivery
Date does not occur on or before February 15, 1998, Tenant shall, upon notice
to Landlord given on or before February 25, 1998, terminate this Lease
effective upon Landlord's receipt of the Notice unless the Delivery Date
occurs prior to the tolling of said notice period, in which event the Lease
shall remain in full force and effect. In the event that prior to February
15, 1998 Landlord notifies Tenant of a delay in the Delivery Date beyond
February 15, 1998 and sets forth a revised specific Delivery Date ("Revised
Date"), Tenant within ten (10) days of the date of said notice may (i)
terminate the Lease, or (ii) accept said Revised Date as the new Delivery
Date as if said Revised Date were the date originally set forth as the
Delivery Date. In the event Tenant terminates the Lease, Landlord shall not
be liable for damages or subject to claims or liabilities, however, if (i)
the delay was the result of reasons beyond the reasonable control of Landlord
("Force Majeure"), in such event Landlord shall be responsible for the
Holdover Penalties (as defined below) suffered by Tenant through (x) the date
the Tenant occupies a new premises, (y) the date Tenant renews its Lease in
its existing premises, or (z) the date twelve (12) weeks after the actual
Delivery Date of the Premises, whichever is earlier, or (ii) in the event the
delay was not the result of Force Majeure, Landlord shall be responsible for
payment of the Holdover Penalty through the earlier to occur of (x) or (y)
above.
In the event Tenant selects Landlord's contractor to perform the Tenant
Work, the Commencement Date shall be April 1, 1998, provided the Premises are
substantially completed on or before April 1, 1998 and Landlord obtains a
certificate of occupancy (whether full or partial, permanent or temporary)
for the Premises on or before April 1, 1998. Substantial completion of the
Premises shall be evidenced by the issuance of a certificate of occupancy
(whether full or partial, temporary or permanent) for the Premises. If
Landlord's contractor performs Tenant's Work, the rent reserved and covenant
to pay same shall not commence until the later of (i) April 1, 1998, or (ii)
the Commencement Date, even if occupancy of the Premises is delivered prior
to April 1, 1998.
If Tenant selects a contractor other than Landlord's contractor to
perform Tenant Work, the Rent reserved and covenant to pay same shall
commence on April 1, 1998 unless the Delivery Date has not occurred on or
before January 1, 1998, in which event the Commencement Date shall be the
later of (i) April 1, 1998, or (ii) twelve (12) weeks from the Delivery Date.
Tenant shall have the right to occupy the Premises on March 1, 1997 without
payment of Rent other than utility costs.
In the event (i) Landlord fails to deliver possession of the Premises
for commencement of Tenant Work on or before the Targeted Delivery Date, or
Revised Date, or (ii) Landlord's contractor is performing the Tenant Work and
the Premises are not substantially completed and ready for occupancy by
Tenant on or before April 1, 1998 and the delay is not due to the action or
inaction of Tenant, Landlord shall not be liable for damages or subject to
any claims or liabilities however Landlord agrees to reimburse to Tenant all
costs directly resulting solely from either Landlord's failure to deliver
possession of the Premises to Tenant on or before January 1, 1998, or
Landlord's failure to deliver occupancy of the Premises by April 1, 1998
including but not limited to the amount of Tenant's rent and other lease
charges in excess of the amounts due from Tenant under its existing lease
immediately prior to April 1, 1998 ("Holdover Penalty"). Failure to give
possession of the Premises on or before April 1, 1998 shall in no way
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affect the validity of this Lease or the obligations of Tenant hereunder. In
the event that there is no Revised Date, Landlord's contractor is performing
the improvements and Landlord is unable to deliver occupancy of the Premises
to Tenant on or before July 1, 1998, Tenant's sole remedy shall be the
Holdover Penalty set forth hereinabove plus termination of this Lease upon
five (5) days written notice to Landlord given on or before July 5, 1998.
Landlord's obligation to pay Holdover Penalties shall terminate on the
earliest date that Tenant could move into replacement premises or executes an
amended lease in its present premises.
Whenever in this Lease Landlord is obligated to pay a Holdover Penalty,
Tenant agrees it shall use all reasonable efforts to minimize the amount of
Holdover Penalty and to expeditiously enter into a new lease or renew its
existing lease so that the damages to Landlord are mitigated.
4.03 Acceptance of Premises. The acceptance of possession by Tenant
shall be deemed conclusively to establish that the Premises and all other
improvements of the Facility required to be constructed by Landlord for use
thereof by Tenant have been completed unless Tenant notifies Landlord in
writing within thirty (30) days after commencement of the term as to any
items not completed. Tenant waives any claim as to matters not listed in
said notice, provided, however, Tenant shall have one (1) year from the date
of substantial completion of any such work to notify Landlord of any latent
defects.
ARTICLE V
SERVICES
5.01 Landlord's Services. Subject to including the cost thereof in
Article 2, Landlord shall provide services as stated in Exhibit "E", without
further charge except as expressly stated otherwise.
5.02 Interruption of Services. No interruption in, or temporary
stoppage of, any of the aforesaid services caused by repairs, renewals,
improvements, alterations, strikes, lockouts, labor controversy, accidents,
inability to obtain fuel or supplies or other causes shall be deemed an
eviction or disturbance of Tenant's use and possession, or render Landlord
liable for damages, by abatement of rent or otherwise or relieve Tenant from
any obligation herein set forth. In no event shall Landlord be required to
provide any heat, air conditioning, electricity or other service in excess of
that permitted by voluntary or involuntary guidelines or laws, ordinances or
regulations of governmental authority. SEE RIDER, ARTICLES XXVII AND XXX.
5.03 Service Charge. Anything in this Lease to the contrary
notwithstanding, Landlord shall have the right to specially assess
Tenant a Service Charge for additional services or other items of
Operating Expenses requested by Tenant (and shall reduce the total of
Operating Expenses accordingly) to the extent Tenant's use or
consumption thereof due to hours of operation, equipment operated from
the Premises, or other reasons, warrant such assessment. Landlord
agrees that it will not discriminate against Tenant in the assessment
of any Service Charge.
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ARTICLE VI
INSURANCE
6.01 Landlord's Insurance.
A. Landlord's Casualty Insurance. Landlord shall, as a
portion of Operating Expenses, keep the Facility insured for the
benefit of Landlord in an amount equivalent to the full replacement
value thereof (excluding foundation, grading and excavation costs)
against (a) loss or damage by fire; and (b) such other risk or risks
of a similar or dissimilar nature as are now, or may in the future be,
customarily covered with respect to buildings and improvements similar
in construction, general location, use, occupancy and design to the
Facility, including, but without limiting, the generality of the
foregoing, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion, law and ordinance, and such other coverage
as may be deemed necessary by Landlord, provided such additional
coverage is obtainable and provided such additional coverage is such
as is customarily carried with respect to buildings and improvements
similar in construction, general location, use, occupancy and design
to the Facility.
B. Landlord's Liability Insurance. Landlord shall, as a
portion of the Operating Expenses, maintain, for its benefit and the
benefit of its managing agent and lender, commercial general liability
insurance against claims for personal injury, death or property damage
occurring upon, in or about the Facility.
These insurance provisions shall in no way limit or modify
any of the obligations of Tenant under any provision of this Lease.
6.02 Tenant's Insurance.
(a) Tenant's Casualty Insurance. Tenant shall keep all of
its machinery, equipment, furniture, fixtures, personal property
(including also property under the care, custody, or control of
Tenant) and business interests that may be located in, upon, or about
the Premises insured for the benefit of Tenant in an amount equivalent
to the full replacement value or insurable value thereof against (a)
loss or damage by fire; and (b) such other risk or risks of a similar
or dissimilar nature as are now, or may in the future be, customarily
covered with respect to a tenant's machinery, equipment, furniture,
fixtures, personal property and business located in a building similar
in construction, general location, use, occupancy and design to the
Facility, including, but without limiting the generality of the
foregoing, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion, and such other coverage as Tenant may deem
appropriate or necessary.
(b) Tenant's Liability Insurance. Tenant shall, at
Tenant's sole cost and expense maintain commercial general liability
insurance against claims for bodily and personal injury, death or
property damage occurring upon, in or about the Premises, such
insurance to afford protection to the limit of not less than One
Million and No/100 Dollars ($1,000,000.00) per each occurrence, and to
the amount of not less than Two Million and No/100 Dollars
($2,000,000.00) in general aggregate. Such policies of insurance
shall be written in companies reasonably satisfactory to Landlord,
naming Landlord, its lender and Landlord's managing agent as
additional insureds thereunder, and certificate of such insurance
shall be delivered to Landlord by
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the company or agency issuing the same. Tenant agrees to include in
such policy contractual liability coverage insuring Tenant's
indemnification obligations provided for herein.
6.03 Releases and Indemnity.
(a) Tenant's Indemnification. Tenant agrees to indemnify
and save Landlord and its managing agent harmless against and from any
and all claims, loss, damage and expense by or on behalf of any
person or persons, firm or firms, corporation or corporations, arising
from any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed,
pursuant to the terms of this Lease, or arising from any act or
negligence on the part of Tenant or its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage
to the extent caused by Tenant, its agents, and employees to any
person, firm or corporation occurring during the term of this Lease or
any renewal thereof, in or about the Premises and Building, and from
and against all costs, reasonable counsel fees, expenses and
liabilities incurred in or about any such claim or action or
proceeding which may be brought thereon; and in case any action or
proceeding be brought against Landlord or its managing agent by reason
of any such claim, Tenant, upon notice from Landlord, covenants to
resist or defend such action or proceeding, provided that Landlord
shall provide prompt notice to Tenant of any such claims upon
Landlord's receipt of such claims. Landlord agrees that it will not
settle or otherwise take any action on such claims as long as Tenant
is in compliance with this Section 6.03(a).
(b) Landlord's Indemnification. Landlord agrees to
indemnify and save Tenant, its directors, officers and employees and
its managing agent harmless against and from any and all claims, loss,
damage and expense by or on behalf of any person or persons, firm or
firms, corporation or corporations, arising from any breach or default
on the part of Landlord in the performance of any covenant or
agreement on the part of Landlord to be performed, pursuant to the
terms of this Lease, or arising from any act or negligence on the part
of Landlord or its agents, contractors, servants, employees or
licensees, or arising from any accident, injury or damage to the
extent caused by Landlord, its agents, and employees to any person,
firm or corporation occurring during the term of this Lease or any
renewal thereof, in or about the Premises and Project, and from and
against all costs, reasonable counsel fees, expenses and liabilities
incurred in or about any such claims, actions or proceeding brought
thereon; and in case any action or proceeding is brought against
Tenant, its directors, officers and employees by reason of any such
claim, Landlord, upon notice from Tenant, covenants to resist or
defend such action or proceeding with competent counsel.
(c) Tenant's Waiver. Tenant agrees, to the extent not
expressly prohibited by law, that Landlord, its agents, employees and
servants shall not be liable, and Tenant waives all claims for damage
to property and business sustained during the term of this Lease by
Tenant occurring in or about the Facility, resulting directly or
indirectly from any existing or future condition, defect, matter or
thing in the Premises, the Facility, or any part thereof, or from
equipment or appurtenances becoming out of repair or from accident, or
from any occurrence or act or omission of Landlord, its agents,
employees or servants, or any tenant or occupant of the Building or
any other person unless caused by the negligence or intentional act of
Landlord, its agents or employees. This paragraph shall apply
especially, but not exclusively, to damage
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caused as aforesaid or by the flooding of basements or other
subsurface areas, or by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, frost, steam, excessive heat or
cold, falling plaster, broken glass, sewage, gas, odors or noise, or
the bursting or leaking of pipes or plumbing fixtures, and shall apply
equally, whether any such damage results from the act or omission of
other tenants or occupants in the Facility or any other persons, and
whether such damage be caused by or result from any of the aforesaid,
or shall be caused by or result from other circumstances of a similar
or dissimilar nature.
(d) Tenant's Liability. All property in the Facility or on
the Premises belonging to Tenant, its agents, employees, invitees or
otherwise located at the Premises, shall be at the risk of Tenant
only, and Landlord shall not be liable for damage thereto or theft,
misappropriation or loss thereof (absent the willful act of Landlord)
and Tenant agrees to defend and hold Landlord, its agents, employees
and servants harmless and indemnify them against claims and liability
for injuries to such property.
(e) Releases. Landlord and Tenant each agree that such
policy or policies of insurance for loss or damage by fire or other
risks shall permit releases of liability as herein provided and
include a waiver of subrogation clause as to Tenant and Landlord
respectively. Each party hereto waives, releases and discharges the
other party from all claims or demands whatsoever which the waiving
party may have arising out of damage to or destruction of the waiving
party's property or loss of use thereof occasioned by fire of other
casualty, which such claim or demand may arise because of the
negligence or fault of the other party, its agents, employees,
customers or business invitees, or otherwise and the waiving party
agrees to look to its insurance coverage only in the event of such
loss.
ARTICLE VII
CERTAIN RIGHTS RESERVED BY LANDLORD
7.01 Rights Reserved. Landlord reserves the following rights
exercisable without notice unless otherwise noted and without
liability to Tenant and without affecting an eviction, constructive or
actual, or disturbance of Tenant's use of possession, or giving rise
to any claim for setoff or abatement of rent:
A. To control, install, affix and maintain any and all
signs on the Property, or on the exterior of the Facility and in the
corridors, entrances and other common areas thereof, except those
signs within the Premises not visible from outside the Premises.
B. To reasonably designate, limit, restrict and control any
service in or to the Facility, including but not limited to the
designation of sources from which Tenant may obtain sign painting and
lettering. Any restriction, designation, limitation or control
imposed by reason of this subparagraph shall be imposed uniformly on
Tenant and other tenants in the Facility.
C. To retain at all times and to use in appropriate
instances, keys or other means of access to all doors within and into
the Premises. No locks shall be changed without prior written consent
of Landlord. This provision shall not apply to Tenant's safes, or
other areas maintained by Tenant for the safety and security of
monies, securities, negotiable instruments or like items or to
officer's offices.
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D. To make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the
Facility, or any part thereof, and for such purposes to enter upon the
Premises, and during the continuation of any of said work, to
temporarily close doors, entryways, public spaces, and corridors in
the Facility and to interrupt or temporarily suspend services and
facilities. SEE ARTICLES XXVII AND XXX.
E. To restrict or prohibit vending or dispensing machines
of any kind in or about the Premises, unless used solely by Tenant's
employees and invitees.
F. To approve the weight, size and location of safes and
other heavy equipment and articles in and about the Premises and the
Facility and to require all such items to be moved into and out of the
Facility and the Premises only at such times and in such manner as
Landlord shall reasonably direct in writing.
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.01 Alterations. Tenant shall not make any improvements,
alterations, additions or installations in or to the Premises
(hereinafter referred to as the "Work") without Landlord's prior
written consent, which consent shall not be unreasonably withheld.
Anything to the contrary notwithstanding, without Landlord's consent
Tenant shall have the right to make up to twenty-thousand and NO/100
Dollars ($20,000.00) in alterations to the Premises in any twelve (12)
consecutive month period, provided said alterations do not affect, the
HVAC, electrical, mechanical or structural systems of the Building and
the resulting Premises are not diminished in value. Along with any
request for Landlord's consent and before commencement of the Work or
delivery of any materials to be used in the Work to the Premises or
into the Facility, Tenant shall furnish Landlord with plans and
specifications, names and addresses of contractors, copies of
contracts, necessary permits and licenses, and except when Landlord,
its agent or affiliate is contractor. Tenant agree to defend and hold
Landlord harmless from any and all claims and liabilities of any kind
and description that may arise out of or be connected in any way with
said improvements, alterations, additions or installations (unless
said improvement work is performed by Landlord). All work done by
Tenant, its agents, employees, or contractors shall be done in such a
manner as to avoid labor disputes. Tenant shall pay the cost of all
such improvements, alterations, additions or installations, and also
the cost of painting, restoring, or repairing the Premises and the
Facility occasioned by such improvements, alterations, additions or
installations. Upon completion of the Work, Tenant shall furnish
Landlord with contractor's sworn affidavits and full and final waivers
of liens. The Work shall comply in all material respects with all
insurance requirements and all laws, ordinances, rules and regulations
of all governmental authorities and shall be constructed in a good and
workmanlike manner. Tenant shall permit Landlord to inspect
construction operations in connection with the Work. Tenant shall not
be allowed, without Landlord's reasonable approval, to perform such
Work if such action results or would result in a labor dispute or
otherwise would materially interfere with Landlord's operation of the
Facility.
