<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________
FORM 8-K
___________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
MAY 11, 1998
CYTRX CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 000-15327 58-1642740
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation)
154 TECHNOLOGY PARKWAY
NORCROSS, GEORGIA 30092
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (770) 368-9500
1
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 11, 1998, CytRx Corporation (the "Company") and Proceutics, Inc.
("Proceutics"), a subsidiary of the Company, consummated the sale of two
buildings owned by them at 150 and 154 Technology Parkway, Norcross, Georgia to
ARE - 150/154 Technology Parkway, LLC ("Alexandria"), an affiliate of Alexandria
Real Estate Equities, Inc. ("Assignor") for an aggregate of $4.5 million.
Proceutics assigned to Alexandria all of Proceutics' rights and obligations
under the lease with Oread, Inc. relating to the 150 Technology Parkway
building. In addition, the Company entered into a ten year lease with
Alexandria for administrative office space at the 154 Technology Parkway
building. A copy of the Lease is filed herewith as Exhibit 99.1 and is
incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(b) Pro Forma Financial Information
The Company has filed herewith as Exhibit 99.2, Pro Forma Condensed
Consolidated Financial Statements consisting of (i) a Pro Forma Consolidated
Balance Sheet as of March 31, 1998 giving effect to the divestiture of VetLife
and the sale of the two buildings and the leaseback by the Company of the
building at 154 Technology Parkway, (ii) a Pro Forma Condensed Consolidated
Statement of Operations for the year ended December 31, 1997 giving effect to
the merger of Zynaxis, Inc. with and into Vaxcel, Inc. and the sale of the two
buildings on Technology Parkway and, (iii) a Pro Forma Condensed Consolidated
Statement of Operations for the three months ended March 31, 1998 giving effect
to the sale of the two buildings and the leaseback by the Company of the
building at 154 Technology Parkway. Such Pro Forma Condensed Consolidated
Financial Statements are incorporated herein by reference.
(c) Exhibits
Number Exhibit
2.1* Purchase and Sale Agreement and Joint Escrow Instructions dated as of
February 23, 1998, between Proceutics and Assignor
2.2** Purchase and Sale Agreement and Joint Escrow Instructions dated as of
February 23, 1998 between the Company and Assignor
99.1 Lease dated as of May 11, 1998 between the Company and Alexandria
99.2 Pro Forma Condensed Consolidated Financial Statements
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* Incorporated by reference to Exhibit 10.14 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1997 filed on March 30, 1998.
** Incorporated by reference to Exhibit 10.13 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1997 filed on March 30, 1998.
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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 hereunto duly authorized.
CYTRX CORPORATION
Date: May 26, 1998 By: /s/ Jack J. Luchese
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Jack J. Luchese
President and Chief Executive Officer
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<PAGE>
EXHIBIT 99.1
LEASE
BY AND BETWEEN
ARE-150/154 TECHNOLOGY PARKWAY, LLC
as Landlord
and
CYTRX CORPORATION
as Tenant
LEASE
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THIS LEASE is made as of May 11, 1998 ("Effective Date"), by and between
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ARE-150/154 TECHNOLOGY PARKWAY, LLC, a Delaware limited liability company
("Landlord") and CYTRX CORPORATION, a Delaware corporation ("Tenant").
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1. Lease of Premises
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Landlord hereby leases and demises to Tenant, and Tenant hereby leases
and hires from Landlord, upon the terms and conditions hereof those certain
premises (the "Demised Premises") within the building (the "Building") located
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on the land described in Exhibit "A" attached hereto (the "Land"), and having
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the mailing address set forth in Section 2.1.1. The Demised Premises, the Land,
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the Building and all landscaping, parking facilities and other improvements and
appurtenances related thereto, are hereinafter collectively referred to as the
"Project", the site plan and legal description for which is attached hereto as
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Exhibit "B". All portions of the Project which are for the non-exclusive use of
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tenants of the
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Project, including, without limitation, driveways, sidewalks, parking areas and
landscaped areas are hereinafter referred to as "Project Common Area".
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2. Basic Lease Provisions
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2.1. For convenience of the parties, certain basic provisions of this Lease
are set forth herein. The provisions set forth herein are subject to the
remaining terms and conditions of this Lease and are to be interpreted in light
of such remaining terms and conditions.
2.1.1 Address of the Building:
154 Technology Parkway
Norcross, Georgia 30092
2.1.2 [Intentionally Omitted]
2.1.3 (a) Rentable Area of Demised Premises: 16,500 square feet.
(b) Rentable Area of Project: 37,080
2.1.4 Initial Basic Annual Rent: $148,500.
2.1.5 Initial Monthly Rental Installments of Basic Annual Rent:
$12,375.
2.1.6 (a) Tenant's Pro Rata Share of Building Operating Expenses:
100% of Building Operating Expenses (as defined in
Section 7)
(b) Tenant's Pro Rata Share of Project Operating Expenses:
44.5% of Project Operating Expenses (as defined in
Section 7)
2.1.7 (a) Term Commencement Date: the Effective Date.
(b) Term Expiration Date: Ten (10) years from the Term
Commencement Date, subject to extension or earlier
termination as provided herein.
2.1.8 Security Deposit: $49,500, to be deposited in accordance with
and subject to the terms of Section 9 hereof.
2.1.9 Permitted Use: Scientific research laboratories and related
warehouse and distribution uses and general office uses
consistent with Section 10 hereof.
2.1.10 Address for Rent Payment:
135 N. Los Robles, Suite 250
Pasadena, California 91101
Attention: Corporate Secretary
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Address for Notices to Landlord:
135 N. Los Robles, Suite 250
Pasadena, California 91101
Attention: Corporate Secretary
With a copy to:
11440 West Bernardo Court, Suite 170
San Diego, California 92127
Attention: Gary A. Kreitzer, Esq.
2.1.11 Address for Notices to Tenant:
154 Technology Parkway
Norcross, Georgia 30092
Attention: Mr. Jack Luchese
3. Term
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3.1. This Lease shall take effect upon the Effective Date and, except as
specifically otherwise provided within this Lease, each of the provisions hereof
shall be binding upon and inure to the benefit of Landlord and Tenant, and each
of their respective successors and permitted assigns, from the Effective Date.
3.2. The term of this Lease (the "Term") will be that period from the Term
----
Commencement Date as defined in Section 4.2 below through the Term Expiration
Date, as such may be terminated or extended as provided herein.
4. Possession and Commencement Date
--------------------------------
4.1. Landlord shall tender possession of the Demised Premises to Tenant on
the Effective Date.
4.2. The "Term Commencement Date" shall be the Effective Date.
----------------------
4.3. [Intentionally Omitted.]
4.4. Subject to the provisions of Section 31.4, access to areas of the
Building necessary for Landlord to exercise its rights or perform its
obligations under this Lease is reserved to Landlord. Access to and possession
of areas necessary for utilities, services, safety and operation of the Project
is reserved to Landlord.
4.5. [Intentionally Omitted.]
5. Rent
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5.1. Tenant agrees, commencing on the Term Commencement Date, to pay
Landlord as Basic Annual Rent for the Demised Premises the sum set forth in
Section 2.1.4 subject to the rental increases provided in Section 6 hereof.
Basic Annual Rent shall be paid in the equal monthly installments set forth in
Section 2.1.5, subject to the rental increases provided in Section 6 hereof,
each in advance on the first day of each and every calendar month during the
Term.
5.2. In addition to Basic Annual Rent, Tenant agrees to pay to Landlord as
additional rent ("Additional Rent") at times hereinafter specified in this Lease
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(i) Tenant's Pro Rata Share of Building Operating Expenses as set forth in
Section 2.1.6, (ii) Tenant's Pro Rata Share of Project Operating Expenses as set
forth in Section 2.1.6 and (iii) any other amounts that Tenant assumes or agrees
to pay under the provisions of this Lease that are owed to Landlord, including,
without limitation, any and all other sums that may become due by reason of any
Default of Tenant or failure on Tenant's part to comply with the agreements,
terms, covenants and conditions of this Lease to be performed by Tenant, after
notice and lapse of applicable cure period.
5.3. Basic Annual Rent and Additional Rent shall together be denominated
"Rent". Rent shall be paid to Landlord, without abatement, deduction, or
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offset, in lawful money of the United States of America, at the office of
Landlord as set forth in Section 2.1.10 or to such other person or at such other
place as Landlord may from time to time designate in writing. In the event the
Term commences or ends on a day other than the first day of a calendar month,
then the Rent for such fraction of a month shall be prorated for such period on
the basis of the actual number of days in the applicable month and shall be paid
at the then current rate for such fractional month.
6. Rent Adjustments
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6.1. Basic Annual Rent shall be increased on the first anniversary of the
Term Commencement Date, and on such date every year thereafter during the Term
(each, a "Rent Adjustment Date") by four percent (4%), compounded annually.
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Each such adjustment shall become effective commencing on the Rent Adjustment
Date.
7. Operating Expenses
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7.1. As used herein, (i) the term "Building Operating Expenses" shall mean
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those Operating Expenses related to the Building and any other area of the
Project with respect to which Tenant has exclusive use, and (ii) the term
"Project Operating Expenses" shall mean those Operating Expenses related to the
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Project Common Areas. As used herein, "Operating Expenses", with respect to
------------------
Project Operating Expenses or Building Operating Expenses, as applicable, shall
include the following to the extent actually incurred by Landlord:
7.1.1 Government impositions, other than those set forth in Section
7.1.3, not paid directly by Tenant, including, without limitation, property tax
costs consisting of real and personal property taxes and assessments (including
amounts due under any improvement bond upon the Building or the Project,
including the parcel or parcels of real property upon which the Building or the
Project are located or assessments levied in lieu thereof) imposed by any
governmental authority or agency; any tax on or measured by gross rentals
received from the rental of space in the Building, or tax based on the square
footage of the Demised
<PAGE>
Premises, the Building or the Project as well as any utilities surcharges, or,
except as otherwise specifically set forth herein, any other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by any federal, state,
regional, municipal or local government authority in connection with the use or
occupancy by Tenant or its employees, agents, contractors or permitted
subtenants of the Building or the parking facilities serving the Building or the
Project; any tax on this transaction or any document to which Tenant is a party
creating or transferring an interest in the Demised Premises; any fee for a
business license required to be held by Landlord to operate the Building for the
purposes contemplated by this Lease; any expenses, including the reasonable cost
of attorneys or experts, reasonably incurred by Landlord in seeking a reduction
by the taxing authority of the applicable taxes, which expenses shall not exceed
the tax refunds obtained as a result of an application for review thereof
unless such application for reduction was submitted by Landlord at the request
of Tenant, in which event Tenant shall pay all such expenses of Landlord in
connection with the reduction proceedings, less tax refunds obtained as a result
of an application for review thereof.
7.1.2 All other costs of any kind paid or incurred by Landlord and
not expressly excluded from Operating Expenses, in connection with the operation
and maintenance of the Building and the Project including, by way of examples
and not as a limitation upon the generality of the foregoing:
(a) costs of repairs and replacements to the Building or the other
improvements within the Project Common Areas, other than Capital Repairs (as
hereinafter defined), as appropriate to maintain the Building or the Project
Common Areas as may be required of Landlord hereunder;
(b) the costs of any capital repairs or improvements ("Capital
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Repairs") to the Building or the Project Common Areas which can be amortized
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over a useful life in excess of one year pursuant to the Internal Revenue Code
and the regulations promulgated therein (the "Code"), the cost of which Capital
----
Repairs shall be amortized over the useful life of the item in question, and
only the annual amortized amount shall be included as part of Operating
Expenses. The useful life of such Capital Repairs shall be the same as set
forth in the Code but in no event greater than ten (10) years;
(c) fees and costs of sewers, cable T.V, trash collection, cleaning
(including windows), heating, ventilation and air-conditioning;
(d) maintenance of landscape and grounds and drives and parking
areas;
(e) security services and devices;
(f) building supplies and maintenance for and replacement of
equipment utilized for operation and maintenance of the Building or the Project;
(g) license, permit and inspection fees;
(h) sales, use and excise taxes on goods and services purchased by
Landlord in connection with the operation, maintenance or repair of the Project
and Building systems and equipment;
<PAGE>
(i) insurance premiums, including premiums for commercial general
liability, property casualty and environmental coverages pursuant to Section 21;
(j) portions of insured losses paid by Landlord as part of the
deductible portion of such losses by reason of insurance policy terms;
(k) costs of utilities furnished to the Project Common Areas;
(l) service contracts and costs of services of independent
contractors retained to do work of nature or type herein referenced; and
(m) costs of compensation (including employment taxes and fringe
benefits) of all persons who perform regular and recurring duties connected with
the day-to-day operation and maintenance of Building or the Project or its
equipment, including without limitation, janitors, floor waxers, window-washers,
watchmen, gardeners, sweepers, and handymen and costs of management services,
which costs of management services shall not exceed one percent (1%) of the
annual Rent due from Tenant.
7.1.3 Notwithstanding the foregoing, Operating Expenses shall not
include:
(a) any net income, franchise, capital stock, estate or inheritance
taxes or taxes which are the personal obligation of Landlord, Tenant or of
another tenant of the Building or Project;
(b) any leasing commissions or expenses which relate to preparation
of rental space for a tenant;
(c) expenses of initial development and construction, including but
not limited to, grading, paving, landscaping, and decorating (as distinguished
from maintenance repair and replacement of the foregoing);
(d) legal expenses relating to other tenants;
(e) costs or expenditures to the extent reimbursed by payments
received by Landlord;
(f) principal, interest or other amounts paid (but excluding any
amount paid as a result of any act or omission of Tenant) on loans to Landlord
or secured by mortgages or deeds of trust or pursuant to any ground lease
covering the Project or a portion thereof (provided interest upon a government
assessment or improvement bond payable in installments is an Operating Expense
under Section 7.1.1 above);
(g) fines, penalties and late charges unless incurred as a result of
any act or omission of Tenant;
(h) promotional and advertising expenses attributable to marketing of
other leaseable space in the Building other than Building signage;
(i) salaries of executive officers of Landlord and employees of
Landlord; and
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(j) depreciation claimed by Landlord for tax purposes (provided this
exclusion of "depreciation" is not intended to delete from Operating Expenses
actual costs of repairs and replacements and reasonable reserves in regard
thereto which are provided for in Section 7.1.2 above).
