================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM 10-Q
Quarterly Report Under Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the quarter ended: February 28, 1998 Commission file number: 0-11411
Q-MED, INC.
-----------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
DELAWARE 22-2468665
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 METRO PARK SOUTH, LAURENCE HARBOR, NEW JERSEY 08878
- ------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(Issuer's telephone number, including area code) (732) 566-2666
Indicate by check mark whether the registrant (1) has filed all reports required
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
--- ---
The number of shares outstanding of the registrant's common stock on April 6,
1998: 9,659,519
================================================================================
<PAGE>
Q-MED, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
February 28, November 30,
1998 1997
------------ -----------
(Unaudited)
ASSETS
Current assets
Cash and cash equivalents ....................... $ 174,412 $ 640,266
Investments ..................................... 1,695,512 --
Accounts receivable, net of
allowances of approximately $285,500 and
$250,000 respectively ......................... 232,340 197,901
Inventories ..................................... 657,293 667,255
Prepaid expenses and other current assets ....... 109,287 68,439
----------- -----------
2,868,844 1,573,861
Debt issue costs 41,941 --
Product software development costs 54,462 60,998
Property and equipment, net 592,383 624,761
Other assets 182,869 190,913
----------- -----------
$ 3,740,499 $ 2,450,533
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses ........... $ 835,759 $ 770,446
----------- -----------
835,759 770,446
8% Convertible Notes ............................ 2,000,000 --
Leases payable - long term ...................... 68,167 77,522
Deferred warranty revenue ....................... 35,270 40,047
----------- ----------
2,939,196 888,015
Stockholders' equity
Common stock $.001 par value;
20,000,000 shares authorized;
9,648,519 and 9,648,519 shares
issued and 9,626,519 and 9,626,519
outstanding ................................. 9,649 9,649
Paid-in capital ................................. 18,041,941 18,041,941
Accumulated deficit ............................. (17,174,662) (16,413,447)
----------- -----------
876,928 1,638,143
Less: treasury stock at cost, 22,00
common shares ................................. (75,625) (75,625)
Total stockholders' equity ...................... 801,303 1,562,518
----------- -----------
................................................ $ 3,740,499 $ 2,450,533
=========== ===========
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Q-MED, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
For the Three For the Three
Months Ended Months Ended
February 28, February 29,
1998 1997
---------- ----------
Sales .......................................... $ 455,116 $ 560,000
Less sales returns and allowances .............. -- 2,235
---------- ----------
Net sales ...................................... 455,116 557,765
Cost of sales .................................. 148,740 231,237
---------- ----------
Gross profit ................................... 306,376 326,528
Selling, general and administrative expenses ... 932,216 995,576
Provision for doubtful accounts ................ 61,658 --
Research and development expenses .............. 47,045 35,739
---------- ----------
(Loss) from operations ......................... (734,543) (704,787)
Interest income ................................ 22,863 35,365
Interest expense ............................... (49,535) (6,893)
---------- ----------
Net (loss) ..................................... $ (761,215) $ (676,315)
========== ==========
(Loss) per common share ........................ $ (.08) $ (.07)
---------- ----------
Weighted average number of shares
of common stock outstanding .................. 9,648,519 9,496,274
========== ==========
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
<TABLE>
<CAPTION>
Q-MED, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
For the Three Months Ended February 28, 1997
(Unaudited)
Common Stock
Held in Treasury
Common Paid-in Accumulated -----------------
Stock Capital Deficit Shares Amount Total
------ ----------- ------------ ------ -------- --------
<S> <C> <C> <C> <C> <C> <C>
Balance--November 30, 1997 ......... $9,649 $18,041,941 $(16,413,447) 22,000 $(75,625) $1,562,518
Net loss for the three months
ended February 28, 1998 .......... (761,215) (761,215)
------ ----------- ------------ ------ -------- --------
Balance--February 28, 1998 ......... $9,649 $18,041,941 $(17,174,662) 22,000 $(75,625) $801,303
====== =========== ============ ====== ======== ========
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Q-MED, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
For the Three For the Three
Months Ended Months Ended
February 28, February 29,
1998 1997
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net (loss) ............................................ $ (761,215) $ (676,315)
----------- ----------
Adjustments to reconcile net income to cash (used in)
provided by operating activities:
Depreciation and amortization ......................... 64,996 66,362
Changes in assets and liabilities:
(Increase) decrease in accounts receivable ............ (34,439) 116,869
Decrease in inventories ............................... 9,962 270,784
Increase (decrease) in accounts payable and accrued
liabilities ......................................... 65,313 (45,505)
(Increase) in prepaid expenses and other assets ....... (40,848) (41,067)
Other, net ............................................ (12,949) (895)
----------- ----------
Total adjustments ..................................... 52,035 366,548
----------- ----------
Net cash (used in) operating activities .............. $ (709,180) $ (309,767)
=========== ==========
Cash flows from investing activities:
Purchase of investments ............................... (1,695,512) --
Proceeds from sale of investments ..................... -- 1,072,839
Capital expenditures, net ............................. (19,221) (238,869)
----------- ----------
Net cash (used in) provided by investing activities ... $(1,714,733) $ 833,970
=========== ==========
Cash flows from financing activities:
Proceeds from 8% convertible note, net ................ 1,958,059 --
Principal (payment) on note payable to bank ........... -- (75,000)
Proceeds from issuance of common stock ................ -- 58,640
----------- ----------
Net cash provided by (used in) financing activities ... $ 1,958,059 $ (16,360)
=========== ==========
Net (decrease) increase in cash and cash equivalents .... (465,854) 507,843
Cash and cash equivalents at beginning of period ........ 640,266 680,686
----------- ----------
Cash and cash equivalents at end of period .............. $ 174,412 $1,188,529
=========== ==========
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest .............................................. $ 9,536 $ 7,854
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Q-MED, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Basis of Presentation
The accompanying unaudited consolidated condensed financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information. Accordingly, these financial statements do not include
all of the information and footnotes required by generally accepted accounting
principles. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included. Operating results for the three month period ended February 28, 1998
are not necessarily indicative of the results that may be expected for the year
ending November 30, 1998. These consolidated condensed financial statements
should be read in conjunction with the financial statements and footnotes
thereto included in the Company's annual report on Form 10-K for the year ended
November 30, 1997.
Note 1 - Summary of Significant Accounting Policies
Earnings per Share
Effective for the Company's financial statements for the year ended November 30,
1998, the Company adopted Statement of Financial Accounting Standards No. 128,
"Earnings per Share", (SFAS 128). SFAS 128 replaces the presentation of primary
earnings per share ("EPS") and fully diluted EPS with a presentation of basic
EPS and diluted EPS, respectively. Basic EPS excludes dilution and is computed
by dividing earnings available to common stockholders by the weighted-average
number of common shares outstanding during the period. Diluted EPS assumes
conversion of dilutive options and warrants, and the issuance of common stock
for all other potentially dilutive equivalent shares outstanding. All
potentially dilutive equivalent shares outstanding are antidilutive for all
periods. The adoption of SFAS 128 did not have a materially effect on the
Company's reported EPS amounts.
Note 2 - Results of Operations
In the opinion of management, the financial statements for the three months
ended February 28, 1998 and February 28, 1997 include all adjustments and
accruals necessary for a fair presentation. All such adjustments are of a normal
recurring nature. The results of operations for the three months ended February
28, 1998 are not necessarily indicative of the results which may be expected for
the full year ended November 30, 1998.
Note 3 - Investments
<TABLE>
<CAPTION>
Gross Gross
Amortized Unrealized Unrealized Fair Carrying
Cost Gains Losses Value Amount
---------- ------- -------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Available-for-sale
U.S. Treasury securities .. $1,695,512 $ -- $ -- $1,695,512 $1,695,512
---------- ------- -------- ---------- ----------
$1,695,512 $ -- $ -- $1,695,512 $1,695,512
========== ======= ======== ========== ==========
</TABLE>
Note 4 - Inventories
Inventories, consisting of finished units and raw materials, are stated at the
lower of cost (determined on a moving weighted average method) or market.
Inventories consist of the following:
February 28, November 30,
1998 1997
------------ ------------
(Unaudited)
Raw materials (component parts) ... $209,435 $209,580
Finished units .................... 447,858 457,675
-------- --------
$657,293 $667,255
======== ========
<PAGE>
Note 5 - Accounts Payable and Accrued Expenses
Accounts payable and accrued expenses include the following:
February 28, November 30,
1998 1997
------------ ------------
(Unaudited)
Accounts payable trade ........ $292,492 $394,264
Deferred warranty revenue ..... 183,556 204,260
Accrued payroll ............... 113,025 76,997
Other accrued expenses ........ 206,686 94,925
Interest Payable .............. 40,000 --
-------- --------
$835,759 $770,446
======== ========
Note 6 - Principles of Consolidation
The consolidated financial statements include the accounts of qmed, Inc., its
83% owned subsidiary, Heart Map, Inc., and its 100% owned subsidiary,
Interactive Heart Management Corp., which was formed in March, 1995. Interactive
Heart Management Corp. provides coronary artery disease management services to
health care providers throughout the United States. All inter-company accounts
and transactions have been eliminated.
<PAGE>
PART I - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The following table presents the percentage of total revenues for the periods
indicated and changes from period to period of certain items included in the
Company's Statements of Operations.
<TABLE>
<CAPTION>
For the Three Months Period to Period Percentage Changes
Ended February 28, For the Three Months Ended
and February 29, February 28, and February 29,
1998 1997 1998 vs. 1997
---- ---- -------------
<S> <C> <C> <C>
Sales (net) ...................... 100.0% 100.0% (18.4)
Cost of sales .................... 32.7 41.5 (35.7)
------ ------
Gross profit ..................... 67.3 58.5 (6.2)
Selling, general and
administrative ................ 204.8 178.5 (6.4)
Provision for doubtful accounts .. 13.5 -- *
Research and development ......... 10.3 6.4 31.6
------ ------
Loss from continuing
operations .................... (161.3) (126.4) 4.2
Interest income .................. 5.0 6.3 (35.4)
Interest expense ................. (10.9) (1.2) 618.6
------ ------
Net loss ......................... (167.2) (121.3) 12.6
====== ======
</TABLE>
* Not meaningful
THREE MONTHS ENDED FEBRUARY 28, 1998 COMPARED WITH THE THREE
MONTHS ENDED FEBRUARY 28, 1997
Net sales for the three months ended February 28, 1998 decreased by 18.4% or
approximately $103,000 when compared to the three months ended February 28,1997.