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ARTICLE IX
REPAIRS
9.01 Tenant's Duty of Repair. Tenant shall, during the term of
this Lease, at Tenant's expense, keep the Premises in as good order,
condition and repair as they were on the Commencement Date,
reasonable wear and tear and damage from fire and other casualties
excepted. Tenant shall keep the Premises in a neat and sanitary
condition and shall not commit any nuisance or waste on the Premises
or in, on, or about the Facility, throw foreign substances in the
plumbing facilities, or waste any of the utilities furnished by the
Landlord. All uninsured damage or injury to the Premises, or to the
Facility caused by Tenant moving furniture, fixtures, equipment, or
other devices in or out of the Premises or Facility or by installation
or removal of furniture, fixtures, equipment, devices or other
property of Tenant, its agents, contractors, servants or employees,
due to carelessness, omission, neglect, improper conduct, or other
cause of Tenant, its servants, employees, agents, visitors, or
licensees, shall be repaired, restored and replaced promptly by Tenant
at its sole cost and expense to the satisfaction of Landlord. All
repairs, restorations and replacements shall be in quality and class
equal to the original work.
9.02 Right of Entry. Landlord or its employees or agents shall
have the right to enter the Premises at any reasonable time or times
for the purpose of inspection, cleaning, repairs, altering, or
improving the same but nothing contained herein shall be construed as
imposing any obligation on Landlord to make any repairs, alterations
or improvements that are the obligation of Tenant. SEE ARTICLE XXVII
AND XXX.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.01 Assignment by Tenant. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed, (i) transfer, pledge, mortgage or assign this
Lease or any interest hereunder; (ii) permit any assignment of this
Lease by voluntary act, operation of law or otherwise; (iii) sublet
the Premises or any part thereof; or (iv) permit the regular use of
the Premise by any parties other than Tenant, its agents and
employees. Tenant shall seek such written consent of Landlord by a
written request therefore, setting forth such information as Landlord
may reasonably deem necessary. Tenant shall, by notice in writing,
advise Landlord of its intention from, on and after a stated date
which shall not be less than thirty (30) days after date of Tenant's
notice, to assign this Lease for the balance or any part of the
proposed assignment or sublease the consideration therefore. Tenant's
notice shall state the name and address of the proposed assignee or
subtenant and a true and complete copy of the proposed assignment or
sublease shall be delivered to Landlord with Tenant's notice.
Landlord will not unreasonably withhold its consent to Tenant's
assignment of the Lease or subletting of such space and incidental
rights to the party identified in Tenant's notice.
10.02 Payment to Landlord.
A. Landlord will not unreasonably withhold its consent to
Tenant's assignment of the Lease or subletting of such space and
incidental rights to the party identified in Tenant's notice,
provided, however, that in the event Landlord consents to any such
assignment
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or subletting, and as a condition thereto, Tenant shall pay to
Landlord, fifty percent (50%) of all net profit derived by Tenant from
such assignment or subletting other than to affiliates of Tenant. For
purposes of the foregoing, net profit shall be deemed to include, but
not be limited to, the amount of all rent payable by such assignee or
sublessee in excess of the Base Rent and rent adjustments payable by
Tenant under this Lease, net of all reasonable expenses incurred by
Tenant in obtaining said assignee or sublessee and any reasonable
costs incurred in managing said sublease or assignment.
If a part of the consideration for such assignment or
subletting shall be payable other than in cash, the payment to
Landlord shall be in cash for its share of any non-cash consideration
based upon the fair market value thereof.
B. Tenant shall furnish to Landlord upon request a
complete statement, certified by the chief financial officer of
Tenant, setting forth in detail the computation of all profit,
pursuant to generally accepted accounting principles. Tenant agrees
that Landlord shall have the right to review its books and records
used to determine profit for the assignment or sublease. Any profit
shall be paid to Landlord within fifteen (15) days of receipt by
Tenant of all payments made from time to time by such assignee or
sublessee to Tenant.
10.03 Terms of Sublease. Any subletting or assignment
hereunder shall not release or discharge Tenant of or from any
liability, whether past, present or future, under this Lease, and
Tenant shall continue fully liable thereunder for the Term of the
Lease unless Landlord shall agree otherwise in writing. The subtenant
or assignee shall agree in a form satisfactory to Landlord to comply
with and be bound by all of the terms, covenants, conditions,
provisions and agreements of this Lease to the extent of the space
sublet or assigned, and Tenant shall deliver to Landlord promptly
after execution an executed copy of each such subtenant or assignee.
Consent by Landlord to any assignment of this Lease or to any
subletting of the Premises shall not be a waiver of Landlord's rights
under this Article as to any subsequent assignment or subletting.
10.04 Miscellaneous. Any sale, assignment, mortgage, transfer,
or subletting of this Lease which is not in compliance with the
provisions of this Article 10 shall be of no effect and void.
Landlord's right to assign its interest in this Lease shall remain
unqualified.
ARTICLE XI
DAMAGE BY FIRE OR OTHER CASUALTY
11.01 Premises Destruction. If fire or other casualty shall
render the whole or any material portion of the Premises untenantable
or unsuitable for the purposes intended by Tenant, then:
A. If the Premises can reasonably be expected to be made
tenantable or suitable for the purposes intended by Tenant within two
hundred ten (210) days from the date of such event, Landlord shall
repair and restore the Premises and the Facility to as near their
condition prior to the fire or other casualty as is reasonably
possible within such two hundred ten (210) day period (subject to
delays for causes beyond Landlord's reasonable control) and notify
Tenant that it will be doing so, such notice to be mailed within
thirty (30) days from the date of such damage
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or destruction, and this Lease shall remain in full force and effect,
but the Rent for the period during which the Premises are untenantable
shall be abated pro rata (based upon the portion of the Premises which
is untenantable).
B. If the Premises cannot reasonably be expected to be made
tenantable or suitable for the purposes intended by Tenant within two
hundred ten (210) days from the date of such event, either Landlord or
Tenant by notice in writing to the other mailed within thirty (30)
days from the date of such damage or destruction, may terminate this
Lease effective upon a date within thirty (30) days from the date of
such notice.
11.02 Complex Destruction. In the event that more than fifty
percent (50%) of the value of the Facility is damaged or destroyed by
fire or other casualty, and irrespective of whether damage or
destruction and can be made tenantable or suitable for the purposes
intended by Tenant within two hundred ten (210) days thereafter, then
at Landlord's option, by written notice to Tenant, mailed within
thirty (30) days from the date of such damage or destruction, and
provided Landlord terminates all other tenants similarly situated
Landlord may terminate this Lease effective upon a date within ninety
(90) days from the date of such notice to Tenant. In the event of a
termination of this Lease pursuant to this Article 11, Rent shall be
apportioned on a per diem basis to the date of the fire or casualty.
11.03 Duty to Repair; Rent Abatement. If fire or other casualty
shall render the whole or any part of the Premises untenantable and
the Premises cannot reasonably be expected to be made tenantable
within two hundred ten (210) days from the date of such event and
neither Landlord nor Tenant terminates this Lease pursuant to its
right herein; or in the event that more than fifty percent (50%) of
the value of the Facility is damaged or destroyed by fire or other
casualty, and Landlord does not terminate this Lease pursuant to its
option granted herein, or in the event that fifty percent (50%) or
less of the value of the Facility is damaged or destroyed by fire or
other casualty and neither the whole nor any material portion of the
Premises is rendered untenantable, then Landlord shall repair and
restore the Premises and the Facility to as near their condition prior
to the fire or other casualty as is reasonably possible, the work to
be commenced and prosecuted with all due diligence and speed (subject
to delays for causes beyond Landlord's reasonable control), and the
Rent for the period during which the Premises are untenantable shall
be abated pro rata (based upon the portion of the Premises that is
untenantable). In no event shall Landlord be obligated to repair or
restore any special equipment or improvements installed by Tenant at
Tenant's expense. In the event Landlord elects to repair the Premises
and Facility, and such repairs are not substantially completed within
two hundred and ten (210) days of the date of the casualty, subject to
reasons beyond the reasonable control of Landlord, then in such event
Tenant may, after fifteen (15) days written notice provided to
Landlord on or before the date two hundred forty (240) days from the
date of the casualty, terminate this Lease and in the event Landlord
fails to substantially complete the restoration within said notice
period, this Lease shall terminate.
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ARTICLE XII
EMINENT DOMAIN
12.01 Public Taking. If the whole of or any substantial part of
the Premises is taken by any public authority under the power of
eminent domain, or taken in any manner for any public or quasi-public
use, so as to render (in Tenant's reasonable judgment) the remaining
portion of the Premises unsuitable for the purposes intended
hereunder, then the term of this Lease shall cease as of the day
possession shall be taken by such public authority and Landlord shall
make a pro rata refund of any prepaid Rent. All damages awarded for
such taking under the power of eminent domain or any like proceedings
shall belong to and be the property of Landlord, Tenant hereby
assigning to Landlord its interest, if any, in said award. In the
event that fifty percent (50%) or more of the building area or fifty
percent (50%) or more of the value of the Facility is taken by public
authority under the power of eminent domain, then, at Landlord's
option, by written notice to Tenant, mailed within sixty (60) days
from the date possession shall be taken by such public authority,
Landlord may terminate this Lease effective upon a date within ninety
(90) days from the date of such notice to Tenant, but in no event
effective later than the date of taking.
12.02 Tenant's Election. Further, if the whole or any
material part of the Premises is taken by public authority under the
power of eminent domain, or taken in any manner for any public or
quasi-public use, so as to render the remaining portion of the
Premises unsuitable in Tenant's reasonable opinion, for the purposes
intended hereunder, upon delivery of possession to the condemning
authority pursuant to the proceedings, Tenant may, at its option,
terminate this Lease as to the remainder of the Premises by written
notice to Landlord, such notice to be given to Landlord within thirty
(30) days after Tenant receives notice of the taking. Tenant shall
not have the right to terminate this Lease pursuant to the preceding
sentence unless (i) the business of Tenant conducted in the portion of
the Premises taken cannot, in Tenant's reasonable judgment, be carried
on with substantially the same utility and efficiency in the remainder
of the Premises [or any substitute space securable by Tenant pursuant
to clause (ii) hereof]; and (ii) Tenant cannot secure substantially
similar (in Tenant's reasonable judgment) alternate space upon the
same terms and conditions as set forth in this Lease (including
rental) from Landlord in the Facility. Any notice of termination
shall specify a date no more than ninety (90) days after the giving
of such notice as the date for such termination.
12.03 Tenant's Damages. Anything in this Article 12 to the
contrary notwithstanding, Tenant shall have the right to prove in any
condemnation proceedings and to receive any separate award which may
be made for damages to or condemnation of Tenant's movable trade
fixtures and equipment and for moving expenses; provided, however,
Tenant shall in no event have any right to receive any award for its
interest in this Lease or for loss of leasehold.
12.04 Restoration and Rent. Anything in this Article 12 to
the contrary notwithstanding, in the event of a partial condemnation
of the Facility or the Premises and this Lease is not terminated,
Landlord shall, at its sole cost and expense, restore the Premises and
Facility to a complete architectural unit and the Base Rent provided
for herein during the period from and after the date of delivery of
possession pursuant to such proceedings to the termination of this
Lease shall be reduced to a sum equal to the product of the Base Rent
provided for herein multiplied by the area of the Premises restored
after the condemnation.
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ARTICLE XIII
SURRENDER OF PREMISES
13.01 Surrender by Tenant. On the last day of this Lease, or
on the sooner termination thereof, Tenant shall peaceably surrender
the Premises in good condition and repair consistent with Tenant's
duty to make repairs as herein provided. On or before the last day of
the term of this Lease, or the date of sooner termination thereof,
Tenant shall, at its sole cost and expense, remove all of its property
and trade fixtures and equipment from the Premises, and all property
not removed shall be deemed abandoned. Following the last day of
Tenant's occupancy of the Premises, Tenant hereby appoints Landlord
its agent to remove all property of Tenant from the Premises upon
termination of this Lease and to cause its transportation and storage
for Tenant's benefit, all at the sole cost and risk of Tenant, and
Landlord shall not be liable for damage, theft, misappropriation or
loss thereof, and Landlord shall not be liable in any manner in
respect thereto. Tenant shall pay all costs and expenses of such
removal, transportation and storage. Tenant shall leave the Premises
in good order, condition and repair, reasonable wear and tear and
damage from fire and other casualty not caused by Tenant excepted.
Tenant shall reimburse Landlord upon demand for any expenses incurred
by Landlord with respect to removal, transportation, or storage of
abandoned property and with respect to restoring said Premises to good
order, condition and repair. All alterations, additions and fixtures,
other than Tenant's trade fixtures and equipment, that have been made
or installed by either Landlord or Tenant upon the Premises, shall
remain the property of Landlord and shall be surrendered with the
Premises as a part thereof. Tenant shall promptly surrender all keys
for the Premises to Landlord at the place then fixed for the payment
of Rent and shall inform Landlord of combinations on any vaults, locks
and safes left on the Premises.
13.02 Holding Over. In the event Tenant remains in
possession of the Premises after expiration of this Lease, and without
the execution of a new lease, but with Landlord's written consent, it
shall be deemed to be occupying the Premises as a tenant from month-to-month,
subject to all the provisions, conditions and obligations of
this Lease insofar as the same can be applicable to a month-to-month
tenancy, and the Base Rent shall be as set forth on the Data Sheet.
As long as Landlord and Tenant are in bona fide, good faith
negotiations for a new lease, Landlord will consent to Tenant's
possession of the Premises. In the event Tenant remains in possession
of the Premises after expiration of this Lease and without the
execution of a new lease and without Landlord's written consent,
Tenant shall be deemed to be occupying the Premises without claim of
right and Tenant shall pay a charge for each day of occupancy an
amount equal to one hundred fifty percent (150%) of the Base Rent (on
a daily basis) and the actual Additional Rent then currently being
charged by Landlord on new leases in the Facility for space similar to
the Premises.
ARTICLE XIV
DEFAULT
14.01 Remedies Cumulative. All rights and remedies of
Landlord herein enumerated shall be cumulative and are not intended to
be exclusive of any other remedies or means of redress to which
Landlord may lawfully be entitled in case of any breach or threatened
breach of Tenant of any provision of this Lease. The failure of
Landlord to insist in any one or more cases upon the strict
performance of any of the covenants of this Lease or to exercise any
option herein
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contained shall not be construed as a waiver or relinquishment for the future
of such covenant or option. A receipt by Landlord of Rent with knowledge of
the breach of any covenant hereof (other than breach of the obligation to pay
the portion of such Rent paid) shall not be deemed a waiver of such breach,
and no waiver by Landlord of any provisions of this Lease shall be deemed to
have been made unless expressed in writing and signed by Landlord. In
addition to the other remedies in this Lease provided, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of the covenants, conditions and provisions of this
Lease.
14.02 Tenant Change in Status. If, during the term of this
Lease or any renewal term, (i) Tenant shall make an assignment for the
benefit of creditors, or (ii) a voluntary petition be filed by Tenant
under any law having for its purpose the adjudication of Tenant a
bankrupt, or Tenant be adjudged a bankrupt pursuant to an involuntary
petition in bankruptcy and the same not be dismissed or stayed within
sixty (60) days of its filing, or (iii) a receiver be appointed for
the property of Tenant by reason of the insolvency of Tenant, or (iv)
any department of the state or federal government, or any officer
thereof, duly authorized, shall take possession of the business or
property of Tenant by reason of the insolvency of Tenant and such
action not be stayed or terminated within sixty (60) days thereafter,
then, the occurrence of any of such contingencies shall be deemed a
breach of this Lease and this Lease shall ipso facto upon the
happening of any of said contingencies be terminated and the same
shall expire as fully and completely as if the day fixed for the
expiration of the initial term of this Lease or any renewal term, as
the case may be, had occurred, and Tenant will then quit and surrender
the Premises, but Tenant shall remain liable as hereinafter provided.
As used in this paragraph, the term "Tenant" shall also mean any
guarantor of Tenant's obligations under this Lease.
