<PAGE 1>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______ to _______.
Commission File Number: 0-11371
BIOSONICS, INC.
(Exact name of small business issuer as specified in its charter)
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<S> <C>
PENNSYLVANIA 23-2161932
(State or other jurisdiction of (IRS Employer
Identification No.)
incorporation or organization)
</TABLE>
260 NEW YORK DRIVE
FORT WASHINGTON, PENNSYLVANIA 19034
(Address of principal executive offices) (Zip Code)
(215) 646-7100
(Issuer's telephone number including area code)
N/A
(Former name, former address and former fiscal year, if changed since last
report)
Check mark whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past
12 months (or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing requirements for
the past 90 days. X Yes No
State the number of shares outstanding of each of the issuers classes of common
equity, as of the latest practicable date: as of September 30th 1998, there
were outstanding 325,664,536 shares of the Issuer's Common Stock, $.0001 par
value.
<PAGE 2>
BIOSONICS, INC.
INDEX
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Page
Number
PART I FINANCIAL INFORMATION
Item 1.Financial Statements
Balance Sheets:
September 30, 1998 and December 31, 1997 3
Statements of Loss:
Three and Nine Months Ended September 30, 1998 and 1997
and the period from November 13, 1980 (Inception) to 4
September 30, 1998
Statements of Deficit Accumulated:
Nine Months Ended September 30, 1998 and 1997 and
the Period from November 13, 1980 (Inception) to
September 30, 1998
5
Statements of Cash Flows:
Nine Months Ended September 30, 1998 and 1997 and
the Period from November 13, 1980 (Inception) to
September 30, 1998
6 & 7
Statements of Shareholders' Equity - Paid-In-Capital:
November 30, 1980 (Inception) to September 30, 1998 8 - 11
Note to Financial Statements
12
Item 2.Management's Discussion and Analysis of Financial
Condition and Results of Operations
13
PART II OTHER INFORMATION
Item 1. Legal Proceedings
13
Item 2. Changes in Securities and Use of Proceeds 14
Item 6. Exhibits and Reports on Form 8-K
15
Signatures
15
</TABLE>
<PAGE 3>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
BALANCE SHEETS
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ASSETS
Unaudited
SEPTEMBER
DECEMBER 31,
30, 1998
1997
Current assets
Cash $100
$260
Accounts receivable (net of allowance for
doubtful accounts 2,909
2,630
of $2,000 in 1998 and 1997)
Interest receivable 2,634
3,259
Inventory 177,743
42,117
Notes Receivable 40,000
15,000
Advances to affiliate (net of allowance for
doubtful accounts of $50,000 in 1998) (10,020) 66,606
Prepaid expenses and other current assets 4,287 3,000
TOTAL CURRENT ASSETS 217,653
132,872
Equipment, furniture and leaseholds, net of 11,809 13,820
accumulated depreciation
Deposits 8,531
8,431
TOTAL ASSETS $237,993
$155,123
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current Liabilities
Notes payable, officer and affiliate $94,000
$99,000
Notes payable, other 213,000
148,000
Accrued payroll, officer 849,750
772,500
Accrued interest, officer and affiliate 73,284
66,357
Accrued interest, other 218,692
198,738
Accounts payable and other accrued expenses 893,827 922,093
Advances from affiliates 62,450
62,450
Payments received from unissued debentures 187,000 187,000
TOTAL CURRENT LIABILITIES 2,592,003
2,456,138
Shareholders' deficit
Common stock - authorized 750,000,000 shares at
.0001 par value;
Issued and outstanding 325,664,536 and 32,567 30,797
307,964,536 shares at SEPTEMBER 30, 1998
and December 31, 1997 respectively
Capital in excess of par value 13,094,751
12,548,020
Notes receivable from sale of stock (167,500)
(95,000)
Deficit accumulated during development stage (15,313,828) (14,784,832)
Total shareholders' deficit (2,354,010)
(2,301,015)
TOTAL LIABILITIES AND SHAREHOLDERS' DEFICIT $237,993
$155,123
</TABLE>
The accompanying note is an integral part of these financial statements
<PAGE 4>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF LOSS
(UNAUDITED)
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NINE MONTHS ENDED
SEPTEMBER 30
1998 1997
Sales $7,705 $18,679
Cost of sales 993
12,459
GROSS PROFIT 6,712
6,220
Development stage expenses
Research and development costs 0 0
Professional fees 162,478 187,329
Other development stage expenses 380,764 416,824
TOTAL DEVELOPMENT STAGE EXPENSES 543,242 604,153
Less: revenues from cost recovery program - -
NET DEVELOPMENT STAGE EXPENSES 543,242 604,153
Other Income
Investment and other income 7,534 4,288
Gain on sale of fixed assets -
- -
TOTAL OTHER INCOME 7,534
4,288
NET LOSS $(528,996) $(593,645)
LOSS PER COMMON SHARE ($.00) ($.00)
</TABLE>
The accompanying note is an integral part of these financial statements.
<PAGE 5>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF LOSS (CONTINUED)
(UNAUDITED)
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<S> <C> <C>
<C>
THREE MONTHS
ENDED 11/13/80 (INCEPTION)
SEPTEMBER 30
TO SEPTEMBER 30,
1998
1997 1998
Sales $ 730 $
5,129 $ 871,845
Cost of sales 167 4,162
568,617
GROSS PROFIT 563
967 303,228
Development stage expenses
Research and development costs 0 0
4,166,667
Professional fees (46)
54,740 3,159,896
Other development stage expenses 119,196 129,279
9,177,798
TOTAL DEVELOPMENT STAGE EXPENSES 119,150 184,019
16,504,361
Less: revenues from cost recovery program - -
118,082
NET DEVELOPMENT STAGE EXPENSES 119,150 184,019
16,386,279
Other Income
Investment and other income 2,862 2,071
761,603
Gain on sale of fixed assets -
- - 7,620
TOTAL OTHER INCOME 2,862
2,071 769,223
NET LOSS $ (115,725) $
(180,091) $ (15,313,828)
LOSS PER COMMON SHARE ($.00) ($.00)
($.05)
</TABLE>
<PAGE 6>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF DEFICIT ACCUMULATED DURING DEVELOPMENT STAGE
(UNAUDITED)
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NINE MONTHS ENDED 11/13/80
(INCEPTION)
SEPTEMBER 30, TO
SEPTEMBER 30,
1998 1997 1998
BEGINNING BALANCE $(14,784,832) $(13,918,378) $ -
NET LOSS (528,996) (593,645) (15,313,828)
ENDING BALANCE $(15,313,828) $(14,512,023) $(15,313,828)
</TABLE>
The accompanying note is an integral part of these financial statements.
<TABLE>
<S> <C> <C> <C>
11/13/80
NINE MONTHS
(INCEPTION)
ENDED SEPT 30
TO SEPTEMBER
1998
1997 30, 1998
Cash flows used in operating activities
NET LOSS $(528,996)
$(593,645) $(15,313,828)
Adjustments to reconcile net loss to net
cash used in operating activities
Depreciation and amortization 3,781
4,503 389,676
Increase in allowance for doubtful accounts -
- 52,000
Increase in reserve for inventory obsolescence -
- 27,000
Loss on lease abandonment -
- 19,550
Gain on sale of fixed assets -
- (7,620)
Common stock issued for services 86,500
39,500 671,559
Common stock options issued for services 13,250 14,398
190,928
Common stock issued for product rights -
- 12,501
Change in operating assets and liabilities
Accounts receivable (279)
2,369 (4,909)
Inventory (135,626)
1,576 (204,743)
Interest receivable 625
- (2,634)
Prepaid expenses and other current assets (1,287)
(6,546) (4,287)
Accrued payroll, officer 77,250
77,250 849,750
Accrued interest, officer and affiliates 6,927
8,225 147,487
Accrued interest, other 19,954
18,998 218,692
Accounts payable and accrued expenses (28,267)
38,258 961,828
Advances from (to) affiliates 133,288
(45,416) 202,452
TOTAL ADJUSTMENTS 176,116
153,115 3,519,230
NET CASH USED IN OPERATING ACTIVITIES ($352,880)
($440,530) ($11,794,598)
</TABLE>
The accompanying note is an integral part of these financial statements
<PAGE 7>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF CASH FLOWS (CONTINUED)
(UNAUDITED)
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11/13/80
NINE MONTHS
ENDED (INCEPTION)
SEPTEMBER
30, TO SEPTEMBER
1998
1997 30, 1998
Cash flows from investing activities
Sale of fixed assets $ -
$ - $10,825
Capital expenditures (1,770)
- (371,096)
Issuance of note receivable (97,500)
(15,000) (142,500)
(Increase) decrease in deposits (100)
- (8,531)
Decrease in note receivable -
- 30,000
Decrease in capitalized patents -
- (45,690)
NET CASH PROVIDED (USED) IN INVESTING ACTIVITIES $(99,370) $(15,000)
$(526,992)
Cash flows from financing activities
Proceeds for unissued debentures and
securities $ -
$ - $498,000
Principal payments of note payable (102,000)
(61,000) (440,000)
Proceeds from issuance of note payable 162,000 -
996,444
Increase in capitalized organization costs -
- (7,453)
Proceeds from issuance of preferred stock -
- 1,105,000
Proceeds from issuance of common stock 392,250 516,530
10,169,859
NET CASH PROVIDED BY FINANCING ACTIVITIES $452,250 $455,530
$12,321,850
Net increase (decrease) in cash and (160)
- 100
cash equivalents
Cash and cash equivalents, beginning 260
260 -
Cash and cash equivalents, ending $100
$260 $100
</TABLE>
The accompanying note is an integral part of these financial statements.
