U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-QSB
X Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarterly period ended DECEMBER 31, 1995
Commission File Number: 0-16375
THERMOGENESIS CORP.
(Exact name of Small Business issuer as specified in its charter)
DELAWARE 94-3018487
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11431 SUNRISE GOLD, STE. A, RANCHO CORDOVA, CA.
95742
(Address of principal executive offices)
(Zip code)
Registrant's telephone number, including area code (916) 638-8357
Former name, former address and former fiscal year, if changed since last
report.
Check whether the issuer: (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__
The issuer had 24,765,434 shares of common stock outstanding on February
7, 1995.
<PAGE>
THERMOGENESIS CORP.
INDEX
PART I
Condensed Financial Statements (Unaudited):
PAGE NUMBER
Condensed Balance Sheets at December
31, 1995 and June 30, 1995 2
Condensed Statements of Operations
for the Three and Six Months ended
December 31, 1995 and 1994 4
Condensed Statements of Cash Flows
for the Six Months Ended December
31, 1995 and 1994 5
Notes to Condensed Financial Statements 6
Management's Discussion and Analysis of
Financial Condition and Results of Operations 7
PART II
Item 6. Exhibits and Reports on Form 8-K. 9
SIGNATURES 10
<PAGE>
THERMOGENESIS CORPORATION
Condensed Balance Sheet
(Unaudited)
December June 30,
31,
ASSETS 1995 1995
Current assets:
Cash and cash equivalents $1,321,682 $325,965
Accounts receivable, net of allowance for
doubtful of $72,913 ($72,913 at June 30,
1995) 1,403,978 675,240
Net investment in sales-type leases 35,731 35,731
Inventory 930,511 1,014,309
Prepaid expenses 62,346 9,711
Total current assets 3,754,248 2,060,956
Equipment, at cost less accumulated depreciation
of $237,187 ($200,557 at June 30, 1995) 409,137 176,535
Long-term net investment in sales-type leases 68,560 86,460
Prepaid royalties, net of accumulated amortization
of $310,007 ($277,259 at June 30, 1995) 249,492 277,241
Leased equipment, net 28,718 40,778
Other assets 19,578 20,869
$4,529,733 $2,662,839
See accompanying notes.
<PAGE>
THERMOGENESIS CORPORATION
Condensed Balance Sheet (Cont'd)
(Unaudited)
December June 30,
31,
1995 1995
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $402,562 $512,931
Current portion of long-term lease
obligations 56,314 -
Accrued payroll and related expenses 70,777 55,346
Deferred revenue - 60,000
Customer deposits 26,863 19,523
Total current liabilities 556,516 647,800
Deferred rent 11,362 14,456
Long-term lease obligations 157,368 -
Commitments
Shareholders' equity:
Common stock, $.001 par value;
50,000,000 shares authorized:
24,765,434 issued and outstanding
(20,355,434 at June 30, 1995) 24,765 20,356
Paid in capital in excess of par 9,696,455 7,794,621
Accumulated deficit (5,916,733) (5,814,394)
Total shareholders' equity 3,804,487 2,000,583
$4,529,733 $2,662,839
See accompanying notes.
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
THERMOGENESIS CORPORATION
Condensed Statements of Operations
(Unaudited)
Three Months Ended Six Months Ended
December 31 December 31, December 31, December 31,
1995 1994 1995 1994
Net sales $1,128,216 $1,037,529 $1,980,119 $1,838,162
Cost of sales 604,104 563,033 1,047,639 1,022,419
Gross profit 524,112 474,496 932,480 815,743
Expenses:
General and administrative 118,198 97,773 202,505 164,500
expense
Selling and marketing expense 216,447 209,297 385,568 379,215
Research and development
expense 288,887 100,358 444,101 171,172
Total expenses 623,532 407,428 1,032,174 714,887
Interest income 5,870 2,289 8,693 4,670
Interest expense 8,402 - 11,338 -
Net income (loss) ($101,952) $69,357 ($102,339) $105,526
Net income (loss) per share ($0.00) $0.00 ($0.00) $0.01
Shares used in computing
net income (loss) per share 21,832,000 20,715,000 21,094,000 20,715,000
See accompanying notes.