14.03 Tenant Breach. If, during the initial term of this
Lease or any renewal term, (i) Tenant defaults in any payment of the
Rent expressly reserved hereunder for ten (10) days after receipt of
written notice thereof, or any part of the same; (ii) Tenant shall
default in fulfilling any of the covenants, obligations, or agreements
of this Lease (other than the covenants for the payment of Rent
payable by Tenant hereunder), or (iii) this Lease, without the prior
written consent of Landlord or except as expressly permitted, shall be
assigned, pledged, mortgaged, transferred, or sublet in any manner,
and such default in (ii) shall continue for thirty (30) days after
service of notice of the default by Landlord, or in the event of a
default or contingency set forth in (ii) hereinabove cannot with due
diligence be cured within a period of thirty (30) days, if Tenant
fails to proceed promptly after the service of said notice and with
all due diligence to commence to cure the same and thereafter to
prosecute the curing of such default with all due diligence [it being
intended that in connection with a default not susceptible of being
cured with diligence within thirty (30) days, the time within which
Tenant is to cure the same shall be extended for such period as may be
reasonably necessary to complete the same with all due diligence],
Landlord, at its option, may pursue the remedies as set forth
hereinafter.
14.04 Remedies upon Default. In the event of a default by
Tenant as set forth hereinabove, Landlord, at its option, may (i)
terminate this Lease and upon such termination Tenant will quit and
surrender the Premises to Landlord but Tenant shall remain liable as
hereinafter provided, or (ii) without terminating the Lease, Landlord
or Landlord's agent or servant may re-enter the Premises and remove
all persons and all or any property therefrom,
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either by summary dispossession proceedings or otherwise, without
being liable to indictment, prosecution, or damage therefore and
repossess and enjoy the Premises, together with all additions,
alterations and improvements, without such re-entry and repossession
working a forfeiture or waiver of the Rents to be paid and the
covenants to be performed by Tenant during the full term of this
Lease.
A. Reletting.
(1) Upon termination of this Lease or
expiration of Tenant's right to occupy the Premises by
reason of the happening of any of the foregoing events,
or in any other manner or circumstances whatsoever,
whether with or without legal proceedings, by reason of
or based upon or arising out of a default or breach of
this Lease on the part of Tenant, Landlord may, at its
option subject to the proviso set forth at the end of
this Section A(1), at any time and from time to time
relet the Premises or any part or parts thereof, for the
account of Tenant or otherwise, and receive and collect
the rent therefore, applying the same first to the
payment of such expenses as Landlord may have incurred in
recovering possession of the Premises, including the
attorney's fees and expenses for putting the same into
good order and condition or preparing or altering the
same for re-rental to the extent Landlord deems necessary
or desirable and all other commercially reasonable
expenses, commissions and charges paid, assumed or
incurred by Landlord in or about reletting the Premises
and then to the fulfillment of the covenants of Tenant
hereunder. Any such reletting herein provided for may be
for the remainder of the initial term or any renewal term
of this Lease, as originally granted, or for a longer or
shorter period; Landlord shall have the right to change
the character and use made of the Premises, and Landlord
shall not be required to accept any substitute tenant
offered by Tenant or to observe any instructions given by
Tenant about reletting. In the event Landlord terminates
this Lease or is entitled to possession of the Premises
after surrender thereof by Tenant by reason of default by
Tenant, Landlord shall use reasonable efforts under the
circumstances to relet the space; provided, however,
Landlord may lease as Landlord reasonably deems
appropriate, using the same standards as Landlord would
use when leasing similar space (assuming Landlord has all
ownership and financial risk as to such similar space).
Further, in the event of a default or breach of this
Lease by either party, the other party shall use all
reasonable effort under the circumstances to mitigate any
damages for which the breaching party might be
responsible.
(2) In any such case, and whether or not
the Premises or any part thereof be relet, Tenant shall
pay to Landlord the Base Rent and all Additional Rent and
other charges required to be paid by Tenant up to the
later of the time of such termination of the Lease or of
such recovery of possession of the Premises by Landlord,
as the case may be, and thereafter on a monthly basis,
less the net proceeds of reletting, if any, except in a
case in which liability of Tenant (as hereinafter
provided), arises by reason of the happening of the
insolvency of Tenant, Tenant covenants and agrees, if
required by Landlord, to pay to Landlord
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until the end of the initial term of this Lease, or any
renewal term, as the case may be, the equivalent of the
amount of all Rent reserved hereunder, and all other
charges required to be paid by Tenant, less the net
proceeds of reletting, if any. Landlord shall have the
election in place of holding Tenant so liable forthwith
to recover against Tenant as damages for loss of the
bargain and not as a penalty, an aggregate sum which at
the time of such termination of this Lease or of such
recovery of possession of the Premises by Landlord, as
the case may be, represents the then present worth of the
excess, if any, of the aggregate of the Rent and all
other charges payable by Tenant hereunder that would have
accrued for the balance of the initial term, or any
renewal term, as the case may be, over the then present
worth of the fair market rents and all other charges for
the Premises for the balance of such term.
14.05 Remedies Upon Insolvency. If this Lease shall
terminate by reason of the bankruptcy or insolvency of Tenant, as
above set forth, Landlord shall be entitled, notwithstanding any other
provisions of this Lease or any present or future law, to recover from
Tenant or Tenant's estate (in lieu or the equivalent of the amount of
all rent unpaid at the time of such termination) as damages for loss
of the bargain, and not as a penalty, an aggregate sum which, at the
time of such termination of this Lease, represents the excess, if any,
of the then present worth of the aggregate of the Rent and other
charges payable by Tenant hereunder that would have accrued for the
balance of the initial term and/or renewal term, as the case may be,
over the then present worth of the fair market rents and all other
charges for the Premises for the balance of the initial term or any
renewal term, as the case may be, unless any statute or rule of law
governing the proceedings shall limit the amount of such claims
capable of being so proved. In such case, Landlord shall be entitled
to prove, as and for liquidated damaged, by reason of such breach and
termination of this Lease, the maximum amount which may be allowed by
or under such statute or rule of law. Nothing herein contained shall
limit or prejudice Landlord's right to prove and obtain as liquidated
damages arising out of such breach or termination the maximum amount
allowed by any such statute or rule of law which may govern the
proceedings in which such damages are to be proved whether or not such
amount be greater, equal to, or less than the amount of the excess of
the then present worth of the rent and all other charges reserved
herein over the then present worth of the fair market rents and all
other charges, referred to above.
14.06 Fees and Expenses. The prevailing party in any
litigation or dispute concerning this Lease shall recover all
reasonable attorney's fees and other expenses in addition to costs
taxable at law.
ARTICLE XV
SUBORDINATION AND ESTOPPEL
15.01 Subordination of Lease. This Lease shall be subject
and subordinate to any mortgage, deed of trust or ground lease now or
hereafter placed upon the Premises, the Facility, the Property, or any
portion thereof by Landlord, its successors or assigns, and to
amendments, replacements, renewals and extensions thereof, provided
that any holder of any mortgage or deed of trust shall agree not to
disturb Tenant's Lease or occupancy of the premises provided Tenant is
not in default beyond the period allowed for cure hereunder. Landlord
agrees that any such
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Mortgagee, holder of a deed of trust, or ground lessor shall provide to
Tenant a subordination, attornment and nondisturbance agreement agreeing to
recognize Tenant's lease and agreeing not to disturb Tenant's occupancy of
the Premises.
A. Tenant agrees at any time hereafter, upon demand, to
execute and deliver any instruments, releases, or other documents
reasonably acceptable to Tenant that may reasonably be required for
the purpose of subjecting and subordinating this Lease, as above
provided, to the lien of any such mortgage, deed of trust or ground
lease. The above subordination shall be effective without the
necessity of the execution and delivery of any further instruments on
the part of Tenant to effectuate such subordination. Notwithstanding
anything hereinabove contained in this Article 15, in the event the
holder of any mortgage, deed of trust or ground lease, shall so elect,
then, and in such event, upon any such holder or landlord notifying
Tenant to that effect in writing, this lease shall be deemed prior and
superior in lien to such mortgage, deed of trust, ground lease,
whether this Lease is dated prior to or subsequent to the date of such
mortgage, deed of trust or ground lease and Tenant shall execute such
attornment agreement as may be reasonably requested by said holder.
B. Provided that the mortgagee, ground lessor or trust
deed holder under any first mortgage, ground lease, first deed of
trust or other security instrument shall have notified Tenant in
writing (by the way of a notice of assignment of lease or otherwise)
of its address, Tenant shall give such mortgagee, ground lessor or
trust deed holder, or other secured party ("Mortgagee"),
simultaneously with delivery of notice to Landlord, by registered or
certified mail, a copy of any such notice of default served upon
Landlord. Tenant further agrees that said Mortgagee shall have the
right to cure any alleged default during the same period that Landlord
has to cure such default.
C. Tenant agrees from time to time upon not less than ten
(10) days prior written request by Landlord to deliver to Landlord a
statement in writing substantially in the form attached as Exhibit "I"
certifying (i) this Lease is unmodified and in full force and effect
(or if there have been modifications, that the Lease as modified is in
full force and effect and stating the modifications); (ii) the dates
to which the rent and other charges have been paid; (iii) Landlord is
not default in any provision of this Lease or, if in default, the
nature thereof specified in detail; (iv) the amount of monthly rental
currently payable by Tenant; (v) the amount of any prepaid rent, and
(vi) such other matters as may reasonably be requested by Landlord or
any Mortgagee or prospective purchaser of the Facility.
ARTICLE XVI
HAZARDOUS MATERIALS
16.01 Landlord warrants and represents to Tenant, that, to
the best of Landlord's knowledge and after reasonable inquiry, the
Premises are in compliance with all applicable environmental laws,
rules, requirements, orders, directives, ordinances and regulations of
the United States of America or any state, city or municipal
government or lawful authority having jurisdiction or affecting the
Premises (collectively "Environmental Laws") and that none of the
insulation materials or any other materials within the Premises
installed by or on behalf of Landlord are or contain asbestos, or any
other known Regulated Material as defined below. Except as set forth
in Sections 16.03 and 16.05, Landlord shall, at its expense, take all
action
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necessary to ensure that the Facility complies with all Environmental Laws
and that the Facility is, and remains at all times, safe for use and
occupancy.
16.02 Except as set forth in Sections 16.03 and 16.05,
Landlord shall defend, indemnify and save Tenant, its officers,
directors, agents and employees, harmless from and against all claims,
obligations, demands, actions, proceedings and judgments, loss,
damage, liability and expense (including reasonable attorneys' fees
and expenses) which any one or more of them may sustain in connection
with any non-compliance with any environmental condition affecting the
Facility resulting from any violation of environmental laws when
caused by or results from Landlord's negligence, intentional act or
omission of Landlord, its servants, agents or employees. This
indemnity shall not apply to Landlord's Mortgagee, successors-in-interest
to Mortgagee or anyone acquiring the Premises through
Landlord's Mortgagee.
16.03 Tenant shall at Tenant's own cost and expense, timely
comply with all applicable, rules, requirements, orders, directives,
ordinances and regulations arising from Tenant's use and occupancy of
the Premises, including but not limited to the Environmental Laws, and
shall indemnify, defend, save and hold harmless Landlord, its
directors, officers, agents and employees from and against any and all
claims, demands, losses and liabilities (including reasonable
attorneys' fees) resulting from any violation of the Environmental
Laws when caused by or results from Tenant's use and occupancy of the
Premises.
16.04 The provisions of this Article 16 shall survive the
expiration or earlier termination of this Lease.
16.05 A. The following terms and conditions regarding
environmental matters and the Premises are included in this Lease:
(1) For the purpose of this Lease, the phrase "Regulated
Materials" shall include, but shall not be limited to, those
materials or substances defined as "hazardous substances",
"hazardous materials", "hazardous waste", "toxic substances",
"toxic pollutant" or other similar designations under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. 9601, ET SEQ., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901, ET
SEQ., the Hazardous Materials Transportation Act, 49 U.S. C.
1801, ET SEQ., or regulations promulgated pursuant thereto
(herein "Environmental Laws"). "Tenant's Regulated Materials"
shall mean those Regulated Materials, brought onto, created,
stored at, handled, or generated at the Premises by or on behalf
of Tenant, its agents, employees, contractors (other than
Landlord), subtenants, assignees, suppliers or other invitees.
"Landlord's Regulated Materials" shall mean all other "Regulated
Materials" including those brought onto, created, stored at,
handled or generated at the Premises by Landlord, its agents,
employees, contractors, subtenants, assignees, suppliers or other
invitees. Also the phrase "Governmental Agency or Agencies"
means any federal, state, local or foreign government, political
subdivision, court, agency or other entity, body, organization or
group
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exercising any executive, legislative, judicial, quasi-judicial,
regulatory or administrative function of government.
B. Tenant hereby covenants to Landlord and its Mortgagee that:
(1) Except for the obligations of Landlord pursuant to Section
16.01 and 16.02, Tenant shall (x) comply and shall instruct all
occupants of the Premises to comply in all material respects with
all federal, state and local laws, rules, regulations and orders
with respect to the discharge, generation, removal,
transportation, storage and handling of Tenant's Regulated
Materials, (y) remove any Tenant's Regulated Materials
immediately upon discovery of the same, and (z) pay or cause to
be paid all costs associated with such removal;
(2) Tenant shall keep the Premises free of any lien imposed
pursuant to any state or federal law, rule regulation or order in
connection with the existence of Tenant's Regulated Materials on
the Premises;
(3) Tenant shall not install or permit to be installed on the
Premises any Tenant's Regulated Material including, but not
limited to, asbestos, asbestos-containing materials, urea
formaldehyde insulation or any other chemical or substance which
has been determined to be a hazard to health and environment
other than supplies and materials used in the ordinary course of
its business and for which use all applicable laws, ordinances,
rules and regulations are complied with;
(4) Tenant shall not cause or permit to exist as a result of an
intentional or unintentional act or omission on the part of
Tenant or any occupant of the Premises, a releasing, spilling,
leaking, pumping, emitting, poring, emptying or dumping of any
Tenant's Regulated Materials onto the Premises or into
surrounding waters or other lands; and
(5) Tenant shall promptly provide a copy of any summons,
citation, directive, letter or other communication which it
receives from any Government Agency or Agencies concerning any
Regulated Matters on the Premises.
C. It shall constitute a Default hereunder and either party shall
be entitled to exercise all remedies available to it hereunder if:
(1) Tenant or Landlord shall fail to comply with the
covenants contained in this Article 16 within thirty (30) days
after notice or fails to commence such compliance within such
time and diligently continues such compliance to completion;
(2) any Tenant's or Landlord's Regulated Materials are
hereafter found to exist on the Premises or in its soil or
groundwater and such Regulated
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Materials come to be on the Premises because of the act,
omission or breach of this Lease by Landlord or Tenant, or
any of their agents, employees, contractors, subtenants or
assignees, as to Tenant, on or after the date Tenant takes
possession or enters the Premises to commence work, and either
party shall fail within seventy-five (75) days after notice
thereof, to commence and diligently pursue such actions as are
necessary to remove the same from the Premises or Facility or
alternatively to obtain any and all necessary no action or no
association letters for the Premises or Facility and Landlord
or Tenant such that no further action need be taken to satisfy
the applicable environmental agency; or
(3) any summons, citation, directive, letter or other
communication, written or oral, shall be issued by any
Governmental Agency or Agencies concerning the matters described
in Subparagraph 16.05A(1) above and Landlord or Tenant fail to
cure the condition occasioning the same within the time limit set
forth in this Section 16.05C.
In the event Landlord or Tenant fails to comply with the terms of
this Article 16, each party hereby grants the other and its employees and
agents an irrevocable and non-exclusive license to enter the Premises in
order to inspect, conduct testing and remove Tenant or Landlord's Regulated
Materials. All costs of such inspection, testing and removal related to
Tenant's Regulated Materials shall be due and payable from Tenant as
Additional Rent hereunder upon demand, and all costs relating to Landlord's
Regulated Materials incurred by Tenant shall be paid by Landlord to Tenant
upon demand.
16.06 The representations, covenants and indemnifications given by
Tenant to Landlord and Landlord to Tenant in this Article 16 shall be a
separate agreement between the parties, and shall survive any termination of
the Lease.
16.07 Landlord warrants and represents that it is not otherwise aware
of any violation of the statutes, rules and regulations set forth in Section
16.05A(i) above as it relates to the Premises, except, however, that Landlord
has received an off-site source and no association letter from the Minnesota
Pollution Control Agency dealing with apparent groundwater contamination
affecting the Facility resulting from dry cleaning solvent released by a
former dry cleaning operation previously located adjacent to the Facility.