<PAGE 8>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENT OF SHAREHOLDERS' EQUITY - PAID-IN CAPITAL
NOVEMBER 13, 1980 (INCEPTION) TO SEPTEMBER 30, 1998
(UNAUDITED)
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<S> <C> <C> <C>
<C>
DATE STOCK PRICE PER AMOUNT
ISSUED NUMBER OF SHARES SHARE RECEIVED NOTES
1/13/81 150,000,000 0.0001 15,001
(A)
1/31/81 4,400,000 0.0250 110,000
(B)
1981 400,000 0.0250
10,000 (C)
1981 20,000,000 0.0500 1,000,000
(B)
1982 20,000 0.4000
8,000 (C)
1982 97,500 0.2000
19,500 (C)
1982 1,000,000 0.0600
60,100 (D)
1983 52,500 0.2000
10,500 (C)
1983 75,000 0.3050
22,875 (E)
1983 25,000 0.2350
5,875 (E)
1983 20,000 0.5000
10,000 (C)
12/29/83 7,300,000 0.5000 3,650,000
(F)
1984 390 1.0000
390 (G)
1984 5,948 0.5000
2,975 (G)
1984 1,000 0.3750
375 (C)
1984 72,500 0.2500
18,125 (C)
1984 2,000 0.3750
750 (H)
1984 4,000 0.2500
1,000 (C)
1984 350,000 0.2000
70,000 (C)
1985 26,500 0.2810
7,453 (C)
1985 20,000 0.2500
5,000 (H)
1985 500 0.5000
250 (G)
1985 5,000 0.3440
1,719 (C)
1985 50 1.0000
50 (G)
1985 2,000 0.3750
750 (H)
1985 7,500 0.1560
1,172 (C)
1986 6,882 0.5000
3,472 (G)
1986 85,000 0.1875
15,938 (H)
1986 11,650 0.2810
3,276 (H)
1986 100,000 0.2190
21,875 (H)
1986 10,665,000 0.1810 1,929,737
(I)
1986 202,000 0.1560
31,562 (H)
1986 70,000 0.3130
21,875 (H)
1986 134,855 0.2000
26,939 (H)
1987 7,613,551 0.2000
1,522,710 (G)
1987 476,110 0.2950
140,478 (H)
1987 7,000 0.1590
1,113 (B)
1987 15,000 0.3120
4,687 (C)
1987 240,000 0.2000
48,000 (B)
1987 100,000 0.2180
21,875 (C)
</TABLE>
The accompanying note is an integral part of these financial statements.
<PAGE 9>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENT OF SHAREHOLDERS' EQUITY - PAID-IN CAPITAL (CONTINUED)
NOVEMBER 13, 1980 (INCEPTION) TO SEPTEMBER 30, 1998
(UNAUDITED)
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<S> <C> <C> <C>
<C>
DATE STOCK PRICE PER AMOUNT
ISSUED NUMBER OF SHARES SHARE RECEIVED NOTES
1988 125,000 0.2500
31,250 (C)
1988 2,500 0.2180
547 (H)
1988 10,000 0.2000
2,000 (G)
1988 100,000 0.2500
25,000 (B)
1988 4,227,000 0.2000 845,400
(B)
1988 25,000 0.1560
3,906 (C)
1988 11,000 0.0130
143 (H)
1989 400,000 0.0800
32,000 (B)
1989 3,000 0.0938
282 (H)
1989 100,000 0.0800
8,000 (B)
1990 25,000 0.0100
250 (H)
1990 20,311,000 0.0100 203,110
(B)
1990 10,500,000 0.0100 105,000
(B)
1991 1,100,000 0.0100 11,000
(B)
1991 100,000 0.0100
1,000 (H)
1991 48,000 0.0625
3,000 (J)
1991 32,000 0.0625
2,000 (J)
1991 1,100,000 0.0100 11,000
(J)
1991 1,100,000 0.0100 11,000
(B)
1991 400,000 0.0100
4,000 (C)
1995 0 0.0000
87,750 (Q)
1996 1,250,000 0.0800
100,000 (K)
1996 11,375,000 0.0286 325,000
(K)
1996 16,100,000 0.0500 805,000
(K)
1996 1,300,000 0.0100
13,000 (L)
1996 12,900,000 0.0200 258,000
(L)
1996 300,000 0.0300
9,000 (M)
1996 280,000 0.0500
14,000 (M)
1996 400,000 0.0800
32,000 (M)
1996 100,000 0.0650
6,500 (M)
1996 250,000 0.0850
21,250 (M)
1996 (15,368,820)
-0- (N)
1996 420,000 0.0238
10,000 (L)
1996 11,150,000 0.0200 223,000
(L)
1996 428,600 0.0350
15,000 (L)
1996 250,000 0.0400
10,000 (L)
1996 1,075,220 0.0500
53,761 (L)
1996 350,000 0.0258
9,032 (J)
1996 1,695,000 0.0345
59,175 (J)
1996 75,000 0.0400
3,000 (O)
1996 200,000 0.0500
10,000 (B)
</TABLE>
The accompanying note is an integral part of these financial statements.
<PAGE 10>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENT OF SHAREHOLDERS' EQUITY - PAID-IN CAPITAL (CONTINUED)
NOVEMBER 13, 1980 (INCEPTION) TO SEPTEMBER 30, 1998
(UNAUDITED)
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<C>
DATE STOCK PRICE PER AMOUNT
ISSUED NUMBER OF SHARES SHARE RECEIVED NOTES
1996 - -
75,530 (Q)
1997 550,000 0.0500 27,500
(M)
1997 200,000 0.0500 10,000
(O)
1997 5,000,000 0.0100 50,000
(P)
1997 1,000,000 0.0200 20,000
(P)
1997 - -
14,398 (Q)
1997 11,130,600 0.0500 556,529
(R)
1997 500,000 0.0500 25,000
(P)
1997 40,000 0.0500
2,000 (M)
1997 80,000 0.0200
1,600 (L)
1997 1,600,000 0.0500 80,000
(R)
1998 1,650,000 0.0500 82,500
(R)
1998 100,000 0.0500 5,000
(O)
1998 2,730,000 0.0500 136,500
(S)
1998 1,100,000 0.0500 80,000
(R)
1998 - -
13,250 (Q)
1998 (1,600,000) -
- -0- (N)
1998 1,600,000 0.0500 80,000
(M)
1998 9,190,000 0.0250 229,750
(R)
1998 30,000 0.0500
1,500 (M)
</TABLE>
TOTAL SHARES - COMMON STOCK 325,664,536
TOTAL PAID-IN CAPITAL $ 13,568,246
LESS: Notes Receivable for Stock Purchase 167,500
LESS: Offering Expenses
473,495
NET PAID-IN CAPITAL - COMMON STOCK $ 12,927,251
The accompanying note is an integral part of these financial statements.
<PAGE 11>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENT OF SHAREHOLDERS' EQUITY - PAID-IN CAPITAL (CONTINUED)
NOVEMBER 13, 1980 (INCEPTION) TO SEPTEMBER 30 , 1998
(UNAUDITED)
NOTES
(A) $1 additional was paid on stock certificate #3.
(B) Cash purchases.
(C) Represents stock issued in consideration for services rendered. The
value assigned was based on the fair market
value of the stock on the date the transaction was authorized.
(D) 1,000,000 common stock warrants were issued to the underwriter, Monarch
Funding Corporation, at par value ($.0001). On November 15, 1982,
these warrants were exercised at $.06 per share.
(E) Represents stock issued in consideration for services rendered and
$7,500 cash. The value assigned was based on the fair market value
of
the stock on the date the transaction was authorized.
(F) Stock issued as part of unit offering. Each unit consisted of 2 shares
common stock, 2 Series "A" warrants and 1 Series "B" warrant. No
separate value was assigned to the warrants.
(G) Issued pursuant to the exercise of warrants described in (F).
(H) Issued pursuant to the employee incentive stock bonus plan.
(I) Issued as part of an offering completed March 26, 1986 for cash and
redemption of warrants described in (F).
(J) Liabilities converted to common stock.
(K) Preferred Stock transferred to Common Stock as per agreement.
(L) Issued stock for monies received during time when common stock was not
able to be issued.
(M) Issued stock as payment for services rendered.
(N) Shares contributed by IMRCH.
(O) Issued stock as payment for interest on loans received.
(P) Issued pursuant to exercising stock purchase option.
(Q) Stock Options granted.
(R) Issued pursuant to a private offering.
(S) Issued stock as payment for Inventory that was repurchased for previous
Dry Mouth Center locations.
The accompanying note is an integral part of these financial statements.
<PAGE 12>
BIOSONICS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTE TO FINANCIAL STATEMENTS
SEPTEMBER 30 , 1998
Note 1 - The unaudited financial statements presented herein have been
prepared in accordance with the instructions to Form 10-QSB and do not include
all of the information and note disclosures required by generally accepted
accounting principles. These statements should be read in conjunction with
the financial statements and notes thereto included in the Company's Form 10-K
annual report for the year ended December 31, 1997. In the opinion of
management, these financial statements include all adjustments, consisting
only of
normal recurring adjustments, necessary to summarize fairly the Company's
financial position and results of operations. The results of operations for the
nine-month period ended September 30, 1998 may not be indicative of the results
that may be expected for the year ending December 31, 1998.
<PAGE 13>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATIONS.
PLAN OF OPERATIONS
Biosonics, Inc. ("the Company" and "Biosonics") is preparing a marketing plan
for the Salitron (registered trademark) (dry mouth) device. However this
marketing plan will not go into effect until the necessary funding has been
received, or Medicare reimbursement has been obtained or which there is no
assurance. The Company does have current inventory for the Salitron, and
believes that it's existing inventory is not obsolete and that the Company can
sell and ship such units after testing the equipment.