7.1.4 Notwithstanding anything to the contrary set forth herein,
Landlord and Tenant acknowledge their respective maintenance and repair
obligations pursuant to Section 18 and that, until Landlord exercises its rights
pursuant to Section 24.3, no costs associated with Tenant's maintenance and
repair obligations shall become a Building Operating Expense.
7.1.5 No expense items paid for by Tenant as Building Operating
Expenses shall be included in Landlord's calculation of Project Operating
Expenses, and no items paid for by Tenant as Project Operating Expenses shall be
included in Landlord's calculation of Building Operating Expenses. Landlord
shall use its good faith efforts to keep Operating Expenses at a reasonable
level.
7.2. Tenant shall pay to Landlord on the first day of each calendar month
of the Term, as Additional Rent, Landlord's estimate of Tenant's Pro Rata Share
of Building Operating Expenses and Tenant's Pro Rata Share of Project Operating
Expenses for such month.
7.2.1 Within ninety (90) days after the conclusion of each calendar
year Landlord shall furnish to Tenant a statement showing in reasonable detail
the actual Operating Expenses and Tenant's Pro Rata Share of Building Operating
Expenses and Tenant's Pro Rata Share of Project Operating Expenses for the
previous calendar year. Any additional sum due from Tenant to Landlord shall be
due and payable no later than thirty (30) days after delivery of such statement.
If the amounts paid by Tenant pursuant to Section 7.2 exceeds Tenant's Pro Rata
Share of Building Operating Expenses or Tenant's Pro Rata Share of Project
Operating Expenses, as applicable, for the previous calendar year, Landlord
shall, at Landlord's option, either (i) credit the excess amount to the next
succeeding installments of estimated Additional Rent, or (ii) pay the excess to
Tenant within thirty (30) days after delivery of such statements.
7.2.2 Any amount due under Section 7.2 for any period which is less
than a full month shall be prorated for such fractional month on the basis of
the actual number of days in the month.
7.3. Landlord's annual statement shall be final and binding upon Tenant
unless Tenant, within sixty (60) days after Tenant's receipt thereof, shall
contest any item therein by giving written notice to Landlord, specifying each
item contested and the reason therefor. If, during such sixty (60) day period,
Tenant reasonably and in good faith questions or contests the correctness of
Landlord's statement of Tenant's Pro Rata Share of Building Operating Expenses
or Tenant's Pro Rata Share of Project Operating Expenses, Landlord will provide
Tenant with access to Landlord's books and records pertaining to Operating
Expenses and such other information as Landlord reasonably determines to be
responsive to Tenant' questions. In the event that after Tenant's review of
such information, Landlord and Tenant cannot agree upon the amount of Tenant's
Pro Rata Share of Building Operating Expenses or Tenant's Pro Rata Share of
Project Operating Expenses, then Tenant shall have the right to
<PAGE>
have an independent public accounting firm selected from among the ten (10)
largest in the United States hired by Tenant and approved by Landlord (which
approval shall not be unreasonably withheld or delayed) audit and/or review such
Landlord's books and records for the year in question (the "Independent
-----------
Review"). The results of any such Independent Review shall be binding on
Landlord and Tenant. If the Independent Review shows that Tenant's Pro Rata
Share of Building Operating Expenses or Tenant's Pro Rata Share of Project
Operating Expenses actually paid for the calendar year in question exceeded
Tenant's obligations for such calendar year, Landlord shall at Landlord's option
either (1) credit the excess amount to the next succeeding installments of
estimated Additional Rent or (2) pay the excess to Tenant within thirty (30)
days after delivery of such statement. If the Independent Review shows that
Tenant's payments of Tenant's Pro Rata Share of Building Operating Expenses or
Tenant's Pro Rata Share of Project Operating Expenses for such calendar year
were less than Tenant's obligation for the calendar year, Tenant shall pay the
deficiency to the Landlord within thirty (30) days after delivery of such
statement. All costs and expenses in connection with the Independent Review
shall be Tenant's sole obligation; provided, however, that if the Independent
Review shows that Tenant's payments of Tenant's Pro Rata Share of Building
Operating Expenses Tenant's Pro Rata Share of Project Operating Expenses
actually paid for the calendar year in question exceeded Tenant's obligations
for such calendar year by five percent (5%) or more, Landlord shall pay the
costs of the Independent Review.
7.4. The responsibility of Tenant for Tenant's Pro Rata Share of Building
Operating Expenses and Tenant's Pro Rata Share of Project Operating Expenses
shall continue to the latest of (i) the date of termination of the Lease, or
(ii) the date Tenant has fully vacated the Demised Premises (including, without
limitation, the removal of all items required hereby to be removed and the
completion of all procedures necessary to fully release and terminate any
permits or licenses restricting the use of the Demised Premises in any manner).
7.5. Operating Expenses for the calendar year in which Tenant's obligation
to share therein commences and in the calendar year in which such obligation
ceases, shall be prorated. Expenses such as taxes, assessments and insurance
premiums which are incurred for an extended time period shall be prorated based
upon time periods to which applicable so that the amounts relate to the time
period wherein Tenant has an obligation to share in Operating Expenses.
7.6. [Intentionally Omitted.]
7.7. The parties agree that statements in this Lease to the effect that
Landlord is to perform certain of its obligations hereunder at its own cost and
expense shall not be interpreted as excluding any cost from Operating Expenses
if such cost is an Operating Expense pursuant to the terms of this Lease.
8. Rentable and Usable Area
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8.1. The terms "Rentable Area" as used within this Lease shall mean the
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rentable area and useable area, respectively, as calculated in accordance with
the 1996 Standard Method for Measuring Floor Area in Office Buildings as adopted
by the Building Owners and Managers Association.
9. Security Deposit
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9.1. Tenant has deposited with Landlord the sum set forth in Section 2.1.8
(together with all interest earned thereon, the "Security Deposit") in cash,
----------------
which Security Deposit shall be held by Landlord as security for the performance
by Tenant of all of the terms, covenants, and conditions of this Lease to be
kept and performed by Tenant during the Term. If a Default occurs with respect
to any provision of this Lease, including, but not limited to, any provision
relating to the payment of Rent, Landlord may (but shall not be required to)
use, apply or retain all or any part of the Security Deposit for the payment of
any Rent or any other sum in Default, or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's Default. If any
portion of the Security Deposit is so used or applied, Tenant shall, upon demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount, and Tenant's failure to do so shall be
a material breach of this Lease. The Security Deposit shall be held in an
interest bearing account separate from Landlord's general fund.
9.2. In the event of bankruptcy or other debtor-creditor proceedings
against Tenant, the Security Deposit shall be deemed to be applied first to the
payment of Rent and other charges due Landlord for all periods prior to the
filing of such proceedings.
9.3. Landlord shall deliver the Security Deposit, or any balance thereof
following application of any portion of the Security Deposit pursuant to the
provisions of Section 9.1, to any purchaser of Landlord's interest in the
Demised Premises, and, upon such purchaser's written confirmation of receipt of
the Security Deposit and assumption of Landlord's obligations under this Lease,
Landlord shall be discharged from any further liability with respect to the
Security Deposit. This provision shall also apply to any subsequent transfers.
9.4. If Tenant shall fully perform every provision of this Lease to be
performed by Tenant, the Security Deposit, or any balance thereof following
application of any portion of the Security Deposit pursuant to the provisions of
Section 9.1, shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest hereunder) within thirty (30) days after the
expiration or earlier termination of this Lease.
10. Use
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10.1. Tenant shall use the Demised Premises for the purpose set forth in
Section 2.1.9 and shall not use the Demised Premises, or permit or suffer the
Demised Premises to be used, for any other purpose without the prior written
consent of Landlord which may be withheld in Landlord's sole discretion.
10.2. Tenant shall not use or occupy the Demised Premises in violation of
any federal, state and local laws and regulations, zoning ordinances, or of the
certificate of occupancy issued for the Building, and shall, upon five (5) days'
written notice from Landlord, discontinue any use of the Demised Premises which
is declared or claimed by any governmental authority having jurisdiction to be a
violation of law, regulation or zoning ordinance or of said certificate of
occupancy. Tenant shall comply with any direction of any governmental authority
having jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Demised Premises, impose any duty upon Tenant or Landlord with
respect to the Demised Premises or with respect to the use or occupation
thereof.
<PAGE>
10.3. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, environmental, extended coverage or
any other insurance policy covering the Building and Project and shall comply
with all rules, orders, regulations, and requirements of the insurers of the
Building and Project and Tenant shall promptly upon demand reimburse Landlord
for any additional premium charged for such policy by reason of Tenant's failure
to comply with the provisions of this Section 10.3.
10.4. [Intentionally Omitted.]
10.5. Tenant shall notify Landlord of additional locks or bolts of any
kind placed upon any of the doors or windows by Tenant or any changes made in
existing locks or the mechanism thereof, and Tenant shall provide Landlord with
copies of any keys or other access devices required for such additional or
changed locks or bolts. Tenant must, upon termination of this Lease return to
Landlord all keys to offices and restrooms, either furnished to, or otherwise
procured by Tenant. In the event any key so furnished is lost, Tenant shall pay
to Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such change.
Notwithstanding the foregoing, Tenant shall have the right to designate certain
areas of the Building as "secure" areas, and, subject to the provisions of
Section 31.4, to limit access thereto.
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10.6. No awnings or other projection shall be attached to any outside wall
of the building. Without Landlord's prior consent, which shall not be
unreasonably withheld, conditioned or delayed (i) the interior or exterior of
any windows shall not be coated or otherwise sunscreened, (ii) the window
treatments shall not be changed (other than replacements as part of Tenant's
maintenance and repair obligations hereunder), and (iii) no bottles, parcels, or
other articles shall be placed on the windowsills. No equipment, furniture or
other items of personal property shall be placed on any exterior balcony without
the express written consent of Landlord, which shall not be unreasonably
withheld, conditioned or delayed.
10.7. No sign, advertisement, or notice shall be exhibited, painted or
affixed by Tenant on the exterior of the Building without the prior written
consent of Landlord, which shall not be unreasonably withheld.
10.8. No equipment weighing five hundred (500) pounds, or greater, shall
be placed upon the Demised Premises from and after the Effective Date without
advance notice to and approval by Landlord, which shall not be unreasonably
withheld, conditioned or delayed . Placement of such equipment, if approved by
Landlord, shall be only at a location designed to carry the weight of such
equipment.
10.9. Tenant shall not do or permit anything to be done in or about the
Demised Premises which shall in any way obstruct or interfere with the rights of
other tenants or occupants of the Project, or use or allow the Demised Premises
to be used for unlawful purposes or, other than the particular research (and
related uses) being conducted by Tenant or other occupants of the Building as of
the Effective Date, for purposes which Landlord reasonably finds immoral or
objectionable. Tenant shall not knowingly cause, maintain or permit any
nuisance or waste in, on, or about the Building or Project.
10.10. Notwithstanding any other provision herein to the contrary, Tenant
shall be responsible for all liabilities, costs and expenses arising out of or
in connection with the
<PAGE>
compliance of the Demised Premises with (i) any laws ordinances or regulations
of any governmental entity, including, without limitation, the Americans With
Disabilities Act, 42 U.S.C. (S) 12101, et seq. (collectively "Governmental
------------
Requirements"), as each is in effect as of the Effective Date, or (ii) any
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Governmental Requirements, as in effect as of the Effective Date or as may be
amended or modified, where noncompliance results from Tenant's use of or
alterations to the Project. Tenant hereby indemnifies and agrees to defend and
hold harmless Landlord from and against any loss, cost, liability or expense
(including reasonable attorneys fees and disbursements) arising out of any
failure of the Demised Premises to comply with Governmental Requirements;
provided, however, that all liabilities, costs and expenses arising out of or in
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connection with the compliance with any amended or modified Governmental
Requirements and not in connection with Tenant's use of or alterations to the
Project, and any modifications of or alterations to the Demised Premises made by
Landlord for Landlord's benefit and at Landlord's sole cost and expense, shall
be Capital Repairs for the purposes of calculating Operating Expenses pursuant
to Section 7.1.2.
11. Brokers
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11.1. Landlord and Tenant each represents and warrants to the other party
hereto that it has had no dealings with any real estate broker or agent in
connection with the negotiation of this Lease other than Atlanta Real Estate
Partners ("Broker") and that neither Landlord nor Tenant knows of any other real
------
estate broker or agent who is or might be entitled to a commission in connection
with this Lease. Landlord further represents to Tenant that no commission or
fee is due Broker in connection with this Lease.
11.2. Tenant hereby indemnifies and shall defend, hold and save Landlord
harmless from and against any and all claims for any commissions or fees in
connection with this Lease made by any broker or finder having worked, or
claiming to have worked, on behalf Tenant, other than Broker. Landlord hereby
indemnifies and shall defend, hold and save Tenant harmless from and against any
and all claims for any commissions or fees in connection with this Lease made by
any broker or finder having worked, or claiming to have worked, on behalf
Landlord, including, without limitation, Broker.
11.3. Tenant represents and warrants that no broker or agent has made any
representation or warranty relied upon by Tenant in Tenant's decision to enter
into this Lease other than as contained in this Lease.
11.4. Tenant acknowledges and agrees that the employment of brokers by
Landlord is for the purpose of solicitation of offers of lease from prospective
tenants and no authority is granted to any broker to furnish any representation
(written or oral) or warranty from Landlord unless expressly contained within
this Lease. Landlord in executing this Lease does so in reliance upon Tenant's
representations and warranties contained within Sections 11.1 and 11.3 hereof.
