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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
Commission File Number 0-15223
HEMACARE CORPORATION
(Exact name of registrant as specified in its charter)
State or other jurisdiction of I.R.S. Employer I.D.
incorporation or organization: California Number: 95-3280412
4954 Van Nuys Boulevard
Sherman Oaks, California 91403
(Address of principal executive offices) (Zip Code)
___________________
Registrant's telephone number, including area code: (818) 986-3883
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the Registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days: YES [X]
NO [ ]
As of November 12, 1998, 7,281,120 shares of Common Stock of the
Registrant were issued and outstanding.
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<PAGE>
INDEX
HEMACARE CORPORATION
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated balance sheets-September 30, 1998 and December
31, 1997
Consolidated statements of operations-Three and nine months
ended September 30, 1998 and 1997
Consolidated statements of cash flows-Nine months ended
September 30, 1998 and 1997
Notes to consolidated financial statements-September 30,
1998
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits
SIGNATURES
2
<PAGE>
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements
- ------- ---------------------
HEMACARE CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
------------ ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents........................... $ 1,473,000 $ 1,249,000
Marketable securities............................... 480,000 363,000
Accounts receivable, net of allowance for
doubtful accounts - $81,000 (1998 and 1997)....... 1,417,000 1,561,000
Product inventories................................. 43,000 63,000
Supplies............................................ 348,000 341,000
Prepaid expenses.................................... 129,000 123,000
Note receivable from officer - current.............. 24,000 24,000
------------- -------------
Total current assets........................... $ 3,914,000 $ 3,724,000
Plant and equipment, net of accumulated
depreciation and amortization of
$1,806,000 (1998) and $1,690,000 (1997)............. 474,000 585,000
Note receivable from officer - non-current............ 53,000 65,000
Other assets.......................................... 52,000 10,000
------------- -------------
$ 4,493,000 $ 4,384,000
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable.................................... $ 415,000 $ 659,000
Accrued payroll and payroll taxes................... 575,000 493,000
Other accrued expenses.............................. 340,000 366,000
Current obligations under capital leases............ 126,000 140,000
Reserve for discontinued operations - current....... 122,000 115,000
------------- -------------
Total current liabilities..................... 1,578,000 1,773,000
Obligations under capital leases, net
of current portion.................................. 133,000 209,000
Commitments and contingencies.........................
Shareholders' equity:
Common stock, without par value -
20,000,000 shares authorized,
7,281,120 issued and outstanding in 1998
and 7,190,710 in 1997............................. 13,570,000 13,515,000
Accumulated deficit................................. (10,788,000) (11,113,000)
------------- -------------
Total shareholders' equity............................ 2,782,000 2,402,000
------------- -------------
$ 4,493,000 $ 4,384,000
============= =============
</TABLE>
The accompanying notes are an integral
part of these consolidated financial statements.
3
<PAGE> 4
HEMACARE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues:
Blood management programs.... $ 587,000 $ 1,002,000 $ 2,291,000 $ 3,185,000
Blood products............... 1,075,000 567,000 2,335,000 1,911,000
Blood services............... 1,005,000 1,098,000 3,805,000 3,166,000
------------- ------------ ------------- -------------
Total revenue............. 2,667,000 2,667,000 8,431,000 8,262,000
Operating costs and expenses:
Blood management programs.... $ 465,000 $ 1,059,000 $ 2,067,000 $ 3,339,000
Blood products............... 676,000 426,000 1,622,000 1,451,000
Blood services............... 661,000 774,000 2,723,000 2,209,000
------------- ------------ ------------- -------------
Total operating costs and
expenses................ 1,802,000 2,259,000 6,412,000 6,999,000
------------- ------------ ------------- -------------
Operating profit........... 865,000 408,000 2,019,000 1,263,000
General and administrative
expense...................... 608,000 494,000 1,694,000 1,466,000
Other income (expense).......... -- 10,000 -- 7,000
Gain on sale of Gateway
Community Blood Program...... -- 128,000 -- 128,000
------------- ------------ ------------- -------------
Income (loss) from continuing
operations before income
taxes........................ 257,000 52,000 325,000 (68,000)
Provision for income taxes...... - - - -
Discontinued operations:
Gain on disposal of dis-
continued operations....... - - - 120,000
------------- ------------ ------------- -------------
Net income (loss)............ $ 257,000 $ 52,000 $ 325,000 $ 52,000
============= ============ ============= =============
Basic and diluted per share
amounts:
Income (loss) from continuing
operations................. $ 0.04 $ 0.01 $ 0.05 $ (0.01)
Income from discontinued
operations................. - - - 0.02
------------- ----------- ------------- --------------
$ 0.04 $ 0.01 $ 0.05 $ 0.01
============= ============ ============= ==============
Weighted average common shares
used to compute:
Basic income (loss) per
share...................... 7,281,120 7,190,710 7,194,113 7,185,212
============ =========== ============ =============
Diluted income (loss) per
share...................... 7,281,120 7,190,710 7,194,382 7,344,998
============= ============ ============= ==============
</TABLE>
The accompanying notes are an integral part of
these consolidated financial statements.
4
<PAGE> 5
HEMACARE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine months ended September 30,
1998 1997
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net income................................................... $ 325,000 $ 52,000
Adjustments to reconcile net income (loss) to
net cash provided by (used in) operating activities:
Gain on disposal of discontinued operations.............. - (248,000)
Depreciation and amortization............................ 116,000 178,000
Issuance of common stock and options for compensation.... 13,000 -
Changes in operating assets and liabilities:
Decrease in accounts receivable.......................... 144,000 482,000
Decrease in inventories, supplies and prepaid expenses... 7,000 5,000
Decrease in accounts payable and other accrued
expenses............................................... (146,000) (587,000)
Proceeds from (expenditures for) discontinued operations. 7,000 (55,000)
------------ ------------
Net cash provided by (used in) operating activities.......... 466,000 (173,000)
Cash flows from investing activities:
Decrease in note receivable from related party........... 12,000 10,000
Increase in marketable securities........................ (117,000) (44,000)
(Purchase) disposition of plant and equipment, net....... (47,000) 282,000
------------ ------------
Net cash provided by (used in) investing activities.......... (152,000) 248,000
Cash flows from financing activities:
Principal payment on line of credit and capital leases... (90,000) (103,000)
------------ ------------
Net cash used in financing activities.................... (90,000) (103,000)
------------ ------------
Increase (decrease) in cash and cash equivalents......... 224,000 (28,000)
Cash and cash equivalents at beginning of period......... 1,249,000 1,136,000
------------ ------------
Cash and cash equivalents at end of period............... $ 1,473,000 $ 1,108,000
============ ============
Supplemental disclosure:
Interest paid............................................ $ 19,000 $ 42,000
============ ============
Items not impacting cash flows:
Decrease in capital lease obligations.................... $ - $ (356,000)
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
5
<PAGE>
HemaCare Corporation
Notes to Consolidated Financial Statements
NOTE 1 - BASIS OF PRESENTATION AND GENERAL INFORMATION
The accompanying unaudited consolidated financial statements of
HemaCare Corporation (the "Company" or "HemaCare") have been
prepared in accordance with generally accepted accounting
principles for interim financial information and with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation
have been included. Operating results for the three and nine
months ended September 30, 1998 are not necessarily indicative of
the results that may be expected for the year ending December 31,
1998. Certain 1997 amounts have been reclassified to conform to
the 1998 presentation. For further information, refer to the
consolidated financial statements and footnotes thereto included
in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
HemaCare is a blood products and services company. For the first
nine months of 1998 the Company has provided its products and
services to hospitals and medical centers located in southern
California.
Effective October 22, 1998 the Company acquired the assets of
Coral Therapeutics, Inc. a company which provided blood products
and services to hospitals in Maine, New Hampshire, Massachusetts,
Connecticut, New York, New Jersey, North Carolina and several
other states (see Note 7). Coral's services are similar to those
of the Company, and the acquisition significantly expands the
geographic scope of the Company's operations. The Coral
acquisition will be accounted for using the purchase method of
accounting and the results of the new Coral operations will be
included in the Company's financial statements subsequent to the
date of acquisition.
Blood Products
- --------------
Blood products revenue consists principally of sales of apheresis
or single donor platelets. Platelets are a blood component
useful in treating patients with a variety of medical conditions,
particularly cancer patients undergoing chemotherapy. Through
the apheresis process, the Company is able to collect a
sufficient amount of this blood component from a single donation
to constitute a therapeutic unit of platelets for transfusion to
a patient in need.
Blood product sales also include sales of other whole blood
components including plasma and red blood cells.
Blood products are collected and processed at the Company's
principal facility in Sherman Oaks. California. Products are
also collected at the Company's USC Blood Donor Center. The
Company conducts its blood product operations under licensure of
the US Food and Drug Administration (FDA).
6
<PAGE> 7
Blood Services
- --------------
Blood services revenue consists of sales of therapeutic apheresis
procedures, peripheral blood stem cell collection and
cryopreservation and other medical procedures performed by a
specially trained nursing staff, generally in a hospital setting.
These procedures involve the use of specialized blood separation
technology to remove selected components of a patient's blood as
a part of a therapeutic treatment program prescribed by a
physician. The Company provides these services to hospitals on a
mobile basis. Specially trained nurses employed by the Company
using HemaCare-owned equipment provide care to patients on client
hospital premises.
Blood services revenue also includes fees charged by the Company
for testing services provided to hospitals that operate their own
blood donation programs.
Blood Management Programs
- -------------------------
The Company operates a Blood Management Program (BMP) for two
hospitals affiliated with the University of Southern California.
A BMP allows a hospital to outsource many blood-related
operations to HemaCare. The Company previously operated two
other BMPs, one of these was located in St. Louis, Missouri
(Gateway) and another was conducted for three southern California
hospitals (Citrus Valley). The Gateway program was sold August
1997 and the Citrus Valley program was terminated in July of
1988. These programs did not meet the Company's profitability
criteria.
NOTE 2 - LINE OF CREDIT
Since August 1991, the Company has maintained a line of credit
with a commercial bank secured by its accounts receivable,
inventory and equipment. The credit line is in effect through
May 31, 1999. Under the terms of the credit line agreement, the
Company may borrow up to 70% of eligible accounts receivable, up
to a maximum of $700,000, and must maintain certain financial
ratios. The Company was in compliance with all covenants of its
credit line agreement at September 30, 1998. Interest on credit
line borrowings is at the lender's prime rate (8.5% at September
30, 1998) plus one-half of a percentage point. As of September
30, 1998, there was no balance outstanding under the line of
credit. On October 22, 1998, the Company borrowed $600,000 on its
line of credit in connection with the acquisition of the assets
of Coral Therapeutics, Inc. (See Note 7 below.)
NOTE 3 - COMMITMENTS AND CONTINGENCIES
On March 12, 1997, the Company was notified of a lawsuit filed by
an investment banking firm retained by the Company in connection
with the August 1996 private placement of its common stock,
seeking recovery of damages in the amount of approximately
$60,000. In July 1998, this suit was settled on terms favorable
to the Company. The effect of the settlement did not have a
material effect on the Company's financial condition or results
of operations.
NOTE 4 - RELATED PARTY INFORMATION
In 1995 and 1994, the Company made a series of personal loans to
Dr. Joshua Levy, then an officer and director of the Company,
totaling $98,000. In January 1996, these individual notes were
7
<PAGE> 8
consolidated into a promissory note, collateralized by HemaCare
stock owned by Dr. Levy, which accrued interest at a rate equal
to the rate paid by the Company under its line of credit. In
accordance with the terms of this note, the Company received
installment payments of $15,000 in January 1996 and January 1997.
Effective July 31, 1997, the Company entered into an agreement
with Dr. Levy that superseded the 1996 note. Under the terms of
this agreement, the Company agreed to forgive the remaining
balance of Dr. Levy's note, including interest accrued at a 10%
annual rate, over a five-year period so long as Dr. Levy remains
employed by the Company.
NOTE 5 - RECENT ACCOUNTING PRONOUNCEMENT
In June 1997, the Financial Accounting Standards Board issued
SFAS No. 131, "Disclosures About Segments of An Enterprise and
Related Information" (SFAS 131). SFAS 131, which is effective
for years beginning after December 15, 1997, revises the
requirements for segment disclosures. The Company will adopt this
standard in the fourth quarter of 1998.