This decrease is primarily due to the continued reduction in the Company's
capital equipment sales to the primary care marketplace. The Company's
management has focused primarily on the marketing of the ohms|cad system to
managed care organizations through its wholly owned subsidiary, Interactive
Heart Management Corp. ("IHMC"). The Company expects to add approximately
$75,000 in revenue through IHMC during the third quarter of 1998 as ohms|cad is
implemented under the contract signed with CIGNA HealthCare of Ohio in December
1997.
The Company has continued to aggressively market ohms|cad to leading health care
providers throughout the United States. The Company has had discussions with
large providers to use its ohms|cad system on a national scale within their
organizations to effectively manage coronary artery disease. The Company
anticipates the addition of 600,000 new members to ohms|cad during fiscal 1998.
Included in the net loss of $(761,215) for the quarter ending February 28, 1998
was approximately $(612,000) from IHMC.
The Company's gross profit margin increased from 58.5% during the three months
ended February 28, 1997 to 67.3% for the three months ended February 28, 1998.
The increase was primarily due to the consolidation of the production and
customer support operation related to the Company's capital equipment segment.
Selling, general and administrative expenses for the three months ended February
28, 1998 decreased by approximately $63,000 for the quarter ended February 28,
1998 compared to the corresponding quarter of 1997. This decrease was primarily
due to the decrease in the level of selling costs related to the Company's
capital equipment segment. Management expects selling expenses to increase as a
result of a heightened interest in ohms|cad by managed care organizations.
<PAGE>
Research and development expenses for the three months ended February 28, 1998
increased by approximately $11,000 when compared to the first quarter of 1997.
This increase is primarily due to the development of ohms II which will enhance
the capabilities of the ohms|cad system and increase its capacity ten fold. This
new system is expected to be released in the beginning of the third quarter.
LIQUIDITY AND CAPITAL RESOURCES
To date, the Company's principal sources of working capital have been provided
by proceeds from public and private placements of securities, operations and the
sale of certain assets. Since the Company's inception, sales of securities and
assets have generated approximately $18,000,000 less applicable expenses.
On December 18, 1997, the Company sold an aggregate $2,000,000 8% Convertible
Subordinated Notes due December 18, 2002 (the "Notes"), without discount or
premium, in a private placement to three investors led by Galen Partners III,
L.P. Interest on the Notes is accrued monthly, compounded annually, and will be
due at maturity. The Notes are convertible into shares of the Company's common
stock at the rate of $5.60 per share. The Company may redeem the Notes in the
event the average closing price of shares of the Company's common stock equals
or exceeds $12.00 for a period of 90 days at the following times with the
following premiums and may elect to pay the redemption price in shares of common
stock:
Year Redemption Price
---- ----------------
1998 ............ 105%
1999 ............ 104%
2000 ............ 103%
2001 ............ 102%
2002 ............ 100%
The Company is required to redeem the Notes at higher premiums in the event of a
change of control.
In connection with the sale of the Notes, the Company granted certain rights to
the purchasers, including registration rights and the right to appoint a member
of the Company's board of directors. The Note Purchase Agreement prohibits the
Company from paying dividends until the Notes are paid.
The Company had working capital of $2,033,085 at February 28, 1998 compared to
$803,415 at November 30, 1997 and ratios of current assets to current
liabilities of 3.4:1 and 2.0:1 as of November 30, 1997. The working capital
increase of approximately $1,230,000 was primarily due to the sale of the Notes
described above during December 1997.
The Company has anticipated that funds generated from operations, together with
cash and investments, will be sufficient to meet its working capital
requirements for the current year. In the event sales do not meet the Company's
expectations, the Company may be required to seek additional financing to
support IHMC's sales efforts.
The Company maintains a general policy of net 30-day payment terms on equipment
sales to distributors, cash or third-party leasing arrangements with direct
sales to physicians and letters of credit for international sales. In some
instances, the Company has extended payment terms beyond net 30 to selected
distributors. The Company's receivables balances over 90 days past due was 8.5%
of the receivables balance at February 28, 1998 compared to 12.8% at November
30, 1997. The Company is aggressively seeking payment arrangements on these
overdue amounts.
The Company, with its IHMC subsidiary, enters into contract arrangements with
physician groups and managed care organizations where either a prepayment toward
a cost savings is made per month or billing is done on a per test basis. During
December 1997, the Company had entered into an agreement with CIGNA Healthcare
of Ohio under which the implementation of the ohms|cad system will begin by May
1998. The Company expects revenue to increase as it recognizes cost savings from
additional arrangements during fiscal 1998.
<PAGE>
The Company believes that there has not been a significant impact from inflation
on the Company's operations during the past three fiscal years.
ADDITIONAL FACTORS THAT MAY AFFECT FUTURE RESULTS
Future Operating Results Future operating results may be impacted by a number of
factors that could cause actual results to differ materially from those stated
herein, which reflect management's current expectations. These factors include
worldwide economic and political conditions, industry specific factors, the
Company's ability to maintain access to external financing sources and its
financial liquidity, the acceptance of the ohms|cad system by managed care
organizations, and the Company's ability to manage expense levels.
Need for Additional Capital As of February 28, 1998, the Company had
approximately $1,870,000 of cash and short term investments. The Company has
experienced negative cash flows since fiscal 1995 and expects the negative cash
flow to continue until significant service revenue is generated under agreements
to provide ohms|cad services. The Company expects that the monthly negative cash
flow will decrease as a result of increased activities related to ohms|cad. The
Company's future success is highly dependent upon its continued access to
sources of financing which it believes are necessary for the continued support
of IHMC's sales effort. In the event the Company is unable to maintain access to
its existing financing sources, or obtain other sources of financing, there
would be a material adverse effect on the Company's business, financial position
and results of operations.
Regulation The Company's products are subject to extensive government regulation
in the United States by federal, state and local agencies including the Food and
Drug Administration. The process of obtaining and maintaining FDA and other
required regulatory approvals for the Company's products is lengthy, expensive
and uncertain. There can be no assurance that changes in existing regulations or
the adoption of new regulations will not occur which will adversely affect the
Company.
Stock Price Fluctuations The Company's participation in a highly competitive
industry often results in significant volatility in the Company's common stock
price. This volatility in the stock price is a significant risk investors should
consider.
Forward Looking Statements This report contains certain forward-looking
statements that are based on current expectations. In light of the important
factors that can materially affect results, including those set forth above and
elsewhere in this report, the inclusion of forward-looking information herein
should not be regarded as a representation by the Company or any other person
that the objectives or plans of the Company will be achieved. The Company may
encounter competitive, technological, financial and business challenges making
it more difficult than expected to continue to market its products and services;
competitive conditions within the industry may change adversely; the Company may
be unable to retain existing key management personnel; the Company's forecasts
may not accurately anticipate market demand; and there may be other material
adverse changes in the Company's operations or business. Certain important
factors affecting the forward looking statements made herein include, but are
not limited to (i) accurately forecasting capital expenditures and (ii)
obtaining new sources of external financing. Assumptions relating to budgeting,
marketing, product development and other management decisions are subjective in
many respects and thus susceptible to interpretations and periodic revisions
based on actual experience and business developments, the impact of which may
cause the Company to alter its capital expenditure or other budgets, which may
in turn affect the Company's financial position and results of operations.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
No change from previous filing.
Item 2. Changes in Securities
None.
Item 3. Defaults upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
On March 31, 1998, the Company renewed its lease for
its principal executive offices for a term of five years.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits filed with this report
99.1 Lease Agreement dated March 31, 1998 between
qmed, Inc. and The Schultz Organization.
(b) Reports on For 8-K
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Q-Med, Inc.
By: /s/ MICHAEL W. COX
------------------------------
Michael W. Cox
President
Principal Executive and
Financial Officer
Dated: April 13, 1998
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ---------- -----------
99.1 Lease Agreement dated March 31, 1998
27 Financial Data Schedule
================================================================================
LEASE AGREEMENT BETWEEN
WHMAB REAL ESTATE LIMITED PARTNERSHIP, AS LANDLORD,
AND
Q-MED, INC. AS TENANT
DATED MARCH 31, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
1. Lease Grant............................................................ 1
2. Term................................................................... 1
3. Rent................................................................... 1
(a) Basic Rent.................................................... 1
(b) Payment....................................................... 1
(c) Operating Costs............................................... 2
(d) Tenant Electric and Utilities................................. 4
4. Delinquent Payment; Handling Charges................................... 4
5. Security Deposit....................................................... 4
6. Landlord's Obligations................................................. 4
(a) Services...................................................... 4
(b) Excess Utility Use............................................ 5
(c) Restoration of Services; Abatement............................ 5
7. Improvements; Alterations; Repairs; Maintenance........................ 5
(a) Improvements; Alterations..................................... 5
(b) Repairs; Maintenance.......................................... 6
(c) Performance of Work........................................... 6
(d) Mechanic's Liens.............................................. 6
(e) Environmental Compliance...................................... 7
8. Use.................................................................... 8
9. Assignment and Subletting.............................................. 8
(a) Transfers; Consent............................................ 8
(b) Cancellation.................................................. 9
(c) Additional Compensation....................................... 9
10. Insurance; Waivers; Subrogation; Indemnity............................. 9
(a) Insurance..................................................... 9
(b) Waiver of Negligence; No Subrogation.......................... 10
(c) Indemnity..................................................... 10
11. Subordination; Attornment; Notice to Landlord's Mortgagee.............. 10
(a) Subordination................................................. 10
(b) Attornment.................................................... 10
(c) Notice to Landlord's Mortgagee................................ 11
i
<PAGE>
12. Rules and Regulations.................................................. 11
13. Condemnation........................................................... 11
(a) Total Taking.................................................. 11
(b) Partial Taking - Tenant's Rights.............................. 11
(c) Partial Taking - Landlord's Rights............................ 11
(d) Award......................................................... 11
14. Fire or Other Casualty................................................. 12
(a) Repair Estimate............................................... 12
(b) Landlord's and Tenant's Rights................................ 12
(c) Landlord's Rights............................................. 12
(d) Repair Obligation............................................. 12
15. Personal Property Taxes................................................ 12
16. Events of Default...................................................... 13
17. Remedies............................................................... 13
18. Payment by Tenant; Non-Waiver.......................................... 14
(a) Payment by Tenant............................................. 14
(b) No Waiver..................................................... 15
19. Waiver of Distraint.................................................... 15
20. Surrender of Premises.................................................. 15
21. Holding Over........................................................... 15
22. Certain Rights Reserved by Landlord.................................... 16
23. Substitution Space..................................................... 16
24. Miscellaneous.......................................................... 16
(a) Landlord Transfer............................................. 16
(b) Landlord's Liability.......................................... 16
(c) Force Majeure................................................. 17
(d) Brokerage..................................................... 17
(e) Estoppel Certificates......................................... 17
(f) Notices....................................................... 17
(g) Separability.................................................. 17
(h) Amendments; and Binding Effect................................ 17
(i) Quiet Enjoyment............................................... 18
(j) No Merger..................................................... 18
ii
<PAGE>
(k) No Offer...................................................... 18
(l) Entire Agreement.............................................. 18
(m) Waiver of Jury Trial.......................................... 18
(n) Governing Law................................................. 18
(o) Joint and Several Liability................................... 18
(p) Financial Reports............................................. 18
(q) Landlord's Fees............................................... 19
(r) Telecommunications............................................ 19
(s) General Definitions........................................... 19
(t) Confidentiality............................................... 19
(u) List of Exhibits.............................................. 19
25. Other Provisions....................................................... 19
iii
<PAGE>
LIST OF DEFINED TERMS
Page
----
Lease ...................................................................... 1
Landlord ................................................................... 1
Tenant ..................................................................... 1
Premises ................................................................... 1
Building ................................................................... 1
Commencement Date........................................................... 1
Term ....................................................................... 1
Basic Rent.................................................................. 1
Rent ....................................................................... 1
Additional Rent............................................................. 2
Expense Stop................................................................ 2
Operating Costs............................................................. 2
Taxes ...................................................................... 3
Operating Costs and Tax Statement........................................... 3
Proportionate Share......................................................... 3
Interest Rate............................................................... 4
Security Deposit............................................................ 4
NJDEP ...................................................................... 7
Hazardous Substances........................................................ 7
ISRA ....................................................................... 7
Permitted Use............................................................... 8
Transfer ................................................................... 8
Loss ....................................................................... 10
Landlord's Mortgagee........................................................ 10
Taking ..................................................................... 11
Casualty ................................................................... 12
Damage Notice............................................................... 12
Event of Default............................................................ 13
Laws ....................................................................... 19
Law ........................................................................ 19
Affiliate................................................................... 19
Tenant Party................................................................ 19
including................................................................... 19
Offer Space................................................................. G-1
Offer Notice................................................................ G-1
Third Party Offer........................................................... G-1
iv
<PAGE>
LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of March ___, 1998,
between WHMAB REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD"), and Q-MED, INC., a New Jersey corporation ("TENANT").
1. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, that certain office space (the
"PREMISES") as depicted in the plan attached as Exhibit A in the office building
(the "BUILDING") located at 100 Metro Park South, Laurence Harbor, Old Bridge
Township, New Jersey. The land on which the Building is located is described on
Exhibit B. The term "BUILDING" includes the related land, driveways, parking
facilities, and similar improvements.
2. TERM. The term of this Lease shall be sixty-three (63) months,
commencing on September 1, 1998 (the "COMMENCEMENT DATE"), and expiring at 5:00
p.m., November 30, 2003 (the "TERM", which definition shall include all renewals
of the initial Term). If the Commencement Date is not the first day of a
calendar month, then the Term shall be extended by the number of days between
the Commencement Date and the first day of the next month. If the Premises are
not ready for occupancy by Tenant on the Commencement Date, then (a) Tenant's
obligation to pay Basic Rent and Additional Rent (as defined in Section 3) shall
be waived until Landlord tenders possession of the Premises to Tenant, (b) the
Term shall be extended by the time between the scheduled Commencement Date and
the date on which Landlord tenders possession of the Premises to Tenant, (c)
Landlord shall not be in default hereunder or be liable for damages therefor,
and (d) Tenant shall accept possession of the Premises when Landlord tenders
possession thereof to Tenant.
3. RENT.
(a) BASIC RENT. "BASIC RENT" (herein so called) shall be the following
amounts for the following periods of time:
TIME PERIOD MONTHLY BASIC RENT
----------- ------------------
Each month during the Term ................... $14,836.66
(b) PAYMENT. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease (collectively,
the "RENT"), without deduction or set off, at Landlord's address provided for in
this Lease or as otherwise specified by Landlord. Basic Rent, adjusted as herein
provided, shall be payable monthly in advance, and shall be accompanied by all
applicable state and local sales or use taxes. Subject to the provisions of
Exhibit H, Basic Rent shall be payable on the first day of each month beginning
on the first day of the first full calendar month of the Term. The monthly Basic
Rent for any partial month at the beginning of the Term shall equal the product
of 1/365 of the annual Basic Rent in effect during the partial month
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and the number of days in the partial month from and after the Commencement
Date, and shall be due on the Commencement Date.
(c) OPERATING COSTS.
(1) Tenant shall pay an amount (per each rentable square foot in the
Premises) ("ADDITIONAL RENT") equal to the difference between the Operating
Costs (defined below) per rentable square foot in the Building and the actual
Operating Costs for the calendar year 1998 (the "EXPENSE STOP"). Landlord may
make a good faith estimate of the Additional Rent to be due by Tenant for any
calendar year or part thereof during the Term, and Tenant shall pay to Landlord,
on the Commencement Date and on the first day of each calendar month thereafter,
an amount equal to the estimated Additional Rent for such calendar year or part
thereof divided by the number of months therein. From time to time, Landlord may
estimate and re-estimate the Additional Rent to be due by Tenant and deliver a
copy of the estimate or re-estimate to Tenant. Thereafter, the monthly
installments of Additional Rent payable by Tenant shall be appropriately
adjusted in accordance with the estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the Additional Rent as estimated
by Landlord. Any amounts paid based on such an estimate shall be subject to
adjustment as herein provided when actual Operating Costs are available for each
calendar year.
(2) The term "OPERATING COSTS" shall mean all expenses and disbursements
(subject to the limitations set forth below) that Landlord incurs in connection
with the ownership, operation, and maintenance of the Building, determined in
accordance with sound accounting principles consistently applied, including, but
not limited to, the following costs: (A) wages and salaries (including
management fees) of all employees engaged in the operation, maintenance, and
security of the Building, including taxes, insurance and benefits relating
thereto; (B) all supplies and materials used in the operation, maintenance,
repair, replacement, and security of the Building; (C) costs for improvements
made to the Building which, although capital in nature, are expected to reduce
the normal operating costs of the Building, as well as capital improvements made
in order to comply with any law hereafter promulgated by any governmental
authority, as amortized over the useful economic life of such improvements as
determined by Landlord in its reasonable discretion; (D) cost of all utilities,
except the cost of utilities reimbursable to Landlord by the Building's tenants
other than pursuant to a provision similar to this Section 3.(c); (E) insurance
expenses; (F) repairs, replacements, and general maintenance of the Building;
and (G) service or maintenance contracts with independent contractors for the
operation, maintenance, repair, replacement, or security of the Building
(including, without limitation, alarm service, window cleaning, and elevator
maintenance).
Operating Costs shall not include costs for (i) capital improvements made
to the Building, other than capital improvements described in Section
3.(c)(2)(C) and except for items which are generally considered maintenance and
repair items, such as painting of common areas, replacement of carpet in
elevator lobbies, and the like; (ii) repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties;
(iii) interest, amortization or other payments on loans to Landlord; (iv)
depreciation;
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(v) leasing commissions; (vi) legal expenses for services, other than those that
benefit the Building tenants generally (e.g., tax disputes); (vii) renovating or
otherwise improving space for occupants of the Building or vacant space in the
Building; (viii) Taxes (defined below), and (ix) federal income taxes imposed on
or measured by the income of Landlord from the operation of the Building.
(3) Tenant shall also pay its Proportionate Share (defined below) of any
increase in Taxes for each year and partial year falling within the Term, which
shall be determined by multiplying the difference between (A) the Taxes for the
year in question and (B) the Taxes for the year 1998 by Tenant's Proportionate
Share. Tenant shall pay its Proportionate Share of Taxes in the same manner as
provided above for Additional Rent with regard to Operating Costs. "TAXES" shall
mean taxes, assessments, and governmental charges whether federal, state, county
or municipal, and whether they be by taxing districts or authorities presently
taxing or by others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Building (or its operation), excluding, however,
penalties and interest thereon and federal and state taxes on income if the
present method of taxation changes so that in lieu of the whole or any part of
any Taxes, there is levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Building, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be included within the
term "Taxes" for purposes hereof. Taxes shall include the costs of consultants
retained in an effort to lower taxes and all costs incurred in disputing any
taxes or in seeking to lower the tax valuation of the Building.
(4) By April 1 of each calendar year, or as soon thereafter as practicable,
Landlord shall furnish to Tenant a statement of Operating Costs for the previous
year, adjusted as provided in Section 3.(c)(6) and of the Taxes for the previous
year (the "OPERATING COSTS AND TAX STATEMENT"). If the Operating Costs and Tax
Statement reveals that Tenant paid more for Operating Costs than the actual
amount for the year for which such statement was prepared, or more than its
actual share of Taxes for such year, then Landlord shall promptly credit or
reimburse Tenant for such excess; likewise, if Tenant paid less than Tenant's
actual Proportionate Share of Additional Rent or share of Taxes due, then Tenant
shall promptly pay Landlord such deficiency.
(5) As used herein, Tenant's "PROPORTIONATE SHARE" shall be 7%, which is
the percentage obtained by dividing the rentable square feet of area in the
Premises, which is stipulated to be 8,902 rentable square feet, by the total
number of square feet of area in the Building, which is stipulated to be 127,183
rentable square feet.
(6) With respect to any calendar year or partial calendar year in which the
Building is not occupied to the extent of 95% of the rentable area thereof, the
Operating Costs for such period shall, for the purposes hereof, be increased to
the amount which would have been incurred had the Building been occupied to the
extent of 95% of the rentable area thereof.
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(d) TENANT ELECTRIC AND UTILITIES. In addition to the Base Rent and
Additional Rent described above, Tenant shall pay to Landlord, as Additional
Rent, "Tenant Electric" based on an electric survey conducted on Landlord's
behalf with respect to the Building. Tenant Electric shall be due with the
monthly Rent due hereunder. Tenant shall also be responsible for all utilities
billed directly to it, if any.
(e) TENANT INSPECTION RIGHT. After giving Landlord 30-days' prior written
notice thereof, inspect or audit Landlord's records relating to Operating Costs
and Taxes for any periods of time within one year before the audit or
inspection; however, no audit or inspection shall extend to periods of time
before the Commencement Date. If Tenant fails to object to the calculation of
Operating Costs and Taxes on an annual Operating Costs and Tax Statement within
sixty (60) days after the statement has been delivered to Tenant, then Tenant
shall have waived its right to object to the calculation of Operating Costs for
the year in question and the calculation of Operating Costs set forth on such
statement shall be final. Tenant's audit or inspection shall be conducted only
during business hours reasonably designated by Landlord. Tenant shall pay the
cost of such audit or inspection, including $150 per hour of Landlord's or the
building manager's employee time devoted to such inspection or audit to
reimburse Landlord for its overhead costs allocable to the inspection or audit,
unless the total Operating Costs charged to Tenant for the time period in
question is determined to be in error by more than 5% in the aggregrate, and, as
a result thereof Tenant paid to Landlord $2,500 more than the actual Operating
Costs due for such time period, in which case Landlord shall pay the audit cost.