12. Holding Over
------------
12.1. If, with Landlord's express written consent, Tenant holds possession
of all or any part of the Demised Premises after the expiration or earlier
termination of the Term, Tenant shall become a tenant from month-to-month upon
the date of such expiration or earlier termination, and in such case Tenant
shall continue to pay Basic Annual Rent in the amount
<PAGE>
payable upon the date of the expiration or earlier termination of this Lease or
such other amount as Landlord may indicate, in Landlord's sole and absolute
discretion, in such written consent, and all other provisions, representations,
covenants and agreements contained herein, other than with respect to the Term
and any extensions thereof, but specifically including, without limitation, the
adjustment of Basic Annual Rent pursuant to Section 6 hereof, shall remain in
full force and effect.
12.2. Notwithstanding the foregoing, if Tenant remains in possession of
the Demised Premises after the expiration or earlier termination of the Term
without the express written consent of Landlord, Tenant shall become a tenant at
sufferance upon the terms of this Lease except that the monthly rental shall be
equal to one hundred fifty percent (150%) of the Basic Annual Rent and
Additional Rent in effect during the last thirty (30) days of the Term. Tenant
shall be responsible for all damages suffered by Landlord resulting from or
occasioned by Tenant's holding over.
12.3. Acceptance by Landlord of Rent after such expiration or earlier
termination shall not result in a renewal or reinstatement of this Lease.
12.4. The foregoing provisions of this Section 12 are in addition to and
do not affect Landlord's right to re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
13. Taxes
-----
13.1. Tenant shall pay, prior to delinquency, any and all taxes levied
against any personal property or trade fixtures placed by Tenant in or about the
Demised Premises.
13.2. If any such taxes on Tenant's personal property or trade fixtures
are levied against Landlord or Landlord's property or, if the assessed valuation
of the Building or the Project is increased by the inclusion therein of a value
attributable to Tenant's personal property or trade fixtures, and if Landlord,
after written notice to Tenant, pays the taxes based upon such increase in the
assessed value, then Tenant shall upon demand repay to Landlord the taxes so
levied against Landlord.
14. Condition of Demised Premises
-----------------------------
14.1. Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the condition of the
Demised Premises or the Building or Project, or with respect to the suitability
for the conduct of Tenant's business. The taking of possession of the Demised
Premises by Tenant shall, except as otherwise agreed in writing by Landlord and
Tenant conclusively establish that the Demised Premises and Building were at
such time in good, sanitary and satisfactory condition and repair. Tenant
further acknowledges that, prior to the Effective Date, Tenant has been in
possession of the Demised Premises as owner, that as owner Tenant has developed
an intimate familiarity with the Building and the Project and that Tenant is
accepting the Demised Premises "AS-IS,"; provided, however, that the foregoing
shall in no way limit Landlord's obligations under the Lease, including without
limitation, Landlord's obligations to perform Capital Repairs, maintenance and
repairs of the Project Common Areas and repairs, subsequent to any casualty or
condemnation as set forth herein.
<PAGE>
15. Parking Facilities
------------------
15.1. As an appurtenance to the Demised Premises, Tenant shall have the
exclusive right on a reserved basis to use parking facilities serving the
Building located on the Land and depicted on the Site Plan as "Tenant's
Designated Spaces" (the "Parking Allotment").
-----------------
15.2. Tenant agrees not to unreasonably overburden the parking facilities
in excess of the Parking Allotment and agrees to cooperate with Landlord and
other tenants in the use of parking facilities. Landlord reserves the right to
determine that parking facilities are becoming overcrowded and to limit Tenant's
use thereof (but not below the Parking Allotment). Upon such determination,
Landlord may reasonably allocate parking spaces among Tenant and other tenants;
provided that Tenant shall at all times be allowed to use the Parking Allotment.
In the alternative, if Landlord determines that Tenant's customers, clients, or
invitees appear to be using more than the Parking Allotment, Landlord may
require Tenant and its employees to obtain parking outside the Project for such
excess uses. However, nothing in this Section 15.2 is intended to create an
affirmative duty on Landlord's part to monitor parking.
16. Utilities and Services
----------------------
16.1. Tenant shall pay for all water, (including the cost to service,
repair and replace reverse osmosis, deionized and other treated water) gas,
heat, light, power, telephone and other utilities supplied to the Demised
Premises, together with any fees, surcharges and taxes thereon. All such
utilities shall be separately metered to Tenant.
16.2. Landlord shall not be liable for, nor shall any eviction of Tenant
result from, the failure to furnish any such utility or service whether or not
such failure is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, governmental
regulation, moratorium or other governmental action, inability despite the
exercise of reasonable diligence or by any other cause. In the event of such
failure, Tenant shall not be entitled to any abatement or reduction of Rent, nor
be relieved from the operation of any covenant or agreement of this Lease.
16.3. Tenant shall pay directly to the applicable utility or service
provider, prior to delinquency, for all utilities and services which may be
furnished to Tenant or the Demised Premises during the Term.
16.4. If Tenant desires to use any device in the Demised Premises,
including, but without limitation, data processing machines and laboratory
equipment, which will in any way increase the amount of ventilation, air
exchange, gas, steam, electricity or water beyond the existing capacity of the
Building, Tenant shall be solely responsible for all cost and expense in
connection with increasing the existing capacity of the Building, and all
alterations required to so increase the capacity shall be made upon prior
written notice to Landlord and pursuant to the terms and provisions of Article
17.
16.5. [Intentionally Omitted.]
16.6. [Intentionally Omitted.]
<PAGE>
16.7. Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements (but
only to the extent and for such time as reasonably necessary under the
circumstances), in the reasonable judgment of Landlord desirable or necessary to
be made, until said repairs, alterations or improvements shall have been
completed, and Landlord shall use its good faith efforts to cause such repairs,
alterations or improvements to be promptly completed. Landlord shall further
have no responsibility or liability for failure to supply elevator facilities,
plumbing, ventilation, air conditioning or electric service, when prevented from
doing so by strike or accident, or by laws, rules, order, ordinances,
directions, regulations or requirements of any federal, state, country or
municipal authority or failure to deliver gas, oil or other suitable fuel supply
or inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel. It is expressly understood and agreed that any covenants on
Landlord's part to furnish any service pursuant to any of the terms, covenants,
conditions, provisions or agreements of this Lease, or to perform any act or
thing for the benefit of Tenant, shall not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike or labor trouble or
any other cause outside the reasonable control of Landlord.
17. Alterations
-----------
17.1. Tenant shall make no alterations, additions or improvements in or to
the Demised Premises without Landlord's prior written consent, which approval
shall not be unreasonably withheld, conditioned or delayed (provided, however,
that in the event any proposed alteration, addition or improvement affects (i)
any structural portions of the Building including exterior walls, roof,
foundation and core of the Building, (ii) the exterior of the Building or (iii)
any Building systems, including elevator, plumbing, air conditioning, heating
electrical, security, life safety and power, then Landlord may withhold its
consent with respect thereto in its sole and absolute discretion), and then only
by architects, contractors, suppliers or mechanics approved by Landlord in
Landlord's reasonable discretion. In seeking Landlord's approval, Tenant shall
provide Landlord, at least fourteen (14) days in advance of any proposed
construction, with plans, specifications, bid proposals, work contracts and such
other information concerning the nature and cost of the alterations as may be
reasonably requested by Landlord. Notwithstanding anything contained herein to
the contrary, to the extent Tenant desires to alter the Demised Premises for the
purpose of installing ventilation hoods and ventilation systems, back-up
generators or security systems, Landlord shall grant or withhold its consent in
the exercise of its reasonable discretion and such consent shall not be
unreasonably conditioned or delayed. Further, alterations to the Demised
Premises having a cost of $25,000 or less which are not referenced in the
previous sentence or described in items (i) (ii) or (iii) of this Section 17.1
may be made by Tenant without Landlord's consent or approval; provided, however,
Tenant shall provide Landlord with prior written notice describing in reasonable
detail the alterations being undertaken by Tenant without Landlord's consent.
17.2. [Intentionally Omitted.]
17.3. Tenant agrees that there shall be no construction of partitions or
other obstructions which might interfere with free access to mechanical
installation or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities.
<PAGE>
17.4. Tenant agrees that any work by Tenant shall be accomplished in such
a manner as to permit any fire sprinkler system and fire water supply lines to
remain fully operable at all times.
17.5. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
directions, regulations, and requirements of all governmental agencies, offices,
departments, bureaus and boards having jurisdiction, and in full compliance with
the rules, orders, directions, regulations, and requirements of any applicable
fire rating bureau. Upon demand by Landlord, Tenant shall provide Landlord with
(i) construction agreements, building plans, lien releases and other similar
documentation with respect to any improvements or alterations reasonably
requested by Landlord or Landlord's lenders, insurers or investors, and (ii)
"as-built" plans showing any change in the Demised Premises.
17.6. Before commencing any work, Tenant shall give Landlord at least
fourteen (14) days prior written notice of the proposed commencement of such
work and shall, for any work costing in excess of One Hundred Thousand Dollars
($100,000) and if required by Landlord, secure at Tenant's own cost and expense
a completion and lien indemnity bond or other security for completion of said
work reasonably satisfactory to Landlord.
17.7. All alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements, built-in furniture and cabinets, together
with all additions and accessories thereto, subject to Sections 17.9 and 17.10,
attached to or built into the Demised Premises, made by either of Landlord or
Tenant from and after the Effective Date, including (without limiting the
generality of the foregoing) all floor and wallcovering, built-in cabinet work
and paneling, sinks and related plumbing fixtures, exterior venting fume hoods
and walk-in freezers and refrigerators, clean rooms, climatized rooms, ductwork,
conduits, electrical panels and circuits, shall become the property of Landlord
upon the expiration or earlier termination of the term of this Lease, and shall
remain upon and be surrendered with the Demised Premises as a part thereof. At
the same time as Landlord delivers to Tenant Landlord's consent to any
alteration, addition or improvement pursuant to Section 17.1, Landlord shall
------------
notify Tenant of Landlord's election to cause Tenant to remove any items which
are the subject of such consent from the Demised Premises upon the expiration or
earlier termination of this Lease, and, if Landlord so elects, Tenant shall
remove such alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements upon the expiration or earlier termination
of this Lease and restore any damage caused by or occasioned as a result of such
result. Tenant shall be deemed to be in occupancy of the Demised Premises
during any such restoration period.
17.8. [Intentionally Omitted.]
17.9. Except as to those items listed on Exhibit "D" attached hereto and
-----------
incorporated herein, all business and trade fixtures, machinery and equipment,
built-in furniture and cabinets, together with all additions and accessories
thereto, installed in and upon the Demised Premises as of the Effective Date
shall be and remain the property of Landlord and shall not be moved by Tenant at
any time during the Term. If Tenant shall fail to remove all of its property
from the Demised Premises prior to expiration or earlier termination of this
Lease, then Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects without liability to Tenant for
loss thereof or damage thereto, and Tenant
<PAGE>
agrees to pay Landlord upon demand any expenses incurred by Landlord in
connection with such removal and storage or Landlord may, subject to applicable
law, at its option, without notice, sell said property or any of the same, at
private sale and without legal process, for such price as Landlord may obtain
and apply the proceeds of such sale against any amounts due under this Lease
from Tenant to Landlord and against any expenses incident to the removal,
storage and sale of said personal property.
17.10. Notwithstanding any other provision of this Section 17 to the
contrary, in no event may Tenant remove any improvement from the Demised
Premises as to which Landlord contributed payment without Landlord's prior
written consent, which may be withheld in Landlord's sole discretion.
17.11. In connection with any improvement or alteration project costing in
excess of Twenty-Five Thousand ($25,000), Tenant shall pay to Landlord up to
five percent (5%) of the cost to Tenant of all charges incurred by Tenant of its
contractors or agents in connection with such alterations, additions or
improvements to the Demised Premises to cover Landlord's actual expenses for
plan review, coordination, scheduling and supervision thereof. For purposes of
payment of such sum, Tenant shall submit to Landlord copies of all bills,
invoices, and statements covering the costs of such charges, which will be
accompanied by payment to Landlord of the percentage fee set forth above.
Tenant shall reimburse Landlord for any extra expense incurred by Landlord by
reason of faulty work done by Tenant or its contractors, or by reason of delays
caused by such work, or by reason of inadequate cleanup.
18. Repairs and Maintenance
-----------------------
18.1. Landlord shall perform the Capital Repairs and shall repair and
maintain the Project Common Areas, including, without limitation, repair and
maintenance of landscaping, parking facilities, driveways, walkways, lighting,
utilities, snow removal, irrigation and storm water management systems (and the
full or amortized cost thereof, as applicable, shall be included as a part of
Operating Expenses), unless such Capital Repairs or maintenance or repairs are
required in whole or in part because of any act, neglect, fault of or omissions
of any duty by Tenant, its agents, servants, employees, contractors, guests or
invitees, in which case Tenant shall pay to Landlord the cost of such Capital
Repairs or maintenance and repairs to the extent such costs are incurred as a
result of any act, neglect, fault of or omission of any duty by Tenant, its
agents, servants, employees, contractors, guests or invitees.
18.2. Except for services of Landlord, if any, required by Section 18.1,
Tenant shall at Tenant's sole cost and expense keep the Demised Premises and
every part thereof in good condition and repair, damage thereto from ordinary
wear and tear excepted and subject to the provisions of Section 22. Tenant
shall, upon the expiration or earlier termination of this Lease, surrender the
Demised Premises to Landlord in as good as condition as when received, ordinary
wear and tear excepted and subject to the provisions of Section 22. Landlord
shall have no obligation to alter, remodel, improve, repair, decorate or paint
the Demised Premises or any part thereof.
18.3. [Intentionally Omitted.]
18.4. [Intentionally Omitted.]
<PAGE>
18.5. This Section 18 relates to repairs and maintenance arising in
ordinary course of operation of the Building, the Project and any related
facilities. In the event of fire, earthquake, flood, vandalism, war, or similar
cause of damage or destruction, this Section 18 shall not be applicable and the
provisions of Section 22 shall apply and control.
19. Liens
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19.1. Subject to the immediately succeeding sentence, Tenant shall keep
the Demised Premises, the Building, and the Land free from any liens arising out
of work performed, materials furnished or obligations incurred by Tenant.