Although approximately 46 private insurance carriers have reimbursed Biosonics
for the use of the Salitron (registered trademark) system and Medicaid
reimbursement has been obtained in four states, there is uncertainty as to
whether third party payers will approve or continue to reimburse Biosonics for
the devices and whether reimbursement, if approved or continued, will be
sufficient for purchasers of the Company's products. On May 23, 1994, a
proposed notice was published in the Federal Register by Health Care Financing
Administration ("HCFA") that it intended to disapprove Biosonics' application
for Medicare reimbursement for the Salitron System. In 1996, Biosonics met with
HCFA officials to urge a reevaluation of its intent to disapprove the Company's
request for reimbursement approval. The Company continued its efforts with HCFA
and in October 1997 submitted additional data to HCFA. During a Senate
Appropriations Subcommittee Hearing in March 1998, the Administrator of HCFA
stated that HCFA would be prepared to withdraw the 1994 notice. On June 1, 1998
the Federal Register published a notice stating that the previous non-coverage
notice of 1994 was withdrawn and that a technical review of the Salitron was
underway. Since the non-coverage notice was withdrawn, Biosonics has contacted
the four regional carriers with the information submitted regarding the Salitron
for their review. In August the four regional carriers reviewed the information
and requested more time to review the medical literature on the Salitron as well
as any further information on electro-stimulation for dry mouth. Information
received from HCFA indicates that AHCPR (Agency for Health Care Policy and
Research), which is processing the technical assessment of the Salitron, should
have a report in November.
The Company has developed a marketing plan for the Cystotron (trademark)
product (Incontinence) which includes a six-month market study. The purpose of
the study is to provide further data for physicians to assist them in deciding
whether to prescribe the Cystotron System for their patients. The Company
intends to proceed with this marketing plan if and when the Company has received
sufficient funds for manufacturing the product.
<PAGE 14>
Biosonics is also planning to develop a strategy to market its products in the
international market. The Company has initiated contact with various
companies in
the European market. Further development of this plan will require engineering
aspects and the qualification of the European CE mark for importing into Europe.
Biosonics does not have any material commitments for capital expenditures,
although management is considering making capital expenditures during 1998 in
connection with the manufacturing of the Cystotron System, if funds become
available. The extent of the development or testing, if any, of Biosonics'
other devices will depend on the availability of funds, and there is no
assurance that development or testing of the devices will occur or be successful
or that sufficient funds will be available.
FORWARD LOOKING STATEMENTS
All statements contained in this report that are not historical facts,
including but
not limited to the Company's plans for product development and marketing, are
based on current expectations. These statements are forward-looking
(as defined in the U.S. Private Securities Litigation Reform Act of 1995 and
the Act) in nature and involve a number of risks and uncertainties. Such
statements can be identified by the use of forward-looking terminology such as
"may", "will", "should", "expect", "anticipate", "believe", "estimate" or
"continue", or the negative thereof or other variations thereon or comparable
terminology. Actual results may vary materially, as discussed herein. The
factors that could cause actual results to vary materially include: The
availability of capital to finance the Company's operations on terms
satisfactory to the Company; the availability of clearances or approvals of the
Company's products by federal, state and foreign governmental authorities; the
market acceptance of the Company's products; the availability of reimbursement
by third part payors, including Medicare reimbursement; product liability
claims; the availability of protection of the Company's patents and future
litigation relating to protection of its patent, trade secret and know-how; the
Company's dependence on Jack Paller, Chief Executive Officer; general business
and economic conditions and competition from products that address the same or
similar medical problems as those addressed by the Company's products; and other
risks that may be described from time to time in the reports that the Company
will be required to file with the Commission. The Company cautions potential
investors not to place undue reliance on any such forward-looking statements.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Biosonics' primary sources of funds to date have been proceeds from the sale
<PAGE 15>
of its securities and investment income on such proceeds, including loans and
advances for securities purchased through private and public offerings.
Biosonics will require additional funds estimated to be approximately $3.0
million to implement current manufacturing and marketing plans for the
Salitron and
Cystotron. The Company will also require additional funds in the immediate
future to maintain the operations of the Company. Biosonics has initiated a
private offering of securities to acquire the immediately required funds.
The Company is currently preparing to relocate as well as update the office
and operations. This has given the Company the ability to update all of their
computers, software applications, office machinery and other equipment
relating to the operations of the company. The Company believes that
upgrading and installation of this equipment or software will also remedy
problems relating to the year 2000 (Y2K) date conflicts. Therefore no
additional expense will be realized directly for the Y2K updating.
Net development stage expenses for the nine and three months ended September
30, 1998 ($543,242 and $119,150, respectively) were lower then the comparable
periods of the prior year ($604,153 and $184,019, respectively) due to
additional costs associated with certain secured filings that occurred during
the prior year. Other development stage expenses include primarily salaries,
rent, supplies, transfer agent fees, manufacturing, marketing, public relations
and travel expenses.
The Company's professional fees for the nine and three months ended September
30, 1998 ($162,524 and $(46), respectively) were lower than the comparable
periods on the prior year ($187,329 and $54,740, respectively) due to additional
costs associated with certain secured filings that occurred during the prior
year.
For the 3 months ended September 30, 1998 there was a negative adjustment of
$30,000 due to a revised agreement with a consulting firm.
The Company's sales for the nine and three months ended September 30, 1998
($7,708 and $730, respectively) were lower as compared to the same period of the
prior year ($18,679 and $5,129, respectively). The decrease in sales resulted
primarily from not having available funds to maintain a marketing program for
the Salitron System.
PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES.
<PAGE 16>
Biosonics has effected a private placement of common stock to a limited number
of accredited investors for which it received subscriptions for an aggregate of
$302,250 or 12,090,000 shares of common stock at $.025 per share to
eighteen accredited investors for the 3 month period ended September 30, 1998.
These private sales were made pursuant to the exemption afforded under Section
4(2) and Regulation D under the Securities Act of 1933.
The Company also issued 30,000 shares of common stock at $.05 per share to an
individual as compensation for consulting. This issuance was made pursuant to
the exemption afforded under Section 4(2) under the Securities Act of 1933.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
*3.1 Articles of Incorporation as amended (incorporated by reference
to Registrant's Quarterly Report on Form 10-Q for the
quarter ended
September 30, 1996).
*3.5 By-laws of Registrant, as amended. (incorporated by reference
to Registrant's Annual Report on Form 10-K for the year
ended
December 31, 1983 ["1983 Form 10-K"]).
?.? New Space Lease
27 Financial Data Schedule
(b) Reports on Form 8-K:
None
* Incorporated by reference
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunder duly authorized.
BIOSONICS, INC.
DATE: NOVEMBER 13 , 1998 BY: /S/JACK PALLER
Jack Paller,
President, Chairman and
Executive
Officer, Principal Financial
Officer and
Principal Accounting
Officer and
Sole Director.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000352715
<NAME> BIOSONICS, INC.
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JUL-01-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1
<CASH> 100
<SECURITIES> 0
<RECEIVABLES> 7,543
<ALLOWANCES> 2,000
<INVENTORY> 177,743
<CURRENT-ASSETS> 217,653
<PP&E> 229,824
<DEPRECIATION> 218,015
<TOTAL-ASSETS> 237,993
<CURRENT-LIABILITIES> 2,592,003
<BONDS> 187,000
0
0
<COMMON> 32,567
<OTHER-SE> (15,313,828)
<TOTAL-LIABILITY-AND-EQUITY> 237,993
<SALES> 7,705
<TOTAL-REVENUES> 15,239
<CGS> 993
<TOTAL-COSTS> 993
<OTHER-EXPENSES> 534,242
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 35,928
<INCOME-PRETAX> (528,996)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (528,996)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
LEASE AGREEMENT
LEASE AGREEMENT made this 9th day of September, 1998, by and
between 185 Commerce Drive Associates, L.P., a Pennsylvania limited partnership
("Lessor"), and Biosonics, Inc. whose primary business address is 260 New York
Drive, Fort Washington, Pa. ("Lessee").
BACKGROUND:
Lessor is the owner of the building located at 185 Commerce Drive,
Fort Washington, Pa. (the "Building"). Lessee desires to rent from Lessor
4,508 sq.
ft. of the Building (the "Premises"), as outlined in the diagram attached as
Exhibit "A". Lessor desires to lease the Premises to Lessee and Lessee desires
to lease the Premises from Lessor (the "Lease") under the terms and conditions
set forth hereinafter.
NOW, THEREFORE, in consideration of the foregoing Background and
the mutual covenants, conditions and agreements herein contained, the parties
hereto, each intending to be legally bound hereby, agree as follows:
1. Lease Term . Lessor hereby rents the Premises to Lessee
and Lessee hereby rents the Premises from Lessor for a term of five (5) years.
2. Minimum Rent. The minimum rental to be paid by Lessee to
Lessor in monthly installments, in advance, on the first day of each month
during the term of this Lease, is detailed on Exhibit B (the "Rental Schedule")
attached hereto. The first month minimum rent shall be paid upon execution of
this Lease.
3. Use. Lessee shall use and occupy the Premises as office
space, lab and storage areas and for no other purpose.
4. Construction of Premises. Lessor shall, without cost to
Lessee, do that portion of the construction and other items of work in the
Premises ("Landlord's Work") designated in Exhibit "C" which is attached hereto
and made a part hereof. The Landlord's Work shall be completed in a good and
workmanlike manner, in accordance with all applicable ordinances and
regulations.
5. Commencement. The term of this Lease, and Lessee's
obligation to pay rent hereunder shall commence on November 1, 1998 and shall
end on October 31, 2003.
6. Additional Rent.
(a) Damages for Default. Lessee agrees to pay as rent in
addition to the minimum rental herein reserved, any and all sums which may
become due by reason of the failure of Lessee to comply with all the covenants
of this Lease, and pay any and all damages, costs and expenses which the Lessor
may suffer or incur by reason of any default of the Lessee or failure on its
part to comply with the covenants of this Lease, and each of them, and also any
and all damages of the Premises caused by any act or neglect of Lessee, less any
insurance proceeds payable to Landlord as a result thereof.