</TABLE>
<PAGE>
THERMOGENESIS CORPORATION
Condensed Statements of Cash Flows
Three Months Ended December 31, 1995 and 1994
Increase (Decrease) in Cash
(Unaudited)
1995 1994
Cash flows from operating activities:
Net income (loss) ($102,339) $105,526
Adjustments to reconcile net income (loss)
to net cash provided by (used in) operating
activities:
Depreciation and amortization 80,447 110,886
Net changes in operating assets and liabilities:
Accounts receivable (728,738) (162,070)
Investment in sales type leases 17,900 20,784
Inventory 83,798 (295,732)
Prepaid expenses (52,635) 11,010
Accounts payable and accrued liabilities (110,369) 271,505
Accrued payroll and related expenses 15,431 (18,570)
Customer deposits 7,340 (21,316)
Deferred revenue (60,000) -
Deferred rent (3,094) -
Total adjustments (749,920) (83,503)
Net cash provided by (used in) operating
activities (852,259) 22,023
Cash flows from investing activities:
Capital expenditures (46,784) (109,725)
Net cash used in investing activities (46,784) (109,725)
Cash flows from financing activities:
Issuance of common stock 1,906,243 -
Principal payments on long-term lease obligations (11,483) -
Net cash provided by financing activities 1,894,760 -
Net increase (decrease) in cash 995,717 (87,702)
Cash at beginning of period 325,965 347,769
Cash at end of period $1,321,682 $260,067
See accompanying notes.
<PAGE>
THERMOGENESIS CORP.
Notes to Condensed Financial
Statements
December 31, 1995
(Unaudited)
1. Interim Reporting.
These Condensed Financial Statements should be read in conjunction with
the Company's Annual Report (Form 10-KSB) for the year ended June 30,
1995. In the opinion of management, all adjustments (which consist of
only normally recurring adjustments) necessary for a fair presentation of
the condensed financial statements have been made. The results of
operations for the three and six months ended December 31, 1995 are
not necessarily indicative of the results to be expected for the full
year.
INVENTORIES
Inventories are stated at the lower of cost (First-In, First-Out) or
market and consist approximately of the following:
DECEMBER 31, JUNE 30,
1995 1995
RAW MATERIALS $ 416,189 $ 453,669
WORK IN PROCESS 104,130 113,508
FINISHED GOODS 410,192 447,132
TOTAL $ 930,511 $ 1,014,309
NET INVESTMENT IN SALES TYPE LEASES
The net investment in sales type leases consists of the following:
DECEMBER 31, JUNE 30,
1995 1995
TOTAL MINIMUM LEASE PAYMENTS RECEIVABLE $117,462 $ 140,020
LESS UNEARNED INTEREST (13,171) (17,829)
NET INVESTMENT IN SALES TYPE LEASES $ 104,291 $ 122,191
STATEMENT OF CASH FLOWS
The Company incurred approximately $225,000 in long-term lease
obligations for the purchase of computer equipment.
EQUITY
The Company completed a private placement of 4,400,000 common shares
on December 9, 1995 and received $1,900,944 net of expenses. The
placement consisted of 88 units. Each unit consisted of 50,000 common
shares and 12,500 warrants to purchase common shares at $1.50 per
share for six months. The Company must file a registration statement
covering the shares issued within 90 days of completion of the offering.
<PAGE>
Management's Discussion and Analysis of Financial Condition and Results of
Operation for the Three and Six Months Ended December 31, 1995
The following is Management's discussion and analysis of certain
significant factors which have affected the Company's financial
condition and results of operations during the periods included in the
accompanying financial statements.
RESULTS OF OPERATIONS
SALES AND REVENUES:
Net sales increased for the three and six months ended December 31,
1995 by approximately 8% from the corresponding 1995 periods. Sales
increases were primarily due to increased sales of the Company's
human blood plasma freezer products while sales of human blood plasma
thawer products decreased from the respective prior periods.
Cost of sales as a percent of sales for the three and six months ended
December 31, 1995 were approximately 53% as compared to 55% for the
corresponding 1994 periods. The decrease in cost of sales as a
percent of sales was due to increased sales of human blood
plasma freezer products which have a higher profit margin.
General and administrative expenses for the three and six months ended
December 31, 1995 increased by 21% and 23%, respectively, from the
corresponding periods in 1994 due to increased salaries for additional
personnel.
Selling and marketing expenses for the three and six months ended
December 31, 1995 increased by 3% and 2%, respectively, over the
corresponding periods in 1994. While salaries increased due to added
personnel, these increases were offset by decreases in phone,
commission and other operating expenses due to soliciting foreign
sales from the United States.
Research and development expenses for the three and six months ended
December 31, 1995, increased by 188% and 159%, respectively, over the
respective 1994 periods. The increase was due to accelerated
research and development of three programs: (i) a computerized human
blood plasma sample storage and retrieval system, (ii) a
computerized liquid nitrogen biological storage and retrieval
system and (iii) a system that converts a surgical patient's blood
plasma into an autologous tissue sealant and hemostatic agent.
Additional expenses have been incurred for continuing development
of computer controllers for plasma thawers and freezers. Management
believes that research and development is essential to
maintaining the Company's market position. Therefore, the Company
considers such costs a continuing cost of doing business.