16.08 Landlord hereby covenants to Tenant that Landlord shall comply
with all federal, state and local laws, rules, regulations and orders with
respect to the discharge, generation, removal, transportation, storage and
handling of Landlord's Regulated Materials, (y) remove any Landlord's
Regulated Materials required by said laws to be removed immediately upon
discovery thereof; and (z) pay or cause to be paid all costs associated with
such removal. It shall constitute a default by Landlord if Landlord fails to
comply with this covenant within seventy-five (75) days after Tenant mails
notice to Landlord hereof or fails to commence such compliance within such
time and diligently continue such compliance to completion.
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ARTICLE XVII
MISCELLANEOUS
17.01 Further Terms. The parties also agree:
A. Tenant represents that Tenant has dealt directly with and
only with the Tenant Representative set forth on the Data Sheet, in
connection with this Lease and that insofar as Tenant knows, no other broker
or Tenant Representative negotiated or participated in negotiations of this
Lease or submitted or showed the Premises or is entitled to any commission in
connection therewith.
B. All notices, demands and requests shall be in writing, and
shall be effectively served by forwarding such notice, demand or request by
certified or registered mail, postage prepaid, addressed to the respective
party at the address set forth on the Data Sheet, or at such other address as
such party may hereafter designate by written notice to the other party, in
which case said notice shall be effective at the time of mailing such notice.
C. All rights and remedies of Landlord under this Lease or
that may be provided by law may be executed by Landlord in its own name,
individually, or by its agent of whose appointment Tenant shall have written
notice in the name of Landlord, and all legal proceedings for the enforcement
of any such rights or remedies, including those set forth in Article 14, may
be commenced and prosecuted to final judgment and execution by Landlord or
its agent.
D. Landlord covenants and agrees that Tenant, upon paying the
Base Rent, Additional Rent and other charges herein provided for and
observing and keeping the covenants, agreements and conditions of this Lease
on its part to be kept and performed, shall lawfully and quietly hold, occupy
and enjoy the Premises during the term of this Lease.
E. The covenants and agreements herein contained shall bind
and inure to the benefit of the Landlord, its successors and assigns, and
Tenant and its permitted successors and assigns.
F. If any term or provision of this Lease shall to any extent
be held invalid or unenforceable, the remaining terms and provisions of this
Lease shall not be affected thereby, but each term and provisions of this
Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
This Lease shall be construed and enforced in accordance with the laws of the
state in which the Premises are located.
G. (1) The term "Landlord" as used in this Lease so far as
covenants or obligations on the part of Landlord are concerned shall be
limited to mean and include only the owner or owners of the Facility at the
time in question, and in the event of any transfer or transfers or
conveyances the then grantor shall be automatically freed and released from
all personal liability accruing from and after the date of such transfer or
conveyance as respects the performance of any conveyance or obligation on the
part of Landlord contained in this Lease to be performed, it being intended
hereby that the covenants and obligations contained in this Lease
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on the part of Landlord shall be binding on the Landlord, its successors and
assigns, only during and in respect to their respective successive periods of
ownership.
The provisions of Section G (1) and (2) shall become
effective upon Landlord's completion of construction of the Facility (other
than rentable area for other tenants) and payment to Tenant of the tenant
allowance set forth in Article XXVI.
(2) In the event of a sale or conveyance by Landlord of
the Facility or any part of the Facility, the same shall operate to release
Landlord from any future liability upon any of the covenants or conditions
herein contained and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the purchaser or grantee, which shall be personally
obligated on this Lease only so long as it is the owner of Landlord's
interest in and to this Lease.
H. The marginal or topical headings of the several Articles
and sections are for convenience only and do not define, limit or construe
the contents of said Articles and sections.
I. All preliminary negotiations and written commitments are
merged into and incorporated in this Lease, except for written collateral
agreements executed contemporaneously herewith.
J. This Lease can only be modified or amended by an agreement
in writing signed by the parties hereto. No receipt of money by Landlord
from Tenant or any other person after termination of this Lease or after the
service of any notice or after the commencement of any suit, or after final
judgment for possession of the Premises shall reinstate, continue or extend
the term of this Lease or affect any such notice, demand or suit, or imply
consent for any action for which Landlord's consent is required, unless
specifically agreed to in writing by Landlord. Any amounts received by
Landlord may be allocated to any specific amounts due from Tenant to Landlord
as Landlord determines. Provided that for any such change in name, address,
number or description by which the Facility is commonly known made
voluntarily by Landlord, Landlord agrees to reimburse Tenant for any
reasonable costs incurred in changing stationery, business cards and similar
items, if said change is not preceded by at least six (6) months advance
notice.
K. Landlord shall have the right to close any portion of the
building area or land area to the extent as may, in Landlord's reasonable
opinion, be necessary to prevent a dedication thereof or the accrual of any
rights to any person or the public therein. Landlord shall at all times have
full control, management and direction of the Facility, subject to the rights
of Tenant in the Premises, and Landlord reserves the right at any time and
from time to time to reduce, increase, enclose or otherwise change the size,
number and location of buildings, layout and nature of the Facility and the
other tenancies, premises and buildings included in the Facility, to
construct additional buildings and additions to any building, and to create
additional rentable areas through use and/or enclosure of common areas (with
commensurate adjustment to Tenant's Percentage), or otherwise, and to place
signs on the Facility, and to change the name, address, number or designation
by which the Facility is commonly known. No implied easements are granted by
this
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Lease. Tenant shall have the nonexclusive right in common with Landlord and
tenants and occupants of the Facility, to ingress and egress to and through
the common areas of the Facility.
L. Tenant shall permit Landlord (or its designees) to erect,
use, maintain, replace and repair pipes, cables, conduits, plumbing, vents,
and telephone, and other wires or other items, in, to and through the
Premises, as and to the extent that Landlord may now or hereafter deem
necessary or appropriate for the proper operation and maintenance of the
Facility. SEE ARTICLES XXVII AND XXVIII.
M. Employees or agents of Landlord have no authority to make
or agree to make a lease or other agreement or undertaking in connection
herewith. The submission of this document for examination does not
constitute an offer to lease, or a reservation of, or option for, the
Premises. This document becomes effective and binding only upon execution
and delivery hereof by the proper officers of Landlord and by Tenant. Tenant
confirms that Landlord and its agents have made no representations or
promises with respect to the Premises or the making of or entry into this
Lease except as in this Lease expressly set forth, and agrees that no claim
or liability shall be asserted by Tenant against Landlord for, and Landlord
shall not be liable by reason of, breach of any representations or promises
not expressly stated in this Lease. This Lease, except for the Building
Rules and Regulations, in respect to which subparagraph "P" of this Article
shall prevail, can be modified or altered only by agreement in writing
between Landlord and Tenant, and no act or omission of any employee or agent
of Landlord shall alter, change or modify any of the provisions hereof.
N. Tenant shall perform, observe and comply with the Building
Rules and Regulations of the Facility, as set forth in Exhibit C attached
hereto, with respect to the safety, care and cleanliness of the Premises and
the Facility, and the preservation of good order thereon, and, upon written
notice thereof to Tenant, Tenant shall perform, observe, and comply with any
reasonable changes, amendments or additions thereto as from time to time
shall be established and deemed advisable by Landlord for tenants of the
Facility which do not conflict with the terms of the Lease or Rider. Landlord
shall not be liable to Tenant for any failure of any other tenant or tenants
of the Facility to comply with such Building Rules and Regulations. Landlord
agrees that it will not enforce the Rules and Regulations more stringently
against Tenant than it enforces same against other tenants and occupants of
the Building.
O. All rights and occupancy of Tenant herein shall be subject
to all governmental laws, ordinances and regulations, and Tenant shall comply
with the same. Landlord representative as of the Delivery Date the Premises
and Facility shall be in compliance with all governmental laws, ordinances
and regulations including, without limitation, the Americans with
Disabilities Act Accessibility Guidelines, and may be lawfully used for
general office purposes as of the Commencement Date.
P. All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof, including,
without limitation, all payment obligations with respect to Operating
Expenses and Real Estate Taxes and all obligations concerning the condition
of the Premises.
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Q. Tenant agrees to look solely to Landlord's interest in the
Facility for the recovery of any judgment from Landlord arising under this
Lease, it being agreed that Landlord, or if Landlord is a partnership, its
partners whether general or limited, or if Landlord is a corporation, its
directors, officers or shareholders, or if Landlord is a limited liability
company, its members or managers shall never be personally liable for any
such judgment arising from Landlord's obligations under this Lease.
R. The Tenant and Guarantor of this Lease, if any, shall
furnish to Landlord promptly upon demand, a corporate resolution, proof of
due authorization of partners, or other appropriate documentation reasonably
requested by Landlord evidencing the due authorization of Tenant to enter
into this Lease.
ARTICLE XVIII
OTHER PROVISIONS
18.01 Addenda. The provisions set forth in the Exhibits attached to
this Lease are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective on the day and year first above written.
LANDLORD: MERIDIAN CROSSINGS LLC, A MINNESOTA LIMITED LIABILITY
COMPANY
By: Meridian Properties Real Estate Development LLC,
a Minnesota limited liability company, its manager
By: /s/ Bryant J. Wangard
------------------------
Bryant J. Wangard
Its: Manager
TENANT: BMC INDUSTRIES, INC., A MINNESOTA CORPORATION
By: /s/ John L. Gburek
------------------------
Its: Vice President - Corporate Development
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RIDER TO LEASE
ARTICLE XIX
OPTION TO RENEW
Section 19.0 Tenant shall have the right, subject to the provisions
hereinafter provided, to extend the term of this Lease for one (1)
period of five (5) years on the terms and provisions of this Article
provided hereafter, such five (5) year renewal period being sometimes
herein referred to as a "Renewal Term". The conditions to such
renewal shall be as follows:
(a) That this Lease is in full force and effect and Tenant is not
in default in the performance of any of the terms, covenants and
conditions herein contained, in respect to which notice of default
has been given hereunder which has not been or is not being remedied
in the time limited in this Lease, at the time of exercise of the
right of renewal, but Landlord shall have the right at its sole
discretion to waive the non-default conditions herein;
(b) That each such Renewal Term shall be on the same terms,
covenants and conditions as in this Lease provided; provided,
however, that annual Base Rent for each such renewal space on the
date such Renewal Term shall commence in relation to comparable (in
quality and location) office space located in the relevant market
area which shall be deemed to be the Southwest Minneapolis 494
corridor. The fair market Base Rent of the Premises shall be
determined as of the date six (6) months prior to commencement of the
Renewal Term. Provided Tenant has properly elected to renew the term
of this Lease, and if Landlord and Tenant fail to agree at least
eight (8) months prior to commencement of the applicable Renewal Term
upon the fair market Base Rent of the Premises, the amount of the
fair market Base Rent of the Premises shall be determined by
arbitration in accordance with the provisions of Article 20 hereof.
The fair market Base Rent of the Premises shall be based upon the
highest and best use of the Premises and shall be determined
separately on a per square foot basis for the initial Premises and
each separate and discrete additional space added to the Premises, if
any, pursuant to Tenant's options to expand herein.
(c) That Tenant shall exercise its right to a Renewal Term
provided herein, if at all, by notifying Landlord in writing of its
election to exercise the right to renew the term of this Lease no
later than the date three hundred (300) days prior to the date of
commencement of the Renewal Term. Upon notification with respect to
such renewal, and for a period of thirty (30) days thereafter, the
parties hereto shall make a good faith effort to agree upon the fair
market Base Rent of the Premises for such Renewal Term. Any
agreement reached by the parties hereto with respect to such fair
market Base Rent of the Premises for such Renewal Term shall be
expressed in writing and shall be executed by the parties hereto, and
a copy thereof delivered to each of the parties. In the event that
Landlord and Tenant fail to agree within the thirty (30) day time
set forth in this subparagraph (c), the fair market Base Rent for the
Premises for such Renewal Term shall be determined by arbitration in
the manner set forth in Article 20 ("Arbitration") hereof. However,
such arbitrators shall be directed to determine the fair market Base
Rent for the Premises as above provided and in determining same said
arbitrators shall be instructed to make said appraisal independently,
without consulting with each other. Upon an established date at an
established time all three (3) arbitrators shall simultaneously
submit their
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determinations as to fair market Base Rent, such determinations
to be submitted in sealed envelopes and to be opened jointly by
Landlord and Tenant. The fair market Base Rent for the Renewal Term
shall be determined by averaging the two (2) arbitrators' fair market
Base Rent determinations which are closest in amount to each other
(or if one appraisal is less than one of the other appraisals and more
than the other appraisal by the same amount, all three appraisals
shall be averaged).
(d) Upon determination of the Fair Market Base Rent, in the
event Tenant determines the Fair Market Base Rent is
unacceptable, Tenant may revoke its exercise of the Option by
providing to Landlord notice of said absolute, unconditional
revocation of said exercise within five (5) days of the final
arbitrator's determination provided in such event Tenant shall
pay all costs incurred by both Landlord and Tenant in such
arbitration, including all costs charged by all three
arbitrators.
ARTICLE XX
ARBITRATION
Section 20.0 Any disagreement, dispute or determination required by
or arising under the provisions of Article XIX ("Option to Renew"), of
this Lease requiring arbitration shall be carried on and concluded in
accordance with the provisions of paragraphs (a) and (b) hereof:
(a) In each case where it shall become necessary to resort to
arbitration, and the subject of the arbitration is to determine fair
market Base Rent, Tenant and Landlord shall each select an
arbitrator who is either (a) an accepted real estate expert with
demonstrable experience in the Minneapolis-St. Paul commercial real
estate market in excess of twenty (20) years (in firms with the
status of Tobin & Associates, Keewaydin, Inc., Braman Braman &
Rekstad, and Eberhardt); or (b) shall be MAI members of the American
Institute of Real Estate Appraisers with not less than ten (10) years
of experience in the appraisal of improved commercial and industrial
real estate in the Minneapolis, Minnesota metropolitan area and be
devoting substantially all of their time to professional appraisal
work at the time of appointment , and all arbitrators shall be in all
respects impartial and disinterested. The third arbitrator shall be
chosen to meet the (b) criteria. In determining fair market Base
Rent the arbitrators shall consider the status of tenant improvements
in the Premises in comparison to leasehold improvements in market
comparables and shall take into consideration that no leasing
commission is payable in respect to any leasing by Tenant as compared
to market comparables where such commissions may be payable.
(b) The party desiring such arbitration shall give written notice
to that effect to the other party, specifying in such notice the
name, address and professional qualifications of the person
designated to act as arbitrator on its behalf. Within twenty (20)
days after service of such notice, the other party shall give written
notice to the party desiring such arbitration specifying the name,
address and professional qualifications of the person designated to
act as arbitrator on its behalf. If the two (2) arbitrators so
selected cannot agree within fifteen (15) days after the appointment
of the second arbitrator, the two (2) arbitrators shall, within ten
(10) days thereafter, select a third arbitrator. The decision of the
arbitrators so chosen shall be given within a period of thirty (30)
days after the appointment of such third arbitrator. Each party
shall pay the fees and expenses of the arbitrator appointed by or on
behalf of such party and the fees and expenses of the third
arbitrator shall be borne equally by both parties. If the party
receiving a request for arbitration fails to appoint its arbitrator
within the time above specified, or if the two (2) arbitrators so
selected cannot agree on the selection of the third arbitrator within
the time above specified, then either party, on behalf of both
parties, may request such appointment of such second or third
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arbitrator within the time above specified, then either party, on
behalf of both parties, may request such appointment of such second
or third arbitrator, as the case may be, by application to any Judge
of the District Court of the County of Hennepin, State of Minnesota,
upon ten (10) days prior written notice to the other party of such
intent. The arbitrators so selected shall have all rights and powers
conferred on them by the Uniform Arbitration Act of the state in
which the Premises are situated, and expect as otherwise provided
for herein, the arbitration proceedings shall be carried on and
governed by such Act.
ARTICLE XXI
ADDITIONAL SPACE
Section 21.1 Landlord agrees that all office space on the eighth
floor of the Building shall be subject to the provisions on this
Article 21.1. Landlord agrees that without the written consent of
Tenant it will not initially lease any office space that is less than
3,000 rentable square feet on the eighth floor of the Building for a
term that terminates after August 1, 2001 (including all options to
renew or extend the term of said lease) or in the alternative, allows
Landlord to relocate said Premises. The term "initially lease" refers
to the first lease of said space to a tenant.