(b) Utilities. Lessee further agrees to pay, as additional
rent Lessee's Share (this is 10.7% determined by dividing the total square
feet of
this Lease, 4,508, by the total square feet of the Building, 42,000) of all
utility charges, including but not limited to gas and electric applicable to the
Premises, immediately when the same become due.
(c) Water Rent. Lessee further agrees to pay as additional
rent Lessee's Share of charges for water consumed upon the Premises.
(d) Sewer Rent. Lessee further agrees to pay as
additional rent Lessee's Share of all sewer rental or charges for use of
sewers,
sewage system, and sewage treatment works servicing the Premises, within thirty
(30) days after receipt of a bill from Lessor..
(e) Common Area Maintenance. Lessee shall pay to
Lessor Lessee's Share of the Operation and Maintenance Costs (as hereinafter
defined), in excess of the Base Cost as defined below:
1. The first payment of Lessee's Share of the Operation and
Maintenance Cost shall not be due or payable until January 1, 2000. Beginning
January 1, 2000 and each month thereafter, Lessee shall pay Lessee's Share of
the increase over the Base Cost estimated by Lessor for the year, pro-rated
equally over a 12 month period. After Lessor calculates the actual cost, in
the event that the amount paid by Lessee was less than the actual cost, Lessor
shall bill Lessee, and such amount shall be due within 15 days; in the event
that Lessee paid in excess of the actual cost of Lessor, then the excess shall
be applied toward the obligation of Lessee for the next calendar year.
Lessor's bill shall contain a statement setting forth Lessee's actual
Operation and Maintenance Costs for the prior year, and if the Lease term has
by then expired, any amount owed Lessee shall be paid to Lessee at the time such
statement is delivered to Lessee. Such statement shall be delivered to Lessee
by April 15th of the year following the year in question.
2. The costs and expense of the operation and maintenance
of the Building (the "Operation and Maintenance Costs") shall include, without
limitation, the reasonable and necessary cost and expense to Lessor for the
following items:
(a) All wages, salaries and fees of all employees
and agents engaged in the management, operation, repair, replacement,
maintenance and security of the Building, including taxes, insurance,
administration fees and all other employee benefits relating thereto, in
proportion to the time devoted thereto by such employees and agents;
(b) All supplies and materials used in the
management, operation, repair, replacement, maintenance and security of the
Building;
(c) All "Utility Costs", including without
limitation, gas, water, sewer, electricity, power, heating, lighting, air-
conditioning and ventilation consumed by the common areas of the Building and
the servicing thereof;
(d) All maintenance and service contracts for
the operation, repair, replacement, maintenance and security of the Building,
including, without limitation, window cleaning, and maintenance and servicing of
the security system, heating, ventilating and air-conditioning system, fire
sprinkler system, elevators and grounds of the Building;
(e) All fire (with all risk coverage) and other
casualty and public liability insurance for the Building and Lessor's personal
property and fixtures used in connection therewith;
(f) All "Real Estate Taxes" which, for the
purpose of this Article, shall mean all gross real property taxes without
discounts and personal property taxes, charges and assessments which are levied,
assessed upon or imposed by any governmental authority during any calendar year
of the term hereof with respect to the Building and any improvements, fixtures
and equipment and all other property of Lessor, real or personal, located in the
Building and used in connection with the operation of the Building and any tax
which shall be levied or assessed in addition to or in lieu of such real
property or personal property taxes, together with the reasonable costs and
expenses (including reasonable attorney's fees, expenses and court costs) of
contesting by appropriate proceedings the amount of validity of any of the
aforementioned taxes or assessments;
(g) All repairs and general maintenance of the
Building;
(h) All janitorial services for the Building;
(i) Depreciation on exterior window blinds and
carpeting in public corridors and common areas provided by Lessor over the
useful life thereof on a straight line basis as determined under GAAP.
(j) The costs of any capital improvements made
for the purpose of reducing operating expenses (as would be determined in the
reasonable judgment of a landlord of a first class office building), or which
may be
required by governmental authority under any governmental law or regulation that
was not applicable to the Building as of the date of this Lease, which costs
shall be
amortized over the useful life thereof on a straight line basis as determined
under GAAP, together with interest on the unamortized balance at the rate equal
to the Prime Rate established by Mellon Bank (East) National Association Bank,
Philadelphia, Pennsylvania or such higher rate as may have been paid by Lessor
on funds borrowed for the purpose of construction of such capital improvement;
(k) All other costs and expenses necessarily and
reasonably incurred by Lessor in the proper operation and maintenance of a first
class office building; provided, however, that the following shall be excluded
from the term "Operation and Maintenance Costs": (i) expenses for any capital
improvement made to the Building, except as provided above (including but not
limited to the resurfacing of the parking areas and driveways servicing the
Building); (ii) expenses for repairs or other work occasioned by fire,
windstorm or
other insured casualty; (iii) expenses incurred in leasing or procuring new
tenants (e.g. for lease commissions, advertising expenses and expenses of
renovating space for new tenants); (iv) legal expenses in enforcing the terms of
any lease; (v) interest or amortization payments on any mortgage or mortgages;
(vi) expenditures for which Lessor is reimbursed from any insurance carrier,
from any tenant, including the Lessee, or from any other source; (vii) costs
incurred in performing work or furnishing services of a capital nature for any
tenant; (viii) depreciation, except as provided above; (ix) bad debt loss,
rent loss or reserves for either of them; (x) taxes, except as provided above;
(xi) if Lessee pays separately for its own utility, then the cost of all
utilities furnished to all tenants, provided that common area utilities shall be
included in the Operation and Maintenance Costs; (xii) costs incurred in
connection with the construction of the Building or its initial development;
(xiii) costs for sculpture, decorations paintings or other objects of art
in excess amounts typically spent for such items in office buildings of
comparable quality in the competitive area of the Building; (xiv) costs,
expenses or expenditures relating to the duties, liabilities or obligations of
other tenants in the Building; (xv) costs incurred by Lessor arising out its of
failure to perform or its breach of any of its covenants, agreements, represen-
tations, warranties, guarantees or indemnities made under this Lease or any
other lease in the Building; (xvi) costs of compliance, except as provided
above fines or penalties incurred by Lessor due to violations of or noncom-
pliance with any applicable legal requirements; (xvii) costs incurred in the
removal, abatement or other treatment of underground storage tanks or hazardous
substances or wastes present in the Building or on or under the real property
upon which the Building is located; (xviii) except as provided in Section
6(e)(2)(j) hereof, lease payments for rented equipment, the cost of which
equipment constitutes a capital expenditure if the equipment were purchased and
any late fees, penalties, interest or similar fees incurred in connection
therewith; (xix) any amounts paid to a person, firm or other entity related to
Lessor which is in excess of the amount charged by unaffiliated parties for
comparable goods or services; (xx) except as provided in Section 6(e)(2)(j)
hereof, costs incurred by Lessor to remedy any defects in the design or
materials used in the Building or Building equipment, or costs incurred by
Lessor to repair or replace the structural steel framing, roof, roofing systems,
foundations and underground utility lines forming a part of or servicing the
Building; (xxi) costs associated with the operation of the business of the
entity which constitutes Lessor as the same are distinguished from the costs of
operations of the Building, including, without limitation, accounting and legal
expenses, costs of selling, syndicating, financing, mortgaging or hypothecating
Lessor's interest in the Building, and costs of any disputes between Lessor and
its employees or building managers; (xxii) the cost of installing, operating
and maintaining a specialty improvement, including, but not limited to, an
observatory, athletic, luncheon or recreational club or facility; and (xxiii)
the value or lost income to Lessor of any office space in the Building which is
utilized for the management of the Building; and (xxiv) amounts paid as ground
rental.
(l) All revamping and reballasting in the
Common Areas of the Building; provided, however, that revamping and reballasting
in the Premises shall be performed by Lessor at Lessee's direction and at
Lessee's sole cost and expense in accordance with Lessor's rate schedule in
effect from time to time..
(m) Lighting and maintenance of parking lot;
(n) The cost of trash removal; and
(o) An administrative fee equal to 10% of all
items contained in this paragraph as Additional Rent.
(3). Base Cost. The term Base Cost shall mean the
Operation and Maintenance Costs of the Building for the calendar year 1999.
7. Place of Payment. All rents shall be payable to
Associates. without prior notice or demand at the office of Lessor c/o Keystone
Real Estate Management, Inc. 1150 First Avenue, King of Prussia, Pa. 19406 or at
such other place as Lessor may from time to time designate by notice in writing.
8. Affirmative Covenants of Lessee. Lessee covenants and
agrees that it will, without demand:
(a) Payment of Rent. Pay the rent and all other charges
herein reserved as rent on the days and times and at the place that the same
are made payable, without fail, and if Lessor shall at any time or times accept
said rent or rent charges after the same shall have become due and payable, such
acceptance shall not excuse delay upon subsequent occasions, or constitute or be
construed as a waiver of any of Lessor's rights. Lessee agrees that any charge
or payment herein reserved, included or agreed to be treated or collected as
rent and/or any other charges or taxes, expenses, or costs herein agreed to be
paid by the Lessee may be proceeded for and recovered by Lessor by distraint or
other process in the same manner as rent due and in arrears. In the event that
Lessee fails to make any payment due within five (5) days of its due date,
Lessee shall pay a late charge to Lessor of ten cents for each dollar so
overdue. Such late charge shall be deemed additional rent for all purposes
under this Lease. Lessee shall also pay $50.00 for any returned check.