NOTE 6 - DISPOSITION OF OPERATIONS
On August 1, 1997, Gateway's operations were sold. The purchaser
assumed liability for certain leases related to Gateway's
operations; purchased Gateway's inventories and made a $200,000
non-refundable payment against HemaCare's interest in future
Gateway earnings. Cash proceeds from the sale, net of transaction
costs, were approximately $255,000. The Company is entitled to
receive a percentage of Gateway's revenues, as defined, over the
five years subsequent to the date of sale, up to maximum of
$422,000. An additional payment of $100,000 is due when Gateway
receives a Food and Drug Administration establishment license.
On July 17, 1998, the Company terminated the Citrus Valley Blood
Services Agreement (the "Agreement") and disposed of Citrus
Valley BMP operations. These actions were necessitated by the
continuing shortage and escalating price of red blood cells,
which comprise the largest portion of the blood products
purchased by the Citrus Valley hospitals. The disposition is not
expected to have a material, adverse effect on the Company's
results of operations or financial position.
NOTE 7 - SUBSEQUENT EVENT - ACQUISITION
As previously reported on Form 8-K filed November 5, 1998, on
October 22, 1998, HemaCare, through its wholly owned subsidiary
Coral Blood Services, Inc. ("CBS"), acquired substantially all
the assets of Coral Therapeutics, Inc. ("Coral") from Coral's
secured lender. Prior to the acquisition, Coral provided blood
services to major university, teaching and community hospitals in
Maine, New Hampshire, Massachusetts, Connecticut, New York, North
Carolina and other states. The acquired assets include (i)
approximately $1.4 million in accounts receivable, $600,000 of
which are over 90 days old, (ii) fixed assets and (iii) Coral's
rights under its hospital contracts. HemaCare is currently in the
process of negotiating separate agreements with the hospitals
previously served by Coral and is providing services to most of
these hospitals under interim arrangements. Concurrently with the
closing of the asset purchase, HemaCare extended offers of
employment to most of Coral's employees.
8
<PAGE> 9
The acquisition price of the assets was $950,000 in cash and
450,000 shares of HemaCare's Series B senior convertible
preferred stock. The Company financed the acquisition by (i)
utilizing existing cash balances, (ii) borrowing $600,000 on its
line of credit and (iii) issuing 450,000 shares of HemaCare
Series B senior convertible preferred stock. The Series B
preferred stock is convertible into 500,000 shares of HemaCare
common stock, at the option of the holder, one year after
issuance. In addition, HemaCare has entered into or expects to
enter into non-competition agreements with certain former
managers of Coral pursuant to which HemaCare expects to make cash
payments and issue shares of HemaCare common stock and warrants
to purchase HemaCare common stock. HemaCare also expects to
satisfy certain liabilities of Coral to its ex-employees and to
make payments necessary to maintain essential business
relationships.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
- ------- ------------------------------------------------------------
HemaCare is a blood products and services company. For the first nine
months of 1998 the Company has provided its products and services to
hospitals and medical centers located in southern California.
Effective October 22, 1998 the Company acquired the assets of Coral
Therapeutics, Inc. a company which provided blood products and
services to hospitals in Maine, New Hampshire, Massachusetts,
Connecticut, New York, New Jersey, North Carolina and several other
states. Coral's services are similar to those of the
Company, and the acquisition significantly expands the geographic
scope of the Company's operations. The Coral acquisition will be
accounted for using the purchase method of accounting and the results
of the new Coral operations will be included in the Company's financial
statements subsequent to the date of acquisition.
Blood Products
- --------------
Blood products revenue consists principally of sales of apheresis or
single donor platelets. Platelets are a blood component useful in
treating patients with a variety of medical conditions, particularly
cancer patients undergoing chemotherapy. Through the apheresis
process, the Company is able to collect a sufficient amount of this
blood component from a single donation to constitute a therapeutic
unit of platelets for transfusion to a patient in need.
Blood product sales also include sales of other whole blood components
including plasma and red blood cells.
Blood products are collected and processed at the Company's principal
facility in Sherman Oaks. California. Products are also collected at
the Company's USC Blood Donor Center. The Company conducts its blood
product operations under licensure of the US Food and Drug
Administration (FDA).
Blood Services
Blood services revenue consists of sales of therapeutic apheresis
procedures, peripheral blood stem cell collection and cryopreservation
and other medical procedures performed by a specially trained nursing
staff, generally in a hospital setting. These procedures involve the
use of specialized blood separation technology to remove selected
9
<PAGE> 10
components of a patient's blood as a part of a therapeutic treatment
program prescribed by a physician. The Company provides these
services to hospitals on a mobile basis. Specially trained nurses
employed by the Company using HemaCare-owned equipment provide care to
patients on client hospital premises.
Blood services revenue also includes fees charged by the Company for
testing services provided to hospitals that operate their own blood
donation programs.
Blood Management Programs
- -------------------------
The Company operates a Blood Management Program (BMP) for two
hospitals affiliated with the University of Southern California. A
BMP allows a hospital to outsource many blood-related operations to
HemaCare. The Company previously operated two other BMPs, one of
these was located in St. Louis, Missouri (Gateway) and another was
conducted for three southern California hospitals (Citrus Valley).
The Gateway program was sold August 1997 and the Citrus Valley program
was terminated in July of 1988. These programs did not meet the
Company's profitability criteria.
All comparisons within the following discussions are to the comparable
periods of the previous year.
- -----------------------------
Revenues and Operating Profit
- -----------------------------
Total revenues were consistent in the three-month period and increased
2% in the nine-month period of 1998. The nine-month increase resulted
from higher Blood Products and Blood Services revenues, offset by
lower BMP revenue. The Company's operating profit as a percentage of
revenues ("profit margin") increased to 32% in the third quarter of
1998 from 15% in the comparable quarter of 1997 and to 24% for the
first nine months of 1998 from 15% in the comparable period of 1997.
The increases in both periods were due primarily to the elimination of
losses associated with Gateway and, with respect to the third quarter,
the elimination of losses associated with Citrus Valley, combined with
a higher gross profit margin on sales of apheresis platelets.
Blood Management Programs
- -------------------------
The 1998 three-month ($415,000) and nine-month ($894,000) decreases in
BMP revenues were due to the sale of Gateway in August 1997 and the
disposition of Citrus Valley in July 1998. Program profit margins
increased by 26% in the three-month period and by 15% in the nine-
month period, as a result of the elimination of these under-performing
programs.
On July 17, 1998, the Company terminated the Citrus Valley Blood
Services Agreement (the "Agreement") and discontinued Citrus Valley
BMP operations. These actions were necessitated by the continuing
shortage and escalating price of red blood cells, which comprise the
largest portion of the blood products purchased by the Citrus Valley
hospitals. Disposition of the Citrus Valley Blood Management Program
did not to have a material, adverse effect on the Company's results of
operations or financial condition.
Blood Products
- --------------
Blood Products revenues increased $508,000 (90%) in the third quarter
and increased $424,000 (22%) in the first nine-months of 1998. The
three-month and nine-month increases were due to higher volumes of
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<PAGE> 11
apheresis platelet sales, partially offset by a lower volume of whole
blood component sales. In both periods, the increase in apheresis
platelet sales volume was due to higher demand from existing customers
as well as the acquisition of new customers, while whole blood
component sales volumes decreased primarily due to a shortage of red
blood cells available for sale.
The profit margin on Blood Products sales increased to 37% from 25% in
the third quarter and to 31% from 24% in the first nine months of
1998. The increases resulted from a higher percentage of apheresis
platelet sales in the mix of products sold and from a lower average
cost per apheresis platelet unit sold, partially offset by a lower,
average sales price per apheresis platelet sold.
Blood Services
- --------------
Blood Services revenues decreased 8% ($93,000) in the three-month
period and increased 20% ($639,000) in the nine-month period of 1998.
The third quarter decrease in revenue was due to a lower average price
per procedure resulting from the mix of procedures provided.
Approximately 39% of the nine-month increase resulted from sales of
albumin, a protein replacement fluid, to non-hospital customers. The
remaining nine-month increase resulted from a higher demand for
therapeutic procedures from existing customers. In addition, the
average price charged for a therapeutic procedure increased in both
1998 periods, in response to higher albumin acquisition costs.
However, the price increase did not entirely offset the higher albumin
cost.
The profit margin on Blood Services sales increased to 34% from 30% in
the third quarter and decreased to 28% from 30% in the first nine
months of 1998. The third quarter increase was due primarily to an
easing of albumin costs, while the nine month decrease was due to
higher albumin costs.
- ----------------------------------
General and Administrative Expense
- ----------------------------------
General and administrative expense increased 26% ($124,000) for the
three-month period and 16% ($235,000) for the nine-month period of
1998. Both increases reflects severance payments, compensation cost
associated with forgiveness of a related-party loan, higher CEO
compensation and higher legal, director and consulting fees. In
addition, the 1997 nine-month general and administrative expense was
reduced by a $71,000 recovery of previously expensed legal fees
related to the Company's lawsuit against the American Red Cross, which
was settled in June 1997.
- -------------------------------
Liquidity and Capital Resources
- -------------------------------
At September 30, 1998, the Company had cash and cash equivalents of
$1,953,000 and working capital of $2,336,000. The Company has a
$700,000 line of credit with a commercial bank which is in effect
through May 31, 1999. Under the terms of the credit line agreement,
the Company may borrow up to 70% of eligible accounts receivable, up
to a maximum of $700,000, and must maintain certain financial ratios
including working capital, as defined, of $500,000 and a tangible net
worth of not less than $1.75 million. The Company was in compliance
with all covenants of its borrowing agreement at September 30, 1998,
and there were no borrowings outstanding on the line of credit at that
date.
The Company's blood products and services businesses, other than the
USC Blood Donor Center (the "Center"), are profitable and cash flow
positive. Center operations are expected to continue to be
unprofitable until a higher level of Center blood collections can be
achieved. The operating losses of the Center reduce the overall
11
<PAGE> 12
profitability of the USC Blood Management Program to the Company. The
Company continues to implement changes intended to increase the level
of Center collections, but there can be no assurance that the Center
will be able to achieve and maintain a breakeven or profitable level
of collections.
Effective November 2, 1998, the Company's common stock is quoted on
the OTC Bulletin Board. Prior to that date, the Company's common stock
was listed on the Nasdaq Small Cap Market ("Nasdaq"). Issuers listed
on the Nasdaq SmallCap Market are required to maintain a minimum bid
price of $1.00, and the Company's common stock has been trading below
the minimum price for some time. Despite requests to Nasdaq for an
exception to the minimum bid price listing requirement, on October 29,
1998, the Company was informed that its stock would be delisted from
the Nasdaq SmallCap market effective the end of that day. Although
the Company's common stock is traded on the OTC Bulletin Board,
the liquidity of the Company's common stock and the Company's ability
to raise capital may be impaired by the Nasdaq delisting.
On October 22, 1998, HemaCare, through its wholly owned subsidiary
Coral Blood Services, Inc. ("CBS"), acquired substantially all the
assets of Coral Therapeutics, Inc. ("Coral"). The acquired assets
include (i) approximately $1.4 million in accounts receivable,
$600,000 of which are over 90 days old, (ii) fixed assets and (iii)
Coral's rights under its hospital contracts. HemaCare is currently in
the process of negotiating separate agreements with the hospitals
previously served by Coral and is providing services to most of these
hospitals under interim arrangements. HemaCare extended offers of
employment to most of Coral's employees.
The acquisition price of the assets was $950,000 in cash and 450,000
shares of HemaCare's Series B senior convertible preferred stock. The
Company financed the acquisition by (i) utilizing existing cash
balances, (ii) borrowing $600,000 on its line of credit and (iii)
issuing 450,000 shares of HemaCare Series B senior convertible
preferred stock. In addition, HemaCare has entered into or expects to
enter into non-competition agreements with certain former managers of
Coral pursuant to which HemaCare expects to make cash payments and
issue shares of HemaCare common stock and warrants to purchase
HemaCare common stock. HemaCare also expects to satisfy certain
liabilities of Coral to its ex-employees and to make payments
necessary to maintain essential business relationships.