Tenant further covenants and agrees that any mechanic's lien filed against the
Demised Premises or against the Building or the Project for work claimed to have
been done for, or materials claimed to have been furnished to Tenant, will be
discharged by Tenant, by bond or otherwise, within thirty (30) days after the
receipt of notice of the filing thereof, at the sole cost and expense of Tenant.
19.2. Should Tenant fail to discharge any lien of the nature described in
Section 19.1, Landlord may at Landlord's election pay such claim or post a bond
or otherwise provide security to eliminate the lien as a claim against title and
the cost thereof shall be immediately due from Tenant as Additional Rent.
19.3. In the event Tenant shall lease or finance the acquisition of office
equipment, furnishings, or other personal property of a removable nature
utilized by Tenant in the operation of Tenant's business, Tenant warrants that
any Uniform Commercial Code Financing Statement executed by Tenant will upon its
face or by exhibit thereto indicate that such Financing Statement is applicable
only to removable personal property of Tenant located within the Demised
Premises. In no event shall the address of the Building be furnished on the
statement without qualifying language as to applicability of the lien only to
removable personal property owned by Tenant, located in an identified suite held
by Tenant. Should any holder of a Financing Statement executed by Tenant record
or place of record a Financing Statement which appears to constitute a lien
against any interest of Landlord or against equipment which may be located other
than within the Demised Premises, Tenant shall within ten (10) days after filing
such Financing Statement (i) cause a copy of the Security Agreement or other
documents to which Financing Statement pertains to be furnished to Landlord to
facilitate Landlord's being in a position to show such lien is not applicable to
Landlord's interest, and (ii) cause Tenant's lender to amend any documents of
record so as to clarify that such lien is not applicable to any interest of
Landlord in the Building or the Project.
20. Indemnification and Exculpation
-------------------------------
20.1. Tenant hereby indemnifies and agrees to defend and save Landlord
harmless from and against any and all demands, claims, liabilities, losses,
costs, expenses, actions, causes of action, damages or judgments, and all
reasonable expenses actually incurred in investigating or resisting the same
(including, without limitation, reasonable attorneys' fees, charges and
disbursements actually incurred), for injury or death to person or injury to
property occurring within or about Project, arising out of Tenant's, it's
employees, agents or guests use or occupancy of the Project or a breach or
default by Tenant in the performance of any of its obligations hereunder, except
to the extent caused by the willful act or gross negligence of the Landlord.
<PAGE>
20.2. Landlord hereby indemnifies and agrees to defend, hold and save
Tenant harmless from and against any and all demands, claims, liabilities,
losses, costs, expenses, actions, causes of action, damages or judgments, and
all reasonable expenses actually incurred in investigating or resisting the same
(including, without limitation, reasonable attorneys' fees, charges and
disbursements actually incurred), for injury or death to person or injury to
property occurring within or about the Project, arising out of the use or
occupancy of the Project by Landlord and its employees, agents, or guests or a
breach or default by Landlord in the performance of any of its obligations
hereunder, except to the extent caused by the willful act or gross negligence of
Tenant.
20.3. Landlord shall not be liable to Tenant and Tenant assumes all risk
of damage to personal property or scientific research, including loss of records
kept within the Demised Premises if the cause of such damage is of a nature
which, if Tenant had elected to maintain fire and theft insurance with extended
coverage and business records endorsement available on a commercially reasonable
basis, would be a loss subject to settlement by the insurance carrier,
including, but not limited to, damage or losses caused by fire, electrical
malfunctions, gas explosion, and water damage of any type, including, but not
limited to, broken water lines, malfunction of fire sprinkler system, roof
leakage or stoppages of lines unless and except if such loss is due to willful
disregard of Landlord after written notice by Tenant of need for a repair which
Landlord is responsible to make for an unreasonable period of time. Tenant
further waives any claim for injury to Tenant's business or loss of income
relating to any such damage or destruction of personal property including any
loss of records.
20.4. Landlord shall not be liable for any damages arising from any act,
omission or neglect of any other tenant in the Building or the Project or of any
other unrelated third party, except to the extent caused by the willful act or
gross negligence of Landlord or any of its employees, agents or independent
contractors.
20.5. Security devices and services, if any, while intended to deter crime
may not in given instances prevent theft or other criminal acts and it is agreed
that Landlord shall not be liable for injuries or losses caused by criminal acts
of third parties and the risk that any security device or service may
malfunction or otherwise be circumvented by a criminal is assumed by Tenant.
Tenant shall at Tenant's cost obtain insurance coverage to the extent Tenant
desires protection against such criminal acts.
21. Insurance - Waiver of Subrogation
---------------------------------
21.1. Landlord, as part of Operating Expenses, shall carry throughout the
Term insurance upon the Building, (i) in an amount equal to full replacement
cost (exclusive of the costs of excavation, foundations, and footings, and
without reference to depreciation taken by Landlord upon its books or tax
returns), (ii) providing protection against any peril generally included within
the classification "Fire and Extended Coverage" together with insurance against
sprinkler damage (if applicable), vandalism and malicious mischief and rental
losses for a period not less than twelve (12) months, and (iii) if commercially
available, with a deductible not to exceed Ten Thousand Dollars ($10,000). At
Tenant's request, Landlord shall use its good faith efforts to cause such
deductible to be reduced, provided that such reduced deductible is commercially
available and that Tenant shall be solely responsible for all costs and expenses
in connection with the reduction of such deductible, including, without
limitation, any increases in the premium associated with such reduced
deductible. Landlord, subject to
<PAGE>
availability thereof and, as part of Operating Expenses, shall further insure as
Landlord deems appropriate coverage against flood, environmental hazard and
earthquake, loss or failure of building equipment, rental loss during the period
of repair or rebuild, workmen's compensation insurance and fidelity bonds for
employees employed to perform services. Notwithstanding the foregoing, Landlord
may, but shall not be deemed required to, provide insurance as to any
improvements installed by Tenant or which are in addition to the standard
improvements customarily furnished by Landlord without regard to whether or not
such are made a part of the Building.
21.2. Landlord, as part of Operating Expenses, shall further carry
throughout the Term commercial general liability insurance with a single loss
limit of not less than Two Million Dollars ($2,000,000.00) for death or bodily
injury, or property damage with respect to the Project.
21.3. Tenant at its own cost shall procure and continue in effect from the
Term Commencement Date and continuing throughout the Term (and occupancy by
Tenant, if any, after the expiration or earlier termination of this Lease)
comprehensive commercial liability insurance with limits of not less than Two
Million Dollars ($2,000,000.00) per occurrence for death or bodily injury, not
less than One Million Dollars ($1,000,000.00) for property damage with respect
to the Demised Premises, and not less than a Five Million Dollar ($5,000,000)
aggregate loss limit.
21.4. The aforesaid required insurance shall name Landlord and Tenant, and
their respective officers, employees and agents, as insureds. All insurance
required by this Article 21 shall be with companies having a rating of not less
than policyholder rating of A and financial category rating of at least Class
XII in "Best's Insurance Guide." Each of Landlord and Tenant shall obtain from
its insurance companies or cause its insurance companies to furnish certificates
of coverage to the other party hereto. No such policy shall be cancelable or
subject to reduction of coverage or other modification or cancellation except
after thirty (30) days prior written notice to Landlord from the insurer. All
such policies shall be written as primary policies, not contributing with and
not in excess of the coverage which Landlord may carry. Tenant's policy may be
a "blanket policy" which specifically provides that the amount of insurance
shall not be prejudiced by other losses covered by the policy. Each of Landlord
and Tenant shall, at least twenty (20) days prior to the expiration of such
policies, furnish the other party hereto with renewals or binders. Tenant
agrees that if Tenant does not take out and maintain such insurance, Landlord
may (but shall not be required to) procure said insurance on Tenant's behalf and
at its cost to be paid as Additional Rent.
21.5. Tenant assumes the risk of damage to any fixtures, goods, inventory,
merchandise, equipment, and leasehold improvements, and Landlord shall not be
liable for injury to Tenant's business or any loss of income therefrom relative
to such damage all as more particularly heretofore set forth within this Lease.
Tenant at Tenant's cost shall carry such insurance as Tenant desires for
Tenant's protection with respect to personal property of Tenant or business
interruption.
21.6. The party carrying the insurance required hereunder shall upon
written request of the other party hereto, also designate and furnish
certificates evidencing the requesting party as an insured to (i) any lender of
such requesting party holding a security interest in, as applicable, the Lease
or the Building or real property upon which the Building is situated,
<PAGE>
and/or (ii) the landlord under any lease wherein Landlord is tenant of the real
property whereupon the Building is located if the interest of Landlord is or
shall become that of a tenant under a ground lease rather than that of a fee
owner, and/or (iii) any management company retained by Landlord to manage the
Project.
21.7. Landlord and Tenant each hereby waive any and all rights of recovery
against the other or against the officers, directors, employees, agents, and
representatives of the other, on account of loss or damage occasioned to such
waiving party or its property or the property of others under its control to the
extent that such loss or damage is insured against under any fire and extended
coverage insurance policy which either may have in force, but not less than as
required pursuant to this Article 21, at the time of such loss or damage. Such
waivers shall continue as long as their respective insurers so permit. Any
termination of such a waiver shall be by written notice of circumstances as
hereinafter set forth. Landlord and Tenant upon obtaining the policies of
insurance required or permitted under this Lease shall give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease. If such policies shall not be obtainable with such
waiver or shall be so obtainable only at a premium over that chargeable without
such waiver, the party seeking such policy shall notify the other thereof, and
the latter shall have ten (10) days thereafter to either (i) procure such
insurance with companies reasonably satisfactory to the other party or (ii)
agree to pay such additional premium. If neither (i) nor (ii) are done, this
Section 21.7 shall have no effect during such time as such policies shall not be
obtainable or the party in whose favor a waiver of subrogation is desired
refuses to pay the additional premium. If such policies shall at any time be
unobtainable, but shall be subsequently obtainable, neither party shall be
subsequently liable for a failure to obtain such insurance until a reasonable
time after notification thereof by the other party. If the release of either
Landlord or Tenant, as set forth in the first sentence of this Section 21.7
shall contravene any law with respect to exculpatory agreements, the liability
of the party in question shall be deemed not released but shall be secondary to
the other's insurer.
21.8. Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord's lender.
22. Damage or Destruction
---------------------
22.1. In the event of a partial destruction of the Building (i) by fire or
other perils covered by extended coverage insurance required by Section 21 not
exceeding (x) twenty-five percent (25%) of the full insurable value thereof, or
(y) so long at least five (5) years will remain in the Term as of the date of
completion of reconstruction, fifty percent (50%) of the full insurable value
thereof; (ii) the damage thereto is such that the Building may be repaired,
reconstructed, or restored within a period of nine (9) months from the date of
the happening of such casualty; and (iii) Landlord will receive insurance
proceeds sufficient to cover the cost of such repairs (except for any deductible
amount provided by Landlord's policy pursuant to the terms of Section 21, which
deductible amount if paid by Landlord shall be an Operating Expense), Landlord
shall commence and proceed diligently with the work of repair, reconstruction
and restoration and this Lease shall continue in full force and effect.
22.2. In the event of any damage to or destruction of the Building, other
than as provided in Section 22.1, Landlord may elect to repair, reconstruct and
restore the Building, in which case this Lease shall continue in full force and
effect. If Landlord elects not to repair then this Lease shall terminate as of
date of destruction.
<PAGE>
22.3. Landlord shall give written notice to Tenant of its election not to
repair, reconstruct or restore the Building or Project within the sixty (60) day
period following the date of damage or destruction.
22.4. Upon any termination of this Lease under any of the provisions of
this Section, the parties shall be released thereby without further obligation
to the other from the date possession of the Demised Premises is surrendered to
the Landlord except for obligations which have theretofore accrued.
22.5. In the event of repair, reconstruction and restoration as herein
provided, the rental provided to be paid under this Lease shall be abated
proportionately based on the extent to which Tenant's use of the Demised
Premises is impaired during the period of such repair, reconstruction or
restoration, unless Landlord provides Tenant with other space during the period
of repair, which in Tenant's reasonable opinion is suitable for the temporary
conduct of Tenant's business.
22.6. Notwithstanding anything to the contrary contained in this Section,
should Landlord be delayed or prevented from completing the repair or
restoration of the damage to the Demised Premises after the occurrence of such
damage or destruction by reason of acts of God or war, governmental
restrictions, inability to procure the necessary labor or materials, strikes, or
other reasons beyond the control of Landlord (collectively, "Force Majeure
-------------
Delay"), the time for Landlord to commence or complete repairs shall be
extended; provided, at the election of either party exercisable by the delivery
--------
of written notice to the other party not later than sixty (60) days after
Landlord notifies Tenant of Landlord's inability to complete the repairs by the
end of the eighteenth (18/th/) month following such damage as a result of a
Force-Majeure Delay, Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligation under
this Lease effective as of the date of the receipt of such written notice.
22.7. If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repairs or restoration only of
those portions of the Building and the Demised Premises which were originally
provided at Landlord's expense; the repair and restoration of items not provided
at Landlord's expense shall be the obligation of Tenant. In the event Tenant
elected to upgrade certain improvements from the standard normally provided by
Landlord, Landlord shall, upon the need for replacement due to an insured loss,
provide only the standard Landlord improvements unless Tenant shall elect to
again upgrade and pay any additional cost of such upgrades, except to such
extent as insurance proceeds which, if received, the excess proceeds are
adequate to provide such upgrades, in addition to providing for basic
reconstruction and standard improvements.
22.8. Notwithstanding anything to the contrary contained in this Section,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Demised Premises when the damage resulting from any casualty covered
under this Section exceeds Fifty Thousand Dollars ($50,000) and occurs during
the last twenty-four (24) months of the Term (as the Term may have been extended
pursuant to Section 41 hereof); provided, however, that Landlord's termination
of this Lease under this Section 22.8 may be nullified by Tenant's initial
exercise of its right to extend the Term of the Lease within thirty (30) days of
Landlord's
<PAGE>
exercise of such termination right, or to the extent that insurance proceeds are
not available therefor and Tenant shall not pay any shortfall.