(b) Maintenance. Keep the Premises clean and free from
all ashes, dirt and other refuse matter and shall repair all damages to the
Premises for which Lessor is not insured which arise out the Lessee's negligence
or missuse of the Premises and not out of ordinary wear and tear to the
Premises. The Lessee agrees to surrender the Premises in the same condition in
which Lessee has herein agreed to keep same during the term of this Lease.
Any repairs, replacements and renewals and/or any labor or materials performed
or furnished in, on or about the Premises shall be performed or furnished in
strict compliance with all applicable laws, regulations, ordinances and require-
ments of all duly constituted municipal authorities and/or other governmental
bodies having jurisdiction and the requirements of the Board of Fire Under-
writers having jurisdiction hereof.
(c) Requirements of Public Authorities. Comply with any
requirements of any of the constituted public authorities, and with the terms
of any
State or Federal statute or local ordinance or regulation applicable to
Lessee's specific manner of use of the Premises, including without limitation,
the ADA and save Lessor harmless from penalties, fines, costs or damages
resulting from failure to do so.
(d) Fire. Use reasonable precaution against fire.
(e) Rules and Regulations. Comply with rules and
regulations of Lessor promulgated as hereinafter provided so long as such
rules and
regulations are uniformly enforced against all tenants of the Building.
(f) Surrender of Possession. Peaceably deliver up and
surrender possession of the Premises to the Lessor at the expiration or sooner
termination of this Lease, promptly delivering to Lessor at his office all
keys for the
Premises.
(g) Notice of Fire, etc. Give to Lessor prompt written
notice of any accident, fire, or damage occurring on or to the Premises.
(h) Common Areas. Lessor and all tenants shall have the
right to use the common areas of the Building. Such right of use shall include
Lessee, its employees, agents, invitees and licensees. Lessor shall have the
right from time to time to establish, modify and enforce reasonable rules and
regulations with respect to such areas, facilities and improvements, and to
change the location of or otherwise alter or modify any of the common areas,
facilities and improvements, so long as Lessor continues to provide adequate
passage way to the Premises and does not interfere with Lessee's use and
enjoyment of the Premises. Lessee shall comply with all such reasonable rules
and regulations so long as such rules and regulations are uniformly enforced
against all tenants of the Building.
9. Negative Covenants of Lessee. Lessee covenants and agrees
that it will do none of the following things without the prior consent in
writing of Lessor, which consent shall not be unreasonably withheld, conditioned
or delayed:
(a) Use of Premises. Occupy the Premises in any other
manner or for any purpose other than as above set forth.
(b) Assignment and Sub-letting. Assign, mortgage or
pledge this Lease or under-let or sublease the Premises, or any part thereof, or
permit any other person, firm or corporation to occupy the Premises, or any part
thereof; nor shall any assignee or sublessee assign, mortgage or pledge this
Lease or such sublease, without an additional written consent by Lessor, which
Lessor may not unreasonably withhold. Notwithstanding the foregoing, Lessee
shall not be required to obtain Lessor's consent in connection with an
assignment or sublease to any entity controlling, controlled by or under common
control with Lessee or to any successor to Lessee by reason of a merger, sale
of all or substantially all of the assets of Lessee or transfer of a controlling
percentage of the corporate stock of Lessee, provided Lessee shall give Lessor
written notice of any such assignment or sublease, including the effective date
thereof, within thirty (30) days following such effective date and further
provided that the use of the Premises by such assignee or subleassee shall be
permitted under this Lease
(c) Signs. Place or allow to be placed any stand, booth,
sign or show case upon the doorsteps, vestibules or outside walls or pavements
of the Premises, or paint, place, erect or cause to be painted, placed or
erected any sign, projection or device on or in any part of the Premises which
is visible from outside the Premises. Lessee shall remove any sign, projection
or device painted, placed or erected if permission has been granted and restore
the walls, etc., to their former conditions, at or prior to the expiration of
this Lease. In case of the breach of this covenant (in addition to all other
remedies given to Lessor in case of breach of any conditions or covenants of
this Lease), Lessor shall have the privilege of removing said stand, booth,
sign, show case, projection or device, and restoring said walls, etc., to their
former condition, and Lessee, at Lessor's option, shall be liable to Lessor for
any and all expenses so incurred by Lessor.
(d) Alterations, Improvements. Make any alterations,
improvements, or additions to the Premises. All alterations, improvements,
additions or fixtures, whether installed before or after the execution of this
Lease, shall remain upon the Premises at the expiration or sooner termination of
this Lease and become the property of Lessor. In the event Lessee shall make
any alterations, improvements or additions to the Premises without Lessor's
consent, if Lessor shall, prior to the termination of this Lease, have given
written notice to Lessee to remove same, Lessee will remove such alterations,
improvements and additions and restore the Premises to the same condition in
which Lessee has herein agreed to keep same during the term of the Lease.
Should Lessee fail so to do, Lessor may do so, collecting, at Lessor's option,
the cost and expense thereof from Lessee as additional rent. Notwithstanding
the foregoing, Lessee can make any alterations, additions or improvements up to
$2,500.00 per item or anything cosmetic, without Lessor's written approval.
(e) Mechanics Liens. Prior to the commencement of any
work to be performed by or on behalf of Lessee on the Premises for which a lien
could be filed against the Premises or the Building, Lessee shall execute and
either duly record and file, or at Lessor's request, deliver to Lessor for
recording and filing, a waiver of mechanics' liens for itself and all contrac-
tors, mechanics, materialmen and subcontractors retained by, on behalf of or
taking under Lessee, in form and substance satisfactory to Lessor. If recorded
or filed by Lessee, Lessee shall deliver a copy thereof to Lessor with the
recording information, prior to the commencement of any such work on the
Premises. Lessee shall execute and deliver substitute, duplicate original and
additional of such waivers from time to time upon Lessor's request. Prior to
any mechanic, materialman, laborer, artisan, contractor, subcontractor,
architect, engineer, surveyor, or other person afforded protection or benefits
under all applicable mechanics lien laws (separately and collectively,
"mechanic"), performing any work or supplying any materials whatsoever, Lessee
shall first cause to be duly executed by every such mechanic a waiver of liens
in form and substance reasonably acceptable to Lessor, and either cause such
waivers to be duly and properly filed and recorded in all places, in such manner
and within such time, prior to commencement of work or supplying of material, as
is prescribed by law, or cause delivery thereof to be made upon Lessor at least
ten (10) business days prior to any work being done at or materials being
supplied to the Premises. Lessor shall promptly provide Lessee with a waiver of
liens form acceptable to Lessor.
Lessee shall keep the Premises and all other parts of the Building
free from any and all liens arising out of any work performed, services,
supplies, labor or materials furnished or obligations incurred by or for Lessee
(but not by Lessor or its contractors), or Lessee's operations and Lessee agrees
to discharge, by payment, bonding, order of a court of competent jurisdiction or
otherwise, such mechanics' or materialmen's liens, within sixty (60) days after
request therefore by Lessor, or such shorter period if the liens or any of them
are in any manner materially impeding, jeopardizing or delaying a potential
sale, leasing, financing, refinancing and/or extension of credit of or to the
Building or part thereof. If Lessee fails to do so, Lessor may do what it deems
appropriate to protect its interests and Lessee shall reimburse Lessor for any
and all costs and expenses (including reasonable attorneys' fees and all related
costs, together with interest thereon at the rate of thirteen percent (13%) from
the date of Lessor's making of all payments and incurring of the costs and
expenses) which may be incurred by Lessor by reason of the filing of any such
liens and/or the removal of same; such reimbursements shall be considered Addit-
ional Rent and shall be made within thirty (30) days after demand by Lessor
setting forth the amount of such costs and expenses. All materialmen,
contractors, artisans, mechanics, laborers and any other persons now or here-
after contracting with Lessee for the furnishing of any labor, services,
materials, supplies or equipment with respect to any portion of the Building,
at any time from the date hereof until the end of the term are hereby charged
with notice that they must look exclusively to Lessee to obtain payment for such
service or material, and Lessee shall communicate the same in writing to every
such mechanic, materialman, contractor, artisan, laborer, and similar person
with which it deals with respect to the Building.
Lessee shall indemnify and hold Lessor harmless, and defend Lessor,
at Lessee's sole cost and expense, utilizing counsel reasonably approved by
Lessor, from and against any and all losses, liabilities, judgments, liens,
claims, costs, damages and expenses incurred or suffered by Lessor, including
without limitation, all reasonable legal fees and costs incurred in connection
therewith, arising out of or relating to any mechanics' or materialmen's lien
(other than ones caused by Lessor) upon the Premises in breach of this Section
of the Lease.
Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Lessor, express or implied by
inference or otherwise, to any contractor, subcontractor, laborer or
materialman for
the performance of any labor or the furnishing of any materials for any specific
alteration, addition, improvement or repair to the Building or the Premises or
any part thereof, nor as giving Lessee any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
that would give rise to the filing of any lien against the Building or the
Premises or any part thereof, nor as evidencing Lessor's consent that the
Premises may be subject to any mechanic's, laborer's or materialman's lien.
(f) Machinery. Use or operate any machinery that, in
Lessor's reasonable opinion, is harmful to the Premises or disturbing to other
tenants occupying adjacent premises.
(g) Weights. Place any weights in any portion of the
Premises beyond the safe carrying capacity of the structure.
(h) Fire Insurance. Do or suffer to be done, any act,
matter or thing objectionable to the fire insurance companies whereby the fire
insurance or any other insurance now in force or hereafter to be placed on the
Premises, or any part thereof, or on the building of which the Premises may be a
part, shall become void or suspended, or whereby same shall be rated as a more
hazardous risk than at the date of execution of this Lease, or employ any
person or persons objectionable to the fire insurance companies or carry or have
any benzine or explosive matter of any kind in and about the Premises. In case
of a breach of this covenant (in addition to all other remedies given to Lessor
in case of the breach of any of the conditions or covenants of this Lease),
Lessee agrees to pay to Lessor as additional rent any increases of premiums on
insurance carried by Lessor on the Premises, or any part thereof, or on the
building of which the Premises may be a part, caused thereby.