Management is evaluating other opportunities to expand the Company's
operations, including implementing outsourcing models in a variety of
healthcare settings, joint ventures and acquisitions of apheresis-
based business. Future HemaCare outsourcing arrangements will most
likely be focused on providing specialized donation services,
apheresis based products and services, and other technology-based
blood therapies. However, implementing expansion plans may require
that the Company obtain additional financing or partner with other
blood product and service providers. There can be no assurance that
the Company will be successful in implementing its expansion plans or
that it will be able to obtain the funds necessary to finance such
programs.
Amendments to the Federal self-referral laws and related regulations
could restrict the Company's ability to provide therapeutic services
to Dr. Levy's patients who are covered by Medicare or MediCal.
However, these regulations are complex, and the Company requested a
clarification of their application to its business from Health Care
Financing Administration ("HCFA") in early 1996. The Company has not
received a response to this request. In January 1998, new proposed
12
<PAGE> 13
regulations were issued for comment. The proposed regulations did not
address therapeutic apheresis services, and the Company has requested
that HCFA revise these regulations to provide an exemption for
therapeutic apheresis services similar to the exemption provided for
dialysis services. The comment period for the proposed regulations
ended in early May 1998, and the new regulations will be issued
sometime after that date. In a discussion with the Company's legal
counsel, HCFA personnel expressed a willingness to consider the
arguments put forth in the Company's request for an exemption. If the
new regulations do not provide an exemption for therapeutic apheresis
services, the Company could lose future revenue from services to be
provided to Dr. Levy's Medicare and MediCal patients (approximately
$244,000 in the first nine months of 1998).
The Company anticipates that cash flow from profitable operations,
collection of the accounts receivable purchased from Coral, borrowing
available from its bank line of credit and its cash and investments on
hand will be sufficient to provide funding for its existing needs
during the next twelve months.
- ---------------------------------------------
Factors Affecting Forward-Looking Information
- ---------------------------------------------
The Private Securities Litigation Reform Act of 1995 provides a "safe
harbor" from liability for forward-looking statements. Certain
information included in this Form 10-Q and other materials filed or to
be filed by the Company with the Securities and Exchange Commission
(as well as information included in oral statements or other written
statements made or to be made by or on behalf months of the Company)
are forward-looking, such as statements relating to operational and
financing plans, competition, the effects of discontinued operations,
demand for the Company's products and services, the liquidity of the
Company's common stock and the anticipated outcome of contingent
claims against the Company. Such forward-looking statements involve
important risks and uncertainties, many of which will be beyond the
control of the Company. These risks and uncertainties could
significantly affect anticipated results in the future, both short-
term and long-term, and accordingly, such results may differ from
those expressed in forward-looking statements made by or on behalf
months of the Company. These risks and uncertainties include, but are
not limited to, those relating to the ability of the Company to expand
its operations, obtain additional financing, to repay existing debt,
to achieve profitability in its USC Center, to retain existing
customers and obtain new customers, to integrate the assets recently
acquired from Coral Therapeutic, Inc.'s secured lender, to retain the
Coral Therapeutic, Inc. customers, to improve the profitability of the
Company's other operations and to comply with the covenants under its
bank line of credit. Each of these risks and uncertainties as well as
others are discussed in greater detail in the preceding paragraphs of
this Management's Discussion and Analysis of Financial Condition and
Results of Operations and in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997.
13
<PAGE> 14
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
See disclosure in Form 10-K for the year ended December
31, 1997.
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
The proxy materials for the 1998 annual meeting of
stockholders held on June 29, 1998 were mailed to
shareholders of the Company on May 18, 1998. Shareholder
proposals to be presented at the 1999 annual meeting of
shareholders must be received at the Company's executive
offices at 4954 Van Nuys Blvd., Sherman Oaks, California
91403, addressed to the attention of the Corporate Secretary
by January 19, 1999, in order to be considered for inclusion
in the proxy materials relating to such meeting. Recently,
the Securities and Exchange Commission amended its rule
governing a company's ability to use discretionary proxy
authority with respect to shareholder proposals which were
not submitted by the shareholders in time to be included in
the proxy statement. As a result of that rule change, in
the event a shareholder proposal is not submitted to the
Company prior to April 3, 1999, the proxies solicited by the
Board of directors for the 1999 annual meeting of
shareholders will confer authority on the holders of the
proxy to vote the shares in accordance with their best
judgement and discretion if the proposal is presented at the
1999 annual meeting of shareholders without any discussion
of the proposal in the proxy statement for such meeting.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
10.1 Office Building Lease dated August 1, 1998
between the Registrant and Tar Asset Addison
Place, L.P. (Exhibits have been omitted
pursuant to Item 601(b)(2) of Regulation S-K.
Such exhibits are listed in the Office Building
Lease. The Registrant hereby agrees to furnish
supplementary to the Securities and Exchange
Commission, upon its request, any or all such
omitted exhibits.)
27 Financial Data Schedule for the Quarter
Ending September 30, 1998.
b. The Company did not file any reports on Form 8-K during
the three months ended September 30, 1998.
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Date November 13, 1998 HEMACARE CORPORATION
-----------------------------
(Registrant)
/s/ Sharon C. Kaiser
------------------------------
Senior Vice President,
Finance and Chief Financial
Officer
15
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Description Method of Filing
- ------ ----------------------------------------------------- -----------------
<S> <C> <C>
10.1 Office Building Lease dated August 1, 1998 between the Filed herewith electronically
Registrant and Tar Asset Addison Place, L.P. (Exhibits
have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Such exhibits are listed in the Office
Building Lease. The Registrant hereby agrees to
furnish supplementary to the Securities and Exchange
Commission, upon its request, any or all such omitted
exhibits.)
27 Financial Data Schedule for the quarter ending Filed herewith electronically
September 30, 1998
</TABLE>
16
<PAGE> 17
EXHIBIT 10.1
OFFICE BUILDING LEASE
This Lease between Tar Asset Addison Place, L.P., a California
limited partnership ("Landlord"), and HemaCare Corporation, a
California corporation (Tenant") is dated August 1, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the
provisions of this Lease, Landlord leases to Tenant and Tenant
leases from Landlord the Premises shown by diagonal lines on the
floor plan attached hereto as Exhibit "A," and further described
at Section 2l. The Premises are located within the Building and
Project described in Section 2m. Tenant shall have the non-
exclusive right (unless otherwise provided herein) in common with
Landlord, other tenants, subtenants and invitees, to use of the
Common Areas (as defined at Section 2e).
2. DEFINITIONS.
As used in this Lease, the following terms shall have the
following meanings:
a. Base Rent: (initial) $ 241,068.00 per year. (See Section 2j.)
b. Base Year: The calendar year of 1999
c. Broker(s): Landlord: Investment Development Services, Inc.
-------------------------------------
Tenant: Bailes and Associates, Inc.
-------------------------------------
d. Commencement Date: August 1, 1998.
e. Common Areas: the building lobbies, common corridors and
hallways, restrooms, garage and parking areas, stairways,
elevators and other generally understood public or common
areas. Landlord shall have the right to regulate or
restrict the use of the Common Areas.
f. <Intentionally Deleted>.
g. Expiration Date: October 31, 2002, unless otherwise
sooner terminated in accordance with the provisions of this
Lease.
h. <Intentionally Deleted>.
i. Landlord's Mailing Address: c/o Investment Development Services, Inc.
888 West Sixth Street, Ninth Floor
Los Angeles, California 90017
Attention: Real Estate Manager
Tenant's Mailing Address: HemaCare Corporation
4954 Van Nuys Boulevard, 2nd Floor
Sherman Oaks, California 91423
Attention: President
j. Monthly Installments of Base Rent:
8/1/1998-11/30/1998 $10,044.00 per month
12/1/1998-9/30/2000 $20,089.00 per month
10/1/2000-10/31/2002 $22,524.00 per month
<PAGE> 18
k. Parking: Tenant shall be permitted, without cost to park
thirty-two (32) cars on a non-exclusive basis in the
area(s) designated by Landlord for parking. Tenant shall
abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's
parking operator. Landlord reserves the right to separately
charge Tenant's guests and visitors for parking which
exceeds the thirty-two (32) cars allowed above. Provided
Tenant is open for business during the hours referenced
below, Landlord shall provide a parking attendant on Monday
through Friday, between the hours of 8:30 a.m. and 5:00
p.m., and on Saturday, between the hours of 8:00 a.m. and
4:00 p.m.
l. Premises: that portion of the Building containing
approximately 12,175 square feet of Rentable Area,
shown by diagonal lines on Exhibit "A," located on the 1st
and 2nd Floors of the Building and known as Suite 105 and 2nd Floor.
The Premises are broken down as follows:
Suite 105 1,992 RSF
2nd Floor 10,183 RSF
----------
Total 12,175 RSF
m. Project: the building of which the Premises are a part (the
"Building") and another buildings or improvements on the
real property (the "Property") located at 4954 Van Nuys
Boulevard, Sherman Oaks, California 91403.
The Project is known as Addison Place.
n. Rentable Area: as to both the Premises and the Project, the
respective measurements of floor area as may from time to
time be subject to lease by Tenant and all tenants of the
Project, respectively, as reasonably determined by Landlord
and applied on a consistent basis throughout the Project.
o. Security Deposit (Article 7): None.
p. State: the State of California.
q. <Intentionally Deleted>.
r. Tenant's Proportionate Share: 63%. Such share is a
fraction, the numerator of which is the Rentable Area of the
Premises, and the denominator of which is the Rentable Area
of the Project, as determined by Landlord from time to time.
The Project consists of one (1) building(s) containing a
total Rentable Area of 19,390 square feet.
s. Tenant's Use Clause (Article 8): General offices, blood and
blood components donations, patient treatment, medical and
blood banking laboratory and storage and processing and
manufacturing of blood. Tenant shall be responsible for
maintaining a use that is acceptable to all city zoning and
use requirements.
t. Term: The period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are
incorporated by reference in this Lease:
a. Exhibit "A" - Floor Plan of the Premises
b. Exhibit "B" - Tenant Allowance Construction Agreement
c. Exhibit "C" - Hazardous Materials Notice
d. Addenda:
Rider to Lease dated August 1, 1998
Page 2
<PAGE>
4. DELIVERY OF POSSESSION.
Tenant is currently in possession of the Premises known as 4954
Van Nuys Boulevard, Sherman Oaks, by virtue of a Lease dated July
10, 1986, First Amendment to Lease fully executed on March 31,
1993, and letter agreements dated April 27, 1997 and January 28,
1998 (collectively "Old Lease"). Effective upon full execution
and delivery of the instant Lease dated August 1, 1998 to each
party, the Old Lease shall be terminated and shall be of no
further force and effect. Landlord and Tenant hereby represent
that as of the effective date of the instant Lease, neither party
is in default of any obligation under the Old Lease and each
hereby releases the other from any further liability with respect
thereto.
5. RENT.
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for
the Premises. Monthly Installments of Base Rent shall be payable
in advance on the first day of each calendar month of the Term.
If the Term begins (or ends) on other than the first (or last)
day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis.
5.2 Adjusted Base Rent. (SEE SECTION 2j.)
<Intentionally Deleted>.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect
any increase in Project Operating Costs, Tenant agrees to
pay to Landlord as Rent, Tenant's Proportionate Share of all
increases in costs, expenses and obligations attributable to
the Project and its operation, all as provided below.
b. If, during any calendar year during the Term, Project
Operating Costs exceed the Project Operating Costs for the
Base Year, Tenant shall pay to Landlord, in addition to the
Base Rent and all other payments due under this Lease, an
amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of
this Section 5.3b.