Section 21.2 Prior to the end of the twenty-sixth (26th) full month
of the Term, Tenant shall notify Landlord in writing of its desire to
expand the Premises. Landlord shall, within ten (10) business days
notify Tenant of the exact rentable area between 1050 and 1800
rentable square feet adjacent to the Premises into which Tenant shall
have the right to expand. In the event Tenant accepts said designated
expansion area for additional space in the Facility, Landlord shall
provide such space no later than six (6) months after receipt of said
notice of acceptance from Tenant. Tenant's acceptance notice shall be
delivered within ten (10) days of receipt of Landlord's designation of
the expansion space. In the event Tenant so notifies Landlord,
Landlord shall deliver to Tenant an amendment of this Lease adding
such additional space to the Premises demised hereunder, on said
effective date. Additional initial annual Base Rent shall be payable
for the additional area in the amount determined by multiplying (i)
the rentable area of the expansion area by (ii) the amount determined
by subtracting from Tenant's Base Rent payable for the initially
demised Premises the unamortized difference between (y) $30.00 per
rentable square foot and (z) the cost per rentable square foot of the
tenant improvements (below the finished ceiling) installed by or for
the previous tenant or occupant of the expansion area. Tenant's Rent
on the expansion area shall commence the earlier of (i) the date of
occupancy, or (ii) sixty (60) days after the Premises are delivered to
Tenant for commencement of its work. Landlord will provide Tenant
with the "open book" cost figures for said prior tenant improvements.
The initial improvements for said Expansion Area shall be submitted to
Tenant for its review and comment and Landlord and Tenant agree to
work together in good faith to construct a lay-out and select finishes
which will be compatible with the Premises, provided, said space must
be useable for the purposes intended by Landlord for a marketing
office. Said amortization shall be determined on the basis of a five
(5) year lease term.
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The "percents" for Tenant's Percentage of Taxes and for Tenant's
Percentage of Operating Expenses for the additional space shall be calculated
by dividing the rentable area of the additional space by 95% of the rentable
area of the Facility. Such change in the Base Rent and such percents shall be
applicable from and after the effective date as designated by Landlord. Such
additional space shall be leased in "as is" condition, if previously
occupied. Tenant shall execute and deliver to Landlord any amendment to this
Lease promptly after receipt so as not to delay any tenant improvements.
ARTICLE XXII
COMMUNICATION ANTENNA
Section 22.0 Landlord licenses Tenant to use up to 100 square feet
of the rooftop area of the Facility in a location reasonably
designated by Landlord for the purpose of installing an antenna (if
such dish is not larger than ten feet (10') in diameter and the top of
such dish is not more than six feet (6') above the roof) and for the
use and operation of that antenna. Said installation shall be in
accordance with plans and specifications approved by Landlord (which
approval shall not unreasonably be withheld) to include the means of
attaching the portion of such equipment to the roof of the Facility or
improvements located thereon and to include painting or screening
reasonably acceptable to Landlord. Tenant shall have the
responsibility to secure all necessary approvals from State, Federal
and other governmental authorities to construct, operate and maintain
such equipment. All such equipment shall be operated, constructed and
maintained by Tenant in accordance with applicable laws, ordinances,
rules and regulations in compliance with the requirements of the
insurers of the Facility and in accordance with reasonable rules and
regulations of Landlord relating to use of the roof. Tenant shall
indemnify and defend Landlord from and against all loss, claim damage
and expense arising out of the construction, maintenance and operation
of such equipment. Said antenna may be used solely for internal
business purposes of Tenant and shall in no event be used for any
commercial purpose. All work in connection with such equipment shall
be done by Tenant as an alteration or improvement under Article VIII
hereof; provided, no such action shall materially interfere with work
being performed by Landlord or cause a labor dispute. Tenant shall
give to Landlord notice of any notices which Tenant receives from
third parties that any of the equipment is or may be in violation of
any law, ordinance, or regulation. Tenant shall pay all taxes of any
kind or nature whatsoever levied upon said equipment and all licensing
fees, franchise taxes and other charges, expenses and other costs of
any nature whatsoever relating to the construction, ownership,
maintenance and operation of said equipment. Landlord shall provide
reasonable access for Tenant to the roof. Tenant agrees to refrain
from interference with the operation of radio, television or other
electromagnetic radiation and reception facilities or AM or FM
broadcasting and two-way radio and microwave transmission in and
around the Facility which comply with U.S. Government regulations.
Nothing herein shall prevent Landlord from licensing others to use the
roof in other areas of the Facility for development, installation and
operation of electromagnetic radiation and reception facilities or FM
broadcasting and two-way radio and microwave transmission. Landlord
agrees that in any other leases or licenses of antenna on the Facility
roof, that such leases and licenses will contain similar language
prohibiting interference with other rooftop antenna as is contained
herein.
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ARTICLE XXIII
STORAGE SPACE
Section 23.0 Landlord and Tenant agree, prior to commencement of the
term, to execute the Storage Space Lease in the form of Exhibit "F"
attached hereto and incorporated herein by reference providing for a
lease of storage space at a location in the lower level in the
Facility to be designated by Landlord at a fee of nine dollars
($9.00) per square foot per year, payable monthly, in advance, at the
rate of one-twelfth (1/12) of said annual sum. Said charge may be
escalated after the initial Term of the Lease based upon market
comparables upon notice by Landlord to Tenant in accordance with the
Storage Space Lease Agreement. Said storage space shall be
approximately 1,000 square feet in area. Upon determination of the
exact area of the storage space and the location thereof, Exhibit "F"
shall be appropriately amended by Landlord to indicate the area and
the location of the storage space and the monthly fee for such storage
space. Further, such storage space shall be partitioned at its
perimeter and have one access door with lock and minimal lighting with
switch at the entry door.
ARTICLE XXIV
PARKING RIGHTS OF TENANT
Section 24.0 Facility Parking. Tenant shall have the right in common
with other tenants to have the use for its employees and invitees of
the common parking facilities at the Facility, such use to be in
common with the other tenants in the Facility. Landlord reserves the
right to designate and redesignate areas of the appurtenant common
parking facilities where Tenant, its agents, employees and invitees
shall park and may exclude Tenant, its agents, employees and invitees
from parking in other areas as designated and redesignated by
Landlord; provided, however, Landlord shall not be liable to Tenant
for the failure of any tenant, its invitees, employees, agents and
customers to abide by Landlord's designations or restrictions but will
use reasonable efforts to enforce said designations and restrictions.
Landlord shall have the right to designate, and Tenant shall thereupon
have the right to use as the exclusive parking spaces to be used by
Tenant, its agents, employees and invitees, only that percentage that
the rentable office area of the Premises bears to the rentable office
area of the Facility. Tenant, its agents, employees and invitees
shall not use more (in absolute numbers) of the common parking
facilities at the Facility (exclusive of the underground garage) than
Tenant could use if Landlord made the designations permitted herein.
Anything in this Lease to the contrary notwithstanding, all costs and
expenses of such special parking control, signs in connection
therewith, security and costs of any enforcement shall be an Operating
Expense pursuant to the provisions of Article II G hereof.
Section 24.1 Reserved Parking. In addition thereto, Landlord hereby
leases to Tenant and Tenant rents from Landlord seven (7) reserved
parking stalls for the Term of this Lease. Tenant agrees to execute
the reserved stall parking lease attached hereto as Exhibit "G" upon
execution of this Lease. The rent for said reserved stalls shall be
$95.00 per stall per month for three (3) stalls and $110.00 per stall
per month for four (4) stalls for the initial Term of the Lease. In
the event Tenant expands the Premises and additional reserved stalls
are available, Tenant shall have the right to enter into a reserved
parking lease with Landlord for the balance of the Term of the Lease
for one (1) reserved stall for each 4,800 additional rentable square
foot added to the Premises, at the then market rate. In the event at
any time additional stalls are requested by Tenant and are
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available Landlord's charge for the initial Lease Term shall be One
Hundred Ten and NO/100 Dollars ($110.00) per stall per month.
ARTICLE XXV
TERMINATION OPTION
Section 25.0 Tenant shall have the option to terminate this Lease
effective the last day of the forty-second (42nd) full month of the
Term after the Commencement Date, provided Tenant is not in default
hereunder and provided further that Tenant notifies Landlord in
writing on or before the date six (6) months prior to said termination
date, that it is so terminating this Lease. At least thirty (30)
days prior to the Termination Date, Tenant shall tender to Landlord as
an early termination fee an amount equal to the Base Rent and
Additional Rent for the four (4) months rent due immediately prior to
said effective date of termination, the cost of unamortized Landlord
Improvements, tenant representative fees of Three and NO/100 Dollars
($3.00) per rentable square foot of Premises and Tenant Allowance
(collectively "Termination Fee"). The Base Rent and Additional Rent
shall continue to be due in addition to the above-stated Termination
Fee through the last day of the forty-second (42nd) full month of the
Term.
ARTICLE XXVI
TENANT IMPROVEMENT ALLOWANCE AND TENANT WORK
Section 26.0 Landlord is providing a base building ("Base Building")
with an allowance for tenant improvements (including cost of
materials, construction documents, design fees and other costs
associated with construction of Tenant Work) of $30.00 per rentable
square foot of initially demised Premises. The Base Building will
include the basic structure including heat pumps, ducts, sprinklers
and sprinkler heads, and finished ceiling to the extent required in
normal office space and as more particularly described in Exhibit "H"
attached hereto. Perimeter walls only and interior columns will be
ready for paint or vinyl wall covering. Common corridor walls will be
finished on the corridor side only. All other improvements (including
without limitation construction documents, design fees and other costs
associated with construction of tenant improvements) will be so-called
"Tenant Work" to be selected by Tenant and (to the extent the price of
such improvements exceeds said allowance) paid for in cash by Tenant.
Tenant shall have the responsibility to provide Landlord complete
construction documents for all Tenant Work on or before December 1,
1997. Tenant shall be required to provide Landlord with plans
sufficient to install the finished ceiling including sprinklers,
lights and HVAC to conform to Tenant's plans no later than November 1,
1997.
After execution of this Lease, Tenant shall provide to Landlord
plans and specifications for construction of "Tenant Work". Such
plans and specifications shall show in detail the design and
appearance of the tenant finishing, materials to be used in the
construction thereof, and such other detail or description as may be
necessary to adequately define the Tenant Work. The price for all
Tenant Work shall be paid utilizing normal construction draw
procedures, subject to the above allowance. In the event the Tenant
Work requested by Tenant are in excess of the above allowance and
Rochon Corporation is performing the Tenant Work, Landlord shall
inform Tenant of the additional cost to Tenant setting forth, in
reasonable detail, the items occasioning
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any excess costs over and above said allowance. In the event the tenant
allowance exceeds all costs of Tenant Work, any balance may be used by Tenant
to offset rent or other charges first due under the Lease. Tenant shall have
the right to competitively bid with competent contractors which will not
cause labor disputes, all such Tenant Work. Tenant shall allow Rochon
Corporation to bid the work. If Rochon Corporation is chosen, it will work
on an "open book" basis with Tenant. Tenant's contractor shall be provided
access to the Premises no later than January 1, 1998 for commencement of
Tenant Work. Landlord shall provide hoisting, heat and air conditioning to
the extent available and trash removal at its sole cost and expense during
construction period. Landlord will not charge Tenant a supervisory or
construction management fee.
ARTICLE XXVII
NOTICE UPON ENTRY
Section 27.0 Anything in this Lease to the contrary notwithstanding,
Landlord shall give Tenant reasonable notice, written or oral, in the
event Landlord intends to enter the Premises for purposes of
inspection, repair, maintenance or alterations of the Facility or
Premises, but in no event shall more than twenty-four (24) hours
notice be required and no notice shall be required in the event of
routine janitorial services or an emergency. Landlord shall perform
its repair or other operations in the Premises with all due diligence
and care and, in connection therewith, shall interfere with the
business of Tenant as little as reasonably possible under the
circumstances; provided, however, nothing herein shall require
Landlord to perform any necessary work during other than normal
business hours.
ARTICLE XXVIII
RIGHT OF FIRST OFFER
Section 28.0 If after the Commencement Date and during the initial
five (5) year term of this lease Landlord desires to lease any space
on the 8th floor of the Facility not then subject to lease to any
party, Landlord shall deliver a notice of its interest in writing to
Tenant offering to lease such space to Tenant and the terms and
conditions Landlord would so agree to lease the space to Tenant, and
Tenant shall have ten (10) business days from receipt of such notice
to deliver Landlord notice that Tenant desires to execute a lease with
Landlord for such proposed space upon the terms and conditions set
forth in such notice, whereupon Landlord and Tenant agree to execute a
lease on the terms and conditions specified in Landlord's notice
within ten (10) days. If Tenant fails to deliver such notice to
Landlord within such five (5) business days period, Landlord shall be
free to lease such space to any third party.
ARTICLE XXIX
INITIAL EXPANSION RIGHT
Section 29.0 On or before October 1, 1997, Tenant shall have the
right to increase the area of the Premises by up to 4,418 rentable
square feet upon written notice to Landlord.
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ARTICLE XXX
RENT ABATEMENT
Section 30.0 Anything in Articles V, VII or IX to the contrary
notwithstanding, in the event Landlord is unable (by reason of causes
other than casualty or condemnation) to provide any of the services
required to be maintained by Landlord pursuant to said Articles V, VII
and IX and in the event such inability renders the whole or a portion
of the Premises untenantable or unsuitable for the purposes intended
hereunder for a period of seven (7) consecutive business days after
receipt by Landlord of notice of untenantability or unsuitability from
Tenant, Base and Additional Rent for the portion of the Premises
rendered untenantable or unsuitable for the purposes intended
hereunder shall abate pro rata until the services are restored to such
a condition that the portion of the Premises affected is again
rendered tenantable or suitable. Anything herein to the contrary
notwithstanding, there shall be no such abatement of Rent if the
Landlord's inability to provide such services is caused by the misuse
or neglect of Tenant or Tenant's agents, employees or invitees or is
caused by shortages of fuel or other energy supplies to be provided by
public or private utilities or suppliers generally in the Minneapolis-St. Paul
metropolitan area.
ARTICLE XXXI
RIGHT TO EXAMINE BOOKS AND RECORDS
Section 31.0 Landlord hereby agrees, at Tenant's request, to make
available to Tenant for its inspection and examination all of the
books and records that relate to Landlord's statement as to Tenant's
Share of Taxes and Tenant's Share of Operating Expenses. Landlord
also agrees to make the aforementioned books and records available to
a certified public accountant, selected by Tenant, for review and
audit if Tenant so elects. If Tenant elects to audit such costs and
expenses and Landlord's statement is found to be in error, the
appropriate party shall pay to the other such payment as may be
required based upon such audit. If Landlord is required to pay any
payment to Tenant because of such audit, Landlord shall also pay
Tenant interest on such amount at the rate of twelve percent (12%) per
annum from the date such amount should have been refunded to the date
hen actually paid to Tenant.
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EXHIBIT "A"
PREMISES
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EXHIBIT "B"
LEGAL DESCRIPTION
Lot 3, Block 3, Cloverleaf Addition, according to the recorded plat
thereof, and situate in Hennepin County, Minnesota.
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EXHIBIT C
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or
in any part of the Premises and visible from the exterior of the Facility, or
visible from the exterior of the Premises, shall be installed at Tenant's
sole cost and expense, and in such manner, character and style as Landlord
may approve in writing. Anything herein to the contrary notwithstanding,
approval as to signs shall be subject to Landlord's approval which may be
withheld in Landlord's sole discretion. In the event of a violation of the
foregoing by Tenant, Landlord may remove the same without any liability and
may charge the expense incurred by such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls of
the Facility. No curtains, blinds, shades or screens visible from the
exterior of the Facility or visible from the exterior of the Premises shall
be attached to or hung in, or used in connection with any window or door of
the Premises without the prior written consent of Landlord. Such curtains,
blinds, shades, screens or other fixtures must be of a quality, type, design
and color, and attached in the manner approved by Landlord.
3. Tenant, its servants, employees, customers, invitees and guests shall
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in and about the Facility which are used in common with other
tenants and their servants, employees, customers, guests and invitees, and
which are not a part of the Premises of Tenant. Tenant shall not place
objects against glass partitions or doors or windows which would be unsightly
from the Facility corridors or from the exterior of the Facility and will
promptly remove any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any
of which may be offensive to the other tenants and occupants of the Facility,
or that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Facility or elsewhere
and shall not place or install any projections, antennas, aerials or similar
devices inside or outside of the Premises or on the Facility unless
specifically allowed under the Terms of the Lease.
5. Tenant shall not waste electricity, water or air conditioning furnished
by Landlord, if any, and shall cooperate fully with landlord to insure the
most effective operation of the Facility's heating and air conditioning
systems.
6. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
7. In no event shall Tenant bring into the Facility inflammables, such as
gasoline, kerosene, naphtha and benzine, or explosives or any other article
of intrinsically dangerous nature. If, by reason of the failure of Tenant to
comply with the provisions of this subparagraph, any insurance premium for
all or any part of the Facility shall at any time be increased, Tenant shall
make immediate Payment of the whole of the increased insurance premium,
without waiver of any of Landlord's other rights at law or in equity for
Tenant's breach of this Lease.
8. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not directly
or indirectly make any use of the Premises which may be prohibited by any of
the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
9. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Facility, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
10. The Premises shall not be used for lodging, sleeping or for any immoral
or illegal purpose.
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11. Tenant and Tenant's servants, employees, agents, visitors and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Landlord or Landlord's agent may from time to time adopt provided said new or
amended rules do not conflict with the Terms of the Lease. Reasonable notice
of any additional rules and regulations shall be given in such manner as
Landlord may reasonably elect.
12. Unless expressly permitted by the Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other
than those provided by the Landlord shall be made for any door. If more than
two keys for one lock are desired by the Tenant, the Landlord may provide the
same upon payment by the Tenant. Upon termination of this Lease or of the
Tenant's possession, the Tenant shall surrender all keys of the Premises and
shall explain to the Landlord all combination locks on safes, cabinets and
vaults.
13. Any carpeting cemented down by Tenant shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Tenant,
Landlord may charge the expense incurred by such removal to Tenant.
14. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they
were constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any misuse of
the fixtures shall be borne by the Tenant who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same. No person shall
waste water by interfering or tampering with the faucets or otherwise.
15. No pipe, conduit, cable, line or the like for water, gas, sewage,
drainage, steam, electricity, or any other energy or service shall be
installed or maintained on the Premises, except with the prior written
permission of Landlord. Tenant shall not overload any utilities serving the
Premises.
16. No dog or other animal shall be allowed in the Facility.
17. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryway provided
for such purposes. Tenant shall be responsible for any damage to the
Facility or the property of its employees or others and injuries sustained by
any person whomsoever resulting from the use or moving of such articles in or
out of the Premises, and shall make all repairs and improvements required by
Landlord or governmental authorities in connection with the use or moving of
such articles.
18. All safes, equipment or other heavy articles shall be carried in or out
of the Premises only in such manner as shall be prescribed in writing by
Landlord, and Landlord shall in all cases have the right to specify the
proper position of any such safe, equipment or other heavy article, which
shall only be used by Tenant in a manner which will not interfere with or
cause damage to the Premises or the Facility in which they are located, or to
the other tenants or occupants of said Facility. Tenant shall be responsible
for any damage to the Facility or the property of its employees or others and
injuries sustained by any person whomsoever resulting from the use or moving
of such articles in or out of the Premises, and shall make all repairs and
improvements required by Landlord or governmental authorities in connection
with the use or moving of such articles.
19. Canvassing, soliciting, and peddling in or about the Facility is
prohibited and each Tenant shall cooperate to prevent the same.
20. Tenant shall not use, generate, transport, store, treat or dispose of
any hazardous substances, toxic chemical, pollutant or other material
regulated by the Comprehensive Environmental Response, Compensation and
Liability Act of 1985 or in the so-called Minnesota Superfund Bill or any
similar law or regulation without Landlord's written approval of each such
substance. Landlord shall not unreasonably withhold its approval of use by
Tenant of such substances needed in Tenant's business operations so long as
Landlord is satisfied that Tenant will use appropriate measures to avoid
release thereof.
21. No on-street parking shall be allowed anywhere on the Premises, either
on public streets or private roads. No overnight parking of trucks or cars
shall be permitted anywhere on the Premises, unless such trucks or cars are
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parked inside the Building or on a short term temporary basis subject to
further rules to be promulgated by Landlord. No outside storage or
operations of any kind shall be permitted on the Premises. No antennas or
satellite dishes shall be permitted on the Premises, except with the prior
written permission of Landlord. Tenant shall have the right on a temporary
basis, from time to time, to park employee vehicles overnight in the parking
areas of the Project.
22. The Premises shall not be used for any of the following purposes: full
service laundry; taxidermy; mobile home and prefabricated home sales and
rentals; the sales, repair and servicing of motor vehicles, construction
equipment and farm equipment; clubs, lodges and/or community halls; sawmills;
storage of school or recreational vehicles; truck terminals, moving and
storage establishments; drive-in theaters; golf driving ranges; asphalt or
asphalt products manufacture; automobile, truck, construction equipment or
farm equipment assembly plants; coal storage, milling and processing; and
kennels and animal hospitals (commercial and noncommercial); heavy machinery
manufacture and repair; livestock slaughtering or preparation for packing;
manufacturing of metal alloys or foils; and railroad manufacture and repair.
23. Tenant shall maintain the Premises in a safe, clean, neat and sanitary
condition and in a first-class commercial manner.
24. Wherever in these Building Rules and Regulations the word "Tenant"
occurs, it is understood and agreed that it shall mean Tenant's associates,
employees, agents, clerks, servants, invitees and visitors. Wherever the
word "Landlord" occurs, it is understood and agreed that it shall mean
Landlord's assigns, agents, clerks, servants, and visitors.
25. INTENTIONALLY DELETED.
26. INTENTIONALLY DELETED.
27. Tenant, its servants, employees, customers, invitee and guests shall,
when using the common parking facilities, if any, in and around the Facility,
observe and obey all signs regarding fire lanes and no parking zones, and
when parking always park between the designated lines. Landlord reserves the
right to tow away, at the expense of the owner, any vehicle which is
improperly parked or parked in a no parking zone. All vehicles shall be
parked at the sole risk of the owner, and Landlord assumes no responsibility
for any damage to or loss of vehicles.
28. In case of invasion, mob, riot, public excitement, or other commotion,
Landlord reserves the right to prevent access to the Facility during the
continuance of the same by closing the doors or otherwise, for the safety of
the tenants or the protection of the Facility and the property therein.
Landlord shall in no case be liable for damages for any error or other action
taken with regard to the admission to or exclusion from the Facility of any
person.
29. All entrance doors to the Premises shall be locked when the Premises are
not in use. All common corridor doors, if any, shall also be closed during
times when the air conditioning equipment in the Facility is operating so as
to prevent overload thereon.
30. Landlord reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Rules and
Regulations when it is deemed necessary, desirable, or proper, in Landlord's
judgment, for its best interest or for the best interest of the tenants of
the Facility, provided such changes do not conflict with the terms of the
Lease. Landlord agrees that it will not enforce the Rules and Regulations
more stringently against Tenant than it does against other tenants or
occupants of the Facility.
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EXHIBIT "D"
INTENTIONALLY DELETED.
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EXHIBIT "E"
OFFICE SERVICES
A. Landlord Services:
1. Landlord, subject to including the costs thereof in Article
II, shall provide the following services during the term of this
lease:
(a) Air conditioning and heating service for normal
purposes shall be provided in Landlord's reasonable judgment for
comfortable occupancy Monday through Friday during the hours of
7:00 a.m. through 6:00 p.m., and on Saturday during the hours of
8:00 a.m. through 1:00 p.m. , except recognized holidays.
Tenant agrees not to use any apparatus or device, in or upon or
about the Premises which in any way may increase the amount of
such service usually consumed therein, and will not connect any
apparatus or device to the cooling or heating system of the
Building for the purpose of using additional or unusual amounts
of such services, without written consent of Landlord, which
consent may be conditioned upon payment of additional charges by
Tenant.
Extra heating or air conditioning over and above that amount to
be provided by Landlord without extra change herein, is available
at additional cost to Tenant. Tenant may request that
non-business hour HVAC be programmed into the Building energy
management system at a cost of ten dollars ($10.00) per
reprogramming, plus a reasonable charge of one dollar ($1.00) per
heat pump, per hour of extra usage. Said $10.00 reprogramming
fee may increase after the initial Term at a rate of ten percent
(10%) per annum during the term of the Lease and Landlord shall
document said increase in estimated charges. The heat pump
charge shall be adjusted from time to time to reflect Landlord's
engineer's estimate of actual cost.
(b) Electricity only for building standard lighting,
typewriters, adding machines, calculators, personal computers,
small reproduction machines and other similar small office
equipment, it being expressly understood that to the extent the
electricity is used for any other purpose or if Tenant's use
shall exceed normal and customary usage levels for office
purposes, additional charges shall be payable by Tenant to
Landlord in such amounts as Landlord may reasonably determine
necessary to cover the costs of such increased use, or, at
Landlord's option, Landlord may require Tenant to install a
separate electrical meter at Landlord's sole expense.
(c) Water for drinking, lavatory and toilet purposes from
the regular Building supply (at the prevailing temperature)
through fixtures installed by Landlord (or by Tenant with
Landlord's written consent).
(d) Standard interior janitorial and cleaning services in
the common areas of the Building and the Premises five (5) days
per week (excluding locked corporate officer offices). Tenant
shall not procure any janitorial or cleaning services for the
Premises without Landlord's prior written consent and then only
subject to supervision by Landlord and by janitorial or cleaning
contractors or employees at all times reasonably satisfactory to
Landlord.
(e) Window washing of all windows in the premises, both inside and
out, at such times as Landlord shall deem necessary,
but in no event less than twice per year.
(f) Lawn and shrub care, snow plowing and removal, maintenance of the
structure, roof, mechanical and electrical equipment of the
Building, excluding those items specifically excepted elsewhere
in this Lease.
(g) Passenger elevator service will be provided 24 hours
per day, seven days per week, in common with other tenants by
operatorless automatic elevators. Landlord shall have the right
to restrict the number of elevators to be in operation during
evenings, Saturdays, Sundays and holidays. Landlord will provide
necessary elevator access cards at no fee to Tenant for its
employees for the elevator and exterior building entrances for
after-hours entry.
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EXHIBIT "F"
STORAGE SPACE LEASE
THIS AGREEMENT, made and entered into this day of
, 199 , by and between MERIDIAN PROPERTIES REAL ESTATE
DEVELOPMENT LLC, a Minnesota limited liability company (hereinafter referred
to as "Lessor"), and BMC Industries, Inc., a Minnesota corporation
(hereinafter referred to as "Lessee").
WITNESSETH THAT:
WHEREAS, Lessor and Lessee, as Landlord and Tenant, respectively, have
entered into a certain Facility Lease dated
, 1997, for certain space in the Facility known and described as
Meridian Crossings I, located at 1205 West 77th Street, in the City of
Richfield, State of Minnesota (hereinafter referred to as the "Lease"); and
WHEREAS, Lessee desires to use certain additional space in the lower
level in said Facility shown and designated on the floor plan attached
hereto as Exhibit "A" and made a part hereof, consisting of approximately
square feet of area (such space hereinafter
referred to as the "Storage Space"), for its exclusive use as storage for
personal property to be used by or useful to Lessee in the business to be
conducted by Lessee, as Tenant under the Lease, in the premises demised under
the lease, and lessor desires to grant to Lessee a lease to use the Storage
Space on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter made
and contained, and for other good and valuable consideration, the receipt of
which is hereby acknowledged by each of the parties, Lessor and Lessee hereby
agree as follows:
1. Lessor hereby leases to Lessee the exclusive right to use the
Storage Space during the term of the Lease. This Storage Space Lease shall
terminate in any event no later than the date of termination of the term
(including any renewal terms or extensions) of the Lease.
2. Lessee agrees to pay as a monthly fee for such Storage Space Lease
the sum of Dollars ($ ), payable in advance on or
before the first day of each month throughout the term hereof. The monthly
fee may be changed by Lessor as of the first day of any renewal term by
giving not less than thirty (30) days written notice thereof to Lessee. Such
monthly fee from time to time shall not exceed the highest fair market
monthly fee charged by Lessor for arms' length storage space leases then
prevailing. In the event Lessee objects to the revised fee as established by
Lessor, it may cancel this Storage Space Lease effective upon the adjustment
date by written notice to Lessor effective upon the adjustment date by
written notice to Lessor effective upon the adjustment date by written notice
to Lessor provided such written notice is given to Lessor within fifteen (15)
days after receipt by Lessee of the notice of the escalation by Lessor. Any
amounts not paid when due shall bear interest at the rate of twelve percent
(12%) per annum from the date due until paid.
3. This Storage Space Lease is for self-service storage only (subject
to applicable laws, ordinances and regulations) and does not include the
rights to any additional services, including
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without limitation the services specified in Article V of the Lease. Lessee
accepts the Storage Space in "as is" condition.
4. In the event Lessee is in default hereunder, Lessor may, at its
option, cancel this Storage Space Lease by written notice to Lessee if Lessee
fails to cure such default within thirty (30) days after written notice by
Lessor to Lessee, and Lessor shall have all other remedies available to it at
law or in equity.
5. A breach of this Storage Space Lease by Lessee shall be deemed a
breach of the Lease by Tenant, and after notice given in accordance with the
terms of the Lease and failure of Tenant to cure within thirty (30) days of
such notice, Lessor shall have all remedies available herein and under the
Lease.
6. Lessee shall maintain insurance coverage upon all personal property
of Lessee or the personal property of others kept, stored or maintained
within the Storage Space against loss or damage by fire, windstorm or other
casualties or causes for such amount as Lessee may desire, and Lessee agrees
that such policy shall contain a waiver of subrogation clause as to Lessor.
Lessor and its agents and employees shall not be liable for loss or damage to
any personal property stored by Lessee or under Lessee's rights herein caused
by fire, theft, explosion, strikes, riots or by any other causes, and Lessee
(i) waives any claim against Lessor for and in respect thereto, and (ii)
hereby agrees to indemnify and defend Lessor against all claims for any loss
or damage to any such personal property from any cause whatsoever, whether or
not caused by Lessor's act or omission. It is further expressly understood
that the relationship between Lessor and Lessee constitutes a lease to use
said Storage Space subject to the terms and conditions herein only, and that
neither such relationship nor the storage of any such personal property
thereunder shall constitute a bailment or create the relationship of bailor
and bailee.
7. Lessee shall not assign any of its rights under this Storage Space
Lease separately from assignment of the Lease in any manner whatsoever
without the prior written consent of Lessor, which shall not be unreasonably
withheld provided such assignment is collateral to an assignment of the Lease.
8. All notices hereunder shall be in writing in the manner specified in
Paragraph 17.01B of Article XVII of the Lease.
9. In the event the Storage Space shall be damaged by fire or other
casualty rendering it unusable by Lessee, the fee provided for herein shall
be abated (pro rata based upon the portion of the Storage Space which is
unusable) from the date said area becomes unusable until it again becomes
usable. Further, if all or any part of the Storage Space is taken by eminent
domain proceedings, Lessor shall be entitled to all of the award in the
proceedings and may terminate this Agreement in the event of the total taking
or reduce the area licensed hereunder in proportion to the extent of any
partial taking upon written notice to Lessee. If the Storage Space is
damaged by fire or other casualty, Lessor will cause it to be repaired with
due diligence.
10. Lessee covenants not to suffer any waste or damage or disfigurement
or injury to the Storage Space or any other part of said Facility, and Lessee
specially covenants not to store in the Storage Space any flammable liquids
outside of appropriate fireproof containers or any
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materials which in Lessor's reasonable judgment are likely to result in
higher premiums for the casualty insurance carried by Lessor, as owner of
said Facility.
11. Lessor reserves the following rights (in respect to use of such
Storage Space) exercisable without notice and without liability to Lessee and
without effecting an eviction, constructive or actual, or disturbance of
Lessee's use or possession, or giving rise to any claim for setoff or
abatement of Lessee hereunder:
(a) To reasonably designate, limit, restrict and control any
service by third parties in or to said Facility. Any
restriction, designation, limitation or control imposed by reason
of this subparagraph shall be imposed uniformly on Lessee and
other lessees.
(b) To retain at all times and to use in appropriate instances
keys to all doors within and into the Storage Space. No locks
shall be changed without the prior written consent to Lessor.
This provision shall not apply to Tenant's safes or other areas
maintained by Tenant or the safety and security of monies,
securities, negotiable instruments or like items or areas
containing proprietary items or information.
(c) To make repairs, alterations, additions or improvements,
whether structural or otherwise, in and about said Facility, or
any part thereof, and for such purposes to enter upon the Storage
Space and, during the continuation of any of such work, to
temporarily close doors, entryways, public spaces and corridors
in said Facility and to interrupt or temporarily suspend
services and facilities without liability, cost or abatement of
fee, subject to the terms of Article XXX of the Lease.