(i) Environmental Matters. Lessee shall not engage in
operations at the Premises which involve the generation, manufacturing,
refining, transportation, treatment, storage, handling, or disposal of
"hazardous substances" or "hazardous waste," without the prior written consent
of Lessor, which consent shall be at Lessor's sole discretion without regard to
reasonableness. Medical waste shall be disposed of by companies licensed to do
so. Lessee agrees to hold the Lessor harmless from all costs, fines, and/or
penalties, which may result from the presence of hazardous waste or hazardous
materials on the Premises attributable to the period of the Lessee's occupancy
and arising by reason of a violation by Lessee of this Section 9(i). Lessor
has an environment Phase I report prepared by Philips Services dated June, 1997,
which is available to Lessee to review.
10. Lessor's Rights. Lessee covenants and agrees that Lessor
shall have the right to do the following things and matters in and about the
Premises:
(a) Inspection, Repair and Alteration of Premises. At all
reasonable times, and upon reasonable advance notice, by itself or by its duly
authorized agents to go upon and inspect the Premises and every part thereof,
and at its sole option to make repairs, alterations, renovations and additions
to the Premises, or to the Building of which the Premises is a part.
(b) Rules and Regulations. At any time or times and from
time to time to make such rules and regulations as in its judgment may from time
to time be necessary for the safety, care and cleanliness of the Premises, and
for the preservation of good order therein. Such rules and regulations shall,
when notice thereof is given to Lessee, form a part of this Lease.
(c) Sale or Rent. To display a "For Sale" sign at any
time, and also, after notice from either party of intention to terminate this
Lease, or at any time within three months prior to the expiration of this Lease,
a "For Rent" sign, or both "For Rent" and "For Sale" signs; and all of said
signs shall be placed upon such part of the Premises as Lessor may elect and may
contain such matter as Lessor shall require. Prospective purchasers of the
Building or after notice from either party of its intention to terminate this
Lease, or within 3 months prior to the expiration of this Lease, prospective
tenants authorized by Lessor, may inspect the Premises at reasonable hours after
reasonable advance notice.
(d) Discontinue Facilities and Service. The Lessor may
discontinue all facilities furnished and services rendered, or any of them, by
Lessor, not expressly covenanted for herein, it being understood that they
constitute no part of the consideration for this Lease.
11. Responsibility of Lessee.
(a) Lessee agrees to be responsible for and to relieve and
hereby relieves Lessor from all liability by reason of any injury or damage to
any person or property in the Premises, whether belonging to the Lessee or any
other person, caused by any fire, breakage or leakage in any part or portion of
the Premises, or any part or portion of the building of which the Premises is a
part, or from water, rain or snow that may leak into, issue or flow from any
part of the Premises, or of the building of which the Premises is a part, or
from the drains, pipes or plumbing work of the same, or from any place or
quarter, unless such breakage, leakage, injury or damage is caused by or
results from the gross negligence or willful misconduct of Lessor or its
officers, employees, agents, independent contractors.
(b) Lessee also agrees to be responsible for and to relieve
and hereby relieves Lessor from all liability by reason of any damage or
injury to any person or thing which may arise from or be due to the use, misuse
or abuse by Lessee of all or any of the elevators, hatches, openings, stairways,
hallways, of any kind whatsoever, which may exist or hereafter be erected or
constructed on the Premises or from any kind of injury which may arise from
Lessee's use, misuse or abuse of the Premises or the building of which the
Premises is a part.
12. Responsibility of Lessor.
(a) Destruction of Premises. In the event that the
Premises is destroyed or damaged by fire or other casualty then Lessor shall
with reasonable promptness (taking into account the nature of the damage and
time it takes for the insurance carrier to investigate and pay for the loss)
repair or restore the Premises to substantially the same condition and quality
they were in immediately prior to the casualty; provided that if substantially
all of such damages is not practically repairable or is not actually repaired,
within one hundred and twenty (120) days after the casualty in question Lessee
may, by notice to Lessor, terminate this Lease and the tenancy hereby created
shall cease (i) as of the date of the casualty, the rent to be adjusted as of
such date, if Lessee has been unable to occupy the Premises or (ii) as of the
date of such notice, if Lessee has reoccupied the Premises pursuant to interim
repairs. Promptly after any casualty, Lessee shall take interim steps to render
the Premises usable to the maximum extent possible.
Notwithstanding the preceding, if the damage to the Premises shall render the
whole or any material part thereof unsuitable for the use for which they were
intended and theretofore employed, a just proportion of the rent, according to
the nature and extent of the deprivation, shall be suspended until the Premises
(or the portion for which rent suspension applies) shall be repaired or restored
by Lessor to substantially the same quality they were in immediately prior to
such casualty. If the insurance proceeds plus the policy "deductible" should be
less than the cost of the repair or restoration, Lessor shall pay the excess
cost to a maximum of $10,000. In this event, Lessor shall have the option of
fully restoring the Premisesompt notice to Lessee of its election not to so
restore the Premises, in which event, upon thirty (30) days notice, Lessee will
have the right to terminate this Lease. If the insurance proceeds shall be
greater than the cost of repair or restoration, the excess shall belong to
Lessor. However, if Lessor is unable to collect the insurance proceeds, after
all reasonable actions to pursue its claims, Lessor shall not be obligated to
rebuild the Premises and, upon 30 days notice to Lessee, may terminate this
Lease.
(b) No Damage for Interruption of Use. Lessor shall not
be liable for any damage, compensation or claim by reason of inconvenience or
annoyance arising from the necessity of repairing any portion of the Premises
or the
interruption in the use of the Premises, nor shall rent abate.
(c) Conditions of Premises. It is understood and agreed that
Lessor is under no duty to make repairs or alterations at the time of letting
or at any
time thereafter; except as specifically set forth hereinafter. Lessor shall
make at its
sole cost and expense, all repairs necessary to initially provide to the
Premises and
thereafter to maintain, in safe condition and in compliance with all
applicable laws
and regulations, plumbing, air conditioning and electrical systems, windows,
floors (except carpeting) and all other items which constitute a part of the
Building structure and are installed or furnished by Lessor, which shall be
sufficient for Lessee's intended use of the Premises for the office purposes;
provided, however, that Lessor shall not be obligated for any of such repairs
until the expiration of a reasonable period of time after written notice from
Lessee that such repair is needed. Lessor shall be responsible for compliance
with all applicable laws, other than those applicable to Lessee's alterations or
other improvements made by Lessee, and will provide all State approved plans for
the Premises. Lessee shall be responsible for compliance with laws applicable
to alterations or other improvements made by Lessee.
(d) Quiet Enjoyment. Upon payment by Lessee of all rents
and other charges herein provided, and upon the observance and performance of
all the covenants, terms, and conditions on Lessee's part to be observed and
performed, Lessee shall peacefully and quietly hold and enjoy the Demised
Premises for the term hereof without hindrance or interruption by Lessor or any
other person or persons lawfully or equitably claiming by, through or under the
Lessor, except as otherwise provided in this Lease.
(e) Building Services.
(1) The following services and facilities shall be
supplied by Lessor in accordance with the terms of this Lease, in connection
with Lessee's use of the Premises, or in common with the other tenants of the
Building, as applicable:
(i) Heat, ventilation, and air conditioning for the
Premises and the common areas of the Building;
(ii) Janitorial service on Business Days;
(iii) Listing of Lessee's name of a Building
directory in the Building lobby;
(iv) Electricity to the Premises and to all common
areas of the Building;
(v) Trash collection and removal, landscaping
and snow removal; and
(2) Lessor's services shall be provided at a level and in
a manner consistent with the operation of comparable office buildings in the
competitive area of the Building.
(3) "Business Day(s) shall mean Mondays through Fridays
exclusive of the normal holidays of New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
13. Miscellaneous Agreements and Conditions.
(a) Effect of Repairs on Rental. No contract entered into
or that may be subsequently entered into by Lessor with Lessee, relative to any
alterations, additions, improvements or repairs, nor the failure of Lessor to
make such alterations, additions, improvements or repairs as required by any
such contract, nor the making by Lessor or his agents or contractors of such
alterations, additions, improvements or repairs shall in any way affect the
payment of the rent or said other charges at the time specified in this Lease.
(b) Agency. Each party represents to the other that it has
not dealt with any agent or broker in connection with this Lease other than
Keystone Real Estate Management, Inc. and hereby indemnifies the other party
against any damages incurred as a result of a misrepresentation contained in
this Subparagraph 13(b). Lessor shall be responsible for commissions owing to
Keystone Real Estate Management, Inc..
(c) Waiver of Custom. It is hereby covenanted and
agreed, any law, usage or custom to the contrary notwithstanding, that Lessor
shall have the right at all times to enforce the covenants and provisions of
this Lease in strict accordance with the terms hereof, notwithstanding any
conduct or custom on the part of Lessor in refraining from so doing at any time
or times; and, further, that the failure of Lessor at any time or times to
enforce its rights under said covenants and provisions strictly in accordance
with the same shall not be construed as having created a custom in any way or
manner contrary to the specific terms, provisions and covenants of this Lease or
as having in any way or manner modified the same.
(d) Conduct of Lessee. This Lease is granted upon the
express condition that Lessee and/or the occupants of the Premises shall not
create a public nuisance and that if at any time during the term of this Lease
or any extension or continuation thereof, Lessee or the occupier of the Premises
shall have created a public nuisance (after notice and a reasonable cure
period), Lessee shall be taken to have broken the covenants and conditions of
this Lease, and Lessor will be entitled to all of the rights and remedies
granted and reserved herein for the Lessee's failure to observe all of the
covenants and conditions of this Lease.