Tenant may not conduct an inspection or have an audit performed more than once
during any calendar year. If such inspection or audit reveals that an error was
made in the Operating Costs previously charged to Tenant, then Landlord shall
refund to Tenant any overpayment of any such costs, or Tenant shall pay to
Landlord any underpayment of any such costs, as the case may be, within 30 days
after notification thereof. Provided Landlord's accounting for Operating Costs
is consistent with the terms of this Agreement, Landlord's good faith judgement
regarding the proper interpretation of this Agreement and the proper accounting
for Operating Costs shall be binding on Tenant in connection with any such audit
or inspection. Tenant shall maintain the results of each such audit or
inspection confidential and shall not be permitted to use any third party to
perform such audit or inspection, other than an independent firm of certified
public accountants (A) reasonably acceptable to Landlord, (B) which is not
compensated on a contingency fee basis or in any other manner which is dependent
upon the results of such audit or inspection (and Tenant shall deliver the fee
agreement or other similar evidence of such fee arrangement to Landlord upon
request), and (C) which agrees with Landlord in writing to maintain the results
of such audit or inspection confidential.
(4) DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments required of
Tenant hereunder which remains past due for a period of five (5) days from its
due date, shall bear interest from the date due until paid at the lesser of 18%
per annum (the "INTEREST RATE") or the maximum lawful rate of interest;
additionally, Landlord may charge Tenant a fee equal to 5% of the payment which
remains past due for a period of five (5) days from its due date to reimburse
Landlord for its cost and inconvenience incurred as a consequence of Tenant's
delinquency. In no event, however, shall the charges permitted under this
Section 4 or elsewhere in this Lease, to the extent they are considered to be
interest under law, exceed the maximum lawful rate of interest.
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5. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord $22,240.00 (the "SECURITY DEPOSIT"), which shall be
held by Landlord to secure Tenant's performance of its obligations under this
Lease. The Security Deposit is not an advance payment of Rent or a measure or
limit of Landlord's damages upon an Event of Default (defined in Section 16).
Landlord may, from time to time and without prejudice to any other remedy, use
all or a part of the Security Deposit to perform any obligation Tenant fails to
perform hereunder. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount. Provided that Tenant has performed
all of its obligations hereunder, Landlord shall, within 30 days after the Term
ends, return to Tenant the portion of the Security Deposit which was not applied
to satisfy Tenant's obligations. The Security Deposit may be commingled with
other funds, and no interest shall be paid thereon. If Landlord transfers its
interest in the Premises and the transferee assumes Landlord's obligations under
this Lease, then Landlord may assign the Security Deposit to the transferee and
Landlord thereafter shall have no further liability for the return of the
Security Deposit.
6. LANDLORD'S OBLIGATIONS.
(a) SERVICES. Landlord shall furnish to Tenant (1) water at those points of
supply provided for general use of tenants of the Building; (2) heated and
refrigerated air conditioning as appropriate, at such temperatures and in such
amounts as are standard for comparable buildings in the vicinity of the
Building; (3) janitorial service to the Premises on weekdays, other than
holidays, for Building-standard installations and such window washing as may
from time to time be reasonably required; (4) elevators for ingress and egress
to the floor on which the Premises are located, in common with other tenants,
provided that Landlord may reasonably limit the number of operating elevators
during non-business hours and holidays; and (5) electrical current during normal
business hours for equipment that does not require more than 110 volts and whose
electrical energy consumption does not exceed normal office usage. Landlord
shall maintain the common areas of the Building in reasonably good order and
condition, except for damage caused by a Tenant Party. If Tenant desires any of
the services specified in Section 6.(a)(2): (A) at any time other than between
7:00 a.m. and 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturdays, or (B) on Saturday after 1:00 p.m., Sunday or holidays, then such
services shall be supplied to Tenant upon the written request of Tenant
delivered to Landlord before 3:00 p.m. on the business day preceding such extra
usage, and Tenant shall pay to Landlord the cost of such services within ten
days after Landlord has delivered to Tenant an invoice therefor. The costs
incurred by Landlord in providing after-hour HVAC service to Tenant shall
include costs for electricity, water, sewage, water treatment, labor, metering,
filtering, and maintenance reasonably allocated by Landlord to providing such
service. The current cost therefor is $45.00 per hour.
(b) EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for equipment that requires more than 110 volts or other
equipment whose electrical energy consumption exceeds normal office usage. If
Tenant's requirements for or consumption of electricity exceed the electricity
to be provided by Landlord as described in Section 6.(a), Landlord shall, at
Tenant's expense, make reasonable efforts to supply such service through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant shall pay to Landlord the cost of such service within ten days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
verifiable
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method, including installation of a separate meter in the Premises installed,
maintained, and read by Landlord, at Tenant's expense. Tenant shall not install
any electrical equipment requiring special wiring or requiring voltage in excess
of 110 volts or otherwise exceeding Building capacity unless approved in advance
by Landlord. The use of electricity in the Premises shall not exceed the
capacity of existing feeders and risers to or wiring in the Premises. Any risers
or wiring required to meet Tenant's excess electrical requirements shall, upon
Tenant's written request, be installed by Landlord, at Tenant's cost, if, in
Landlord's judgment, the same are necessary and shall not cause permanent damage
to the Building or the Premises, cause or create a dangerous or hazardous
condition, entail excessive or unreasonable alterations, repairs, or expenses,
or interfere with or disturb other tenants of the Building. If Tenant uses
machines or equipment in the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise overload any utility,
Landlord may install supplemental air conditioning units or other supplemental
equipment in the Premises, and the cost thereof, including the cost of
installation, operation, use, and maintenance, shall be paid by Tenant to
Landlord within ten days after Landlord has delivered to Tenant an invoice
therefor.
(c) RESTORATION OF SERVICES; ABATEMENT. Landlord shall use reasonable
efforts to restore any service required of it that becomes unavailable; however,
such unavailability shall not render Landlord liable for any damages caused
thereby, be a constructive eviction of Tenant, constitute a breach of any
implied warranty, or, except as provided in the next sentence, entitle Tenant to
any abatement of Tenant's obligations hereunder. If, however, Tenant is
prevented from using the Premises for more than 15 consecutive business days
because of the unavailability of any such service and such unavailability was
not caused by a Tenant Party, then Tenant shall, as its exclusive remedy be
entitled to a reasonable abatement of Rent for each consecutive day (after such
25-day period) that Tenant is so prevented from using the Premises.
(d) HEATING AND AIR CONDITIONING. Provided Tenant shall comply with
applicable Building Regulations, the Building's air conditioning system will be
designed to be capable of maintaining interior conditions of 78 (degrees) F. dry
bulb and 50% relative humidity when outside conditions are 95 (degrees) F. dry
bulb and 75 (degrees) F. wet bulb and winter conditions of 68 (degrees) F.
interior with outside conditions of 0 (degrees) F., and to provide fresh air in
a quantity not less than 0.25 cubic feet per minute per square foot of rentable
floor area of the Building.
7. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the Premises shall be
installed at Tenant's expense only in accordance with plans and specifications
which have been previously submitted to and approved in writing by Landlord. No
alterations or physical additions in or to the Premises may be made without
Landlord's prior written consent, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any alteration or
addition that would affect the Building's structure or its HVAC, plumbing,
electrical, or mechanical systems. Tenant shall not paint or install lighting or
decorations, signs, window or door lettering, or advertising media of any type
on or about the Premises without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed; however, Landlord may withhold
its consent to any such painting or installation which would affect the
appearance of the exterior of the Building or of any common areas of the
Building. All alterations, additions, or improvements made in or upon the
Premises shall, at Landlord's option, either be removed by Tenant prior to the
end of the Term (and
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Tenant shall repair all damage caused thereby), or shall remain on the Premises
at the end of the Term without compensation to Tenant. All alterations,
additions, and improvements shall be constructed, maintained, and used by
Tenant, at its risk and expense, in accordance with all Laws; Landlord's
approval of the plans and specifications therefor shall not be a representation
by Landlord that such alterations, additions, or improvements comply with any
Law.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in a clean,
safe, and operable condition, and shall not permit or allow to remain any waste
or damage to any portion of the Premises. Tenant shall repair or replace,
subject to Landlord's direction and supervision, any damage to the Building
caused by a Tenant Party. If Tenant fails to make such repairs or replacements
within 15 days after the occurrence of such damage, then Landlord may make the
same at Tenant's cost. If any such damage occurs outside of the Premises, then
Landlord may elect to repair such damage at Tenant's expense, rather than having
Tenant repair such damage. The cost of all repair or replacement work performed
by Landlord under this Section 7 shall be paid by Tenant to Landlord within ten
days after Landlord has invoiced Tenant therefor.
(c) PERFORMANCE OF WORK. All work described in this Section 7 shall be
performed only by Landlord or by contractors and subcontractors approved in
writing by Landlord. Tenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Landlord as an additional insured
against such risks, in such amounts, and with such companies as Landlord may
reasonably require. All such work shall be performed in accordance with all Laws
and in a good and workmanlike manner so as not to damage the Premises, the
Building, or the components thereof.
(d) MECHANIC'S LIENS. Tenant shall not permit any mechanic's liens to be
filed against the Premises or the Building for any work performed, materials
furnished, or obligation incurred by or at the request of Tenant. If such a lien
is filed, then Tenant shall, within ten days after Landlord has delivered notice
of the filing thereof to Tenant, either pay the amount of the lien or diligently
contest such lien and deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant fails to timely take either such action,
then Landlord may pay the lien claim, and any amounts so paid, including
expenses and interest, shall be paid by Tenant to Landlord within ten days after
Landlord has invoiced Tenant therefor. All materialmen, contractors, artisans,
mechanics, laborers, and any other persons now or hereafter contracting with
Tenant or any contractor or subcontractor of Tenant for the furnishing of any
labor services, materials, supplies, or equipment with respect to any portion of
the Premises, at any time from the date hereof until the end of the Term of this
Lease, are hereby charged with notice that they look exclusively to Tenant to
obtain payment for same. Nothing contained herein shall be deemed as consent by
Landlord to any liens being placed upon the Building due to any work performed
by or for Tenant.
(e) ENVIRONMENTAL COMPLIANCE.
(1) Tenant acknowledges the existence of environmental laws, rules and
regulations, including the provisions of ISRA (defined below). Tenant shall
comply with any and all such laws, rules and regulations. Tenant represents to
Landlord that Tenant's Standard Industrial Classification (SIC) Number as
designated in the Standard Industrial Classification Manual prepared by the
Office of Management and Budget in the Executive
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Office of the President of the United States will not subject the Premises to
ISRA applicability. Any change by Tenant to an operation with an SIC Number
subject to ISRA shall require Landlord's written consent. Any such proposed
change shall be sent in writing to Landlord sixty (60) days prior to the
proposed change. Landlord, at its sole option, may deny consent.