(1) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and
other similar governmental charges levied on or attributable
to the Building or Project or their operation, including
without limitation, (i) real property taxes or assessments
levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the
Building or Project by any redevelopment agency, and (iii)
any tax measured by gross rentals received from the leasing
of the Premises, Building or Project, excluding any net
income, franchise, capital stock, estate or inheritance
taxes imposed by the State or federal government or their
agencies, branches or departments; provided that if at any
time during the Term any governmental entity levies,
assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax,
assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other
leases of space in the Building or Project, or (2) any
license fee, excise or franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such
Rent, or (3) any transfer, transaction, or similar tax,
assessment, levy or charge based directly or indirectly upon
the transaction represented by this Lease or such other
leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon
the use or occupancy of the Premises or other premises
within the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs. (See Section
(b))
(b) Operating costs incurred by Landlord in
maintaining and operating the Building and Project,
including without limitation the following; costs of (1)
utilities;
Page 3
<PAGE>
(2) supplies; (3) insurance (including public
liability, property damage, earthquake*, and fire and
extended coverage insurance for the full replacement cost of
the Building and Project as required by Landlord or its
lenders for the Project; (4) services of independent
Contractors; (5) compensation (including employment taxes
and fringe benefits) of all persons who perform duties
connected with the operation, maintenance, repair or
overhaul of the Building or Project, and equipment,
improvements and facilities located within the Project,
including without limitation engineers, janitors, painters,
floor waxers, window washers, security and parking personnel
and gardeners (but excluding persons performing services not
uniformly available to or performed for substantially all
building or project tenants); (6) management of the Building
or Project, whether managed by Landlord or an independent
contractor (including, without limitation, an amount equal
to the fair market value of any on-site manager's office);
(7) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (8) costs,
expenditures or charges (whether capitalized or not)
required by any governmental or quasi-governmental
authority; (9) amortization of capital expenses (including
financing costs) (i) required by a governmental entity for
energy conservation or life safety purposes, or (ii) made by
Landlord to reduce Project Operating Costs to the extent of
such reduction each year; and (10) any other commercially
reasonable costs or expenses incurred by Landlord under this
Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term (including the base
year), less than eighty-five percent (85%) of the Rentable
Area of the Project is occupied, the components of Project
Operating Costs, including Taxes as defined in Subsection
(a) and Operating Costs as defined in Subsection (b), shall
be adjusted by Landlord to reasonably approximate the
Project Operating Costs which would have been incurred if
the Project had been at least eighty-five (85%) occupied.
Notwithstanding the above, increases in Project Operating
Costs (excepting property taxes, insurance premiums, and
utility costs) shall not exceed 4% per annum, compounded and
cumulative, for purposes of calculating additional rent
hereunder.
Project Operating Costs shall not include electricity and
natural gas usage, janitorial service and supplies, and HVAC
maintenance and repairs, which specifically serve the
Premises. These expenses shall be paid by Tenant directly
effective on the Lease Commencement Date. Common area
utilities shall be reimbursable in Project Operating Costs.
Tenant shall not be obligated to pay any increase in
property taxes due to a sale or change of ownership of the
Property of which the Premises are a part, nor shall
Tenant's operating costs be reduced due to a reduction in
property taxes based on a sale of the Property.
* In the event the cost of earthquake insurance coverage for
the Project is not included in the Base Year Project
Operating Costs, and Landlord subsequently purchases
earthquake insurance and includes the cost of coverage in
any Comparison Year Project Operating Costs, the Base Year
Project Operating Costs shall be adjusted to include the
cost of earthquake insurance coverage paid by Landlord
during the first Comparison Year in which Landlord includes
the cost of such insurance ("Earthquake Adjusted Base
Year"). For any subsequent Comparison Year, the use of
Base Year or Earthquake Adjusted Base Year shall be
determined in relation to whether costs for earthquake
insurance were included in Project Operating Costs during
the applicable Comparison Year.
(2) Tenant's Proportionate Share of Project Operating Costs
shall be payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base
Year and for each calendar year thereafter ("Comparison
Year"),Tenant shall pay Landlord an amount equal to
Tenant's Proportionate Share of the excess of the Project
Operating Costs incurred by Landlord in the Comparison Year
over the total amount of Project Operating Costs payable by
Landlord for the Base Year. This excess is referred to as
the "Excess Expenses."
(b) To provide for current payments of Excess Expenses,
Tenant shall, at Landlord's request, pay as additional rent
during each Comparison Year, an amount equal to Tenant's
Page 4
<PAGE>
Proportionate Share of the Excess Expenses payable during
such Comparison Year, as reasonably estimated by Landlord
from time to time. Such payments shall be made in monthly
installments, commencing on the first day of the month
following the month in which Landlord notifies Tenant of the
amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord
gives Tenant a new notice of estimated Excess Expenses. It
is the intention hereunder to estimate from time to time the
amount of the Excess Expenses for each Comparison Year and
Tenant's Proportionate Share thereof, and then to make an
adjustment in the following year based on the actual Excess
Expenses incurred for that Comparison Year.
(c) At the end of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical),
Landlord shall deliver to Tenant a statement setting forth
Tenant's Proportionate Share of the Excess Expenses for the
preceding Comparison Year. If Tenant's Proportionate Share
of the actual Excess Expenses for the previous Comparison
Year exceeds the total of the estimated monthly payments
made by Tenant for such year, Tenant shall pay Landlord the
amount of the deficiency within fourteen (14) days of the
receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such
Comparison Year, then Landlord shall credit against Tenant's
next ensuing monthly installment(s) of additional rent an
amount equal to the difference until the credit is
exhausted. If a credit is due from Landlord on the
Expiration Date, Landlord shall pay Tenant the amount of the
credit within fourteen (14) days after the Expiration Date.
The obligations of Tenant and Landlord to make payments
required under this Section 5.3 shall survive the Expiration
Date.
(d) Tenant's Proportionate Share of Excess Expenses in any
Comparison Year having less than 365 days shall be
appropriately prorated.
(e) If any dispute arises as to the amount of any
additional rent due hereunder, Tenant shall have the right
after reasonable notice and at reasonable times to inspect
Landlord's accounting records at Landlord's accounting
office, and if after such inspection Tenant still disputes
the amount of additional rent owed Tenant shall be entitled
to conduct an audit of Landlord's accounting records,
provided Tenant uses an independent certified public
accountant experienced in the accounting of commercial real
estate ownership and operations in Southern California.
Tenant agrees to pay the cost of such audit unless such
audit discloses that Landlord's original statement
overstated Project Operating Costs by more then five percent
(5%), in which event, Landlord shall reimburse Tenant for
the cost of such audit.
5.4 Definition of Rent. All costs and expenses which Tenant
assumes or agrees to pay to Landlord under this Lease shall
be deemed additional rent (which, together with the Base
Rent, is sometimes referred to herein as the "Rent"). The
Rent shall be paid to the Building manager (or other person)
and at such place, as Landlord may from time to time
designate in writing, without any prior demand therefor and
without deduction or offset except as otherwise provided
herein to contrary, in lawful money of the United States of
America.
5.5 Rent Control. If the amount of Rent or any other payment
due under this Lease violates the terms of any governmental
restrictions on such Rent or payment, then the Rent or
payment due during the period of such restrictions shall be
the maximum amount allowable under those restrictions. Upon
termination of the restrictions, Landlord shall, to the
extent it is legally permitted, recover from Tenant the
difference between the amounts received during the period of
the restrictions and the amounts that Landlord would have
received had there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any
other charges to be paid by Tenant hereunder, Tenant shall
reimburse Landlord upon demand for any and all taxes payable
by Landlord (other than those taxes defined in Paragraph 5.3
(1)(a) or net income taxes) which are not otherwise
reimbursable under this Lease, whether or not now customary
or within the contemplation of the parties, provided that
such taxes are upon, measured by or reasonably attributable
to (a) the cost or value of Tenant's equipment, furniture,
fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements
made in or to the Premises by or for Tenant other than
Page 5
<PAGE>
Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or
Landlord; (b) the gross or net Rent payable under this
Lease, including, without limitation, any rental or gross
receipts tax levied by any taxing authority with respect to
the receipt of the Rent hereunder; (c) the possession,
leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any
portion thereof; or (d) this transaction or any document to
which Tenant is a party creating or transferring an interest
or an estate in the Premises. If it becomes unlawful for
Tenant to reimburse Landlord for any cost as required under
this Lease, the Base Rent shall be revised to provide to
Landlord the same net Rent after imposition of any tax or
other charge upon Landlord as would have been payable to
Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or
charges which Tenant is obligated to pay under the terms of this
Lease, the unpaid amounts shall bear interest at the maximum rate
then allowed by Law. Tenant acknowledges that the late payment
of any Monthly Installment of Base Rent will cause Landlord to
lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation
administrative and collection costs and processing and accounting
expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, in addition to interest, if any such
installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal
to five percent (5%) of such installment. Landlord and Tenant
agree that this late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to Landlord for
the loss suffered from such nonpayment by Tenant. Acceptance of
any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor
prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT.
<Intentionally Deleted>.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purpose set forth in
Tenant's Use Clause, including general office or complementary
ground floor retail use, reasonably approved by Landlord.
Tenant shall not use or occupy the Premises in violation of law
or any covenant, condition or restriction affecting the Building
or Project or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord,
immediately discontinue any use of the Premises which is declared
by any governmental authority having jurisdiction to be a
violation of law or the certificate of occupancy. Tenant, at
Tenant's own cost and expense, shall comply with all laws,
ordinances, regulations, rules and/or any directions of any
governmental agencies or authorities having jurisdiction which
shall, by reason of the nature of Tenant's use or occupancy of
the Premises, impose any duty upon Tenant or Landlord with
respect to the Premises or its use or occupation. A judgment of
any court of competent jurisdiction or the admission by Tenant in
any action or proceeding against Tenant that Tenant has violated
any such laws, ordinances, regulations, rules and/or directions
in the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant.
Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or
property located therein, and shall comply with all rules,
orders, regulations, requirements and recommendations of the
Insurance Services Office or any other organization performing a
similar function. 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
Article. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Building or
Project, or injure or annoy them, or use or allow the Premises to
be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer
to be committed any waste in or upon the Premises.
Page 6
<PAGE>
9. SERVICES AND UTILITIES. (SEE RIDER)
Except as otherwise provided in this Lease, Landlord agrees to
furnish to the Premises during generally recognized business
days, and during hours determined by Landlord in its sole
discretion, and subject to the Rules and Regulations of the
Building or Project, electricity for normal desk top office
equipment and normal copying equipment, and heating, ventilation
and air conditioning ("HVAC") as required in Landlord's judgment
for the comfortable use and occupancy of the Premises. If Tenant
desires HVAC at any other time, Landlord shall use reasonable
efforts to furnish such service upon reasonable notice from
Tenant and Tenant shall pay Landlord's charges therefor on
demand. Landlord shall also maintain and keep lighted the common
stairs, common entries and restrooms in the Building. Landlord
shall not be in default hereunder or be liable for any damages
directly or indirectly resulting from, nor shall the Rent be
abated by reason of (i) the installation, use or interruption of
use of any equipment in connection with the furnishing of any of
the foregoing services, (ii) failure to furnish or delay in
furnishing any such services where such failure or delay is
caused by accident or any condition or event beyond the
reasonable control of Landlord, or by the making of necessary
repairs or improvements to the Premises, Building or Project, or
(iii) the limitations, curtailment or rationing of, or
restrictions on, use of water, electricity, gas or any other form
of energy serving the Premises, Building or Project imposed by
governmental requirement or by the utility company furnishing
such services. Landlord shall not be liable under any
circumstances for a loss of or injury to property or business,
however occurring, through or in connection with or incidental to
failure to furnish any such services other than as a result of
Landlord's gross negligence or willful misconduct. If Tenant
uses heat generating machines or equipment in the Premises which
affect the temperature otherwise maintained by the HVAC system,
Tenant shall be responsible for the installation of supplementary
air conditioning units in the Premises and the cost thereof,
including the cost of installation, operation and maintenance
thereof, shall be paid by Tenant.
Tenant shall not connect any apparatus with electric current
except through existing electrical outlets in the Premises.
Tenant shall not consume water in excess of that usually
furnished or supplied for the use of premises as general office
space (as determined by Landlord), without first procuring the
written consent of Landlord, which Landlord may refuse, and in
the event of consent, Landlord may have installed a water meter
in the Premises to measure the amount of water consumed. The
cost of any such meter and of its installation, maintenance and
repair shall be paid for by the Tenant and Tenant agrees to pay
to Landlord promptly upon demand for all such water plus any
additional expense incurred in keeping account of the water so
consumed. If a separate meter is not installed, the excess cost
for such water shall be established by an estimate made by a
utility company or mechanical engineer hired by Landlord at
Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right
to require at any time separate metering of utilities furnished
to the Premises. In the event utilities are separately metered,
Tenant shall pay promptly upon demand for all utilities consumed
at utility rates charged by the local public utility plus any
additional expense incurred by Landlord in keeping account of the
utilities so consumed. Tenant shall be responsible for the
maintenance and repair of any such meters at its sole cost.