(e) Failure of Lessee to Repair. In the event of the failure
of Lessee promptly to perform the covenants of subparagraph 8(b) and (c) hereof,
Lessor may go upon the Premises and perform such covenants. The cost thereof, at
the sole option of Lessor, shall be charged to Lessee as additional and
delinquent rent.
14. Remedies of Lessor. If Lessee:
(a) Does not pay in full when due any and all installments of
rent and/or any other charge or payment herein reserved, included, or agreed
to be treated or collected as rent and/or any other charge, expense, or cost
herein agreed to be paid by Lessee, after notice and a cure period of five (5)
days; or
(b) Violates or fails to perform or otherwise breaks any
covenant or agreement herein contained where such violation or failure continues
for fifteen (15) days after written notice thereof from Lessor to Lessee
provided, however, that if the nature of the violation or failure is such that
the same cannot reasonable be cured within such fifteen (15) days period, Lessee
shall not be deemed in default if Lessee shall within such period commence such
cure and thereafter diligently prosecute the same to completion; or
(c) Becomes insolvent, or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by or against
Lessee, or a bill in equity or other proceeding for the appointment of a
receiver for Lessee is filed, or if proceedings for reorganization or for compo-
sition with creditors under any State or Federal law be instituted by or against
Lessee, or if the real or personal property of Lessee shall be sold or levied
upon by any Sheriff, Marshall or Constable; then and in any or either of said
events set forth in this Paragraph 14, there shall be deemed to be a breach of
this Lease, and thereupon ipso facto and without entry or other action by
Lessor, provided, however, that if any such action is commenced against Lessee
the same shall not constitute a default if Lessee causes the same to be stayed
or dismissed within sixty (60) days after the filing of same.
(1) Without terminating this Lease, Lessor may declare
the rent for the entire unexpired balance of the term of this Lease, including
any option terms as to which notice has been provided by Lessee, as well as all
other charges, payments, costs and expenses herein agreed to be paid by the
Lessee, or at the option of Lessor any part thereof, and also all costs and
officer's commissions including watchmen's wages and further including the five
percent chargeable by Act of Assembly to Lessor, shall, in addition to any and
all installments of rent already due and payable and in arrears and/or any other
charge of payment herein reserved, included or agreed to be treated or collected
as rent, and/or any other charge, expense or cost herein agreed to be paid by
Lessee which may be due and payable and in arrears, be taken to be due and
payable and in arrears as if by the terms and provisions of this Lease, the
whole balance of unpaid rent and other charges, payments, taxes, costs and
expenses were on that date payable in advance; and if this Lease or any part
thereof is assigned, or if the Premises or any part thereof is sublet, Lessee
hereby irrevocably constitutes and appoints Lessor Lessee's agent to collect the
rents due by such assignee or sublessee and apply the same to the rent due here-
under without in any way affecting Lessee's obligation to pay any unpaid balance
of rent due hereunder; or
(2) Lessor may serve notice upon Lessee that this
Lease and the term hereby created, including all option terms hereunder, shall
terminate and become absolutely void as of the date specified in the notice,
to be not less than five (5) days after delivery of the notice to Lessee,
without any right on the part of Lessee to save the forfeiture by payment of any
sum due or by other performance of any condition, term or covenant broken;
whereupon, Lessor shall be entitled to recover damages for such breach in an
amount equal to the amount of rent reserved for the balance of the term of this
Lease including any option terms as to which Lessee has provided notice.
15. Further Remedies of Lessor. In the event of any default as
above set forth in Paragraph 14, Lessor, or anyone acting on Lessor's behalf, at
Lessor's option:
(a) may without notice or demand enter the Premises,
breaking open locked doors if necessary to effect entrance, without liability to
action for prosecution or damages for such entry or for the manner thereof,
for the
purpose of distraining or levying and for any other purposes, and take
possession of
and sell all goods and chattels at auction, on three days' notice served in
person on
the Lessee or left on the Premises, and pay Lessor out of the proceeds all sums
due. Even if the rent is not due at that time, should the Lessee at any time
remove or attempt to remove goods and chattels from the Premises without leaving
enough thereon to meet the next periodical payment, Lessee authorizes Lessor to
pursue Lessee for a period of ninety days after such removal, take possession of
and sell at auction, upon like notice, sufficient of such goods to meet the
proportion of rent accrued at the time of such removal. Lessee hereby releases
and discharges Lessor, and its agents, from all claims, actions, suits, damages,
and penalties, for or by reason or on account of any entry, distraint, levy,
appraisement or sale; and/or
(b) may enter the Premises, and without demand proceed by
distress and sale of the goods there found to levy the rent and/or other charges
herein payable as rent, and all costs and officer's commissions, including
watchmen's wages and sums chargeable to Lessor, and further including a sum
equal to 5% of the amount of the levy as commissions to the constable or other
person making the levy, shall be paid by the Lessee, and in such case all costs,
officer's commission and other charges shall immediately attach and become part
of the claim of Lessor for rent, and any tender of rent without said costs,
commission and charges made after the issue of a warrant of distress shall not
be sufficient to satisfy the claim of the Lessor. Lessee hereby expressly waives
in favor of Lessor the benefit of all laws now made or which may hereafter be
made regarding any limitation as to the goods upon which, or the time within
which, distress is to be made after the removal of goods, and further relieves
the Lessor of the obligations of proving or identifying such goods, it being the
purpose and intent of this provision that all goods of Lessee, whether upon the
Demised Premises or not, shall be liable to distress for rent. Lessee waives in
favor of Lessor all rights under the Act of Assembly of April 6, 1951, P. L. 69,
and all supplements and amendments thereto that have been or may hereafter be
passed, and authorizes the sale of any goods distrained for rent at any time
after five days from said distraint without any appraisement and/or condemnation
thereof and Lessee also waives the right to issue a Writ of Replevin under the
Pennsylvania Rules of Civil Procedure, No 1071 &c. and Laws of the Commonwealth
of Pennsylvania, or under all other law previously enacted and now in force, or
which may be hereafter enacted, for the recovery of any articles, household
goods, furniture, etc. seized under a distress for rent or levy upon an execu-
tion for rent, damages or otherwise; all waivers herein before mentioned are
hereby extended to apply to any such action; and/or
(c) may lease the Premises or any part or parts thereof to
such person or persons as may in Lessor's discretion seem best and the Lessee
shall be liable for any loss of rent for the balance of the then current term.
16. DUTY TO MITIGATE. In exercising its rights hereunder,
Lessor shall have a duty to mitigate its damages provided that such efforts
shall not
require Lessor to let the Premises to any party not meeting its qualifications
standards, provided such standards have been and are being applied uniformly.
Efforts by Lessor to mitigate its damages shall not constitute a waiver of any
right or remedy available to Lessor.
17. CONFESSION OF EJECTMENT. When this Lease shall be
terminated by condition broken, either during the original term of this Lease
or any
renewal or extension thereof, and also when and as soon as the term hereby
created or any extension thereof shall have expired, it shall be lawful for any
attorney as attorney for Lessee to file an agreement for entering in any
competent Court an action and judgment in ejectment against Lessee and all
persons claiming under Lessee for the recovery by Lessor of possession of the
herein Demised Premises, for which this Lease shall be his sufficient warrant,
whereupon, if Lessor so desires, a Writ of Execution or of Possession may issue
forthwith, without any prior writ or proceedings whatsoever, and provided that
if for any reason after such action shall have been commenced the same shall be
determined and the possession of the Premises remain in or be restored to
Lessee, Lessor shall have the right upon any subsequent default or defaults, or
upon the termination of this Lease as hereinbefore set forth, to bring one or
more amicable action or actions as hereinbefore set forth to recover possession
of the Premises.
18. Affidavit of Default. In any action of ejectment Lessor shall
first cause to be filed in such action an affidavit made by it or someone
acting for it
setting forth the facts necessary to authorize the entry of judgment, of which
facts such affidavit shall be prima facie evidence, and if a true copy of this
Lease (and of the truth of the copy such affidavit shall be sufficient evidence)
be filed in such action, it shall not be necessary to file the original as a
warrant of attorney, any rule of Court, custom or practice to the contrary
notwithstanding.
19. Remedies Cumulative. All of the remedies herein before
given to Lessor and all rights and remedies given to it by law and equity
shall be
cumulative and concurrent. No termination of this Lease or the taking or
recovering of the Premises shall deprive Lessor of any of its remedies or
actions against Lessee for rent due at the time or which, under the terms
hereof, would in the future become due as if there has been no termination, or
for any and all sums due at the time or which, under the terms hereof, would in
the future become due as if there had been no determination, nor shall the
bringing of any action for rent or breach of covenant, or the resort to any
other remedy herein provided for the recovery of rent be construed as a waiver
of the right to obtain possession of the Premises.
20. Condemnation. In the event that the Premises or any part
thereof is taken or condemned for a public or quasi public use, this Lease
shall, as to the part so taken, terminate as of the date title shall vest in the
condemnor, and rent shall abate in proportion to the square feet of leased space
taken or condemned or shall cease if the entire Premises be so taken. In either
event, Lessee waives all claims against Lessor by reason of the complete or
partial taking of the Premises, and it is agreed that Lessee shall not be
entitled to any notice whatsoever of the partial or complete termination of this
Lease by reason of the aforesaid. In the event a portion only of the Premises
or a portion of the Building shall be so taken such as to have a material
adverse impact upon Lessee's use and enjoyment of the Premises, then within
thirty (30) days thereafter, either Lessee or Lessor may elect to terminate
this Lease from the date when possession is so taken. If no such election is
made, Lessor shall repair and restore, at its own expense, the portion not taken
and thereafter the rent shall be reduced proportionately to the portion of the
Premises taken.