(2) Tenant agrees to execute such documents as Landlord reasonably deems
necessary and to make such applications as Landlord reasonably requires to
assure compliance with ISRA. Tenant shall bear all costs and expenses incurred
by Landlord associated with any required ISRA compliance resulting from Tenant's
use of the Premises including state agency fees, engineering fees, clean-up
costs, filing fees and suretyship expenses. As used in this Lease, ISRA
compliance shall include applications for determinations of nonapplicability by
the appropriate governmental authority. The foregoing undertaking shall survive
the termination or sooner expiration of this Lease and surrender of the Premises
and shall also survive sale, or lease or assignment of the Premises by Landlord.
Tenant agrees to indemnify and hold Landlord harmless from any violation of ISRA
occasioned by Tenant's use of the Premises. The Tenant shall immediately provide
Landlord with copies of all correspondence, reports, notices, orders, findings,
declarations and other materials pertinent to Tenant's compliance and the
requirements of the New Jersey Department of Environmental Protection ("NJDEP")
under ISRA as they are issued or received by Tenant.
(3) Tenant agrees not to generate, store, manufacture, refine, transport,
treat, dispose of, or otherwise permit to be present on or about the Premises,
any Hazardous Substances. As used herein, "HAZARDOUS SUBSTANCES" shall be
defined as any "hazardous chemical," "hazardous substance" or similar term as
defined in the Comprehensive Environmental Responsibility Compensation and
Liability Act, as amended (42 U.S.C. 9601, et seq.), the New Jersey
Environmental Cleanup Responsibility Act, as amended, N.J.S.A. 13:1K-6 et seq.
and/or the Industrial Site Recovery Act ("ISRA"), the New Jersey Spill
Compensation and Control Act, as amended, N.J.S.A. 58:10-23.11b, et seq., any
rules or regulations promulgated thereunder, or in any other applicable federal,
state or local law, rule or regulation dealing with environmental protection.
The provisions contained in this Section shall be applicable notwithstanding the
fact that any substance shall not be deemed to be a Hazardous Substance at the
time of its use by Tenant but shall thereafter be deemed to be a Hazardous
Substance.
(4) If Tenant fails to comply with ISRA as stated in this Section or any
other governmental law as of the termination or sooner expiration of this Lease
and as a consequence thereof Landlord is unable to rent the Premises, then
Landlord shall treat Tenant as one who has not removed at the end of its Term,
and thereupon be entitled to all remedies against Tenant provided by law in that
situation including a monthly rental of two hundred (200%) percent of the
monthly Basic Rent for the last month of the Term of this Lease or any renewal
term, payable in advance on the first day of each month, until such time as
Tenant provides Landlord with a negative declaration or confirmation that any
required clean-up plan has been successfully completed.
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(5) Tenant agrees to indemnify and hold harmless Landlord and Landlord's
Mortgagee of the Premises from and against any and all liabilities, damages,
claims, losses, judgments, causes of action, costs and expenses (including the
reasonable fees and expenses of counsel) which may be incurred by Landlord or
Landlord's Mortgagee or threatened against Landlord or Landlord's Mortgagee,
relating to or arising out of any breach by Tenant of the undertakings set forth
in this Section 7.(e), said indemnity to survive this Lease expiration or sooner
termination.
8. USE. Tenant shall continuously occupy and use the Premises only for
general office use (the "PERMITTED USE") and shall comply with all Laws relating
to the use, condition, access to, and occupancy of the Premises. The Premises
shall not be used for any use which is disreputable, creates extraordinary fire
hazards, or results in an increased rate of insurance on the Building or its
contents, or for the storage of any hazardous materials or substances. If,
because of a Tenant Party's acts, the rate of insurance on the Building or its
contents increases, then such acts shall be an Event of Default, Tenant shall
pay to Landlord the amount of such increase on demand, and acceptance of such
payment shall not waive any of Landlord's other rights. Tenant shall conduct its
business and control each other Tenant Party so as not to create any nuisance or
unreasonably interfere with other tenants or Landlord in its management of the
Building.
9. ASSIGNMENT AND SUBLETTING.
(a) TRANSFERS; CONSENT. Tenant shall not, without the prior written consent
of Landlord, (1) assign, transfer, or encumber this Lease or any estate or
interest herein, whether directly or by operation of law, (2) permit any other
entity except Affiliates of the Tenant whose net worth is equal to or greater
than Tenant's at the time of such Transfer (defined below) to become Tenant
hereunder by merger, consolidation, or other reorganization, (3) if Tenant is an
entity other than a corporation whose stock is publicly traded, permit the
transfer of an ownership interest in Tenant so as to result in a change in the
current control of Tenant, (4) sublet any portion of the Premises, (5) grant any
license, concession, or other right of occupancy of any portion of the Premises,
or (6) permit the use of the Premises by any parties other than Tenant (any of
the events listed in Section 9.(a)(1) through 9.(a)(6) being a "TRANSFER"). If
Tenant requests Landlord's consent to a Transfer, then Tenant shall provide
Landlord with a written description of all terms and conditions of the proposed
Transfer, copies of the proposed documentation, and the following information
about the proposed transferee: name and address; reasonably satisfactory
information about its business and business history; its proposed use of the
Premises; banking, financial, and other credit information; and general
references sufficient to enable Landlord to determine the proposed transferee's
creditworthiness and character. Landlord shall respond to Tenant's request
within (30) days after Tenant supplies Landlord with all information and
documentation Landlord requests in connection with such request. Landlord shall
not unreasonably withhold its consent to any assignment or subletting of the
Premises, provided that the proposed transferee (A) is creditworthy, (B) has a
good reputation in the business community, C) does not engage in business
similar to those of other tenants in the Building, and (D) is not another
occupant of the Building or person or entity with whom Landlord is negotiating
to lease space in the Building; otherwise, Landlord may withhold its consent in
its sole discretion. Concurrently with Tenant's notice of any request for
consent to a Transfer, Tenant shall pay to Landlord a fee of $750 to defray
Landlord's expenses in reviewing such request, and Tenant shall also reimburse
Landlord immediately upon request for its reasonable
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attorneys' fees not to exceed $500 incurred in connection with considering any
request for consent to a Transfer. If Landlord consents to a proposed Transfer,
then the proposed transferee shall deliver to Landlord a written agreement
whereby it expressly assumes Tenant's obligations hereunder; however, any
transferee of less than all of the space in the Premises shall be liable only
for obligations under this Lease that are properly allocable to the space
subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant authorizes its transferees to make payments of rent
directly to Landlord upon receipt of notice from Landlord to do so. Tenant shall
pay for the cost of any demising walls or other improvements necessitated by a
proposed subletting or assignment.
(b) CANCELLATION. Landlord may, within 30 days after submission of Tenant's
written request for Landlord's consent to an assignment or subletting, cancel
this Lease as to the portion of the Premises proposed to be sublet or assigned
as of the date the proposed Transfer is to be effective. If Landlord cancels
this Lease as to any portion of the Premises, then this Lease shall cease for
such portion of the Premises and Tenant shall pay to Landlord all Rent accrued
through the cancellation date relating to the portion of the Premises covered by
the proposed Transfer. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other person) without
liability to Tenant.
(c) ADDITIONAL COMPENSATION. Tenant shall pay to Landlord, immediately upon
receipt thereof, the excess of (1) all compensation received by Tenant for a
Transfer less the costs reasonably incurred by Tenant with unaffiliated third
parties in connection with such Transfer (i.e., brokerage commissions, tenant
finish work, and the like) over (2) the Rent allocable to the portion of the
Premises covered thereby.
10. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
(a) INSURANCE. Tenant shall maintain throughout the Term the following
insurance policies: (1) commercial general liability insurance in amounts of
$1,000,000 per occurrence with $2,000,000 in the aggregate or such other amounts
as Landlord may from time to time reasonably require, insuring Tenant, Landlord,
Landlord's agents and their respective affiliates against all liability for
injury to or death of a person or persons or damage to property arising from the
use and occupancy of the Premises, (2) insurance covering the full value of
Tenant's property and improvements, and other property (including property of
others) in the Premises, (3) contractual liability insurance sufficient to cover
Tenant's indemnity obligations hereunder, (4) worker's compensation insurance,
containing a waiver of subrogation endorsement acceptable to Landlord, and (5)
business interruption insurance. Tenant's insurance shall provide primary
coverage to Landlord when any policy issued to Landlord provides duplicate or
similar coverage, and in such circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish to Landlord certificates of such insurance
and such other evidence satisfactory to Landlord of the maintenance of all
insurance coverages required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to notify Landlord at least 30
days before cancellation or a material change of any
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such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord.
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant each waives
any claim it might have against the other for any injury to or death of any
person or persons or damage to or theft, destruction, loss, or loss of use of
any property (a "LOSS"), to the extent the same is insured against under any
insurance policy that covers the Building, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or, in the
case of Tenant's waiver, is required to be insured against under the terms
hereof, REGARDLESS OF WHETHER THE NEGLIGENCE OF THE OTHER PARTY CAUSED SUCH
LOSS; however, Landlord's waiver shall not include any deductible amounts on
insurance policies carried by Landlord. Each party shall cause its insurance
carrier to endorse all applicable policies waiving the carrier's rights of
recovery under subrogation or otherwise against the other party.
(c) INDEMNITY. Subject to Section 10.(b), Tenant shall defend, indemnify,
and hold harmless Landlord and its representatives and agents from and against
all claims, demands, liabilities, causes of action, suits, judgments, damages,
and expenses (including attorneys' fees) arising from (1) any Loss arising from
any occurrence on the Premises (other than any Loss arising out of a breach of
Tenant's obligations under Section 7.(e), which shall be subject to the
indemnity in such section) or (2) Tenant's failure to perform its obligations
under this Lease, EVEN THOUGH CAUSED OR ALLEGED TO BE CAUSED BY THE NEGLIGENCE
OR FAULT OF LANDLORD OR ITS AGENTS (OTHER THAN A LOSS ARISING FROM THE SOLE OR
GROSS NEGLIGENCE OF LANDLORD OR ITS AGENTS), AND EVEN THOUGH ANY SUCH CLAIM,
CAUSE OF ACTION, OR SUIT IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT
LIABILITY OF LANDLORD OR ITS AGENTS. THIS INDEMNITY IS INTENDED TO INDEMNIFY
LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE WHEN
LANDLORD OR ITS AGENTS ARE JOINTLY, COMPARATIVELY, CONTRIBUTIVELY, OR
CONCURRENTLY NEGLIGENT WITH TENANT. This indemnity provision shall survive
termination or expiration of this Lease. If any proceeding is filed for which
indemnity is required hereunder, Tenant agrees, upon request therefor, to defend
the indemnified party in such proceeding at its sole cost utilizing counsel
satisfactory to the indemnified party.
11. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
(a) SUBORDINATION. This Lease shall be subordinate to any deed of trust,
mortgage, or other security instrument, or any ground lease, master lease, or
primary lease, that now or hereafter covers all or any part of the Premises (the
mortgagee under any such mortgage or the lessor under any such lease is referred
to herein as a "LANDLORD'S MORTGAGEE"). Any Landlord's Mortgagee may elect, at
any time, unilaterally, to make this Lease superior to its mortgage, ground
lease, or other interest in the Premises by so notifying Tenant in writing. Upon
Tenant's written request, Landlord shall use reasonable efforts to obtain a
subordination, non-disturbance and attornment agreement from Landlord's
Mortgagee.
(b) ATTORNMENT. Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request.
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(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce any
remedy it may have for any default on the part of Landlord without first giving
written notice by certified mail, return receipt requested, specifying the
default in reasonable detail, to any Landlord's Mortgagee whose address has been
given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
12. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
13. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are taken by right of
eminent domain or conveyed in lieu thereof (a "TAKING"), this Lease shall
terminate as of the date of the Taking.
(b) PARTIAL TAKING - TENANT'S RIGHTS. If any part of the Building becomes
subject to a Taking and such Taking will prevent Tenant from conducting its
business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 180 days, then Tenant
may terminate this Lease as of the date of such Taking by giving written notice
to Landlord within 30 days after the Taking, and Rent shall be apportioned as of
the date of such Taking. If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that portion of the Premises
rendered untenantable by the Taking.
(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material portion, but less
than all, of the Building becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to a Landlord's
Mortgagee, then Landlord may terminate this Lease by delivering written notice
thereof to Tenant within 30 days after such Taking, and Rent shall be
apportioned as of the date of such Taking. If Landlord does not so terminate
this Lease, then this Lease will continue, but if any portion of the Premises
has been taken, Rent shall abate as provided in the last sentence of Section
13.(b).
(d) AWARD. If any Taking occurs, then Landlord shall receive the entire
award or other compensation for the land on which the Building is situated, the
Building, and other improvements taken, and Tenant may separately pursue a claim
(to the extent it will not reduce Landlord's award) against the condemnor for
the value of Tenant's personal property which Tenant is entitled to remove under
this Lease, moving costs, loss of business, and other claims it may have.
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14. FIRE OR OTHER CASUALTY.
(a) REPAIR ESTIMATE. If the Premises or the Building are damaged by fire or
other casualty (a "CASUALTY"), Landlord shall, within 90 days after such
Casualty, deliver to Tenant a good faith estimate (the "DAMAGE NOTICE") of the
time needed to repair the damage caused by such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion of the Premises
or the Building is damaged by Casualty such that Tenant is prevented from
conducting its business in the Premises in a manner reasonably comparable to
that conducted immediately before such Casualty and Landlord estimates that the
damage caused thereby cannot be repaired within 270 days after the Casualty,
then Tenant may terminate this Lease by delivering written notice to Landlord of
its election to terminate within 30 days after the Damage Notice has been
delivered to Tenant. If Tenant does not so timely terminate this Lease, then
(subject to Section 14.(c)) Landlord shall repair the Building or the Premises,
as the case may be, as provided below, and Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on a reasonable basis from
the date of damage until the completion of the repair, unless a Tenant Party
caused such damage, in which case, Tenant shall continue to pay Rent without
abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material portion of the
Building, and Landlord makes a good faith determination that restoring the
Premises would be uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the Casualty to a Landlord's Mortgagee, then Landlord
may terminate this Lease by giving written notice of its election to terminate
within 30 days after the Damage Notice has been delivered to Tenant, and Basic
Rent and Additional Rent shall be abated as of the date of the Casualty.
(d) REPAIR OBLIGATION. If neither party elects to terminate this Lease
following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, begin to repair the Building and the Premises and shall proceed with
reasonable diligence to restore the Building and Premises to substantially the
same condition as they existed immediately before such Casualty; however,
Landlord shall not be required to repair or replace any of the furniture,
equipment, fixtures, alterations, and other improvements which may have been
placed by, or at the request of, Tenant or other occupants in the Building or
the Premises, and Landlord's obligation to repair or restore the Building or
Premises shall be limited to the extent of the insurance proceeds actually
received by Landlord for the Casualty in question.
(e) EXPRESS AGREEMENT. The provisions of this Section shall be considered
an express agreement between the parties governing any damage or destruction of
the Premises by fire or other casualty and any present or future law of the
State of New Jersey providing for a contingency in the absence of such an
agreement shall have no application hereto.
15. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied or
assessed against personal property, furniture, or fixtures placed by Tenant in
the Premises. If any taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and Landlord elects to pay the same, or
if the assessed value of Landlord's property is increased by inclusion of such
personal property, furniture or fixtures and Landlord elects to pay the taxes
based on such
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increase, then Tenant shall pay to Landlord, upon demand, the part of such taxes
for which Tenant is primarily liable hereunder; however, Landlord shall not pay
such amount if Tenant notifies Landlord that it will contest the validity or
amount of such taxes before Landlord makes such payment, and thereafter
diligently proceeds with such contest in accordance with law and if the
non-payment thereof does not pose a threat of loss or seizure of the Building or
interest of Landlord therein or impose any fee or penalty against Landlord.
16. EVENTS OF DEFAULT. Each of the following occurrences shall be an "EVENT
OF DEFAULT":
(a) Tenant's failure to pay Rent within five days after Landlord has
delivered notice to Tenant that the same is due; however, an Event of Default
shall occur hereunder without any obligation of Landlord to give any notice if
Landlord has given Tenant written notice under this Section 16.(a) on more than
one occasion during the twelve (12) month interval preceding such failure by
Tenant;
(b) Tenant fails to operate its business in the Premises for the Permitted
Use set forth herein;
(c) Tenant fails to provide any estoppel certificate within the time period
required under Section 24.(e) and such failure shall continue for ten (10) days
after written notice thereof from Landlord to Tenant;
(d) Tenant's failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease and the continuance of such
failure for a period of more than 30 days after Landlord has delivered to Tenant
written notice thereof; and
(e) The filing of a petition by or against Tenant (the term "TENANT" shall
include, for the purpose of this Section 16.(e), any guarantor of Tenant's
obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2)
seeking any relief under any state or federal debtor relief law; (3) for the
appointment of a liquidator or receiver for all or substantially all of Tenant's
property or for Tenant's interest in this Lease; or (4) for the reorganization
or modification of Tenant's capital structure; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of Default unless
Tenant fails to have the proceedings initiated by such petition dismissed within
90 days after the filing thereof.
17. REMEDIES. Upon any Event of Default, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder or by law or equity, take
any of the following actions:
(a) Terminate this Lease by giving Tenant written notice thereof, in which
event Tenant shall pay to Landlord the sum of (1) all Rent accrued hereunder
through the date of termination, (2) all amounts due under Section 18.(a), and
(3) an amount equal to (A) the total Rent that Tenant would have been required
to pay for the remainder of the Term discounted to present value at a per annum
rate equal to the "Prime Rate" as published on the date this Lease is terminated
by The Wall Street Journal, Northeast Edition, in its listing of "Money Rates"
minus one (1%) percent, minus (B) the then present fair rental value of the
Premises for such period, similarly discounted;
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(b) Terminate Tenant's right to possess the Premises without terminating
this Lease by giving written notice thereof to Tenant, in which event Tenant
shall pay to Landlord (1) all Rent and other amounts accrued hereunder to the
date of termination of possession, (2) all amounts due from time to time under
Section 18.(a), and (3) all Rent and other net sums required hereunder to be
paid by Tenant during the remainder of the Term, diminished by any net sums
thereafter received by Landlord through reletting the Premises during such
period, after deducting all costs incurred by Landlord in reletting the
Premises. Landlord shall use reasonable efforts to relet the Premises on such
terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and improvement
of, the Premises); however, Landlord shall not be obligated to relet the
Premises before leasing other portions of the Building. Landlord shall not be
liable for, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to
be taken under this Section 17.(b). If Landlord elects to proceed under this
Section 17.(b), it may at any time thereafter elect to terminate this Lease
under Section 17.(a);
(c) Additionally, without notice, Landlord may alter locks or other
security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant; or
(d) Tenant hereby waives all right of redemption to which Tenant or any
person under Tenant might be entitled by any law now or hereinafter in force.
(e) Re-enter the Premises, or any part thereof, either by summary
dispossess proceedings, other proceedings, by force or otherwise and may
repossess the same and may remove all persons and things therefrom to the end
that Landlord may have, hold and enjoy the Premises again as and of its first
estate and interest therein. The word "re-enter," as used herein, is not
restricted to its technical meaning.
Landlord may exercise each and every remedy in law or in equity or
hereunder in such order and in such combination, from time to time, as Landlord,
in its sole discretion, elects.
18. PAYMENT BY TENANT; NON-WAIVER.
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant shall pay to
Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property, (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations
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which Tenant failed to perform, and (6) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the Event of Default. To the full
extent permitted by law, Landlord and Tenant agree the federal and state courts
of New Jersey shall have exclusive jurisdiction over any matter relating to or
arising from this Lease and the parties' rights and obligations under this
Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an Event of Default
shall not waive Landlord's rights regarding such Event of Default. No waiver by
Landlord of any violation or breach of any of the terms contained herein shall
waive Landlord's rights regarding any future violation of such term. Landlord's
acceptance of any partial payment of Rent shall not waive Landlord's rights with
regard to the remaining portion of the Rent that is due, regardless of any
endorsement or other statement on any instrument delivered in payment of Rent or
any writing delivered in connection therewith; accordingly, Landlord's
acceptance of a partial payment of Rent shall not constitute an accord and
satisfaction of the full amount of the Rent that is due.
19. WAIVER OF DISTRAINT. Landlord waives all lien, right, interest and
claim it might otherwise have in and waives its right of distraint of, the
machinery, fixtures and other property of Tenant, and in any other property of
any nature whether on or off the Premises, belonging to Tenant. The provisions
of this Section are intended to apply to Landlord's common law (if any) and
statutory right of distraint because of failure to pay Basic Rent and Additional
Rent.