12. Lessee shall perform, observe and comply with the reasonable Rules
and Regulations of said Facility, which are made a part of the Lease, as the
same may be amended from time to time by Lessor as owner of said Facility as
same may affect use of the Storage Space. Lessee shall make no permanent
alterations or improvements to the Storage Space without Lessor's prior
written consent which shall not unreasonably be withheld.
13. In the event a key or keys is supplied by Lessor to Lessee in
connection with the rights granted herein, Lessee shall surrender such key or
keys to Lessor upon termination of this Storage Space Lease.
14. This Storage Space Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed on the above
described Facility, or any portion thereof, and to replacements, renewals and
extensions thereof, and Lessee upon reasonable request by Lessor shall
execute instruments (in form satisfactory to Licensor) acknowledging such
subordination. It is agreed so long as Lessee is not in default in
performance of all covenants, agreements and conditions by it to be performed
under this Storage Space Lease, such subordination shall not interfere with,
hinder or molest Lessee's rights to continue to lease the Storage Space in
accordance with the terms of this lease as against the mortgagee, trustee or
ground lessor, or their successors or assigns. The mortgagee, trustee or
ground lessor shall, if requested by Lessee, issue its non-disturbance
agreement to Lessee. Further, if any mortgagee shall succeed to the rights
of Lessor under this Storage Space Lease, or to ownership of said Facility,
whether through possession or foreclosure or delivery of a deed to said
Facility, then,
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upon the written request of such mortgagee so succeeding to Lessor's rights
hereunder, Lessee shall attorn to and recognize such mortgagee as Lessee's
lessor under this Storage Space Lease, and shall promptly execute and deliver
any instrument that such mortgagee may reasonably request to evidence such
attornment, provided such instrument shall not materially increase the
obligations or decrease the rights of Lessee under this Storage Space Lease.
In the event of any other transfer of Lessor's interest hereunder, upon the
written request of the transferee and Lessor, Lessee shall attorn to and
recognize such transferee as Lessee's licensor under this Storage Space Lease
and shall promptly execute and deliver any instrument that such transferee
and Lessor may reasonably request to evidence such attornment, provided such
instrument shall not materially increase the obligations or decrease the
rights of Lessee under this Storage Space Lease. Lessee agrees to deliver a
certificate and/or resolution in respect to this Storage Space Lease similar
to the certificates and/or resolutions required by Article XV of the Lease at
the time any certificate under said Article XV is required.
15. Lessee shall maintain all of Licensee's equipment within the Storage
Space, if any, and shall contract with Lessor or its designated agents in
performing such maintenance and repair so long as Lessor's charges therefore
are reasonable and competitive. Lessee shall, at its sole cost and expense,
replace and pay for all lighting bulbs, tubes, ballasts and starters required
for the Storage Space other than those initially installed in the Premises by
Landlord and shall provide its own janitorial services and any other services
including heating, ventilation and air conditioning necessary for Lessee's
use and operations in the Storage Space.
16. Lessor shall have the right at any time and from time to time during
the term hereof, upon giving Lessee not less than sixty (60) days prior
written notice, to move and furnish Lessee with space elsewhere in the
Facility of approximately the same size as the Storage Space, and remove and
place Lessee in such space, all upon the effective date stated in the notice
from Lessor to Lessee, and upon such effective date, such substitute space
shall be deemed to constitute the Storage Space instead of and in lieu of the
original space. Lessor shall, at Licensor's expense, physically move the
personal property of Lessee from the original Storage Space to the substitute
space. If Lessor moves Lessee to such new space, and such new space shall
thereafter be deemed to Storage Space as though Lessor and Lessee had entered
into an express written Amendment of this Storage Space Lease with respect
thereto. Anything to the contrary notwithstanding, Lessor shall not be
liable for any loss of profits in connections with any move to such
substitute space.
LESSOR: MERIDIAN CROSSINGS LCC, A MINNESOTA LIMITED LIABILITY COMPANY
By:
Bryant J. Wangard
Its: Manager
LESSEE: BMC INDUSTRIES, INC., A MINNESOTA CORPORATION
By:
Its:
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EXHIBIT "G"
RESERVED PARKING LEASE
RESERVED SPACE
PARKING GARAGE LEASE
THIS LEASE, made this day of
, 199 , between MERIDIAN CROSSINGS LLC, A MINNESOTA LIMITED
LIABILITY COMPANY, Lessor, and BMC INDUSTRIES, INC., A MINNESOTA CORPORATION,
Lessee, whose address is 1205 West 77th Street, Richfield, MN 55423.
1. Lessor hereby licenses Lessee the right to park seven (7)
automobile(s) in the lower level Parking Garage at the Facility known and
described as Meridian Crossings I, located at 1201 West 77th Street,
Richfield, MN 55423 for a five (5) year term beginning on the Rental
Commencement Date, as hereinafter described, and ending , 199 .
2. Anything herein to the contrary notwithstanding, this Lease shall in
any event terminate no later than the date of termination of the term
(including any renewal terms or extensions) of the Lease between Landlord as,
Lessor and Lessee, as Tenant, for space in said Facility, such Lease dated
, 199 . A breach of this Agreement
notice given in accordance with the terms of such Lease and failure of the
breaking party to cure within thirty (30) days of such notice, the
non-breaking party shall have all remedies available herein and under the
Lease.
3. Lessee agrees to pay as a monthly fee for such Lease the sum of
Seven Hundred Twenty-five Dollars and NO/100 ($725.00) for the total of seven
(7) stalls licensed payable on or before the first day of each month in
advance. The monthly fee may be changed by Lessor as of the first day of
the Renewal Term giving not less than thirty (30) days written notice thereof
to Lessee. In the event Lessee objects to the revised fee as established by
Lessor, it may cancel this Lease effective upon the adjustment date, as to
all or any portion of the spaces licensed hereunder, by written notice to
Lessor provided such written notice is given to Lessor within fifteen (15)
days after receipt by Lessee of the notice of the escalation by Lessor..
4. In the event any of the fee is not paid when due or Lessee is
otherwise in default hereunder, Lessor may, at its option, cancel this
agreement by written notice to Lessee if Lessee fails to cure such default
within thirty (30) days after written notice by Lessor to Lessee.
5. This Lease is for the Reserved Parking Space(s) designated as follows:
Only vehicles designated by Lessee to Lessor may be parked or stored
thereon, provided, however, that Lessee may change its automobile designation
at any time upon written notice to Lessor or for temporary use upon
notification given to the ramp attendant, if any. No more than one (1)
automobile per space licensed hereunder shall be parked or stored under
Lessee's rights hereunder at any one time.
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6. This Lease is for self-service storage or parking only and does not
include the rights to any additional services, which services.
7. Except for same resulting solely from the willful act of Lessor, it
is understood that Lessor and its agent and employees shall not be liable for
loss or damage to any vehicle parked or stored by Lessee or under Lessee's
rights herein and/or to the contents thereof caused by fire, theft,
explosion, freezing of circulation system of any automobile, strikes, riots,
or by any other causes and Lessee (1) waives any claim against Lessor for and
in respect thereto, and (2) hereby agrees to indemnify and defend Lessor
against all claims for any loss or damage to any such vehicle or its contents
from any cause whatsoever, whether or not caused by Lessor's act or omission.
It is further expressly understood that the relationship between Lessor and
Lessee constitutes a Lease to use said Parking Garage subject to the terms
and conditions herein only and that neither such relationship nor the storage
or parking of any automobile thereunder shall constitute a bailment nor
create the relationship of bailor and bailee.
8. Lessee shall not assign any of its rights under this agreement
separately from the Lease in any manner whatsoever without the prior written
consent of Lessor, which shall not unreasonably be withheld provided such
assignment is collateral to an assignment of the Lease referred to in
Paragraph 2 hereof.
9. All notices hereunder shall be in writing by certified mail, return
receipt requested. Any notices to Lessor shall be mailed to Lessor at
(Attn: ), and to Lessee at its
address set forth in the first paragraph of this agreement, and shall be
deemed given when mailed, postage prepaid, if addressed in accordance with
the above. The addresses of either party may be changed at any time by
written notice by the party to be notified in the manner above specified.
10. In the event the Parking Ramp above-referenced shall be damaged by
fire or other casualty, tendering the Ramp unusable by Lessee, the fee
provided for herein shall be abated (pro rata based on the portion of
Lessee's stalls which are unusable) from the date the Parking Garage becomes
unusable until it again becomes useable. Further, if all of any part of the
Parking Garage is taken by eminent domain proceedings, Lessor shall be
entitled to all of the award in the proceedings and may terminate this
agreement in the event of a total taking or reduce the number of stalls
licensed hereunder in preparation to the extent of any partial taking upon
written notice to Lessee. If the Parking Garage is damaged by fire or other
casualty, Lessor will cause the it to be repaired with all due diligence and
the fee will abate until repaired.
11. This Reserved Parking Lease Agreement shall be subject and
subordinate to any mortgage, deed of trust or ground lease now or
hereafter placed on the above described Facility or any portion
thereof and to replacements, renewals and extensions thereof, and
Lessee upon request by Lessor shall execute instruments (in form
satisfactory to Lessor) acknowledging such subordination. It is
agreed so long as Lessee be not in default in payment of fee provided
for herein and performance of all covenants, agreements and conditions
by it to be performed under this agreement, such subordination shall
not interfere with, hinder or molest Lessee's rights to continue to
lease the stalls licensed hereunder in accordance with the terms of
this agreement as
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against mortgagee, trustee or ground lessor or their successors or assigns.
The mortgagee, trustee or ground lessor shall, issue its non-disturbance
agreement to Lessee. Further, if any mortgagee shall succeed to the rights
of Lessor under this agreement, or to ownership of the Parking Garage,
whether through possession or foreclosure or the delivery of a deed to the
Parking Garage, then, upon the written request of such mortgagee so
succeeding to Lessor's rights hereunder, Lessee shall attorn to and recognize
such mortgagee as Lessee's Lessor under this agreement, and shall promptly
execute and deliver any instrument that such mortgagee may reasonably
request to evidence such attornment (whether before or after making of the
mortgage). In the event of any other transfer of Lessor's interest
hereunder, upon the written request of the transferee and Lessor, Lessee
shall attorn to and recognize such transferee as Lessee's lessor under this
agreement and shall promptly execute and deliver any instrument that such
transferee and Lessor may reasonably request to evidence such attornment.
12. Lessee covenants not to suffer any waste or damage or disfigurement
or injury to the Parking Garage or the Facility.
13. Subject to the abatement provided for in Paragraph 10 hereof, Lessor
shall have the right to temporarily close any portion of the Parking Garage
and deny access thereto in connection with any repairs or in an emergency, as
it may require, without liability, cost, or abatement of fee, but except for
damage, destruction or condemnation, the closure shall not exceed fourteen
(14) consecutive business days.
14. Lessee shall perform, observe and comply with such Parking Garage
rules of the Facility as may be reasonably adopted by Lessor in respect to
the use and operation of said Parking Garage.
15. Lessee shall, when using the parking facilities of said Ramp, observe
and obey all signs regarding fire lanes and no-parking zones, and when
parking always park between designated lines. The property manager of the
Facility may tow away, or otherwise impound, at the expense of the owner or
operator, any vehicle which is improperly parked or parked in a no-parking
zone. Overnight parking shall be allowed only as reasonably acceptable to
Lessor. Lessor agrees to provide, except in the case of an emergency, ten
(10) business days prior written notice, to Lessee prior to any prohibition
on overnight parking.
16. In the event a key or other access device is supplied by Lessor to
Lessee in connection with the rights granted herein, Lessee will surrender
such key or access device to Lessor upon termination of this agreement.
17. Lessor covenants and agrees that Lessee, upon paying the charges
herein provided for and observing and keeping the covenants, agreements and
conditions of this Reserved Parking Lease Agreement on its part to be kept
and performed, shall lawfully hold, occupy and enjoy all the rights and
privileges granted herein during the term of this agreement without hindrance
or molestation by Lessor, its agents, servants, employees, guests, invitees
or any other persons claiming under Lessor.
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IN WITNESS WHEREOF, the parties have executed this agreement as of the day
and year first above written.
MERIDIAN CROSSINGS LLC, A BMC INDUSTRIES, INC., A MINNESOTA
MINNESOTA LIMITED LIABILITY COMPANY CORPORATION
By By
--------------------------------
Bryant J. Wangard
Its: Manager Its
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EXHIBIT "H"
SHELL REQUIREMENTS
1. FLOOR FINISHES
Concrete slab cleaned and leveled to 1/4" tolerance within a 10'0" x 10'0"
given area (tolerances are not cumulative, elevator sills are to be
established elevation 0'0"). Areas leveled subsequent to initial pouring of
slab to be sealed after setting. Finished surfaces to be ready to receive
carpet, ceramic tile, resilient tile, wood parquet or stone flooring without
additional BMC preparation other than cleaning.
2. FLOOR LOADING
Floor loads will be per applicable codes and base building standards
throughout but not less than 100 pounds per square foot live load including
20 pounds per square foot for partition loads.
3. WALL, COLUMN AND PERIMETER BULKHEAD CONSTRUCTION
All perimeter walls, core walls, freestanding and engaged columns and
perimeter top and bottom bulkheads to be furred, drywalled, taped, floated,
sanded, and ready to receive final BMC finishes.
4. OTHER PERIMETER FINISHES
Building perimeters will be fully finished with respect to waterproofing,
caulking, glazing and metal finishing including all required glass
replacement (in the event of defects or cracked or broken panes), glass
cleaning on interior, metal touch up and cleaning and any other actions
required to complete the perimeters to a BMC-ready condition. Building
standard window coverings will be installed by Landlord just before occupancy.
5. OTHER CORE FINISHES
Fire fighting equipment enclosures (if required), drinking fountains, janitor
closets, electrical and mechanical rooms, toilets and fire exit enclosures to
be finished. No credit shall be provided if core finishes are deleted or
altered. Specifically, the following will be required to be completed, at
Landlord's cost:
(a) Ladies' and Men's Restrooms;
(b) Janitor closets;
(c) Core walls with finished drywall ready for paint;
(d) Drinking fountains;
(e) A complete life safety system with all annunciators, strobe
lights, exit signs and other required devices, as required
per code, based on BMC's plans (provided plans are delivered
to Landlord in a timely manner);
(f) Elevator lobbies;
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(g) All stairwells will have walls and railings finish painted;
(h) Locking devices and closers for all exit, stairwell, and
electrical/telephone doors, and ladies'/men's toilets. Stairwell
doors will have locking and unlocking devices controlled by
Landlord's building management system;
(i) All ceiling space sufficiently clear of all pipes, duct work, etc.,
to provide for a minimum finished ceiling height of nine feet.
Such 9'0" finished heights will include room above the ceiling
to place conventional florescent light fixtures in a building
standard pattern;
(j) All pipe sleeves in beams and walls will be packed airtight
and complete;
(k) Wet column provided every 12,150 square feet at each stairwell;
(l) All code required general exhaust requirements for Landlord's work.
6. CEILINGS
Completed and laster-leveled grid suspension system capable of receiving
Landlord's standard ceiling tile - Armstrong Cortega, 2' x 2', reveal edge
acoustical tile with a thickness of 5/8".
7. LIGHT FIXTURES
Landlord will provide one, three bulb 2' x 4' parabolic light fixtures per
80 usable square feet.
8. SPRINKLER SYSTEM
Sprinkler heads to be fully concealed type with painted metal covers. The
sprinkler system shall be designed as necessary to accommodate Tenant's suite
lay-out, provided Tenant provides Landlord with final plans by November 1,
1997.
9. HEATING, VENTILATION AND AIR-CONDITIONING
Landlord will cause its mechanical and electrical engineers to prepare the
plans for the HVAC distribution system for the leased premises, which plans
will be subject to the review and approval by BMC and will meet the following
criteria:
(a) The plans should provide a system of distribution ducts, supply
registers and diffuses, return grilles and associated fixtures and
equipment designed and installed in the leased premises to provide
control of cooling, dehumidification, ventilation and heating in each
zone of the leased premises, as defined below. All diffuses and
distribution should be designed to provide acoustical separation at
all perimeter office walls.
(b) The system, including exhaust fans, will be designed to conform
to BMC's plans and to operate so that sound transmission levels do not
exceed NC35. Landlord will be required to take appropriate corrective
measures to eliminate any disturbing noise or vibration of any
mechanical equipment or system furnished and installed by Landlord.
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(c) The system will be designed with an average of not less than one
zone per 1,000 square feet of usable area. In addition, all
conference rooms will be separately zoned and all building corners
will be separately zoned if they contain a private office. Any
exterior offices which have two or more exposed glass walls or windows
as to which the interior angle of intersection of any two walls is
less than 135 degrees will be separately zoned and such zones will be
in addition to the one zone per 1,000 feet described above.