Landlord shall furnish elevator service and exterior window
washing in a manner that such services are customarily furnished
to comparable office buildings in the area.
Notwithstanding the above, Tenant shall have access to the
Building and use of the Premises, at will, 24 hours per day, 365
days per year. Tenant shall contract for and pay the appropriate
supplier directly for all utility services specifically serving
the Premises, janitorial services and supplies, HVAC maintenance
and repairs, and any other services and utilities serving the
Premises which are not otherwise the obligation of Landlord in
accordance with the Lease.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed
conclusive evidence that as of the date of taking possession the
Premises are in good order and satisfactory condition, except for
such matters as to which Tenant gave Landlord notice on or before
the Commencement Date. No promise of Landlord to alter, remodel,
repair or improve the Premises, the Building or the Project and
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no representation, express or implied, respecting any matter or
thing relating to the Premises, Building or this Lease
(including, without limitation, the condition of the Premises,
the Building or the Project) has been made to Tenant by Landlord
or its Broker, other than may be contained herein or in a
separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE. (SEE RIDER)
a. Landlord's Obligations. Landlord shall perform Landlord's
Work to the Premises as described in the Additional Addenda.
Landlord shall maintain in good order, condition and repair the
Building and all portions of the Premises that are not the
obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant at Tenant's sole expense shall, except for
services furnished by Landlord pursuant to Article 9 hereof,
maintain the Premises in good order, condition and repair,
including the interior surfaces of the ceilings, walls and
floors, all doors, all interior windows, all plumbing, pipes
and fixtures, electrical wiring, switches and fixtures,
building standard furnishings and special items and
equipment installed by or at the expense of Tenant.
(2) Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project and
the facilities and systems thereof, the need for which
arises out of (i) Tenant's use or occupancy of the Premises,
(ii) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (iii)
the moving of Tenant's Property into or out of the Building,
or (iv) the act, omission, misuse or negligence of Tenant,
its agents, contractors, employees or invitees.
(3) If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to
do such acts as are reasonably required to so maintain the
Premises. If Tenant fails to commence such work promptly
and prosecute it diligently to completion, then Landlord
shall have the right to do such acts and expend such funds
at the expense of Tenant as are reasonably required to
perform such work. Any amount so expended by Landlord shall
be paid by Tenant promptly after demand with interest at the
prime commercial rate then being charged by Bank of America
NT & SA plus two percent (2%) per annum, from the date of
such work, but not to exceed the maximum rate then allowed
by law. Landlord shall have no liability to Tenant for any
damage, inconvenience, or interference with the use of the
Premises by Tenant as a result of performing any such work
provided that Landlord uses due care in connection with such
performance.
c. Compliance with Law. Landlord and Tenant shall each do all
acts required to comply with all applicable laws, ordinances, and
rules of any public authority relating to their respective
maintenance obligations as set forth herein.
d. Waiver by Tenant. Tenant expressly waives the benefits of
any statute now or hereafter in effect which would otherwise
afford the Tenant the right to make repairs at Landlord's expense
or to terminate this Lease because of Landlord's failure to keep
the Premises in good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load
upon any floor of the Premises which exceeds the load per square
foot which such floor was designed to carry, as determined by
Landlord or Landlord's structural engineer and communicated to
Tenant. The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand.
Tenant shall not install business machines or mechanical
equipment which cause noise or vibration to such a degree as to
be objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner
whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making
any repairs or changes which Landlord is required or permitted by
this Lease or by any other tenant's lease or required by law to
make in or to any portion of the Project, Building or the
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Premises provided that Landlord shall use reasonable efforts to
minimize any interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part of or appurtenance to the
Building's mechanical, electrical, plumbing, HVAC or other
systems serving, located in, or passing through the Premises.
h. Upon the expiration or earlier termination of this Lease,
Tenant shall return the Premises to Landlord clean and in the
same condition as on the date Tenant took possession, except for
normal wear and tear and casualty loss. Any damage to the
Premises, including any structural damage, resulting from
Tenant's use or from the removal of Tenant's fixtures,
furnishings and equipment pursuant to Section 13b shall be
repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations, or
improvements to the Premises without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned, except that Landlord's consent
may be conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date
Tenant took possession, normal wear and tear and casualty loss
excepted. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by
properly qualified licensed personnel approved by Landlord, and
such work shall be diligently prosecuted to completion. Landlord
may, at Landlord's option, require that any such work be
performed by Landlord's contractor, provided that Tenant shall be
at no additional cost in connect therewith, in which case the
cost of such work shall be paid for before commencement of the
work. Tenant shall pay to Landlord upon completion of any such
work by Landlord's contractor, an administrative fee of five
percent (5%) of the cost of the work.
b. Tenant shall pay the cost of all work done on the Premises
pursuant to Section 12a and shall keep the Premises, Building and
Project free and clear of liens of any kind. Tenant shall
indemnify, defend and keep Landlord free and harmless from all
liability, loss, damage, costs, attorneys' fees and any other
expense incurred on account of claims by any person performing
work or furnishing materials or supplies for Tenant or any person
claiming under Tenant. Tenant shall keep Tenant's leasehold
interest, and any additions or improvements which are or become
the property of the Landlord under this Lease, free and clear of
all attachment or judgment liens. Before the actual commencement
of any work for which a claim or lien may be filed, Tenant shall
give Landlord notice of the intended commencement date,
sufficiently before that date to enable Landlord to post notices
of non-responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest in the
Premises, Building or the Project, and Landlord shall have the
right to enter the Premises and post such notices at any
reasonable time.
c. For any additions, alterations or improvements that cost in
excess of $25,000, Landlord may require, at Landlord's sole
option, that Tenant provide to Landlord, at Tenant's expense, a
lien and completion bond in an amount equal to at least one and
one-half (1-1/2) times the total estimated cost of any additions,
alterations or improvements to be made in or to the Premises, to
protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work.
Nothing contained in this Section 12c shall relieve Tenant of its
obligation under Section 12b to keep the Premises, Building and
Project free of all liens.
d. Unless their removal is required by Landlord as provided in
Section 12a, all additions, alterations and improvements made to
the Premises shall become the property of the Landlord and be
surrendered with the Premises upon the expiration of the Term;
provided, however, that Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the Premises
shall remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
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13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of or
during the Term, whether or not by or at the expense of Tenant
("Leasehold Improvements"), shall be and remain a part of the
Premises, shall be the property of Landlord and shall not be
removed by Tenant, except as expressly provided in Section 13b.
b. All movable partitions, business and trade fixtures,
machinery and equipment, communications equipment, and office
equipment located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be
removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises
(collectively, "Tenant's Property") shall be and shall remain
the property of Tenant and may be removed by Tenant at any time
during the Term; provided, however, that if any of Tenant's
Property is removed, Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors,
employees and invitees to comply with) reasonable and
nondiscriminatory rules and regulations and with such reasonable
and nondiscriminatory modifications thereof and additions thereto
as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by
other tenants or occupants of the Building or Project. In the
event of any conflict between the provisions of this Lease and
the provisions of such rules and regulations, the provisions of
this Lease shall control.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without
liability to Tenant for (a) damage or injury to property, person
or business, (b) causing an actual or constructive eviction from
the Premises, or (c) disturbing Tenant's use or possession of the
Premises:
a. To name the Building and Project and to change the name or
street address of the Building or Project;
b. To install and maintain all signs on the exterior and
interior of the Building and Project;
c. To have pass keys to the Premises and all doors within the
Premises, excluding Tenant's vaults and safes, computer room,
records storage and blood product storage, provided Landlord
retains the right to access these areas with the permission and
accompaniment of Tenant as Landlord deems reasonably necessary.
d. At any time during the Term, and on reasonable prior notice
to Tenant, to inspect the Premises, and to show the Premises to
any prospective purchaser or mortgagee of the Project, or to any
assignee of any mortgagee on the Project, or to others having an
interest in the Project or Landlord and, during the last six
months of the Term, to show the Premises to prospective tenants
thereof; and
e. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises
or the Building (including, without limitation, checking,
calibrating, adjusting or balancing controls and other parts of
the HVAC system), and to take all steps as may be necessary or
desirable for the safety, protection, maintenance or preservation
of the Premises or the Building or Landlord's interest therein,
or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws,
orders or requirements of governmental or other authority,
provided that Landlord use reasonable efforts (except in an
emergency) to minimize interference with Tenant's business in the
Premises in the course of any such entry.
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16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the
Premises shall be permitted, except as provided in this Article
16.
a. Tenant shall not, without the prior written consent of
Landlord, assign or hypothecate this Lease or any interest herein
or sublet the Premises or any part thereof, or permit the use of
the Premises by any party other than Tenant. Any of the
foregoing acts without such consent shall be void and shall, at
the option of Landlord, terminate this Lease. This Lease shall
not, nor shall any interest of Tenant herein, be assignable by
operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant
desires to assign this Lease or sublet all or any part of the
Premises, Tenant shall give notice to Landlord setting forth the
terms and provisions of the proposed assignment or sublease, and
the identity of the proposed assignee or subtenant. Tenant shall
promptly supply Landlord with such information concerning the
business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request.
Landlord shall have the option, exercisable by notice given to
Tenant within twenty (20) days after Tenant's notice is given
either to sublet such space from Tenant at the rental and on the
other terms set forth in this Lease for the term set forth in
Tenant's notice, or, in the case of an assignment, to terminate
this Lease. If Landlord does not exercise such option, Tenant
may assign the Lease or sublet such space to such proposed
assignee or subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed
assignee or subtenant, which approval shall not be
unreasonably withheld and shall be deemed given unless
Landlord advises Tenant within such twenty-day period that
Landlord has disapproved such assignee or subtenant;
(2) The assignment or sublease shall be on the same terms
set forth in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the Premises
until an executed counterpart of such assignment or sublease
has been delivered to Landlord;
(4) No assignee or sublease shall have a further right to
assign or sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by
Tenant as a result of such assignment or subletting, however
denominated under the assignment or sublease, which exceed,
in the aggregate, (i) the total sums which Tenant is
obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to any portion of the Premises
subleased), plus (ii) any real estate brokerage commissions
or fees payable in connection with such assignment or
subletting, including legal, advertising, tenant
improvements, and design and construction costs, shall be
paid to Landlord as additional rent under this Lease without
affecting or reducing any other obligations of Tenant
hereunder.
c. Notwithstanding the provisions of paragraphs a and b above,
Tenant may assign this Lease or sublet the Premises or any
portion thereof, without Landlord's consent and without extending
any recapture or termination option to Landlord, to any
corporation or other entity which controls, is controlled by or
is under common control with Tenant, or to any corporation or
other entity resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires all or
substantially all of the assets of Tenant's business as a going
concern, provided that (i) the assignee or sublessee assumes, in
full, the obligations of Tenant under this Lease, (ii) Tenant
remains fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of
Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by
Landlord from any other person shall not be deemed to be a waiver
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by Landlord of any provision hereof. Consent to one assignment
or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee
or subtenant of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Landlord
may consent to subsequent assignments of the Lease or sublettings
or amendments or modifications to the Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and
without obtaining its or their consent thereto, and any such
actions shall not relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or
requests the consent of Landlord to any assignment or subletting,
then Tenant shall, upon demand, pay Landlord an administrative
fee of Five Hundred Dollars ($500.00) plus reimburse any
attorneys' fees reasonably incurred by Landlord in connection
with such act or request, but in no event to exceed One Thousand
Dollars ($1,000.00).