20. SURRENDER OF PREMISES. No act by Landlord shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall deliver to Landlord the
Premises with all improvements located therein in good repair and condition,
free of Hazardous Substances placed on the Premises during the Term,
broom-clean, reasonable wear and tear (and condemnation and Casualty damage not
caused by Tenant, as to which Sections 13 and 14 shall control) excepted, and
shall deliver to Landlord all keys to the Premises. Provided that Tenant has
performed all of its obligations hereunder, Tenant may remove all unattached
trade fixtures, furniture, and personal property placed in the Premises by
Tenant, and shall remove such alterations, additions, improvements, trade
fixtures, personal property, equipment, wiring, and furniture as Landlord may
request. Tenant shall repair all damage caused by such removal. All items not so
removed shall be deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such items.
The provisions of this Section 20 shall survive the end of the Term.
21. HOLDING OVER. If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a tenant from month to month and, in addition to all
other damages and remedies to which Landlord may be entitled for such holding
over, Tenant shall pay, in addition to the other Rent, Basic Rent as provided
for pursuant to N.J.S.A. 2A:42-6 which shall be payable in advance on the first
day of each month. The provisions of this Section 21 shall not be deemed to
limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold
Landlord harmless from all loss, costs (including reasonable attorneys' fees)
and liability resulting from such
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failure, including, without limiting the generality of the foregoing, any claims
made by any succeeding tenant founded upon such failure to surrender, and any
lost profits to Landlord resulting therefrom.
22. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of such
rights does not unreasonably interfere with Tenant's occupancy of the Premises,
Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations, additions,
changes, or improvements, whether structural or otherwise, in and about the
Building, or any part thereof; to enter upon the Premises and, during the
continuance of any such work, to temporarily close doors, entryways, public
space, and corridors in the Building; to interrupt or temporarily suspend
Building services and facilities; to change the name of the Building; and to
change the arrangement and location of entrances or passageways, doors, and
doorways, corridors, elevators, stairs, restrooms, or other public parts of the
Building;
(b) To take such reasonable measures as Landlord deems advisable for the
security of the Building and its occupants; evacuating the Building for cause,
suspected cause, or for drill purposes; temporarily denying access to the
Building; and closing the Building after normal business hours and on Sundays
and holidays, subject, however, to Tenant's right to enter when the Building is
closed after normal business hours under such reasonable regulations as Landlord
may prescribe from time to time; and
(c) To enter the Premises at reasonable hours to show the Premises to
prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
23. SUBSTITUTION SPACE. Landlord may, at Landlord's expense, relocate
Tenant within the Building to space which is comparable in size, utility and
condition to the Premises. If Landlord relocates Tenant, Landlord shall
reimburse Tenant for Tenant's reasonable out-of-pocket expenses for moving
Tenant's furniture, equipment, and supplies from the Premises to the relocation
space and for reprinting Tenant's stationery of the same quality and quantity as
Tenant's stationery supply on hand immediately before Landlord's notice to
Tenant of the exercise of this relocation right. Upon such relocation, the
relocation space shall be deemed to be the Premises and the terms of the Lease
shall remain in full force and shall apply to the relocation space.
24. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of the Building
and any of its rights under this Lease. If Landlord assigns its rights under
this Lease, then Landlord shall thereby be released from any further obligations
hereunder, provided that the assignee assumes Landlord's obligations hereunder
in writing.
(b) LANDLORD'S LIABILITY. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages therefor and shall be recoverable
only from the interest of Landlord in the Building, and Landlord shall not be
personally liable for any deficiency. This Section shall not limit
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any remedies which Tenant may have for Landlord's defaults which do not involve
the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's obligations under this Lease
that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with any broker or
agent in connection with the negotiation or execution of this Lease, other than
The Schultz Organization and Cushman and Wakefield of New Jersey, Inc., whose
commission shall be paid by Landlord. Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or agent claiming the
same by, through, or under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish to any
party designated by Landlord, within ten days after Landlord has made a request
therefor, a certificate signed by Tenant confirming and containing such factual
certifications and representations as to this Lease as Landlord may reasonably
request.
(f) NOTICES. All notices and other communications given pursuant to this
Lease shall be in writing and shall be (1) mailed by first class, United States
Mail, postage prepaid, certified, with return receipt requested, and addressed
to the parties hereto at the address specified next to their signature block,
(2) hand delivered to the intended address, or (3) sent by prepaid telegram,
cable, facsimile transmission, or telex followed by a confirmatory letter. All
notices shall be effective upon delivery to the address of the addressee. The
parties hereto may change their addresses by giving notice thereof to the other
in conformity with this provision.
(g) SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a clause or provision as
similar in terms to such illegal, invalid, or unenforceable clause or provision
as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may not be amended except by
instrument in writing signed by Landlord and Tenant. No provision of this Lease
shall be deemed to have been waived by Landlord unless such waiver is in writing
signed by Landlord, and no custom or practice which may evolve between the
parties in the administration of the terms hereof shall waive or diminish the
right of Landlord to insist upon the performance by Tenant in strict accordance
with the terms hereof. The terms and conditions contained in this Lease shall
inure to the benefit of and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided. This Lease is for the sole benefit of
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Landlord and Tenant, and, other than Landlord's Mortgagee, no third party shall
be deemed a third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its obligations
hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Landlord or any party claiming by, through, or
under Landlord, but not otherwise, subject to the terms and conditions of this
Lease.
(j) NO MERGER. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any interest in such
fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not be construed
as an offer, and Tenant shall not have any rights under this Lease unless
Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Landlord and Tenant regarding the subject matter hereof and supersedes all oral
statements and prior writings relating thereto. Except for those set forth in
this Lease, no representations, warranties, or agreements have been made by
Landlord or Tenant to the other with respect to this Lease or the obligations of
Landlord or Tenant in connection therewith. The normal rule of construction that
any ambiguities be resolved against the drafting party shall not apply to the
interpretation of this Lease or any exhibits or amendments hereto.
(m) WAIVER OF JURY TRIAL. To the maximum extent permitted by law, Landlord
and Tenant each waive right to trial by jury in any litigation arising out of or
with respect to this Lease.
(n) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than one
party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
(p) FINANCIAL REPORTS. Within 15 days after Landlord's request, Tenant will
furnish Tenant's most recent audited financial statements (including any notes
to them) to Landlord, or, if no such audited statements have been prepared, such
other financial statements (and notes to them) as may have been prepared by an
independent certified public accountant or, failing those, Tenant's internally
prepared financial statements. Tenant will discuss its financial statements with
Landlord and will give Landlord access to Tenant's books and records in order to
enable Landlord to verify the financial statements. Landlord will not disclose
any aspect of Tenant's financial statements that Tenant designates to Landlord
as confidential except (1) to Landlord's lenders or prospective purchasers of
the Building, (2) in litigation between Landlord and Tenant, and (3) if required
by court order.
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(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to take any action
or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable out-of-pocket costs incurred in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent.
(s) GENERAL DEFINITIONS. The following terms shall have the following
meanings: "LAWS" means all federal, state, and local laws, rules and
regulations, all court orders, all governmental directives and governmental
orders, and all restrictive covenants affecting the Property, and "LAW" means
any of the foregoing; "AFFILIATE" means any person or entity which, directly or
indirectly, controls, is controlled by, or is under common control with the
party in question; "TENANT PARTY" shall include Tenant, any assignees claiming
by, through, or under Tenant, any subtenants claiming by, through, or under
Tenant, and any agents, contractors, employees, invitees of the foregoing
parties; and "INCLUDING" means including, without limitation.
(t) CONFIDENTIALITY. Tenant acknowledges that the terms and conditions of
this Lease are to remain confidential for Landlord's benefit, and may not be
disclosed by Tenant to anyone, by any manner or means, directly or indirectly,
without Landlord's prior written consent. The consent by Landlord to any
disclosures shall not be deemed to be a waiver on the part of Landlord of any
prohibition against any future disclosure.
(u) LIST OF EXHIBITS. All exhibits and attachments attached hereto are
incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Legal Description of Building
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work
Exhibit E - Parking
Exhibit F - Renewal Option
Exhibit G - Right of First Offer
Exhibit H - Rent Abatement
25. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE
20
<PAGE>
BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT,
SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR
OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
Dated as of the date first above written.
TENANT: Q-MED, INC.
By: /s/ MICHAEL W. COX
------------------------------
Name: Michael W. Cox
Title: President
Address: ____________________
____________________
____________________
Telecopy: ____________________
LANDLORD: WHMAB SKW REAL ESTATE
LIMITED PARTNERSHIP
By: WHMAB Gen Par, Inc., General Partner
By: ______________________________
Name: _______________________
Title: _______________________
Address: 1275 K Street, N.W.
Suite 900
Washington, D.C. 20005
Telecopy: 202-216-5801
With a copy to:
Archon Group, L.P.
600 Las Colinas Boulevard,
Suite 1900
Irving, Texas 75039
Attention: Asset Manager
Telecopy: 972-831-___
21
<PAGE>
EXHIBIT A
[OUTLINE OF PREMISES]
A-1
<PAGE>
[THIRD FLOOR PLAN]
<PAGE>
EXHIBIT B
[LEGAL DESCRIPTION OF BUILDING]
B-1
<PAGE>
All that certain lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Township of Old
Bridge, County of _________________, State of New Jersey:
TRACT I:
BEGINNING at a point in the easterly sideline of Laurence Harbor Road (said
sideline being distant 36 feet easterly from the centerline of said Laurence
Harbor Road, where the same is intersected by the westerly sideline of the
Garden State Parkway right of way; thence
(1) South 01 degrees 34 minutes 29 seconds East along the said sideline of
Laurence Harbor Road, 3CB .68 feet to an angle point in said line; thence
(2) South 03 degrees 01 minutes 00 seconds East still along the said line of
Laurence Harbor Road, 353.06 feet to a point; thence
(3) North 86 degrees 59 minutes 00 seconds East 271.00 feet to a point: thence
(4) North 03 degrees 01 minutes 00 seconds West, 238.00 feet to a point and new
corner to Lot 4.01; thence
(5) South 86 degrees 59 minutes 00 seconds West 33.00 feet to another new
corner; thence
(6) North 02 degrees 52 minutes 02 seconds West along a new line of Lot 4.01,
112.46 feet to a point and old corner of Lot 4.01; thence
(7) North 17 degrees 53 minutes 36 seconds East 63.97 feet to a point; thence
(8) North 52 degrees 44 minutes 36 seconds East 208.00 feet to a point in the
westerly sideline of lands of the Garden State Parkway; thence
(9) North 37 degrees 15 minutes 24 seconds West along the westerly line of lands
of the Garden State Parkway, 359.01 feet to an angle point in said line; thence
(10) South 50 degrees 57 minutes 23 seconds West still along the said sideline
of the Garden State Parkway, 276.12 feet to the point of BEGINNING.
NOTE FOR INFORMATION: Said premises are also known as Tax Lot 4.01 in Block 3234
as shown on the Tax Map for the Township of Old Bridge.