23. Eminent Domain
--------------
23.1. In the event the whole of the Demised Premises, or such part thereof
as shall substantially interfere with the Tenant's use and occupancy thereof,
shall be taken for any public or quasi-public purpose by any lawful power or
authority by exercise of the right of appropriation, condemnation or eminent
domain, or sold to prevent such taking, Tenant or Landlord may terminate this
Lease effective as of the date possession is required to be surrendered to said
authority.
23.2. In the event of a partial taking of the Building or the Land for any
public or quasi-public purpose by any lawful power or authority by exercise of
right of appropriation, condemnation, or eminent domain, or sold to prevent such
taking, then Landlord may elect to terminate this Lease as of such taking if
such taking is, in the opinion of Landlord, of a material nature such as to make
it uneconomical to continue use of the unappropriated portion for the purposes
contemplated by this Lease.
23.3. Tenant shall be entitled to any award which is specifically awarded
as compensation for the taking of Tenant's property, which was installed at
Tenant's expense and for costs of Tenant moving to a new location. Except as
before set forth, any award for such taking shall belong to Landlord; provided,
--------
that, Tenant shall have the right, at Tenant's sole cost and expense, to pursue
- ----
a separate award from the condemning authority in connection with such taking
and Tenant hereby indemnifies and agrees to defend and save Landlord harmless
from and against any and all demands, claims, liabilities, losses, costs,
expenses, actions, causes of action, damages or judgments, and all reasonable
expenses actually incurred (including, without limitation, reasonable attorneys'
fees, charges and disbursements actually incurred) arising out of or in
connection with Tenant's pursuit of such separate award, including, without
limitation, any reduction in the award granted to Landlord.
23.4. If, upon any taking of the nature described in this Section 23, this
Lease continues in effect, the Landlord shall promptly proceed to restore the
Demised Premises, Building and the Project to substantially their same condition
prior to such partial taking. To the extent such restoration is feasible, as
determined by Landlord in its sole discretion, the Rent shall be abated
proportionately based upon the extent to which Tenant's use of the Demised
Premises has decreased on the basis of the percentage of the rental value of the
Demised Premises after such taking and the rental value of the Demised Premises
prior to such taking.
24. Defaults and Remedies
---------------------
24.1. If Tenant is in Default of Tenant's obligation to pay Rent, Tenant
shall pay to Landlord an additional sum of six percent (6%) of the overdue Rent
as a late charge. In addition to the late charge if Tenant is in Default of
Tenant's obligation to pay Rent. Rent not paid when due shall bear interest
from the 5th day after date due until paid at the lesser of (i) twelve percent
(12%) per annum or (ii) the maximum rate permitted by law.
<PAGE>
24.2. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent payment herein stipulated shall be deemed to be other than on account
of the Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or pursue any other remedy provided.
If at any time a dispute shall arise as to any amount or sum of money to be paid
by Tenant to Landlord, Tenant shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary payment, and
there shall survive the right on the part of Tenant to institute suit for
recovery of the payment paid under protest.
24.3. If Tenant fails to pay any sum of money required to be paid by it
hereunder, or shall fail to perform any other act on its part to be performed
hereunder, Landlord may, without waiving or releasing Tenant from any
obligations of Tenant, but shall not be obligated to, make such payment or
perform such act. All sums so paid or incurred by Landlord, together with
interest thereon, from the date such sums were paid or incurred, at the annual
rate equal to twelve percent (12%) per annum or highest rate permitted by law,
whichever is less, shall be payable to Landlord on demand as Additional Rent.
24.4. The occurrence of any one or more of the following events shall
constitute a "Default" hereunder by Tenant:
-------
24.4.1 The abandonment or vacation of the Demised Premises by Tenant;
24.4.2 The failure by Tenant to make any payment of Rent as and when
due and such failure continues for more than five (5) days following delivery
of written notice from Landlord (provided, however, that (i) no such notice
-------- -------
shall be required in the event that Landlord has given one (1) such notice to
Tenant within the preceding twelve (12) months, and (ii) such notice shall be in
place of, and not in addition to, any similar notice required under Georgia
law);
24.4.3 The failure by Tenant to observe or perform any obligation or
covenant contained herein (other than described in Section 24.4.1 and 24.4.2) to
be performed by Tenant, where such failure shall continue for a period of thirty
(30) days after written notice thereof from Landlord to Tenant. Such notice
shall be in lieu of, and not in addition to, any notice required under Georgia
law; provided that if the nature of Tenant's default is such that it reasonably
requires more than thirty (30) days to cure, then Tenant shall not be deemed to
be in default if Tenant shall commence such cure within said thirty (30) day
period and thereafter diligently prosecutes the same to completion provided,
however, that such cure is completed no later than ninety (90) days from the
date of written notice;
24.4.4 Tenant makes an assignment for the benefit of creditors;
24.4.5 A receiver, trustee or custodian is appointed to, or does,
take title, possession or control of all, or substantially all, of Tenant's
assets and is not judicially dismissed within sixty (60) days after appointment;
<PAGE>
24.4.6 Tenant files a voluntary petition under the Bankruptcy Code
(or any similar law) or an order for relief is entered against Tenant pursuant
to a voluntary or involuntary proceeding commenced under any chapter of the
Bankruptcy Code;
24.4.7 Any involuntary petition if filed against the Tenant under any
chapter of the Bankruptcy Code and is not dismissed within ninety (90) days; or
24.4.8 Tenant's interest in this Lease is attached, executed upon, or
otherwise judicially seized and such action is not released within ninety (90)
days of the action.
Notices given under this Section 24.4 shall specify the alleged default and
shall demand that Tenant perform the provisions of this Lease or pay the Rent
that is in arrears, as the case may be, within the applicable period of time, or
quit the Demised Premises. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Landlord elects otherwise in such notice.
Notwithstanding anything to the contrary set forth herein, any Default relating
to the payment of money shall be deemed cured upon receipt by Landlord of the
original amount payable by Tenant, together will all late charges and interest
due and owing on such original amount as of the date of delivery of such
original amount to Landlord.
24.5. In the event of a Default by Tenant, and at any time thereafter,
with or without notice or demand and without limiting Landlord in the exercise
of any right or remedy which Landlord may have, Landlord shall be entitled to
terminate Tenant's right to possession of the Demised Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Demised Premises to Landlord. In such event,
Landlord shall have the immediate right to re-enter and remove all persons and
property, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of Tenant, all without service of
notice or resort to legal process and without being deemed guilty of trespass,
or becoming liable for any loss or damage which may be occasioned thereby. In
the event that Landlord shall elect to so terminate this Lease, then Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord by
reason of Tenant's Default, including:
24.5.1 The worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
24.5.2 The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination for the balance of
the term exceeds the reasonable rental value of the Demised Premises for such
time period; plus
24.5.3 Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligation under
this Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, the cost of restoring the Demised
Premises to the condition required under the terms of this Lease; plus
24.5.4 At the Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by applicable
law.
<PAGE>
As used in Sections 24.5.1 above, "worth at the time of award" shall be computed
by allowing interest at the rate specified in Section 24.1. As used in Section
24.5.2 above, the "worth at the time of the award" shall be computed by taking
the present value of such amount, by using the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award plus six (6) percentage
points.
24.6. If Landlord does not elect to terminate this Lease as provided in
this Section, then Landlord may, from time to time, recover all Rent as it
becomes due under this Lease. At any time thereafter, Landlord may elect to
terminate this Lease and to recover damage to which Landlord is entitled.
24.7. In the event Landlord elects to terminate this Lease and relet the
Demised Premises, it may execute any new lease in its own name. Tenant
hereunder shall have no right or authority whatsoever to collect any Rent from
such tenant. The proceeds of any such reletting shall be applied as follows:
First, to the payment of any indebtedness other than Rent due
-----
hereunder from Tenant to Landlord, including, but not limited to, storage
charges or brokerage commissions owing from Tenant to Landlord as the
result of such reletting;
Second, to the payment of the costs and expenses of reletting the
------
Demised Premises, including alterations and repairs which Landlord deems
reasonably necessary and advisable and reasonable attorneys' fees, charges
and disbursements actually incurred by Landlord in connection with the
retaking of the Demised Premises and such reletting;
Third, to the payment of Rent and other charges due and unpaid
-----
hereunder; and
Fourth, to the payment of future Rent and other damages payable by
------
Tenant under this Lease.
24.8. All rights, options, and remedies of Landlord contained in this
Lease shall be construed and held to be nonexclusive and cumulative. Landlord
shall have the right to pursue any one or all of such remedies or any other
remedy or relief which may be provided by law, whether or not stated in this
Lease. No waiver of any default of Tenant hereunder shall be implied from any
acceptance by Landlord of any Rent or other payments due hereunder or any
omission by Landlord to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect defaults
other than as specified in said waiver.
24.9. Termination of this Lease or Tenant's right to possession by
Landlord shall not relieve Tenant from any liability to Landlord which has
theretofore accrued or shall arise based upon events which occurred prior to the
last to occur of (i) the date of Lease termination or (ii) the date possession
of Demised Premises is surrendered.
24.10. Landlord shall not be in default under any provision of this Lease
unless Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no
<PAGE>
event shall such failure continue for more than thirty (30) days after written
notice by Tenant specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
-------- -------
such that more than thirty (30) days are required for performance, then Landlord
shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion. In
the event that Landlord fails to cure any default within the time periods set
forth in this Section 24.10, or in the event of a condition giving rise to an
emergency threatening imminent harm to human health or safety or substantial
damage to property, Tenant shall have the right to take all necessary and
reasonable action to cure such default or remedy such condition to the extent
necessary to eliminate the emergency, and all such action shall be performed by
Tenant is a good and workmanlike manner in accordance will all applicable
governmental requirements. Upon delivery to Landlord of documentation of the
costs and expenses incurred by Tenant pursuant to the provisions of this Section
24.10, which costs and expenses shall be at the market rate regardless of
whether Tenant performs the work or hires unrelated third parties and shall not
exceed the amounts necessary to cure the specific default or emergency
condition, Landlord shall reimburse Tenant for such documented costs and
expenses.
24.11. In the event of any default on the part of Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgagee or a mortgage covering the Demised Premises and to any
landlord of any lease of any building in which Demised Premises is located whose
address shall have been furnished, and Tenant shall offer such beneficiary,
mortgagee and/or landlord a reasonable opportunity to cure the default,
including time to obtain possession of the Building by power of sale or a
judicial action if such should prove necessary to effect a cure, provided the
Landlord shall have furnished to Tenant in writing the names and addresses of
all such persons who are to receive such notices.
25. Assignment or Subletting
------------------------
25.1. Assignment. Tenant shall not, either voluntarily or by operation of
----------
law, directly or indirectly, sell, hypothecate, assign, pledge, encumber or
otherwise transfer this Lease, without the prior written consent of Landlord in
each instance, which consent may be withheld in Landlord's sole discretion.
25.2. Subleasing. Except as hereinafter provided, Tenant shall not,
----------
either voluntarily or by operation of law, directly or indirectly, sublet the
Demised Premises or any part thereof, or permit or suffer the Demised Premises
or any part thereof to be used or occupied as work space, storage space, mailing
privileges, concession or otherwise by anyone other than Tenant or Tenant's
employees, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld conditioned or delayed. Landlord
shall consent to the subleases of portions of the Demised Premises to the month-
to- month tenants in occupancy of portions of the Demised Premises as of the
Effective Date (the "Month-to-Month Tenants"), which subleases shall be in
----------------------
compliance with the terms of Section 25.7.10.
25.3. If Tenant is a corporation, the shares of which are not actively
traded upon a stock exchange or in the over-the-counter market, a transfer or
series of transfers whereby twenty-five percent (25%) or more of the issued and
outstanding shares of such corporation are, or the voting control is,
transferred (but excepting transfers upon deaths of individual shareholders)
from a person or persons or entity or entities which were owners thereof at time
<PAGE>
of execution of this Lease to persons or entities who were not owners of shares
of the corporation at time of execution of this Lease shall be deemed an
assignment of this Lease requiring the consent of Landlord as provided in
Section 25.1 above.
25.4. If Tenant desires to assign this Lease to any entity into which
Tenant is merged, with which Tenant is consolidated, or which acquires all or
substantially all of the assets of Tenant, provided that the assignee first
executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this Lease
and that the assignee shall have a net worth (determined in accordance with
generally accepted accounting principles consistently applied) immediately after
such assignment which is at least equal to the net worth (as so determined) of
Tenant immediately prior to the assignment (or as of the date hereof, if
greater), then Landlord, upon receipt of proof of foregoing shall consent to
such assignment so long as no change in the permitted use pursuant to Section 2
is requested.
25.5. In the event Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Demised Premises, then at least
thirty (30) days, but not more than ninety (90) days, prior to the date when
Tenant desires the assignment or sublease to be effective (the "Assignment
----------
Date"), Tenant shall give Landlord a notice (the "Assignment Notice") containing
-----------------
information (including references) concerning the character of the proposed
assignee or sublessee, the Assignment Date, any ownership or commercial
relationship between Tenant and the proposed assignee or sublessee, and the
consideration and all other material terms and conditions of the proposed
assignment or sublease along with such other information as Landlord may
reasonably require, all in such detail as Landlord shall reasonably require.
25.6. Landlord in making its determination as to whether consent should be
given to a proposed assignment or sublease, may give consideration to the
financial strength of such successor (notwithstanding the assignor remaining
liable for Tenant's performance) and any change in use which such successor
proposes to make in use of Demised Premises. In no event shall Landlord be
deemed to be unreasonable for declining to consent to transfer to a successor of
poor reputation, lacking financial qualifications, or seeking change in use.