21. Subordination. This Lease is subject and subordinate to any
and all mortgages now or hereafter placed upon the property of which the
Premises is a part, and to all renewals, modifications and extensions thereof.
Lessee agrees upon demand of Lessor to execute, acknowledge and deliver all such
instruments as shall be requested by any mortgagee or proposed mortgagee to
confirm such subordination, if requested by any mortgagee. However, such
subordination shall be conditioned on Lessor delivering a non-disturbance agree-
ment from such mortgagee, substantially in the form of Exhibit I hereto, to the
effect that Lessee's possession and quiet enjoyment of the Premises shall not be
disturbed so long as Lessee performs its obligations hereunder.
22. Insurance.
(a) Lessor shall keep the Premises continuously insured
against loss or damage by fire, with extended coverage, and against such other
hazards as Lessor may reasonably require for its full replacement value. In
addition, Lessor shall carry comprehensive public liability insurance on all
common areas in amounts reasonably determined by Lessor.
(b) Lessee shall maintain or cause insurance to be maintained
as follows:
(i) Comprehensive public liability insurance an
"occurrence basis" against claims for "personal injury", including without
limitation bodily injury, death or property damage occurring on, in or about the
Premises and the adjoining streets, sidewalks and passageways, such insurance to
afford immediate minimum protection to a limit of not less than that required
by Lessor with respect to personal injury or death to any one or more persons
(not less than $2,000,000) or damage to property (not less than $500,000);
(ii) Worker's compensation insurance, including
employer's liability insurance, for all employees of Lessee engaged on or with
respect to the Premises in such amount as is reasonably satisfactory to
Lessor, or, if such limits are established by law, in such amounts;
(iii) During the course of any construction or repair of
improvements on the Premises by Lessee (if permitted by Lessor), builder's
completed value risk insurance against "all risks of physical loss", including
collapse and transit coverage, during construction of such improvements, with
deductibles not to exceed $l,000, in non-reporting form, covering the total
value of work performed and equipment, supplies and materials furnished. Such
policy of insurance shall contain the "permission to occupy upon completion of
work or occupancy" endorsement;
(iv) Such other insurance, and in such amounts, as
may from time to time be reasonably required by Lessor against the same or other
hazards.
(c) All policies of insurance required by the terms of
subparagraph 24(a) or (b) shall contain an endorsement or agreement by the
insurer that any loss shall be payable in accordance with the terms of such
policy notwithstanding any act or negligence of Lessee or Lessor which might
otherwise result in forfeiture of such insurance and the further agreement of
the insurer waiving all rights of set-off, counterclaim or deductions against
Lessee and Lessor.
(d) All policies of insurance shall be issued by companies and
in amounts in each company reasonably satisfactory to Lessor. All policies of
insurance shall where possible name Lessor, and, if appropriate the holder of
any mortgage upon the Premises, as an additional insured or as additional loss
payee, not subject to contribution, all in form reasonably satisfactory to
Lessor. Lessee shall furnish Lessor with a signed duplicate original policy with
respect to all required insurance coverage. At least thirty (30) days prior to
the expiration of each such policy, Lessee shall furnish Lessor with evidence
reasonably satisfactory to Lessor of the payment of premium and the reissuance
of a policy continuing insurance in force as required by this Lease. All such
policies, including policies for any amounts carried in excess of the required
minimum and policies not specifically required by Lessor, shall be in form
reasonably satisfactory to Lessor, shall be maintained in full force and effect,
shall be delivered to Lessor, with premiums prepaid, as collateral security for
payment of the obligations of Lessee hereunder, and shall contain a provision
that such policies will not be canceled or materially amended, which term shall
include any reduction in the scope or limits of coverage, without at least
thirty (30) days prior written notice to Lessor. If the insurance, or
any part thereof, shall expire, or be withdrawn, or become void or unsafe by
reason of Lessee's breach of any condition thereof, or become void or unsafe by
reason of
the value or impairment of the capital of any company in which the insurance may
then be carried, or if for any reason whatever the insurance shall be unsatis-
factory to Lessor in its reasonable judgment , Lessee shall place new insurance
on the Premises, reasonably satisfactory to Lessor.
(e) In the event Lessee fails to provide, maintain, keep in
force or deliver and furnish to Lessor the policies of insurance required by
this Lease, Lessor may procure such insurance or single interest insurance for
such risks covering Lessor's interest, and Lessee will pay all premiums thereon
promptly upon demand by Lessor, and until such payment is made by Lessee the
amount of all such premiums, together with interest thereon at the lesser of the
highest legal rate of interest or thirteen percent (13%) per annum, shall be due
and payable hereunder.
23. Notices. All notices required hereunder shall be given by
certified mail, return receipt requested and shall be deemed effective three
(3) days
after the date of receipt. Any notices to Lessor shall be addressed to: Keystone
Real Estate Management, Inc., 1150 First Avenue, King of Prussia, Pa. 19406.
24. Lease Contains All Agreements. It is expressly understood
and agreed by and between the parties that this Lease and the riders attached
and forming a part hereof set forth all the promises, agreements, conditions and
understandings between Lessor or its Agents and Lessee relative to the Premises,
and that there are no promises, agreements, conditions or understandings, either
oral or written, between them other than are herein set forth. It is further
understood and agreed that, except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Lessor or Lessee unless reduced to writing and signed by them.
25. Successors and Assignees. All rights and liabilities herein
given to, or imposed upon, the respective parties shall extend to and bind the
several and respective successors and assigns of the parties; and if there
shall be more than one Lessee, they shall all be bound jointly and severally by
the terms, covenants and agreements herein, and the word "Lessee" shall be
deemed and taken to mean each and every person or party mentioned as a Lessee
herein, be the same one or more; and if there shall be more than one Lessee, any
notice required or permitted by the terms of this Lease may be given by or to
any one thereof, and shall have the same force and effect as if given by or to
all thereof. No rights, however, shall inure to the benefit of any assignee of
Lessee unless the assignment to such assignee has been approved by Lessor in
writing as aforesaid.
26. Security Deposit. Upon the execution of this lease, Lessee
shall deposit with Lessor a security deposit of Six Thousand and Ten
Dollars and 66/100 ($6,010.66) Upon the occurrence of any Event of Default
by Lessee, Lessor may from time to time and without prejudice to any other
remedy, use the security deposit to the extent necessary to make good any
arrears of base rent or additional rent, or any other damage, injury, expense
or liability caused to Lessor by such Event of Default, any remaining balance of
such security deposit to be returned by Lessor to Lessee within a reasonable
period of time after the termination of this Lease. However, the security
deposit shall not be considered an advance payment of rental or a measure of
Lessor's damages in case of default by Lessee. Lessee shall be entitled to
receive and shall receive no interest on such security deposit, and Lessor may
commingle the same with other monies of Lessor.
If Lessor shall ever use the security deposit to pay the sums described above,
Lessee shall immediately deposit with Lessor an additional security deposit
equal to the amount so used.
27. Estoppel Certificates. Lessor and Lessee agree to execute
and deliver to the other (or a designee thereof) within seven 7 days at the
request therefore, a statement, in writing and in recordable form, certified to
the extent true: (i) that this Lease is in full force and effect and unmodified
(or, if so modified, stating the modifications) (ii) Lessee has accepted the
Premises; (iii) the commencement and expiration date at the term of this Lease;
(iv) that rental payments are current without any offset or defense thereto if
correct, or if not correct, a statement setting forth the correct information;
(v) the amount of rent and security deposit, if any, paid in advance; (vi) that
to the knowledge of the officer executing the statement, Lessor and Lessee
respectively are not in default in performance of obligations under this Lease
or if they are in default, specify in which respects the Lessor or Lessee is in
default; and (vii) any other matter relating to the status of this Lease which
may be reasonably requested.
28. Agency. It is expressly understood and agreed by
Lessor and Lessee that Keystone Real Estate Management, Inc. and Prentice
Properties Management are acting only as an agent and shall not in any event be
liable either to Lessor or Lessee for the fulfillment or non-fulfillment of
any of the
terms, covenants, conditions or provisions of this Lease or for any action or
proceeding taken by Lessor against Lessee or by Lessee against Lessor.
29. Force Majeure. Lessor and Lessee shall be excused for
the period of any delay in its performance of any of the obligations hereunder,
when prevented from so doing by cause or causes beyond Lessor's control which
shall include, without limitation, all labor disputes, inability to obtain
material or
services, civil commotion, or Acts of God.
30. Lessor's Obligations. Lessor's obligations hereunder shall be
binding upon Lessor only for a period of time that Lessor is in ownership of the
Building; and, upon termination of that ownership, Lessee, except as to any
obligations which have then matured, shall look solely to Lessor's successor in
interest in the Building for the satisfaction of each and every obligation of
Lessor hereunder, provided this Lease is assumed by such successor in interest
by separate written agreement or by operation of law.
31. Lessor's Liability. Lessor shall have no personal liability under
any of the terms, conditions or covenants of this Lease, and Lessee shall look
solely to the equity of the Lessor in the Building of which the Premises form a
part for the satisfaction of any claim, remedy or cause of action occurring to
Lessee as a result of the breach of any portion of this Lease by Lessor.
32. Waiver of Jury Trial. Lessee hereby waives trial by jury in
the event that any litigation is instituted under this Lease.
33. Corporate Authority. The undersigned person executing on
behalf of Lessee warrants that he has full authority to execute this Lease on
behalf of the corporate Lessee.
34. Headings. Any headings preceding the text of the several
paragraphs and subparagraphs hereof are inserted solely for convenience of
reference and shall not constitute a part of this Lease, nor shall they affect
its meaning, construction or effect.
35. No Recordation. This Lease may not be recorded by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed these
presents the day and year first above written.
Biosonics, Inc.
By:____________________________
185 Commerce Drive Associates, L. P.
By:____________________________