(d) The design of the air-conditioning system will take into account the
following occupancy schedule:
General Offices - One person per 175 usable square feet and one
personal computer per person assuming each personal computer
generates 1,000 BTU's.
Meeting and Conference Rooms - One person per 15 usable square feet.
(e) The occupancy schedule of particular areas shown on BMC's
plans may vary between one person per 50 rentable square feet ad one
person per 250 rentable square feet, provided that the entire floor
division of the leased premises does not assume more than one person
per 175 usable feet and that such variances are reasonably
distributed. The heating, ventilating and air-conditioning system
will be designed to meet the following criteria:
(1) Summer - Outdoor conditions 92DEG. Fahrenheit dry bulb,
75DEG. Fahrenheit wet bulb (2 1/2" coincidence); indoor
conditions 75DEG. Fahrenheit dry bulb, 50% relative humidity
maximum.
(2) Winter - Outdoor conditions minimum 19DEG.
Fahrenheit dry bulb; 72DEG. Fahrenheit dry bulb, inside,
minimum relative humidity 20%. Landlord will take
appropriate corrective action using existing Building
equipment and prudent operating standards should minimum
relative humidity drop below 20%.
(3) Regardless of the design standards, Landlord will,
using existing Building equipment and prudent operating
standards, operate the HVAC system to achieve a space
temperature of 72DEG. Fahrenheit dry bulb inside whenever
possible.
(4) The variable air volume handling system will deliver
conditioned air at a minimum of one cubic foot per minute per
square foot (at design conditions), and not less than ten
complete air changes per hour.
(5) Additional chilled water will be available at the core
to provide the equivalent of at least one ton of additional
air-conditioning capacity per 1,000 rentable square feet.
(f) All interior areas will be suitable zoned, with independent
zone controls.
(g) Supply outlets will be selected for minimum drafts and
noiseless air distribution.
(h) Tenant will have the right to review and approve the types
and size of diffusers after Landlord's initial design is completed.
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(i) All supply and/or return ducts will be equipped with fusible
link dampers as prescribed by applicable laws, if any.
(j) All lunchrooms, photocopy rooms, meeting rooms and
conference rooms will be provided with switched exhaust fans.
Landlord's HVAC system will be designed to accommodate such exhaust.
10. ELECTRICAL DISTRIBUTION AND SERVICE
As part of the base building or shell condition work, Landlord will provide
an electrical distribution and service system as follows:
(a) Basic electrical service of 277/480 volts, 3 phase, 4 wire, 60
cycles through a grounded switchboard suitable for such service.
Switchboard devices will be selectively coordinated with a ground
fault protection system.
(b) Distribution voltages will be 277/480 volts, 3 phase, 4 wire
for fluorescent lighting and motors; and 120/208 volts, 4 wire, 3
phase for receptacle circuits, motors of 1/2 horsepower and less, and
incandescent lighting.
(c) The electrical service provided by the electrical user
system will be a minimum of six watts per usable square foot for BMC's
lighting and receptacles only, excluding HVAC equipment, special
systems, and elevator equipment requirements.
(d) Landlord will provide and install distribution grid from
panelboards to junction boxes in the ceiling to accommodate plug in
pigtails (manufactured wiring system). Junction boxes will be located
on a grid with boxes located at ten foot intervals in each direction.
(e) Circuit breaker panelboards will be located on each floor to
serve electrical loads and the portion of the leased premises on the
floor as follows:
(1) 480/277 volt panelboards will be a 20 amp circuit size with
bolt-on type breakers, and will include at least one circuit
breaker per 500 square feet of usable space.
(2) 120/208 volt panelboards will be a 20 amp circuit size with
bolt-on type breakers, and will include at least one circuit
breaker per 500 square feet of usable space. 120/208 volt
panelboards will include an oversized neutral.
11. ACOUSTICAL ATTENUATION
Demising walls will be constructed to separate Tenant's premises from
elevators, toilet rooms, fun rooms and switchgear at a design criteria
of NC45.
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<PAGE>
EXHIBIT 11.1
COMPUTATION OF NET EARNINGS PER SHARE
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30 ENDED SEPTEMBER 30
----------------------- -------------------------
1997 1996 1997 1996
----------------------- -------------------------
<S> <C> <C> <C> <C>
PRIMARY
Net Earnings $ 8,875 $ 7,157 $ 28,747 $ 23,182
-------- -------- --------- ---------
-------- -------- --------- ---------
Shares of common stock and common stock equivalents:
Weighted average shares outstanding 27,681 27,309 27,519 27,246
Dilutive effect of stock options and warrants outstanding (1) 938 1,081 1,005 1,100
-------- -------- --------- ---------
Total 28,619 28,390 28,524 28,346
-------- -------- --------- ---------
-------- -------- --------- ---------
Net Earnings Per Share $ 0.31 $ 0.25 $ 1.01 $ 0.82
-------- -------- --------- ---------
-------- -------- --------- ---------
FULLY DILUTED
Net Earnings $ 8,875 $ 7,157 $ 28,747 $ 23,182
-------- -------- --------- ---------
-------- -------- --------- ---------
Shares of common stock and common stock equivalents:
Weighted average shares outstanding 27,681 27,309 27,519 27,246
Dilutive effect of stock options and warrants outstanding (2) 938 1,081 1,023 1,115
-------- -------- --------- ---------
Total 28,619 28,390 28,542 28,361
-------- -------- --------- ---------
-------- -------- --------- ---------
Net Earnings Per Share $ 0.31 $ 0.25 $ 1.01 $ 0.82
-------- -------- --------- ---------
-------- -------- --------- ---------
</TABLE>
(1) The dilutive effect of outstanding stock options and warrants is
calculated based on the treasury stock method using the average market
price for the period.
(2) The dilutive effect of outstanding stock options and warrants is
calculated based on the treasury stock method using the greater of the
average market price or the ending market price for the period.
Page 75
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 2,119
<SECURITIES> 19
<RECEIVABLES> 37,509
<ALLOWANCES> 3,059
<INVENTORY> 62,080
<CURRENT-ASSETS> 112,806
<PP&E> 277,788
<DEPRECIATION> 99,171
<TOTAL-ASSETS> 309,842
<CURRENT-LIABILITIES> 41,409
<BONDS> 0
0
0
<COMMON> 61,452
<OTHER-SE> 110,375
<TOTAL-LIABILITY-AND-EQUITY> 309,842
<SALES> 234,666
<TOTAL-REVENUES> 236,470
<CGS> 181,356
<TOTAL-COSTS> 181,356
<OTHER-EXPENSES> (300)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 707
<INCOME-PRETAX> 42,600
<INCOME-TAX> 13,853
<INCOME-CONTINUING> 28,747
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 28,747
<EPS-PRIMARY> 1.01
<EPS-DILUTED> 1.01
</TABLE>
<PAGE>
CONTACT: Michael P. Hawks (NYSE -- BMC)
(612) 851-6030 FOR IMMEDIATE RELEASE
BMC REPORTS RECORD THIRD QUARTER EARNINGS
October 22, 1997 -- Minneapolis, MN -- BMC Industries, Inc. today reported
record third quarter net earnings of $8,875,000 or $0.31 per share, an increase
of 24% from earnings of $7,157,000 or $0.25 per share in the year-earlier
period. Third quarter revenues increased 16% from $68.2 million in the third
quarter of 1996 to $79.1 million in the third quarter of 1997.
Net earnings for the first nine months of 1997 totaled $28,747,000 or $1.01 per
share. This represented an improvement of $5,565,000 or 24% over the
$23,182,000 or $0.82 per share recorded for the first nine months of the prior
year. Revenues for the first nine months of 1997 were 16% higher than the same
period in the prior year.
The third quarter of 1997 represented another quarterly earnings record for BMC
and its twenty-sixth consecutive quarter of increased net earnings over the
year-earlier period, excluding income from the sale of equipment and technology
and other non-recurring items. Once again, each division contributed to this
significant accomplishment.
The Company's Precision Imaged Products operation (PIP includes both the Mask
Operations and Buckbee-Mears St. Paul) posted record third quarter results.
Third quarter sales increased 22% over the prior year quarter while profits
increased 25%. The profitability of Mask Operations increased due to the
continued sales mix shift to higher margin products, including high resolution
computer monitor masks. However, television mask sales and profitability were
depressed by lower yields on the existing lines at Cortland caused by the strain
of the start-up of the two new lines. Sales of large (25 - 29 inches)
television aperture masks increased 19% over third quarter 1996 sales and for
the first nine months of 1997 are now 27% ahead of the same period last year.
While invar and jumbo mask sales lagged 1996 third quarter sales, invar mask
sales are up 9% for the first nine months of 1997. Jumbo mask sales continue to
lag 1996 sales for the nine months, which is a difficult comparison following a
51% increase over 1995. The strength of the U.S. dollar
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versus the German mark had less than a $200,000 impact on earnings but reduced
sales, as compared with the prior year quarter, by approximately $4 million.
Buckbee-Mears St. Paul had record sales and profits in the quarter.
Third quarter Precision Imaged Products sales included over $6 million of high
resolution computer monitor masks sales from the Company's German monitor mask
line. While higher sales are expected from this line in the fourth quarter, the
new part and customer qualification process will continue. The new monitor mask
line in Cortland was de-bugged and started-up in the third quarter. The line is
currently producing parts for qualification with customers, and will be working
to qualify parts and build inventory in the fourth quarter. The start-up of the
new television mask line in Cortland continued to ramp up, with a progressive
growth in sales in the third quarter while also undertaking additional part and
customer qualifications.
BMC's Optical Products operation also produced record third quarter results.
Third quarter sales and profits increased 5% over the prior year quarter. Sales
growth was driven by a 27% increase in high end products (polycarbonate,
progressive, high index and polarizing sun lenses) over the prior year. Due to
the strong sales growth of high end products, Optical Product's gross profit
increased despite one-time expenses related to the shut down of the Ft.
Lauderdale plastic lens manufacturing facility which ceased operations in July
and start-up of the new polycarbonate manufacturing, centralized distribution
and research and development facilities, as well as increased research and
development spending. The increase in gross profit was offset by increased
advertising and promotional expenses, primarily related to polycarbonate lenses.
Construction of the new polycarbonate facility was completed in the third
quarter of 1997. The transfer of a portion of the polycarbonate manufacturing
capacity to the new facility has begun, but a full transfer will not be
completed until the second quarter of 1998 to ensure that disruption of
polycarbonate manufacturing will be minimized. In the interim, the Company will
continue to incur duplicate facility costs.
BMC is one of the world's largest manufacturers of aperture masks for color
television tubes and computer monitors. The Company is also a leading supplier
of polycarbonate, glass and plastic eyewear lenses. The common stock of the
Company is traded on the New York Stock Exchange under the symbol "BMC".
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<PAGE>
BMC INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
------------------------ -------------------------
1997 1996 1997 1996
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $ 79,086 $ 68,158 $ 236,470 $ 204,633
Cost of products sold 61,813 53,840 181,356 158,792
- ------------------------------------------------------------------------------------------------------------------
Gross margin 17,273 14,318 55,114 45,841
Selling 3,042 2,334 8,616 7,451
Administrative 1,006 1,210 3,634 3,725
- ------------------------------------------------------------------------------------------------------------------
Income from Operations 13,225 10,774 42,864 34,665
- ------------------------------------------------------------------------------------------------------------------
Other Income and (Expense)
Interest expense (403) (246) (707) (436)
Interest income 45 60 143 210
Other income 71 89 300 120
- ------------------------------------------------------------------------------------------------------------------
Earnings before Income Taxes 12,938 10,677 42,600 34,559
Income Taxes 4,063 3,520 13,853 11,377
- ------------------------------------------------------------------------------------------------------------------
Net Earnings $ 8,875 $ 7,157 $ 28,747 $ 23,182
- ------------------------------------------------------------------------------------------------------------------
Net Earnings Per Share $ 0.31 $ 0.25 $ 1.01 $ 0.82
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
Number of Shares Included in Per Share Computation 28,619 28,390 28,524 28,346
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
BMC INDUSTRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
(in thousands)
SEPTEMBER 30 DECEMBER 31
------------ -----------
ASSETS 1997 1996
- ----------------------------------------------------------------------------
Current Assets
Cash and cash equivalents $ 2,138 $ 2,544
Trade accounts receivable, net of allowances 34,450 24,979
Inventories 62,080 50,451
Deferred income taxes 6,655 5,372
Other current assets 7,483 8,354
- ----------------------------------------------------------------------------
Total Current Assets 112,806 91,700
- ----------------------------------------------------------------------------
Property, Plant and Equipment 277,788 220,489
Less Accumulated Depreciation 99,171 96,644
--------- ---------
Property, Plant and Equipment, Net 178,617 123,845
--------- ---------
Deferred Income Taxes 4,783 5,797
Other Assets, Net 13,636 11,627
- ----------------------------------------------------------------------------
Total Assets $309,842 $232,969
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
- ----------------------------------------------------------------------------
Current Liabilities
Short-term borrowings $ 1,195 $ 1,355
Accounts payable 20,398 19,434
Income taxes payable 1,902 7,657
Accrued expenses and other current liabilities 17,914 21,900
- ----------------------------------------------------------------------------
Total Current Liabilities 41,409 50,346
- ----------------------------------------------------------------------------
Long-Term Debt 75,688 16,634
Other Liabilities 18,233 19,421
Deferred Income Taxes 2,685 2,460
Stockholders' Equity
Common stock 61,452 56,551
Retained earnings 112,137 84,629
Cumulative translation adjustment (1,010) 3,974
Other (752) (1,046)
- ----------------------------------------------------------------------------
Total Stockholders' Equity 171,827 144,108
- ----------------------------------------------------------------------------
Total Liabilities and Stockholders' Equity $ 309,842 $ 232,969
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
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<PAGE>
Contact: Michael P. Hawks (NYSE-BMC)
(612)851-6030 FOR IMMEDIATE RELEASE
BMC ANNOUNCES QUARTERLY DIVIDEND
September 5, 1997--Minneapolis, Minnesota--BMC Industries, Inc. today announced
that its Board of Directors has approved a continuation of its quarterly cash
dividend of $.015 per share.
Shareholders of record as of September 17, 1997 will receive a dividend of $.015
for each share owned on that date, to be paid on October 1, 1997.
BMC Industries, Inc. is one of the world's largest manufacturers of aperture
masks for color picture tubes used in televisions and computer monitors. The
Company is also a leading producer of polycarbonate, glass and plastic eyewear
lenses. BMC's common stock is traded on the New York Stock Exchange under the
symbol BMC.
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<PAGE>
CONTACT: Michael P. Hawks (NYSE -- BMC)
(612) 851-6030 FOR IMMEDIATE RELEASE
BMC INDUSTRIES, INC.
ANNOUNCES INTENT TO ESTABLISH
A BRAZILIAN JOINT VENTURE
August 15, 1997 -- Minneapolis, MN -- BMC Industries, Inc. today announced that
its Vision-Ease Lens, Inc. subsidiary has signed a letter of intent to purchase
Macprado Produtos Oftalmicos Ltda, a Brazilian lens manufacturer and
distributor. Vision-Ease and Corning, Inc. of Corning, New York will be 50/50
partners in the acquisition. The transaction is expected to close in the fourth
quarter of this year.
Macprado, is an established Brazilian lens manufacturer and distributor of glass
and plastic ophthalmic lenses with in excess of a 20% share of the Brazilian
opthalmic lens market. While Brazil is the largest ophthalmic lens market in
South America, Macprado also distributes lenses to all of the other countries in
the South American Mercosul Free Trade Zone. Macprado's sales in 1996 were in
excess of $15 million.
BMC believes that the South American ophthalmic lens market presents a
significant growth opportunity for Vision-Ease and Corning. Vision-Ease will
manage the manufacturing operation using its demonstrated lens manufacturing
capabilities and will take a leading role over time in the entire operation.
Corning will lend its broad business knowledge of Brazil and an international
brand name. In addition, Vision-Ease views the joint venture as an opportunity
to introduce new products into the South American marketplace.
BMC Industries, Inc. is one of the world's largest manufacturers of aperture
masks for color picture tubes used in televisions and computer monitors.
Through Vision-Ease, the Company is also a leading producer of polycarbonate,
glass and plastic eyewear lenses. The common stock of the Company is traded on
the New York Stock Exchange under the symbol "BMC".
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