17. HOLDING OVER.
If, after expiration of the Term, Tenant remains in possession of
the Premises with Landlord's permission (express or implied),
Tenant shall become a tenant from month to month only, upon all
provisions of this Lease (except as to term and Base Rent), but
the "Monthly Installments of Base Rent" payable by Tenant shall
be increased to one hundred twenty-five percent (125%) of the
Monthly Installments of Base Rent payable by Tenant at the
expiration of the Term. Such Monthly rent installments shall be
payable in advance on or before the first day of each month. If
either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance
written notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on
the Expiration Date, in broom-clean condition and in as good
condition as when Tenant took possession, except for (i)
reasonable wear and tear, (ii) loss by fire or other casualty and
(iii) loss by condemnation. Tenant shall, on Landlord's request,
remove Tenant's Property on or before the Expiration Date and
promptly repair all damage to the Premises or Building caused by
such removal.
b. If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of Tenant's
Property left on the Premises shall be deemed to be abandoned,
and, at Landlord's option, but subject to applicable legal
requirements, title shall pass to Landlord under this Lease. If
Landlord elects to remove all or any part of such Tenant's
Property, the cost of removal, including repairing any damage to
the Premises or Building caused by such removal, shall be paid by
Tenant. On the Expiration Date Tenant shall surrender to
Landlord all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or any other portion of the Building
necessary for Tenant's occupancy is damaged by fire, earthquake,
act of God, the elements or other casualty, Landlord shall,
subject to the provisions of this Article, promptly repair the
damage, if such repairs can, in Landlord's reasonable opinion, be
completed within ninety (90) days. If Landlord reasonably
determines that repairs can be completed within ninety (90) days,
this Lease shall remain in full force and effect, except that if
such damage is not the result of the negligence or willful
misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the
extent Tenant's use of the Premises is impaired, commencing with
the date of damage and continuing until completion of the repairs
required of Landlord under Section 19d.
b. If in Landlord's reasonable opinion such repairs to the
Premises or portion of the Building necessary for Tenant's
occupancy cannot be completed within ninety (90) days, Landlord
may elect, upon notice to Tenant given within thirty (30) days
after the date of such fire or other casualty, to repair such
damage, in which event this Lease shall continue in full force
and effect, but the Base Rent shall be partially abated as
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provided in Section 19a. If Landlord does not so elect to make
such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
c. If any other portion of the Building or Project is totally
destroyed or damaged to the extent that in Landlord's reasonable
opinion repair thereof cannot be completed within ninety (90)
days, Landlord may elect, upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty,
to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect
to make such repairs, this Lease shall terminate as of the date
of such fire or other casualty.
d. If the Premises are to be repaired under this Article,
Landlord shall repair at its cost any injury or damage to the
Building and Building Standard Work in the Premises. Tenant
shall be responsible at its sole cost and expense for the repair,
restoration and replacement of any other Leasehold Improvements
and Tenant's Property. Landlord shall not be liable for any loss
of business, inconvenience or annoyance arising from any repair
or restoration of any portion of the Premises, Building or
Project as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Premises,
Building or Project by fire or other casualty, and any present or
future law which purports to govern the rights of Landlord and
Tenant in such circumstances shall, in the absence of express
agreement, have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken
by condemnation or in any other manner for any public or quasi-
public purpose, this Lease shall terminate as of the date of such
taking, and Rent shall be prorated to such date. If less than
the whole of the Building or Premises is so taken, this Lease
shall be unaffected by such taking, provided that if twenty
percent (20%) or more of the Premises is taken, (i) Tenant shall
have the right to terminate this Lease by notice to Landlord
given within ninety (90) days after the date of such taking if
the remaining area of the Premises is not reasonably sufficient
for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice
to Tenant given within ninety (90) days after the date of such
taking. If either Landlord or Tenant so elects to terminate this
Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rent shall be prorated to the date
of termination. If this Lease continues in force upon such
partial taking, the Base Rent and Tenant's Proportionate Share
shall be equitably adjusted according to the remaining Rentable
Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by the
condemning authority shall be the exclusive property of Landlord,
and Tenant hereby assigns to Landlord all its right, title and
interest in any award, judgment or settlement from the condemning
authority. Tenant, however, shall have the right, to the extent
that Landlord's award is not reduced or prejudiced, to claim from
the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's personal property and
goodwill.
c. In the event of a partial taking of the Premises which does
not result in a termination of this Lease, Landlord shall restore
the remaining portion of the Premises as nearly as practicable to
its condition prior to the condemnation or taking, but only to
the extent of Building Standard Work. Tenant shall be responsible
at its sole cost and expense for the repair, restoration and
replacement of any Leasehold Improvements and Tenant's Property
other than Building Standard Work.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against
and from liability and claims of any kind for loss or damage to
property of Tenant or any other person, or for any injury to or
death of any person, arising out of (1) Tenant's use and
occupancy of the Premises, or any work, activity or other things
allowed or suffered by Tenant to be done in, on or about the
Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease or (3) any negligent or otherwise
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tortious act or omission of Tenant, its agents, employees,
invitees or contractors. Tenant shall, at Tenant's expense, and
by counsel satisfactory to Landlord defend Landlord in any action
or processing arising from any such claim and shall indemnify
Landlord against all costs, attorneys' fees, expert witness fees
and any other expenses incurred in such action or proceeding. As
a material part of the consideration for Landlord's execution of
this Lease, Tenant hereby assumes all risk of damage or injury to
any person or property in, on or about the Premises from any
cause.
b. Landlord shall not be liable for injury or damage which may
be sustained by the person or property of Tenant, its employees,
invitees or customers, or any other person in or about the
Premises, caused by or resulting from fire, steam, electricity,
gas, water or rain which may leak or flow from or into any part
of the Premises, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, whether such damage or
injury results from conditions arising upon the Premises or upon
other portions of the Building or Project or from other sources
unless such injury or damage results from the gross negligence or
willful misconduct of Landlord or its agents. Landlord shall not
be liable for any damages arising from any act or omission of any
other tenant of the Building or Project.
22. INSURANCE.
a. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies acceptable to
Landlord and Landlord's lender and qualified to do business in
the State. Each policy shall name Landlord, and at Landlord's
request any mortgagee of Landlord, as an additional insured, as
their respective interests may appear. Each policy shall contain
(i) a cross-liability endorsement, (ii) a provision that such
policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord
and that any coverage carried by Landlord shall be excess
insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of
Landlord, its agent, employees, or representatives. A copy of
each paid up policy (authenticated by the insurer) or certificate
of the insurer evidencing the existence and amount of each
insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of
possession of the Premises, and thereafter within thirty (30)
days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance
policies required to be maintained by Tenant hereunder. No such
policy shall be cancelable except after twenty (20) days written
notice to Landlord and Landlord's lender. Tenant shall furnish
Landlord with renewals or "binders" of any such policy at least
ten (10) days prior to the expiration thereof. 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 charge the Tenant the premiums together with
a twenty-five percent (25%) handling charge, payable upon demand.
Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by the Tenant, provided
such blanket policies expressly afford coverage to the Premises,
Landlord, Landlord's mortgagee and Tenant as required by this
Lease.
b. Beginning on the date that Tenant is given access to the
Premises for any purpose and continuing until expiration of the
Term, Tenant shall procure, pay for and maintain in effect
policies of casualty insurance covering (i) all Leasehold
Improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions
of Article 12 hereof), and (ii) trade fixtures, merchandise and
other personal property from time to time in, on or about the
Premises, in an amount not less than one hundred percent (100%)
of their actual replacement cost from time to time, providing
protection against any peril including with the classification
"Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds
of such insurance shall be used for the repair or replacement of
the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under (i)
shall be paid to Landlord, and the proceeds under (ii) above
shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term,
Tenant shall procure, pay for and maintain in effect workers'
compensation insurance as required by law and comprehensive
public liability and property damage insurance with respect to
the construction of improvements on the Premises, the use,
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operation or condition of the Premises and the operations of
Tenant in, on or about the Premises, providing personal injury
and broad form property damage coverage for not less then One
Million Dollars ($1,000,000) combined single limit for bodily
injury, death and property damage liability.
d. Not less than every three (3) years during the Term,
Landlord and Tenant shall mutually agree to increases in all of
Tenant's insurance policy limits for all insurance to be carried
by Tenant as set forth in this Article. In the event Landlord
and Tenant cannot mutually agree upon the amounts of said
increases, then Tenant agrees that all insurance policy limits as
set forth in this Article shall be adjusted for increases in the
cost of living in the same manner as is set forth in Section 5.2
hereof for the adjustment of the Base Rent.
e. Landlord shall carry liability insurance for common areas
and casualty insurance (fire and extended coverage) for Building
in amounts that Landlord deems commercially reasonable.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery
against the other and against the officers, employees, agents and
representatives of the other, on account of loss by or damage to
the 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 been in force at the time of the loss or
damage. Tenant shall, upon obtaining the policies of insurance
required under this Lease, give notice to its insurance carrier
or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease. Notwithstanding the foregoing, if
Tenant, it's agents, employees, assignees, or successors are
responsible for damage to the property, Tenant shall pay the
deductible portion of Landlord's insurance policy.
24. SUBORDINATION AND ATTORNMENT.
Landlord shall use its best efforts to provide Tenant with a non-
disturbance agreement from each holder of a lien encumbering the
Property within thirty (30) days following Tenant's execution
hereof, such non-disturbance agreement to be reasonably
acceptable to Tenant in form and substance.
Upon written request of Landlord, or any first mortgagee or first
deed of trust beneficiary of Landlord, or ground lessor of
Landlord, Tenant shall, in writing, subordinate its rights under
this Lease to the lien of any first mortgage or first deed of
trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made
thereunder. However, before any such subordination is
effectuated, Tenant shall have the right to obtain from any
lender or lessor of Landlord requesting such subordination, an
agreement in writing reasonably acceptable to Tenant in form and
substance, providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term.
The holder of any security interest may, upon written notice to
Tenant, elect to have this Lease prior to its security interest
regardless of the time of the granting or recording of such
security interest.
In the event of any foreclosure sale, transfer in lieu of
foreclosure or termination of the lease in which Landlord is
lessee, Tenant shall attorn to the purchaser, transferee or
lessor, as the case may be, and recognize that party as Landlord
under this Lease, provided that such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant
shall execute and deliver to Landlord or Landlord's designee, a
written statement certifying (a) that this Lease is unmodified
and in full force and effect, or is in full force and effect as
modified and stating the modifications; (b) the amount of Base
Rent and the date to which Base Rent and additional rent have
been paid in advance; (c) the amount of any security deposited
with Landlord; and (d) that Landlord is not in default hereunder
or, if Landlord is claimed to be in default, stating the nature
of any claimed default. Any such statement may be relied upon by
a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at
Landlord's election be a default under this Lease and shall also
Page 15
<PAGE>
be conclusive upon Tenant that: (1) this Lease is in full force
and effect and has not been modified except as represented by
Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim
or deduction against Rent, and (3) not more than one month's Rent
has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises,
Building or Project, and assignment of this Lease by Landlord,
Landlord shall be and is hereby entirely freed and relieved of
any and all liability and obligations contained in or derived
from this Lease arising out of any act, occurrence or omission
relating to the Premises, Building, Project or Lease and
occurring after the consummation of such sale or transfer,
provided that the purchaser shall expressly assume in writing all
of the covenants and obligations of Landlord under this Lease and
Tenant shall receive written notice thereof. If any security
deposit or prepaid Rent has been paid by Tenant, Landlord may
transfer the security deposit or prepaid Rent to Landlord's
successor and upon such transfer (with notice thereof to Tenant),
Landlord shall be relieved of any and all further liability with
respect thereto.
27. DEFAULT.
27.1 Tenant's Default. The occurrence of any one or more of the
following events shall constitute a default and breach of this
Lease by Tenant.
a. If Tenant abandons or vacates the Premises, stops the
payment of all monthly obligations and is not using good faith
efforts to sublease the Premises; or
b. If Tenant fails to pay any Rent or any other charges
required to be paid by Tenant under this Lease and such failure
continues for five (5) days after such payment is due and
payable; or
c. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease and such
failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant (provided, however, that in the
event such failure is not reasonably susceptible of cure within
such thirty-day period, Tenant shall have a reasonable additional
period within which to effectuate such cure); or
d. If a writ of attachment or execution is levied on this Lease
or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition extension
or adjustment with its creditors; or
f. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal
bankruptcy laws or other insolvency laws is filed and not
withdrawn or dismissed within ninety (90) days thereafter, or if
under the provisions of any law providing for reorganization or
winding up of corporations, any court of competent jurisdiction
assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody
or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take charge
of the Premises or Tenant's Property (so has the authority to do
so) for the purpose of enforcing a lien against the Premises or
Tenant's Property and such appointment is not dismissed within 30
days thereafter; or
h. If Tenant is a partnership or consists of more than one (1)
person or entity, if any partner of the partnership or other
person or entity, is involved in any of the acts or events
described in subparagraphs d through g above.