25.7. As conditions precedent to Landlord considering a request by Tenant
to Tenant's transfer of rights or subletting of the Demises Premises, Landlord
may require any or all of the following:
25.7.1 Tenant shall remain fully liable under this Lease during the
unexpired Term;
25.7.2 Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord that the value of Landlord's interest under this Lease
will not thereby be diminished or reduced. Such evidence shall include, but
need not be limited to, evidence respecting the relevant business experience and
financial responsibility and status of the third party concerned;
25.7.3 Tenant shall reimburse Landlord for Landlord's actual and
reasonable costs and expenses not to exceed Two Thousand Dollars ($2,000),
including, without
<PAGE>
limitation, reasonable attorneys' fees, charges and disbursements actually
incurred in connection with the review, processing and documentation of such
request ;
25.7.4 Other than with respect to any subleases to the Month-to-Month
Tenants pursuant to Section 25.2, if Tenant's transfer of rights or sharing of
the Demised Premises provides for the receipt by, on behalf or on account of
Tenant of any consideration of any kind whatsoever (including, but not by way of
limitation, a premium rental for a sublease or lump sum payment for an
assignment) in excess of the rental and other charges due Landlord under this
Lease, Tenant shall pay to Landlord seventy-five percent (75%) of said excess,
less reasonable amounts for broker commissions and attorneys' fees actually
incurred by Tenant in connection with such sublease or assignment. If said
consideration consists of cash paid to Tenant, said payment to Landlord shall be
made upon receipt by Tenant of said cash payment;
25.7.5 Written agreement from any applicable sublessee that in the
event Landlord gives such third party notice that Tenant is in default under
this Lease, such sublessee shall thereafter make all payments otherwise due
Tenant directly to Landlord, which payments will be received by Landlord without
any liability to Landlord except to credit such payment against amounts due
under the Lease, and any such sublessee shall agree to attorn to Landlord or its
successors and assigns should this Lease be terminated for any reason; provided,
however that in no event shall Landlord or its successors or assigns be
obligated to accept such attornment;
25.7.6 Any such transfer and consent shall be effected on forms
reasonably approved by Landlord as to form and substance;
25.7.7 Tenant shall not then be in Default hereunder in any respect;
25.7.8 Such third party's proposed use of the Demised Premises shall
be the same as Tenant's permitted use;
25.7.9 Landlord shall not be bound by any provision of any agreement
pertaining to Tenant's transfer of rights or subletting of the Demised Premises;
provided, however, that no permitted transfer or subletting shall relieve
- -------- -------
Landlord from any of its obligations under this Lease;
25.7.10 Any agreement pertaining to Tenant's transfer of rights or
subletting of the Premises shall be in a form reasonably acceptable to Landlord
and any such agreement shall not be modified or amended without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Tenant
acknowledges and agrees that it shall be reasonable for Landlord to withhold its
consent to any agreement which, it Landlord's opinion, contains any provision
which would negatively impact Landlord's status as a real estate investment
trust;
25.7.11 Tenant shall deliver to Landlord one original executed copy
of any and all written instruments evidencing or relating to Tenant's transfer
of rights or subletting of the Demised Premises; and
25.7.12 A list of Hazardous Materials, certified by the proposed
sublessee to be true and correct, which the proposed sublessee intends to use or
store in the Demised
<PAGE>
Premises. Additionally, Tenant shall deliver to Landlord, on or before the date
any proposed sublessee takes occupancy of the Demised Premises, all of the items
required pursuant to Section 39 relating to Hazardous Materials of such proposed
sublessee.
25.8. Any sale, assignment, hypothecation or transfer of this Lease or
subletting of the Demised Premises that is not in compliance with the provisions
of this Section 25 shall be void and shall, at the option of Landlord, terminate
this Lease.
25.9. The consent by Landlord to an assignment or subletting shall not
relieve Tenant or any assignees of this Lease or sublessee of the Demised
Premises from obtaining the consent of Landlord to any further assignment or
subletting nor shall it release Tenant or any assignee or sublessee of Tenant
from full and primary liability under the Lease.
25.10. Notwithstanding any subletting or assignment Tenant shall remain
fully and primarily liable for the payment of all Rent and other sums due, or to
become due hereunder, and for the full performance of all other terms,
conditions, and covenants to be kept and performed by Tenant. The acceptance of
Rent or any other sum due hereunder, or the acceptance of performance of any
other term, covenant, or condition thereof, from any other person or entity
shall not be deemed to be a waiver of any of the provisions of this Lease or a
consent to any subletting, assignment or other transfer of the Demised Premises.
25.11. If Tenant delivers to Landlord an Assignment Notice indicating a
desire to transfer this Lease to a transferee other than the Proceutics
Purchaser or as provided within Section 25.4, then Landlord shall have the
option, exercisable by giving notice to Tenant at any time within ten (10) days
after Landlord's receipt of the Assignment Notice, to terminate this Lease as of
the date specified in the Assignment Notice as the Assignment Date. If Landlord
exercises such option, then Tenant shall have the right to withdraw such
Assignment Notice by delivery to Landlord written notice of such election within
five (5) days after Landlord's delivery of notice electing to exercise such
option to terminate. In the event Tenant withdraws the Assignment Notice, this
Lease shall continue in full force and effect as if such Assignment Notice had
not been given. If Tenant fails to withdraw the Assignment Notice as
hereinabove provided, this Lease, and the term and estate herein granted, shall
terminate as of the Assignment Date. No failure of Landlord to exercise any
such option to terminate this Lease shall be deemed to be Landlord's consent to
the proposed Assignment, Sublease or other Transfer.
25.12. If Tenant shall sublet the Demised Premises or any part, Tenant
hereby immediately and irrevocably assigns to Landlord, as security for Tenant's
obligations under this Lease, all rent from any subletting of all or a part of
the Demised Premises, and Landlord as assignee and as attorney-in-fact for
Tenant, or a receiver for Tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of a Default by Tenant, Tenant shall have the
right to collect such rent.
26. Attorneys' Fees and Costs
-------------------------
Tenant shall be responsible for (i) all of Tenant's legal and related costs
and fees in connection with this Lease, and (ii) all of Landlord's reasonable
legal and related costs and fees actually incurred if Landlord is required to
consult an attorney regarding the administration or enforcement of this Lease.
If either party commences an action against the other party
<PAGE>
arising out of or in connection with this Lease, the prevailing party shall be
entitled to have and recover from the non-prevailing party reasonable attorneys'
fees, charges and disbursements and costs of suit actually incurred.
27. Bankruptcy
----------
27.1. In the event a debtor, trustee, or debtor in possession under the
Bankruptcy Code, or other person with similar rights, duties and powers under
any other law, proposes to cure any default under this Lease or to assume or
assign this Lease, and is obliged to provide adequate assurance to Landlord that
(i) a default will be cured, (ii) Landlord will be compensated for its damages
arising from any breach of this Lease, or (iii) future performance under this
Lease will occur, then adequate assurance shall include any or all of the
following, as designated by Landlord:
27.1.1 Those acts specified in the Bankruptcy Code or other law as
included within the meaning of adequate assurance, even if this Lease does not
concern a shopping center or other facility described in such laws;
27.1.2 A prompt cash payment to compensate Landlord for any monetary
defaults or actual damages arising directly from a breach of this Lease;
27.1.3 A cash deposit in an amount at least equal to the Security
Deposit as referenced in 2.1.8 originally required at time of execution of this
Lease.
27.1.4 The assumption or assignment of all of Tenant's interest and
obligations under this Lease.
28. Estoppel Certificate
--------------------
Each of Tenant and Landlord shall, within ten (10) days of written notice
from the other party hereto, execute, acknowledge and deliver a statement in
writing substantially in the form attached to this Lease as Exhibit "E" with the
blanks filled in, and on any other form reasonably requested by a proposed
lender or purchaser, (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease as so modified is in full force and effect) and the
dates to which the rental and other charges are paid in advanced, if any, (ii)
acknowledging that there are not, to such party's knowledge, any uncured
defaults on the part of the other party hereunder, or specifying such defaults
if any are claimed and (iii) setting forth such further information with respect
to this Lease or the Demised Premises as may be reasonably requested thereon.
Any such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Lease or the real property of which
the Demised Premises are a part. Failure to deliver such statement within such
time shall, at the option of the requesting party, constitute a Default under
this Lease, and, in any event, shall be conclusive upon the non-requesting party
that the Lease is in full force and effect and without modification except as
may be represented by the requesting party in any certificate prepared and
delivered for execution.
29. Joint and Several Obligations
-----------------------------
<PAGE>
29.1. If more than one person or entity executes this Lease as Tenant,
29.1.1 Each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
29.1.2 The term "Tenant" as used in this Lease shall mean and include
------
each of them jointly and severally. The act of, notice from, notice to, refund
to, or the signature of, any one or more of them, with respect to the tenancy of
this Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted, so given or received such notice or refund or
so signed.
30. Definition of Landlord; Limitation of Landlord's Liability
----------------------------------------------------------
30.1. The term "Landlord" as used in this Lease, so far as covenants or
--------
obligations on the part of Landlord are concerned, shall be limited to mean and
include only Landlord or the successor-in-interest of Landlord under this Lease
at the time in question. In the event of any transfer, assignment or the
conveyance of Landlord's fee title or leasehold interest, the landlord herein
named (and in case of any subsequent transfers or conveyances, the then grantor)
shall, subject to the provisions of Section 9.3, be freed and relieved from, and
after the date of such transfer, assignment or conveyance, of all liability for
the performance of any covenants or obligations contained in this Lease
thereafter to be performed by Landlord and, without further agreement, the
transferee of such title or leasehold shall be deemed to have assumed and agreed
to observe and perform any and all obligations of Landlord hereunder. Landlord
may transfer its interest in the Demised Premises or this Lease without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on the part of Landlord or the then grantor of any of the terms or
conditions of this Lease.
30.2. If Landlord is in default of this Lease, and as a consequence,
Tenant recovers a money judgment against Landlord, the judgment shall be
satisfied only out of the proceeds of sale received on execution of the judgment
and levy against the right, title and interest of Landlord in the Building, and
out of rent or other income from such real property receivable by Landlord ,
including insurance and condemnation proceeds actually received but not used in
the repair of the property, or out of the consideration received by Landlord
from the sale, financing, refinancing, or other disposition of all or any part
of Landlord's right, title, and interest in the Building and Project.
30.3. Landlord shall not be personally liable for any deficiency. If
Landlord is a partnership or joint venture, the partners of such partnership
shall not be personally liable and no partner of Landlord shall be sued or named
as a party in any suit or action or service of process be made against any
partner of Landlord except as may be necessary to secure jurisdiction of the
partnership or joint venture. If Landlord is a corporation, the shareholders,
directors, officers, employees, and/or agents of such corporation shall not be
personally liable and no shareholder, director, officer, employee or agent of
Landlord shall be sued or named as a party in any suit or action or service of
process made against any shareholder, director, officer, employee or agent of
Landlord. No partner, shareholder, director, employee, or agent of Landlord
shall be required to answer or otherwise plead to any service of process and no
<PAGE>
judgment will be taken or writ of execution levied against any partner,
shareholder, director, employee or agent of Landlord.
30.4. Each of the covenants and agreements of this Section 30 shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or by common law and shall survive the termination of this
Lease.
31. Project Control by Landlord
---------------------------
31.1. Landlord reserves full control over the Building and the Project to
the extent not inconsistent with Tenant's enjoyment of the Demised Premises
pursuant to the terms of this Lease. This reservation includes but is not
limited to right of Landlord to expand the Project, subdivide the Project,
convert the Building and or other buildings within the Project to condominium
units, the right to grant easements and licenses to others and the right to
maintain or establish ownership of the Building separate from fee title to the
land on which the Building is located. Notwithstanding anything to the contrary
set forth herein, Landlord shall not (i) alter the Demised Premises without
Tenant's consent, which shall not be unreasonably withheld, conditioned or
delayed with respect to nonmaterial alterations which do not affect Tenant's use
of the Demised Premises as contemplated by this Lease or as may be required by
any governmental entity, or (ii) grant any rights to any third party to occupy
any portion of the Demised Premises or any of the parking spaces of Tenant which
comprise the Parking Allotment.
31.2. Landlord further reserves the right to combine the Project with any
other project in the area of the Project and owned by Landlord or its
affiliates.
31.3. Tenant shall, should Landlord so request, promptly join with
Landlord in execution of such documents as may be reasonably appropriate to
assist Landlord to implement any such action, provided that Tenant need not
execute any document which is of nature wherein liability is created in Tenant
or, if by reason of the terms of such document, Tenant will be deprived of the
quiet enjoyment and use of the Demised Premises as granted by this Lease.
31.4. Landlord may, at any and all reasonable times during non-business
hours (or during business hours if Tenant so requests), and upon reasonable
advance notice (provided that no time restrictions shall apply or advance notice
need be given if an emergency necessitates an immediate entry), enter the
Demised Premises to (a) inspect the same and to determine whether Tenant is in
compliance with its obligations hereunder, (b) supply any service, perform any
obligation or exercise any right which Landlord is permitted to exercise or
required to supply or perform hereunder, (c) show the Demised Premises to
prospective lenders, insurers, investors, purchasers or, during the last year of
the Term, tenants, (d) post notices of nonresponsibility, and (e) access the
telephone equipment, electrical substation and fire risers. Tenant, at Tenant's
sole cost and expense, shall have the right to require that a representative of
Tenant accompany Landlord during any such entry (provided that Landlord shall
not be required to seek accompaniment of Tenant if an emergency necessitates an
immediate entry), and Tenant shall not unreasonably withhold, condition or delay
scheduling such accompaniment. In connection with any such alteration,
improvement or repair, Landlord may erect in the Demised Premises or elsewhere
in the Building or the Project scaffolding and other structures reasonably
required for the work to be performed. In no event shall Tenant's
<PAGE>
Rent abate as a result of any such entry or work; provided, however, that all
such work shall be done in such a manner as to cause as little interference with
the use of the Demised Premises as contemplated by this Lease by Tenant and its
permitted subtenants as reasonably possible. Landlord shall at all times retain
a key with which to unlock all of the doors in the Demised Premises subject to
Tenant's rights to establish "secure" areas pursuant to Section 10.5. If an
------------
emergency necessitates immediate access to the Demised Premises, Landlord may
use whatever force is necessary to enter the Demised Premises and any such entry
to the Demised Premises shall not constitute a forcible or unlawful entry to the
Demised Premises, an unlawful detainer of the Demised Premises, or an eviction
of Tenant from the Demised Premises, or any portion thereof. Notwithstanding
anything to the contrary set forth herein, Tenant hereby indemnifies and agrees
to defend and hold Landlord, its agents and contractors harmless from and
against any and all claims, costs and liabilities including reasonable and
actual attorneys' fees, charges and disbursements, arising out of or in
connection with any injury, damage or other loss resulting from or arising out
of Landlord's inability to access all or any part of the Demised Premises or the
Building, including, without limitation, due to Tenant's failure to provide
access to any "secure" area or to arrange for Landlord to be accompanied by a
representative of Tenant.