EXHIBIT B
<PAGE>
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or its agents, employees or invitees, shall
be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws shall be driven or inserted in
any part of the Building except by Building maintenance personnel. No curtains
or other window treatments shall be placed between the glass and the Building
standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased premises,
at the cost of such tenant, and no tenant shall place any additional door locks
in its leased premises without Landlord's prior written consent. Landlord shall
furnish to each tenant a reasonable number of keys to such tenant's leased
premises, at such tenant's cost, and no tenant shall make a duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby shall be conducted under Landlord's supervision at such times
and in such a manner as Landlord may reasonably require. Each tenant assumes all
risks of and shall be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
C-1
<PAGE>
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants shall not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
10. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall be
operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
14. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating condition,
parked for business purposes having to do with Tenant's business operated in the
Premises, parked within designated parking spaces, one vehicle to each space. No
vehicle shall be parked as a "billboard" vehicle in the parking lot. Any vehicle
parked improperly may be towed away. Tenant, Tenant's agents, employees, vendors
and customers who do not operate or park their vehicles as required shall
subject the vehicle to being towed at the expense of the owner or driver.
Landlord may place a "boot" on the vehicle to immobilize it and may levy a
charge of $50.00 to remove the "boot." Tenant shall indemnify, hold and save
harmless Landlord of any liability arising from the towing or booting of any
vehicles belonging to a Tenant Party.
C-2
<PAGE>
EXHIBIT D
TENANT FINISH-WORK: LANDLORD BUILDS TO PLANS
1. Except as set forth in this Exhibit, Tenant accepts the Premises in
their "AS-IS" condition on the date that this Lease is entered into.
2. On or before the execution of this Lease, Landlord has delivered to
Tenant a space plan depicting improvements to be installed in the Premises,
which plans were prepared by _________________________________ and dated
____________, 19__ (the "WORKING DRAWINGS"). As used herein, "WORKING DRAWINGS"
shall mean the final working drawings approved by Landlord and Tenant, as
amended from time to time by any approved changes thereto, and "WORK" shall mean
all improvements to be constructed in accordance with and as indicated on the
Working Drawings. Tenant shall, at Landlord's request, sign the Working Drawings
to evidence its review and approval thereof. All changes in the Work must
receive the prior written approval of Landlord, and in the event of any such
approved change Tenant shall, at its sole expense upon completion of the Work,
furnish Landlord with an accurate, reproducible "as-built" plan (e.g., sepia) of
the improvements as constructed, which plan shall be incorporated into this
Lease by this reference for all purposes. After the Working Drawings have been
approved, Landlord shall cause the Work to be performed in accordance with the
Working Drawings.
3. If a delay in the performance of the Work occurs (a) because of any
change by Tenant to the Space Plans or the Working Drawings, (b) because of any
specification by Tenant of materials or installations in addition to or other
than Landlord's standard finish-out materials, or (c) if Tenant otherwise delays
completion of the Work, then, notwithstanding any provision to the contrary in
this Lease, Tenant's obligation to pay Rent hereunder shall commence on the
scheduled Commencement Date. If the Premises are not ready for occupancy and the
Work is not substantially completed (as reasonably determined by Landlord) on
the scheduled Commencement Date for any reason other than the reasons specified
in the immediately preceding sentence, then the obligations of Landlord and
Tenant shall continue in full force and Rent shall be abated until the date the
Work is substantially completed and the Premises are tendered to Tenant, which
date shall be the Commencement Date.
4. Landlord shall bear the entire cost of performing the Work depicted on
the Working Drawings initially submitted to and approved by Landlord. Tenant
shall bear the entire additional costs incurred by Landlord in performing the
Work because of an event specified in clause 3.(a), 3.(b), or 3.(c) of this
Exhibit. Tenant shall pay Landlord an amount equal to 50% of the estimated
additional costs of any change to the Working Drawings at the time of such
change; Tenant shall pay to Landlord the remaining portion of additional costs
incurred in performing the Work because of an event specified in clauses 3.(a),
3.(b), or 3.(c) of this Exhibit upon substantial completion of the Work. In
consideration for Landlord's management and supervision for services performed
in connection with clauses 3.(a), 3.(b), or 3.(c) of this Exhibit upon
substantial completion of the Work. In consideration for Landlord's management
and supervision for services performed in connection with clauses 3.(a), 3.(b)
and 3.(c), Tenant shall pay to Landlord a construction management fee equal to
ten percent of the additional costs specified in this Section 4. In addition,
Tenant shall be
D-1
<PAGE>
responsible for the sum of $5,900 of the cost of the Work, in accordance with
the letter attached hereto as D-3. Payment therefor shall be payable within ten
(10) days of billing from Landlord.
5. To the extent not inconsistent with this Exhibit, Section 7.(a) of this
Lease shall govern the performance of the Work and Landlord's and Tenant's
respective rights and obligations regarding the improvements installed pursuant
thereto.
6. All of the work shall be done in accordance with the Americans With
Disabilities Act.
D-2
<PAGE>
EXHIBIT E
PARKING
Tenant may use 4 designated parking spaces in the parking garage and 31
undesignated on site parking spaces in the outside parking lot during the Term.
E-1
<PAGE>
EXHIBIT F
RENEWAL OPTION
Provided no Event of Default exists and Tenant is occupying the entire
Premises at the time of such election, Tenant may renew this Lease for one (1)
additional periods of five (5) years, by delivering written notice of the
exercise thereof to Landlord earlier than twelve (12) months and not later than
nine (9) months before the expiration of the Term. On or before the commencement
date of the extended Term in question, Landlord and Tenant shall execute an
amendment to this Lease extending the Term on the same terms provided in this
Lease, except as follows:
(a) The Basic Rent payable to each month during each such extended Term
shall be ninety-eight percent (98%) of the fair market value, at the
commencement of such extended Term, for space of equivalent, quality, size,
utility and location, with the length of the extended Term and the credit
standing of Tenant to be taken into account;
(b) Tenant shall have no further renewal options unless expressly granted
by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their then-current
condition, and Landlord shall not provide to Tenant any allowances (e.g., moving
allowance, construction allowance, the like) or other tenant inducements.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premise; or (3)
Tenant fails to timely exercise its option under this Exhibit, time being of the
essence with respect to Tenant's exercise thereof.
Within ten (10) days after receipt of Tenant's notice to renew, Landlord
shall send written notice to Tenant of "fair market value" and shall advise
Tenant of the required increase adjustment to the Basic Rent, if any, and the
other terms and conditions offered. If Tenant disagrees with Landlord's
determination of "fair market value" Tenant may, but only within ten (10) days
after receipt of Landlord's notice, require by written notice to Landlord that
the determination of "fair market value" be made by appraisers, in such event,
within ten (10) days thereafter, each party shall select a qualified commercial
real estate appraiser with at least ten (10) years' experience in appraising
property and buildings in the city or submarket in which the Premises are
located. The two appraisers shall give their opinion of fair market value and
other terms within twenty (20) days after their retention. In no event, however,
shall the Base Rent in any year of the renewal term be less than the current
Basic Rent per rentable square foot in effect hereunder. In the event the
opinions of the two appraisers differ and, after good faith efforts over the
succeeding twenty (20) day period, they cannot mutually agree, the appraisers
shall immediately and jointly appoint a third appraiser with the qualifications
specified above. This third appraiser shall immediately (within five (5) days)
choose either the determination of Landlord's appraiser or Tenant's appraiser
and such choice of this third appraiser shall be final and binding on Landlord
and Tenant. Each party shall pay its own costs for its real estate appraiser.
The parties shall equally share the costs of any third appraiser. The parties
F-1
<PAGE>
shall immediately confirm the renewal term, Basic Rent and terms and conditions
so determined, in writing.
F-2
<PAGE>
EXHIBIT G
RIGHT OF FIRST REFUSAL
Provided the Tenant is not in default of the terms and conditions of the
Lease, it is hereby granted a right of first refusal for any contiguous space
(on the same floor or immediately above or below) located in the Building in
which the Premises are located that is or becomes vacant during the Term (the
"Refusal Space"). The Tenant may lease the Refusal Space on the same terms and
conditions as set forth in a bona fide offer received by the Landlord for the
Refusal Space which offer the Landlord is willing to accept. The Landlord shall
deliver to the Tenant a certified abstract of the proposal for the Refusal Space
and the Tenant shall have ten (10) business days in which to notify the Landlord
of its intention to lease the Refusal Space. The Refusal Space shall be governed
by all the terms and conditions as set forth in the Lease (except for the Rent)
including the expiration date, and this Lease shall be modified to accommodate
Refusal Space. Any notice of election to exercise this right of first refusal
right by the Tenant shall be accompanied by two (2) months' Basic Rent to be
held as an additional Security Deposit as per paragraph Five of this Lease. At
said time, this Lease shall automatically be deemed modified to include the
Refusal Space. in the event the Tenant does not respond within the ten (10)
business day time period (which time is of the essence) the Landlord shall be
free to lease the Refusal Space without further liability to the Tenant.
G-1
<PAGE>
EXHIBIT H
RENT ABATEMENT PROVISIONS
Basic Rent shall be abated during the first 3.725 months of the Term.
Commencing with the fifth month of the Term, Tenant shall make Basic Rent
payments as otherwise provided in the Lease (the first payment shall include
.275 (27.5%) of the Basic Rent for the fourth month hereunder). Notwithstanding
such abatement of Basic Rent (a) all other sums due under the Lease, including
Additional Rent and Tenant's share of Taxes shall be payable as provided in the
Lease, and (b) any increases in Basic Rent set forth in the Lease shall occur on
the dates scheduled therefor.
H-1
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> NOV-30-1998
<PERIOD-END> FEB-28-1998
<CASH> 174,412
<SECURITIES> 1,695,512
<RECEIVABLES> 517,820
<ALLOWANCES> 285,480
<INVENTORY> 657,293
<CURRENT-ASSETS> 2,868,844
<PP&E> 2,649,717
<DEPRECIATION> 2,057,334
<TOTAL-ASSETS> 3,740,499
<CURRENT-LIABILITIES> 835,759
<BONDS> 0
0
0
<COMMON> 9,649
<OTHER-SE> 791,654
<TOTAL-LIABILITY-AND-EQUITY> 3,740,499
<SALES> 455,116
<TOTAL-REVENUES> 477,979
<CGS> 148,740
<TOTAL-COSTS> 979,261
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 61,658
<INTEREST-EXPENSE> 49,535
<INCOME-PRETAX> (761,215)
<INCOME-TAX> 0
<INCOME-CONTINUING> (761,215)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (761,215)
<EPS-PRIMARY> (0.08)
<EPS-DILUTED> (0.08)
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