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27.2 Remedies. In the event of Tenant's default hereunder,
then in addition to any other rights or remedies Landlord may
have under any law, Landlord shall have the right, at Landlord's
option, without further notice or demand of any kind to do the
following:
a. Terminate this Lease and Tenant's right to possession of the
Premises and reenter the Premises and take possession thereof,
and Tenant shall have no further claim to the Premises or under
this Lease; or
b. Continue this Lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid Rent
or other charges which have or thereafter become due and payable;
or
c. Reenter the Premises under the provisions of subparagraph b,
and thereafter elect to terminate this Lease and Tenant's right
to possession of the Premises.
If Landlord reenters the Premises under the provisions of
subparagraphs b or c above, Landlord shall not be deemed to have
terminated this Lease or the obligation of Tenant to pay any Rent
or other charges thereafter occurring, unless Landlord notifies
the Tenant in writing of Landlord's election to terminate the
Lease.
In the event of any reentry or retaking of possession by
Landlord, Landlord shall have the right, but not the obligation,
to remove all or any part of Tenant's Property in the Premises
and to place such property in storage at a public warehouse at
the expense and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by Landlord
from such reletting shall be applied as follows: first, to the
payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs of such
reletting; third, to the payment of the cost of any alterations
or repairs to the Premises; fourth, to the payment of Rent due
and unpaid hereunder; and the balance, if any, shall be held by
Landlord and applied in payment of future Rent as it becomes due.
If that portion of rent received from the reletting which is
applied against the Rent due hereunder is less than the amount of
the Rent due, Tenant shall pay the deficiency to Landlord
promptly upon demand by Landlord. Such deficiency shall be
calculated and paid monthly. Tenant shall also pay to Landlord,
as soon as determined, any costs and expenses incurred by
Landlord in connection with such reletting or in making
alterations and repairs to the Premises which are not covered by
the rent received from the reletting.
Should Landlord elect to terminate this Lease under the
provisions of subparagraph a or c above, Landlord may recover as
damages from Tenant the following:
1. Past Rent. The worth at the time of the award of any
unpaid Rent which had been earned at the time of
termination; plus
2. Rent Prior to Award. The worth at the time of the
award of the amount by which the unpaid Rent which
would have been earned after termination until the time
of award exceeds the amount of the rental loss that
Tenant proves could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award
of the amount by which the unpaid Rent for the balance
of the Term after the time of award exceeds the amount
of the rental loss that Tenant proves could be
reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary
to compensate Landlord for all detriment proximately
caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of
things would be likely to result therefrom, including,
but not limited to, any costs or expenses (including
attorneys' fees), incurred by Landlord in (a) retaking
possession of the Premises, (b) maintaining the
Premises after Tenant's default, (c) preparing the
Premises for reletting to a new tenant, including any
repairs or alterations, and (d) reletting the Premises,
including brokers' commissions; provided, however, that
the costs or expenses referenced in clauses (c) and (d)
above shall be limited to those directly attributable
to the portion of any new lease that runs up to and
including the Expiration Date hereof.
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"The worth at the time of the award" as used in subparagraph 1
and 2 above, is to be computed by allowing interest at the rate
of ten percent (10%) per annum. "The worth at the time of the
award" as used in subparagraph 3 above, is to be computed by
discounting the amount at the discount rate of the Federal
Reserve Bank situated nearest to the Premises at the time of the
award plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or
condition of this Lease shall not be deemed a waiver of such
term, covenant or condition or of any subsequent breach of the
same or any other term, covenant or condition. Acceptance of
Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to
pay the particular Rent so accepted, regardless of Landlord's
knowledge of any breach at the time of such acceptance of Rent,
Landlord shall not be deemed to have waived any term, covenant or
condition unless Landlord gives Tenant written notice of such
waiver.
27.3 Landlord's Default. If Landlord fails to perform any
covenant, condition or agreement contained in this Lease within
thirty (30) days after receipt of written notice from Tenant
specifying such default, or if such default cannot reasonably be
cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be
liable to Tenant for any damages sustained by Tenant as a result
of Landlord's breach; provided, however, it is expressly
understood and agreed that if Tenant obtains a money judgment
against Landlord resulting from any default or other claim
arising under this Lease, that judgment shall be satisfied only
out of the proceeds, rents, issues, profits and other income
actually received or payable on account of Landlord's right,
title and interest in the Premises, Building or Project, and no
other real, personal or mixed property of Landlord (or of any of
the partners which comprise Landlord, if any) wherever situated,
shall be subject to levy to satisfy such judgment. If, after
notice to Landlord of default, Landlord (or any first mortgagee
or first deed of trust beneficiary of Landlord) fails to cure the
default as provided herein, then Tenant shall have the right to
cure that default at Landlord's expense. Tenant shall not have
the right to terminate this Lease or to withhold, reduce or
offset any amount against any payments of Rent or any other
charges due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Each of Landlord and Tenant warrants and represents to the other
that it has not dealt with any real estate broker or agent in
connection with this Lease or its negotiation except the Brokers
identified in Section 2(c) above. Landlord and Tenant shall
indemnify and hold the other harmless from any cost, expense or
liability (including costs of suits and reasonable attorneys'
fees) for any compensation, commission or fees claimed by any
other real estate broker or agent in connection with this Lease
or its negotiation by reason of any act of the indemnifying
party.
29. NOTICES.
All notices, approvals and demands permitted or required to be
given under this Lease shall be in writing and deemed duly served
or given if personally delivered, upon actual receipt, or if sent
by overnight courier or by certified or registered U.S. mail,
postage prepaid, upon the earlier of actual receipt or two (2)
business days after sending and each case addressed as follows:
(a) if to Landlord, to Landlord's Mailing Address and to the
Building Manager, and (b) if to Tenant, to Tenant's Mailing
Address; provided, however, notices to Tenant shall be deemed
duly served or given if delivered or mailed to Tenant at the
Premises. Landlord and Tenant may from time to time by notice to
the other designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or
consumption of energy or other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a
difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and
Landlord shall have the right to enforce compliance therewith,
including the right of entry into the Premises to effect
compliance.
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<PAGE>
31. [Intentionally Deleted]
32 QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its
obligations under this Lease, shall peaceably and quietly enjoy
the Premises, subject to the terms of this Lease and to any
mortgage, lease or other agreement to which this Lease may be
subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises nor permit anything to be done
in or about the Premises which will in any way violate any law,
statute, ordinance or governmental rule or regulation now in
force or hereafter enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements
now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to or
affecting the condition, use or occupancy of the Premises,
excluding structural changes not arising from Tenant's
improvements or acts (which changes shall be Landlord's
obligation to perform). The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord is a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact as
between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by
Landlord or Tenant which is due to strikes, labor disputes,
inability to obtain labor, materials, equipment or reasonable
substitutes therefor, acts of God, governmental restrictions or
regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or
other causes beyond the reasonable control of the party obligated
to perform hereunder, shall excuse performance of the work by
that party for a period equal to the duration of that prevention,
delay or stoppage. Nothing in this Article 34 shall excuse or
delay Tenant's obligation to pay Rent or other charges under this
Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations
under this Lease, Landlord may (but shall not be obligated to),
without waiving such default but upon giving Tenant not less than
five (5) days prior written notice thereof, perform the same for
the account and at the expense of Tenant. Tenant shall pay
Landlord all costs of such performance promptly upon receipt of a
bill therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any
part of the Premises, Building or Project, including, without
limitation, the inside or outside of windows or doors, without
the written consent of Landlord; provided, however, that Landlord
hereby consents to the exterior sign of Tenant located on the
Building on the Commencement Date. Landlord shall have the right
to remove any signs or other matter, installed without Landlord's
permission, without being liable to Tenant by reason of such
removal, and to charge the cost of removal to Tenant as
additional rent hereunder, payable within ten (10) business days
of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment
by Tenant or receipt by Landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than on
account of the earliest due Rent, nor shall any endorsement or
statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent or pursue any
other remedy provided for in this Lease. In connection with the
foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then due or delinquent. Any
payment or performance due from Tenant may be tendered "under
protest" and shall in no event constitute a waiver by Tenant to
contest such payment or performance or otherwise enforce Tenant's
rights with respect thereto.
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<PAGE>
b. Addenda. If any provision contained in an addendum to this
Lease is inconsistent with any other provision herein, the
provisions contained in the addendum shall control, unless
otherwise provided in the addendum.
c. Attorneys' Fees. In the event either party fails to perform
any of its obligations under this Agreement or in the event a
dispute arises concerning the meaning or interpretation of any
provision of this Agreement, the defaulting party or the party
not prevailing in such dispute, as the case may be, shall pay any
and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys' fees.
The prevailing party shall include, without limitation, (i) a
party who dismisses an action in exchange for sums allegedly due,
(ii) the party who received performance from the other party
where such performance is substantially equal to the relief
sought in an action, or (iii) the party determined to be the
prevailing party by a court of law, and the "party not
prevailing" shall be the other party.
d. Captions, Articles and Section Numbers. The captions
appearing within the body of this Lease have been inserted as a
matter of convenience and for reference only and in no way
define, limit or enlarge the scope or meaning of this Lease. All
references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. <Intentionally Deleted>
f. Choice of Law. This Lease shall be construed and enforced
in accordance with the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease
to the contrary, Tenant shall have no claim, and hereby waives
the right to any claim against Landlord for money damages by
reason of any unreasonable refusal, withholding or delaying by
Landlord of any consent, approval or statement of satisfaction,
and in such event, Tenant's only remedies therefor shall be an
action for specific performance, injunction or declaratory
judgment to enforce any right to such consent, etc.
h. Corporate Authority. If Tenant is a corporation, each
individual signing this Lease on behalf of Tenant represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of the corporation and that this Lease is binding
on Tenant in accordance with its terms. Tenant shall, at
Landlord's request, deliver a certified copy of a resolution of
its board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which taken together shall constitute one
and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease
to Tenant shall be for examination purposes only, and does not
and shall not constitute a reservation of or option for Tenant to
lease, or otherwise create any interest of Tenant in the Premises
or any other premises within the Building or Project. Execution
of the Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's
Representations. In order to induce Landlord to enter into the
Lease Tenant agrees that it shall promptly furnish Landlord, from
time to time, upon Landlord's written request, with financial
statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements,
records and information furnished by Tenant to Landlord in
connection with this Lease are true, correct and complete in all
respects.
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<PAGE>
l. Further Assurances. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions
of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any first mortgagee or first deed of trust
beneficiary of Landlord whose address has been furnished to
Tenant, a copy of any notice of default served by Tenant on
Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall
have an additional thirty (30) days to cure such default;
provided that if such default cannot reasonably be cured within
that thirty (30) day period, then such mortgagee or beneficiary
shall have such additional time to cure the default as is
reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of
the agreements of the parties with respect to any matter covered
or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective
for any purpose. No provisions of this Lease may be amended or
added to except by an agreement in writing signed by the parties
or their respective successors in interest.
o. Recording. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of
Landlord, shall execute and acknowledge a "short form"
memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall
not affect the validity of any other provision, and any provision
so determined to be invalid shall, to the extent possible, be
construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind
the heirs, personal representatives and permitted successors and
assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right
or remedy of Landlord upon any default by Tenant shall impair
such right or remedy or be construed as a waiver of such default.
The receipt of and acceptance by Landlord of delinquent Rent
shall not constitute a waiver of any other default; it shall
constitute only a waiver of timely payment for the
particular Rent payment involved.
No act or conduct of Landlord, including, without
limitation, the acceptance of keys to the Premises, shall
constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance
of the Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed
to waive or render unnecessary Landlord's consent to or
approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the
same or any other provision of the Lease.
SEE YOUR ATTORNEY
THIS LEASE SHOULD BE GIVEN TO YOUR ATTORNEY FOR REVIEW AND
APPROVAL BEFORE YOU SIGN IT. INVESTMENT DEVELOPMENT SERVICES
MAKES NO REPRESENTATION OR RECOMMENDATION CONCERNING THE LEGAL
EFFECT, LEGAL SUFFICIENCY, OR TAX CONSEQUENCES OF THIS LEASE.