31.5. Landlord reserves the right to modify the Land and the exterior
portions of the Building, including the right to add or remove landscaping
32. Quiet Enjoyment
---------------
So long as Tenant is not in default, Landlord covenants that Landlord or
anyone acting through or under Landlord will not disturb Tenant's occupancy of
the Demised Premises except as permitted by the provisions of this Lease.
33. Quitclaim Deed
--------------
Tenant shall execute and deliver to Landlord on the expiration or
termination of this Lease, immediately on Landlord's request, in recordable
form, a quitclaim deed to the Demised Premises or such other documentation
reasonably requested by Landlord evidencing termination of this Lease.
34. [Intentionally Omitted.]
35. Subordination and Attornment
----------------------------
35.1. Provided that Tenant receives a non-disturbance agreement from any
applicable mortgagee, beneficiary or landlord in substantially the same form as
Exhibit "F" attached hereto (the "Nondisturbance Agreement"), this Lease shall
- ----------- ------------------------
be subject and subordinate to the lien of any mortgage, deed of trust, or lease
in which Landlord is tenant now or hereafter in force against the Project and
the Building and to all advances made or hereafter to be made upon the security
thereof without the necessity of the execution and delivery of any further
instruments on the part of Tenant to effectuate such subordination.
35.2. Notwithstanding the foregoing, Tenant shall execute and deliver upon
demand such further instrument or instruments evidencing such subordination of
this Lease to the lien of any such mortgage or mortgages or deeds of trust or
lease in which Landlord is tenant as
<PAGE>
may be required by Landlord. However, if any such mortgagee, beneficiary or
Landlord under lease wherein Landlord is tenant so elects, this Lease shall be
deemed prior in lien to any such lease, mortgage, or deed of trust upon or
including the Demised Premises regardless of date and Tenant will execute a
statement in writing to such effect at Landlord's request. If Tenant fails to
execute any document required from Tenant under this Section within ten (10)
days after written request therefor, Tenant hereby constitutes and appoints
Landlord or its special attorney-in-fact to execute and deliver any such
document or documents in the name of Tenant. Such power is coupled with an
interest and is irrevocable.
35.3. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Demised Premises, the Tenant shall at the
election of the purchaser at such foreclosure or sale attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
36. Surrender
---------
36.1. No surrender of possession of any part of the Demised Premises shall
release Tenant from any of its obligations hereunder unless accepted by
Landlord.
36.2. The voluntary or other surrender of this Lease by Tenant shall not
work a merger, unless Landlord consents and shall, at the option of Landlord,
operate as an assignment to it of any or all subleases or subtenancies.
36.3. The voluntary or other surrender of any ground or underlying lease
that now exists or may hereafter be executed affecting the Building or the
Project, or a mutual cancellation, thereof, or of Landlord's interest therein,
shall not work a merger and shall, at the option of the successor of Landlord's
interest in the Building or Project, operate as an assignment of this Lease.
36.4. Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Demised Premises to Landlord broom clean and free of debris;
with all of Tenant's personal property and effects removed therefrom; with all
alterations, improvements and fixtures required by Landlord in accordance with
Section 17 to be removed from the Demised Premises actually removed and all
damage as a result of or caused by such removal repaired; and with all licenses,
permits and similar items held or obtained by or at the request of Tenant which
restrict or affect the used of the Demised Premises released and fully
terminated.
37. Waiver and Modification
-----------------------
No provision of this Lease may be modified, amended or added to except by
an agreement in writing. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained.
38. Waiver of Jury Trial and Counterclaims
--------------------------------------
THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
<PAGE>
PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
TENANT'S USE OR OCCUPANCY OF THE DEMISED PREMISES, AND OR ANY CLAIM OF INJURY OR
DAMAGE.
39. Hazardous Materials
-------------------
39.1. Prohibition/Compliance. Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used in
or about the Demised Premises, the Building or the Project in violation of
applicable law by Tenant, its agents, employees, contractors or invitees. If
Tenant breaches the obligation stated in the preceding sentence, or if the
presence of Hazardous Materials in or on the Demised Premises, the Building or
the Land results in contamination of the Demised Premises, the Building, the
Project or any adjacent property or if contamination of the Demised Premises,
the Building or the Land by Hazardous Materials otherwise occurs during the term
of this Lease or any extension or renewal hereof or holding over hereunder,
Tenant hereby indemnifies and shall defend and hold Landlord, its officers,
directors, employees, agents and contractors harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses actually
incurred (including, without limitation, diminution in value of the Demised
Premises or any portion of the Building or the Project, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the Demised
Premises, the Building or the Project, damages arising from any adverse impact
on marketing of space in the Demised Premises, the Building or the Project, and
sums paid in settlement of claims, including reasonable attorneys' fees,
consultant fees and expert fees actually incurred) which arise during or after
the Lease term as a result of such contamination. This indemnification of
Landlord by Tenant includes, without limitation, reasonable costs actually
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous Materials
present in the air, soil or ground water above on or under the Demised Premises.
Without limiting the foregoing, if the presence of any Hazardous Materials on
the Demised Premises, the Building, the Project or any adjacent property, caused
or permitted by Tenant results in any contamination of the Demised Premises, the
Building, the Project or any adjacent property, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Demised Premises, the
Building, the Project or any adjacent property, to the condition existing prior
to the time of such contamination, provided that Landlord's approval of such
action shall first be obtained, which approval shall not unreasonably be
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Demised Premises, the Building or the
Project.
39.2. Business. Landlord acknowledges that it is not the intent of this
---------
Section 39 to prohibit Tenant from operating its business as described in
Section 2.1.9 above. Tenant may operate its business according to the custom of
the industry so long as the use or presence of Hazardous Materials is strictly
and properly monitored according to all applicable governmental requirements.
As a material inducement to Landlord to allow Tenant to use Hazardous Materials
in connection with its business, Tenant agrees to deliver to Landlord prior to
the Term Commencement Date a list identifying each type of Hazardous Materials
to be present on the Demised Premises and setting forth any and all governmental
approvals or permits required in connection with the presence of such Hazardous
Materials on the Demised Premises ("Hazardous Materials List"). Tenant shall
------------------------
deliver to Landlord an updated
<PAGE>
Hazardous Materials List at least once a year and shall also deliver an updated
list before any new Hazardous Materials is brought onto the Demised Premises.
Tenant shall deliver to Landlord true and correct copies of the following
documents (the "Documents") relating to the handling, storage, disposal and
---------
emission of Hazardous Materials prior to the Term Commencement Date, or if
unavailable at that time, concurrent with the receipt from or submission to a
governmental agency: permits; approvals; reports and correspondence; storage and
management plans, notice of violations of any laws; plans relating to the
installation of any storage tanks to be installed in or under Building or the
Project (provided, said installation of tanks shall only be permitted after
Landlord has given Tenant its written consent to do so, which consent may be
withheld in Landlord's sole and absolute discretion); and all closure plans or
any other documents required by any and all federal, state and local
governmental agencies and authorities for any storage tanks installed in, on or
under the Building or the Project for the closure of any such tanks. Tenant is
not required, however, to provide Landlord with any portion(s) of the Documents
containing information of a proprietary nature which, in and of themselves, do
not contain a reference to any Hazardous Materials or hazardous activities. It
is not the intent of this Section to provide Landlord with information which
could be detrimental to Tenant's business should such information become
possessed by Tenant's competitors. Tenant agrees that it shall, at its own
expense, and upon the written request of Landlord, establish and maintain a
separate area of the Demised Premises for the use and storage of Hazardous
Materials.
39.3. Termination of Lease/Withholding Approval of Assignment or Sublease.
-------------------------------------------------------------------
Notwithstanding the provisions of Section 39.1 above, if Tenant or any existing
sublessee of Tenant, with respect to the Demised Premises or the Project, or any
proposed assignee or sublessee, with respect to any property, is subject to an
uncured enforcement order issued by any governmental authority in connection
with the use, disposal or storage of Hazardous Materials, Landlord shall have
the right, with respect to any such matter involving Tenant or an existing
sublessee of Tenant, to terminate this Lease in Landlord's sole and absolute
discretion, and, with respect to any such matter involving a proposed assignee
or sublessee, it shall not be unreasonable for Landlord to withhold its consent
to any proposed assignment or subletting. Notwithstanding the foregoing, after
the first occurrence of any event with respect to Tenant or any existing
sublessee of Tenant described above (a "Termination Event"), Landlord shall
-----------------
deliver written notice to Tenant, and such sublessee, if applicable, of the
occurrence of such event and Tenant shall have thirty (30) days after receipt of
such notice to cure, or cause to be cured, the condition causing such
Termination Event. After the expiration of such thirty (30) day period, or upon
the occurrence of any subsequent Termination Event, Landlord shall have the
right to terminate this Lease in Landlord's sole and absolute discretion.
39.4. Testing. At any time, and from time to time, prior to the
--------
expiration or earlier termination of the Term, Landlord shall have the right to
conduct appropriate tests of the Demised Premises, the Building and the Project
to demonstrate that contamination has occurred as a result of Tenant's use of
the Demised Premises. Tenant shall be solely responsible for and shall defend,
indemnify and hold the Landlord, its agents and contractors harmless from and
against any and all claims, costs and liabilities including reasonable and
actual attorneys' fees, charges and disbursements, arising out of or in
connection with any removal, clean up, restoration and materials required
hereunder to return the Demised Premises and any other property of whatever
nature to their condition existing prior to the time of any such contamination.
Tenant shall pay for the actual and reasonable cost of the tests of the Demised
Premises if contamination is determined to have occurred.
<PAGE>
39.5. Underground Tanks. If underground or other storage tanks storing
------------------
Hazardous Materials are located on the Demised Premises or are hereafter placed
on the Demised Premises by any party, Tenant shall monitor the storage tanks,
maintain appropriate records, implement reporting procedures, properly close any
underground storage tanks, and take or cause to be taken all other steps
necessary or required under any applicable federal, state or local laws, rules,
regulations or ordinances as they now exist or may hereafter be adopted or
amended.
39.6. Tenant's Obligations. Tenant's obligations under this Section 39
---------------------
shall survive the expiration or earlier termination of the Lease. Tenant shall
be deemed to be in occupancy of the Demised Premises during any period of time
employed by Tenant or Landlord after the termination of this Lease to complete
the removal from the Demised Premises of any such Hazardous Materials and the
release and termination of any licenses or permits restricting the use of the
Demised Premises.
39.7. Definition of "Hazardous Materials." As used herein, the term
------------------------------------
"Hazardous Materials" means any hazardous or toxic substance, material or waste
- --------------------
which is or becomes regulated by any local governmental authority, the State of
Georgia or the United States government and includes, without limitation, any
material or substance which is (i) petroleum, (ii) asbestos, (iii) designated as
a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1317), (iv) defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conversation and Recovery Act,
42 U.S.C. Section 6901, et. seq. (42 U.S.C. Section 6903), or (v) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42
U.S.C. Section 9601).
40. Miscellaneous
-------------
40.1. Terms and Headings. Where applicable in this Lease, the singular
-------------------
includes the plural and the masculine or neuter includes the masculine, feminine
and neuter. The section headings of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part hereof.
40.2. Examination of Lease. Submission of this instrument for examination
---------------------
or signature by Tenant does not constitute a reservation of or option for lease,
and it is not effective as a lease or otherwise until execution by and delivery
to both Landlord and Tenant.
40.3. Time. Time is of the essence with respect to the performance of
-----
every provision of this Lease in which time of performance is a factor.
40.4. Covenants and Conditions. Each provision of this Lease performable
-------------------------
by Tenant shall be deemed both a covenant and a condition.
40.5. Consents. Whenever consent or approval of either party is required,
---------
that party shall not unreasonably withhold such consent or approval, except as
may be expressly set forth to the contrary.
<PAGE>
40.6. Entire Agreement. The terms of this Lease are intended by the
-----------------
parties as a final expression of their agreement with respect to the terms as
are included herein, and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Exhibits are incorporated into this Lease and
the Lease and the Exhibits constitute a single document.
40.7. Severability. Any provision of this Lease which shall prove to be
-------------
invalid, void, or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
40.8. Recording. Landlord or Tenant may, but shall not be obligated to,
----------
record a short form memorandum hereof upon notice but without the consent of the
other party hereto. Neither party shall record this Lease. The party
requesting recordation shall be responsible for the cost of recording any
Memorandum of Lease, including any transfer or other taxes incurred in
connection with said recordation.
40.9. Impartial Construction. The language in all parts of this Lease
-----------------------
shall be in all cases construed as a whole according to its fair meaning and not
strictly for or against either Landlord or Tenant.
40.10. Inurement. Each of the covenants, conditions and agreements herein
----------
contained shall inure to the benefit of and shall apply to and be binding upon
the parties hereto and their respective heirs, legatees, devisees, executors,
administrators, successors, assigns, sublessees, or any person who may come into
possession of said Demised Premises or any part thereof in any manner
whatsoever. Nothing in this Section 40.10 contained shall in any way alter the
provisions against assignment or subletting in this Lease provided.
40.11. Notices. Any notice, consent, demand, bill, statement, or other
--------
communication required or permitted to be given hereunder must be in writing and
may be given by (i) personal delivery which shall be deemed given when received,
(ii) reputable overnight courier which shall be deemed given the business day
following the date on the courier's receipt of pick-up, subject to Force Majeure
Delays, addressed to Tenant at the Demised Premises, or to Tenant or Landlord at
the addresses shown in Sections 2.1.10 and 2.1.11 of the Basic Lease Provisions.
Either party may, by notice to the other given pursuant to this Section, specify
additional or different addresses for notice purposes.
40.12. Jurisdiction. This Lease has shall be governed by, construed and
-------------
enforced in accordance with the laws of the State of Georgia.
40.13. Authority. That individual or those individuals signing this Lease
----------
warrant and represent that said individual or individuals have the power,
authority and legal capacity to sign this Lease on behalf of and to bind all
entities, corporations, partnerships, joint venturers or other organizations
and/or entities on whose behalf said individual or individuals have signed.
[Remainder of page intentionally blank]
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
LANDLORD:
<PAGE>
ARE-150/154 TECHNOLOGY
PARKWAY, LLC, a Delaware
limited liability company
By: ALEXANDRIA REAL ESTATE
EQUITIES, L.P., a Delaware
limited partnership, managing
member
By: ARE-QRS CORP., a Maryland
corporation, general partner
By: /s/ Peter J. Nelson
-------------------
Peter J. Nelson, CFO
TENANT:
CYTRX CORPORATION, a Delaware corporation
By: /s/ Jack J. Luchese
-------------------
Name: Jack J. Luchese
Its: President and CEO
EXHIBITS
--------
EXHIBIT "A" LAND
EXHIBIT "B" PROJECT
EXHIBIT "C" [Intentionally Omitted.]
EXHIBIT "D" TENANT'S PROPERTY
EXHIBIT "E" ESTOPPEL CERTIFICATE
EXHIBIT "F" NONDISTURBANCE AGREEMENT
<PAGE>
EXHIBIT 99.2
PRO FORMA FINANCIAL INFORMATION
The accompanying Pro Forma Condensed Consolidated Balance Sheet as of March 31,
1998 gives effect to (1) the divestiture of Vetlife, Inc. and (2) the sale of
the Proceutics real estate at 150 Technology Parkway and the sale and leaseback
of the CytRx real estate at 154 Technology Parkway. The pro forma adjustments
assume that these transactions had occurred as of March 31, 1998 in the case of
the Pro Forma Condensed Consolidated Balance Sheet.
The accompanying Pro Forma Condensed Consolidated Statement of Operations for
the year ended December 31, 1997 gives effect to (1) the Merger of Zynaxis, Inc.
with and into Vaxcel, Inc. and (2) the sale of the Proceutics real estate at 150
Technology Parkway and the sale and leaseback of the CytRx real estate at 154
Technology Parkway. The accompanying Pro Forma Condensed Consolidated Statement
of Operations for the three months ended March 31, 1998 gives effect to the sale
of the Proceutics real estate at 150 Technology Parkway and the sale and
leaseback of the CytRx real estate at 154 Technology Parkway. The pro forma
adjustments assume that these transactions occurred as of January 1, 1997 and
January 1, 1998 for the Pro Forma Statements of Operations for the year ended
December 31, 1997 and the three months ended March 31, 1998, respectively.
These pro forma financial statements have been prepared by management of CytRx
and should be read in conjunction with the historical consolidated financial
statements of CytRx included in the Company's Current Report on Form 8-K filed
with the Commission on May 1, 1998 and as restated for the divestiture of
Vetlife, Inc. The historical balances represent the consolidated financial
position and results of operations for the Company and have been prepared in
accordance with generally accepted accounting principles. The pro forma
statements are based on certain assumptions and estimates which are subject to
change. The statements do not purport to be indicative of the consolidated
financial position or results of operations that might have occurred, nor are
they necessarily indicative of future results.
1
<PAGE>
CYTRX CORPORATION
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF MARCH 31, 1998
<TABLE>
<CAPTION>
Proforma Adjustments
Vetlife
Divestiture Real Estate
Historical Pro Forma Sale Pro Forma Adjusted
March 31,1998 Adjustments Ref Adjustments Ref March 31, 1998
------------- ----------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 5,621,007 $ 3,146,168 (a) $ 4,251,943 (d) $ 12,875,851
(143,267) (b)
Short-term investments - 5,359,697 (g) 5,359,697
Accounts receivable 1,481,039 (912,302) (b) 568,737
Other receivable - -
Notes receivable - 4,000,000 (a) 4,000,000
Inventories 1,340,008 (979,226) (b) 360,782
Other current assets 243,664 (7,138) (b) 236,526
------------ ----------- ----------- ------------
Total current assets 8,685,718 10,463,932 4,251,943 23,401,593
Property and equipment, net 3,969,766 (89,661) (b) (836,330) (d) 1,466,372
(2,704,403) (d)
1,127,000 (e)
Other assets:
Long-term investments (restricted) 5,359,697 (5,359,697) (g) -
Notes receivable 400,000 400,000
Acquired developed technology, net 3,394,356 3,394,356
Other assets 801,076 801,076
------------ ----------- ----------- ------------
Total other assets 9,955,129 (5,359,697) 4,595,432
Total assets $ 22,610,613 $ 5,014,574 $ 1,838,210 $ 29,463,397
============ =========== =========== ============
Proforma Adjustments
Vetlife
Divestiture Real Estate
Historical Pro Forma Sale Pro Forma Adjusted
March 31, 1998 Adjustments Ref Adjustments Ref Balance
-------------- ----------- -------------- --------
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 1,063,623 $ (690,264) (b) $ 373,359
Accrued liabilities 951,852 (568,752) (b) 383,100
Unearned revenue - 283,562 (d) 283,562
------------ ----------- ----------- ------------
Total current liabilities 2,015,475 (1,259,016) 283,562 1,040,021
6% Convertible debentures 1,100,000 1,100,000
Minority interest in Vaxcel, Inc. 555,226 555,226
Commitments
Capital lease obligation _ 1,127,000 (e) 1,127,000
Stockholders' equity: -
Preferred stock - -
Common stock 8,206 8,206
Additional paid-in capital 66,352,311 66,352,311
Treasury stock (2,198,533) (2,198,533)
Accumulated deficit (45,222,072) 6,273,590 (c) 427,648 (f) (38,520,834)
------------ ----------- ----------- ------------
Total stockholders' equity 18,939,912 6,273,590 427,648 25,641,150
Total liabilities and stockholders' equity $ 22,610,613 $ 5,014,574 $ 1,838,210 $ 29,463,397
============ =========== =========== ============
</TABLE>
(a) To record proceeds from divestiture of Vetlife less transaction costs of
$226,410 and the working capital adjustment of $127,422.
(b) To remove Vetlife's net assets sold.
(c) To record gain on divestiture of Vetlife.
(d) To record sale of Proceutics and CytRx real estate assets for $4,500,000,
less transactions costs of $248,057. The historical cost of such assets
(net of accumulated depreciation) totaled $2,704,403 and $836,330,
respectively, resulting in a gain of $427,648 for the sale of the
Proceutics real estate and a deferred gain of $283,562 on the sale and
leaseback of the CytRx real estate which will be amortized over the life of
the related lease.
(e) To record capital lease assets and related obligation for CytRx real
estate.
(f) To record gain on sale of Proceutics real estate assets.
(g) To reclass investments as a result of the Vetlife divestiture which removed
the restriction on investments.
2
<PAGE>
CYTRX CORPORATION
PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Cauldron
Merger Divestiture Pro Forma
Historical Pro Forma Pro Forma Pro Forma Combined
(Restated) Adjustments Ref Combined Adjustments Ref (as adjusted) Ref
-------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Net sales $ 878,068 $ $ 878,068 $ $ 878,068
Investment income 797,069 22,292 (1) 819,361 819,361
Collaborative, grant and license fee
income 337,438 666,890 (1) 1,004,328 (681,130) (3) 323,198
Other 365,712 819,977 (1) 1,185,689 1,185,689
---------------------------- --------------------------- -------------
2,378,287 1,509,159 3,887,446 (681,130) 3,206,316
Expenses:
Cost of sales 353,764 353,764 353,764
Research and development 4,690,582 720,454 (2) 5,411,036 5,411,036
Acquired incomplete research and
development 951,017 951,017 951,017
Selling, general and administrative 3,115,466 137,089 (4) 3,811,839 (813,417) (3) 2,998,422
559,284 (2)
Interest 293,048 (49,990) (5) 261,379 261,379
18,321 (2)
---------------------------- --------------------------- -------------
9,403,877 1,385,158 10,789,035 (813,417) 9,975,618
---------------------------- --------------------------- -------------
Loss from continuing operations before
minority interest (7,025,590) 124,001 (6,901,589) 132,287 (6,769,302)
Minority interest (242,487) (50,387) (292,874) (292,874)
--------------------------- -------------------------- -------------
Loss from continuing operations $ (6,783,103) $174,388 $ (6,608,715) $132,287 $(6,476,428)
=========================== ========================== =============
Basic and diluted loss per common share:
Loss from continuing operations $(0.91) $(0.87)
Shares used 7,424,372 7,424,372
</TABLE>
<TABLE>
Real Estate Combined
Adjustments Ref Totals
----------------------------------
<S> <C> <C> <C>
Revenues:
Net sales $ 878,068
Investment income 819,361
Collaborative, grant and license fee
income 323,198
Other 1,185,689
--------------------------------
3,206,316
Expenses:
Cost of sales 353,764
Research and development 5,411,036
Acquired incomplete research and
development 951,017
Selling, general and administrative 63,072 (6) 3,061,494
Interest 261,379
------------- ---------------
63,072 10,038,690
------------- ---------------
Loss from continuing operations before
minority interest (63,072) (6,832,374)
Minority interest (292,874)
------------- ---------------
Loss from continuing operations $ (63,072) $ (6,539,500)
============= ===============
Basic and diluted loss per common share:
Loss from continuing operations $ (0.88)
Shares used 7,424,372
(1) To record revenues of Zynaxis up to the merger date.
(2) To record expenses of Zynaxis up to the merger date.
(3) To reflect the sale of the Cauldron division as if it had occurred on January 1, 1997.
(4) To record amortization of intangible assets acquired using a 15 year amortization period.
(5) To eliminate interest expense associated with the CytRx note payable cancelled at the merger date.
(6) To eliminate depreciation expense related to real estate assets sold and record depreciation expense on the building
recorded under capital lease obligation.
</TABLE>
Page 3
<PAGE>
CYTRX CORPORATION
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THREE MONTHS ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
March 31,
1998 Real Estate Combined
Historical Adjustments Ref Totals
-------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Net sales $ 217,965 $ 217,965
Investment income 143,850 143,850
Collaborative, grant and license fee
income 16,483 16,483
Other 62,665 62,665
-------------------------------------------------------
440,963 440,963
Expenses:
Cost of sales 73,184 73,184
Research and development 1,296,070 1,296,070
Selling, general and administrative 756,275 15,768 (1) 772,043
Interest 123,040 123,040
-------------------------------- ------------------
2,248,569 15,768 2,264,337
-------------------------------- ------------------
Loss from continuing operations before
minority interest (1,807,606) (15,768) (1,823,374)
Minority interest (63,256) (63,256)
-------------------------------- ------------------
Loss from continuing operations $(1,744,350) $(15,768) $(1,760,118)
-------------------------------- ------------------
Basic and diluted loss per common share:
Loss from continuing operations $ (0.23) $ (0.23)
Shares used 7,516,319 7,516,319
</TABLE>
(1) To eliminate depreciation expense related to real estate assets sold and
record depreciation expense on the building recorded under capital lease
obligation.
4
<PAGE>
CYTRX CORPORATION
NOTES TO PRO FORMA FINANCIAL STATEMENTS
1. ACCOUNTING FOR ZYNAXIS MERGER AND ALLOCATION OF PURCHASE PRICE
The Merger was accounted for as a purchase transaction with Vaxcel as
the acquiring company. The total purchase price of $4.4 million was allocated to
the fair market values of the assets acquired and the liabilities assumed.
In accordance with the provisions of APR Nos. 16 1nd 17, all
identifiable assets acquired, including identifiable intangible assets, were
assigned a portion of the purchase price on the basis of their fair values. To
this and, an independent valuation of Zynaxis' assets (the "Acquired Assets")
was performed and used as an aid in determining the fair value of the
identifiable assets in allocating the purchase price among the Acquired Assets.
A summary of the allocation of the purchase price to the Acquired Assets
is as follows:
Net tangible assets, less outstanding liabilities...........$ (830,000)
Acquired developed technology and other intangibles......... 4,241,000
Acquired incomplete research and development
(charged to accumulated deficit).................... 951,000
---------
$4,362,000
=========
The capitalized value of the intangible assets acquired is being
amortized on a straight-line basis over a period of 15 years. This period was
determined based upon an analysis of competitive technology under development
which may render the Zynaxis technology obsolete. Consideration was also given
to the fact that Zynaxis' base science will have many alternative uses during
that time as many different vaccines may incorporate the technology. Any
remaining property and equipment acquired from Zynaxis is being depreciated on
straight-line basis over their estimated remaining useful lives.
2. DIVESTITURE OF VETLIFE
On April 17, 1998, Cytrx consummated a sale of substantially all of the
assets of VetLIfe related to its cattle marketing operations segment to an
affiliate of IVY for approximately $7.1 million in cash and a note payable (net
of transaction costs), plus contingent payments of up to an additional $5.5
million. The Company will retain the $5.3 million in investments that were
pledged to secure a Letter of credit. The Company expects a gain related to this
transaction which will be recognized in 1998.
3. SALE OF REAL ESTATE
On May 11, 1998, CytRx and Proceutics consummated the sale of the two
buildings owned by them at 150 and 154 Technology Parkway, Norcross, Georgia, to
ARE - 150/154 Technology Parkway, LLC ("Alexandria"), an affiliate of Alexandria
Real Estate Equities, Inc., for an aggregate of $4.5 million less $248,000 in
transaction costs. Proceutics' rights and obligations under the lease to Oread
were assigned to Alexandria and CytRx entered into a ten year lease with
Alexandria regarding the building at 154 Technology Parkway. The Company expects
a gain related to the transaction which will be recognized in 1998.
5