THESE ARE QUESTIONS FOR YOUR ATTORNEY OR ACCOUNTANT.
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<PAGE>
The parties hereto have executed this Lease as of the date first
set forth above.
Tar Asset Addison Place, L.P., HemaCare Corporation
a California limited partnership a California corporation
Date: 10/30/1998 Date: 10/16/1998
--------------------------- ------------------------
By: Tar Asset Corporation By: /s/ William D. Nicely
--------------------------- --------------------------
Its: General Partner Its: CEO
--------------------------- -------------------------
By: /s/ Yousuf A. Tar By: /s/ Sharon C. Kaiser
--------------------------- --------------------------
Yousuf A. Tar
Its: President Its: CFO
--------------------------- -------------------------
"Landlord" "Tenant"
Page 22
<PAGE>
RIDER TO LEASE DATED AUGUST 1, 1998 BETWEEN TAR ASSET
ADDISON PLACE, L.P., A CALIFORNIA LIMITED PARTNERSHIP
("LANDLORD"), AND HEMACARE CORPORATION, A CALIFORNIA
CORPORATION ("TENANT"), FOR THE PREMISES COMMONLY
KNOWN AS 4954 VAN NUYS BOULEVARD, SHERMAN OAKS,
CALIFORNIA
9. SERVICES AND UTILITIES:
Notwithstanding the provisions of Paragraph 9 of the
Lease, effective on the Commencement Date, Tenant shall
assume responsibility for the maintenance and repair of
the HVAC equipment serving the Premises. In the event
replacement of the existing rooftop HVAC equipment is
required during the term of the Lease, Landlord shall
replace such equipment at its sole cost and expense,
provided that Tenant maintains the equipment in a
manner which is consistent with similar office
buildings.
In addition to the Tenant Improvements described below
in Paragraph 11, within thirty (30) days after the full
execution of this Lease, Landlord, at Landlord's sole
cost and expense, shall cause to be repaired the HVAC
system that currently serves the laboratory and
accounting departments of Tenant so that it is in good
working order.
11. CONSTRUCTION, REPAIRS, AND MAINTENANCE (TENANT IMPROVEMENTS):
Notwithstanding the provisions of Paragraph 11 of the
Lease, Landlord, at its sole cost and expense, shall
cause the following repair work to be performed to the
second floor of the Premises:
i) Repair the concrete floor areas that are
decomposing under the carpet.
ii) Repair the water-damaged wood, windows and drywall
within the two (2) stairwells.
To the extent reasonably possible, Landlord's repair
work referenced above shall be performed after normal
building hours so as not to unreasonably interfere with
Tenant's operations.
Additionally, in accordance with Exhibit "B" - Tenant
Allowance Construction Agreement, incorporated herein
and made a part hereof, Landlord shall also provide to
Tenant a total amount of $70,000 for all renovation and
HVAC modifications which Tenant desires to complete
within the Premises. Landlord's allowance shall be
paid in progress payments, in accordance with invoices
presented by Tenant's contractor not more than once per
month, to Tenant or Tenant's contractor after
completion of the work in progress, verification by
Landlord that the invoiced work was completed in
accordance with plans and specifications reasonably
approved by Landlord, and receipt of preliminary lien
releases from the contractors performing the work.
Payment shall be made within fourteen (14) business
days after Tenant's written request. A ten percent
(10%) retention shall be withheld from each progress
payment invoice from Tenant's contractor. The final
ten percent (10%) shall be paid after expiration of all
lien periods applicable to such work and receipt of
unconditional lien releases from the contractor and
subcontractors utilized in connection therewith.
<PAGE>
Rider to Lease dated August 1, 1998
Page 2
Tenant shall perform all work in the Premises using
licensed, insured contractors, and the contractors
shall provide certificates of insurance which name
Landlord and Landlord's management company as an
additional insured.
Landlord shall reasonably approve Tenant's renovation
plans and specifications prior to Tenant's commencement
of the work.
Notwithstanding the foregoing, Exhibit "B" - Tenant
Allowance Construction Agreement, attached hereto and made a
part of this Lease, sets forth the detailed procedure of how
the interior improvements shall be completed by Tenant. In
the event of conflict between the provisions of this
paragraph and the provisions of Exhibit "B", this
paragraph shall prevail.
38. ABATEMENT OF RENT WHEN TENANT IS PREVENTED FROM USING
PREMISES.
In the event that Tenant is prevented from using, and
does not use, the Premises or any portion thereof, for
three (3) consecutive business days or ten (10)
business days in any twelve (12) month period (the
"Eligibility Period") as a result of (i) any damage or
destruction to the Premises, the Project and/or the
Building, (ii) any repair, maintenance or alteration
performed by Landlord after the Commencement Date,
which substantially interferes with Tenant's use of the
Premises, the Project and/or the Building, (iii) any
failure by Landlord to provide Tenant with services
otherwise required to be furnished by Landlord
hereunder (provided that the furnishing of services is
within Landlord's control) or access to the Premises,
the Project and/or the Building, (iv) because of an
eminent domain proceeding or (v) because of the
presence of hazardous substances in, on or around the
Premises, the Building or the Project which could pose
a health risk to occupants of the Premises, then
Tenant's Rent shall be abated or reduced, as the case
may be, after expiration of the Eligibility Period for
such time that Tenant continues to be so prevented from
using, and does not use, the Premises or a portion
thereof, in the proportion that the rentable area of
the portion of the Premises that Tenant is prevented
from using, and does not use, bears to the total
rentable area of the Premises. However, in the event
that Tenant is prevented from conducting, and does not
conduct, its business in any portion of the Premises
for a period of time in excess of the Eligibility
Period, and the remaining portion of the Premises is
not sufficient to allow Tenant to effectively conduct
its business therein, and if Tenant does not conduct
its business from such remaining portion, then for such
time after expiration of the Eligibility Period during
which Tenant is so prevented from effectively
conducting its business therein, the Rent for the
entire Premises shall be abated; provided, however, if
Tenant reoccupies and conducts its business from any
portion of the Premises during such period, the Rent
allocable to such reoccupied portion, based on the
proportion that the rentable area of such reoccupied
portion of the Premises bears to the total rentable
area of the Premises, shall be payable by Tenant from
the date such business operations commence. If
Tenant's right to abatement occurs during a free rent
period (for these purposes, free rent shall be deemed
to include half rent, etc.) which arises after the
Commencement Date, Tenant's free rent period shall be
extended for the number of days that the abatement
period overlapped the free rent period ("Overlap
Period"). Landlord shall have the right to extend the
Expiration Date for a period of time equal to the
Overlap Period if Landlord sends a notice to Tenant of
such election within ten (10) days following the end of
the extended free rent period. If Tenant's right to
abatement occurs because of an eminent domain taking
and/or because of damage or destruction to the
Premises, the Project, the Building and/or Tenant's
Property, Tenant's abatement period shall continue
until Tenant has been given sufficient time, and
sufficient access to the Premises, the Project and/or
the Building, to rebuild such portion as Tenant is
required to rebuild, to install its property,
<PAGE>
Rider to Lease dated August 1, 1998
Page 3
furniture, fixtures, and equipment to the extent the
same shall have been removed and/or damaged as a result
of such damage or destruction and/or eminent domain
taking and to move in over a weekend. To the extent
Tenant is entitled to abatement without regard to the
Eligibility Period, because of an event covered by
Section 19 [Destruction or Damage] and 20 [Eminent
Domain] of the Lease, then the Eligibility Period shall
not be applicable. To the extent Tenant has prepaid
Rent (as it does each month since Rent is due on the
first day of each month) and Tenant is subsequently
entitled to an abatement, such prepaid, and
subsequently abated, Rent should be refunded to, and
paid by Landlord to, Tenant within thirty (30) days
after the end of the appropriate month.
39. RIGHT TO TERMINATE
(a) Notwithstanding anything in either Section 19
[Destruction or Damage] and 20 [Eminent Domain] to the
contrary, and except as expressly set forth in
Subsection (b) below, in the event that Tenant is notified
or becomes aware of the fact that as a result of:
(i) damage or destruction of the Premises, the
Project and/or the Building or any part
thereof so as to interfere substantially with
Tenant's use of all or a portion of the
Premises, the Project and/or the Building;
(ii) a taking by eminent domain or exercise of
other governmental authority of the Premises,
the Project and/or the Building or any part
thereof so as to interfere substantially with
Tenant's use of all or a portion of the
Premises, the Project and/or the Building;
(iii) the inability of Landlord to provide
services to the Premises, the Project and/or
the Building so as to interfere substantially
with Tenant's use of all or a portion of the
Premises, the Project and/or the Building; or
(iv) any discovery of hazardous substances in, on
or around the Premises, the Building and/or
the Project not placed in, on or around the
Premises, the Building and/or the Project by
Tenant, that may, considering the nature and
amount of the substances involved, interfere
with Tenant's use of all or a portion of the
Premises or which may present a health risk
to any occupants of the Premises; or
(v) the discovery of any other hazardous
condition with respect to the Premises, the
Project and/or the Building which would make
it dangerous or unsafe for Tenant and its
employees to conduct their normal and
customary business operations from the
Premises (each of the items set forth in
provision (a)(i), (ii), (iii), (iv) and (v)
being referred to herein as a "Trigger
Event").
In the event Tenant cannot, within six (6) months
("Non-Use Period") after the occurrence of the Trigger
Event, be given reasonable use of, and access to, a
fully repaired, restored, safe and healthful Premises,
Project and Building (except for minor "punch-list"
items which will be repaired promptly thereafter), and
the utilities and services pertaining to the Premises,
the Project and the Building, all suitable for the
efficient conduct of Tenant's business therefrom, then
Tenant may thereafter elect at any time to exercise an
on-going right to terminate the Lease upon ten (10)
days' written notice sent to Landlord at any time
<PAGE>
Rider to Lease dated August 1, 1998
Page 4
following the expiration of the Non-Use Period but
prior to Landlord's cure of the Triggering Event (but
in no event later than nine (9) months after the
Trigger Event).
(b) In the event of any Trigger Event occurring during
the last year of the Lease Term or, if an applicable renewal
option has been exercised, during the last year of any
renewal term, should the Non-Use Period continue for sixty
(60) days, Tenant may elect to exercise an on-going right to
terminate the Lease upon ten (10) days' written notice sent
to Landlord at any time following the expiration of the
Non-Use Period.
The parties hereto have executed this Rider to Lease as of the
date set forth.
Tar Asset Addison Place, L.P., HemaCare Corporation
a California limited partnership a California corporation
Date: 10/30/1998 Date: 10/16/1998
---------------------- ------------------------
By: Tar Asset Corporation By: /s/ William D. Nicely
-------------------------- --------------------------
Its: General Partner Its: CEO
-------------------------- -------------------------
By: /s/ Yousuf A. Tar By: /s/ Sharon C. Kaiser
--------------------------- -------------------------
Yousuf A. Tar
Its: President Its: CFO
-------------------------- -------------------------
"Landlord" "Tenant"
<PAGE>
List of Exhibits
EXHIBIT "A" - Floor Plan of Premises
EXHIBIT "B" - Tenant Allowance Construction Agreement
EXHIBIT "C" - Hazardous Materials Notice
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from unaudited
financial statements contained in Form 10-Q for the quarter ending September 30,
1998 and is qualified in its entirety to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 1,473,000
<SECURITIES> 480,000
<RECEIVABLES> 1,417,000
<ALLOWANCES> 81,000
<INVENTORY> 43,000
<CURRENT-ASSETS> 3,914,000
<PP&E> 2,280,000
<DEPRECIATION> 1,806,000
<TOTAL-ASSETS> 4,493,000
<CURRENT-LIABILITIES> 1,578,000
<BONDS> 0
0
0
<COMMON> 13,570,000
<OTHER-SE> (10,788,000)
<TOTAL-LIABILITY-AND-EQUITY> 4,493,000
<SALES> 8,431,000
<TOTAL-REVENUES> 8,431,000
<CGS> 6,412,000
<TOTAL-COSTS> 6,412,000
<OTHER-EXPENSES> 1,694,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 19,000
<INCOME-PRETAX> 325,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 325,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 325,000
<EPS-PRIMARY> .05
<EPS-DILUTED> .05
</TABLE>