LIQUIDITY AND CAPITAL RESOURCES
The Company has consumed cash resources for operating activities.
These resources have been primarily consumed for marketing activities
and product development.
Working capital increased by $1,784,576 from June 30, 1995.
This increase was primarily due to the issuance of equity which
raised $1,900,944 which was offset by increases in accounts receivable
and decreases in accounts payable.
<PAGE>
Management's Discussion and Analysis of Financial Condition and Results of
Operation for the Three and Six Months Ended December 31, 1995 (Cont'd)
LIQUIDITY AND CAPITAL RESOURCES
(CONT'D)
The Company believes it has sufficient resources to continue to
operate for the next twelve months.
The Company has no significant outstanding capital commitments at
December 31, 1995.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal proceedings.
None.
Item 2. Changes in Securities.
None.
Item 3. Default Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information.
None
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10.1 (c) Facilities Lease Administrative Offices
(b) Reports on Form 8-K.
None
<PAGE>
THERMOGENESIS CORP.
Signatures
In accordance with the requirements of the
Exchange Act, the registrant has caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
THERMOGENESIS CORP.
(Registrant)
Dated February 13, 1995
Merrill L. Parker
Merrill L. Parker,
Controller
(Principal Financial and
Accounting Officer)
Philip H. Coelho
Philip H. Coelho,
President and Chief Executive
Officer
(Principal Executive Officer)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FORM
10-QSB FOR THERMOGENESIS CORP. FOR THE PERIOD ENDED DECEMBER 31, 1995 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1996
<PERIOD-END> DEC-31-1995
<CASH> 1,321,682
<SECURITIES> 0
<RECEIVABLES> 1,403,978
<ALLOWANCES> 72,913
<INVENTORY> 930,511
<CURRENT-ASSETS> 3,754,248
<PP&E> 409,137
<DEPRECIATION> 237,187
<TOTAL-ASSETS> 4,529,733
<CURRENT-LIABILITIES> 556,516
<BONDS> 0
0
0
<COMMON> 24,765
<OTHER-SE> 9,696,455
<TOTAL-LIABILITY-AND-EQUITY> 4,529,733
<SALES> 1,980,119
<TOTAL-REVENUES> 1,980,119
<CGS> 1,047,639
<TOTAL-COSTS> 1,047,639
<OTHER-EXPENSES> 1,034,819
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (102,339)
<INCOME-TAX> 0
<INCOME-CONTINUING> (102,339)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (102,339)
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
FULL SERVICE OFFICE LEASE
(SHORT TERM)
TABLE OF CONTENTS
1. SALIENT LEASE TERMS 1
2. DEFINITIONS 2
3. PREMISES 4
4. TERM 5
S. RULES AND REGULATIONS 5
6. DELAY IN DELIVERY OF POSSESSION 5
7. MINIMUM RENT 5
8. ADDITIONAL RENT 5
9. TRANSFER OF SECURITY 6
10. SECURITY DEPOSIT 6
11. USE 7
12. COMPLIANCE WITH LAWS AND REGULATIONS 7
13. SERVICE AND EQUIPMENT 8
14. WASTE 9
15. ALTERATIONS 10
16. PROPERTY INSURANCE 10
17. INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION 10
18. LIABILITY INSURANCE 11
19. INSURANCE POLICY REQUIREMENTS 11
20. LESSEE INSURANCE DEFAULT 12
21. FORFEITURE OF PROPERTY 12
22. MAINTENANCE AND REPAIRS 12
23. DESTRUCTION 13
24. CONDEMNATION 13
25. ASSIGNMENT AND SUBLETTING 14
26. ABANDONMENT 14
27. ENTRY BY LESSOR 14
28. SIGNS 14
29. DEFAULT 14
30. REMEDIES UPON DEFAULT 15
31. WAIVER OF CALIFORNIA CODE SECTIONS 16
32. MORTGAGEE PROTECTION 16
33. LESSOR'S EXCULPATION 17
34. ATTORNEYS' FEES 17
35. NOTICES 17
36. SUBORDINATION 17
37. ESTOPPEL CERTIFICATES 18
38. WAIVER 18
39. HOLDING OVER 18
40. SUCCESSORS AND ASSIGNS 18
41. TIME 18
42. EFFECT OF LESSOR'S CONVEYANCE 18
43. COMMON AREAS 18
44. LATE CHARGES 18
45. CORPORATE AUTHORITY 19
46. MISCELLANEOUS PROVISIONS 19
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<PAGE>
FULL SERVICE OFFICE LEASE
(SHORT TERM)
ARTICLE 1. SALIENT LEASE TERMS
THIS LEASE is dated for reference purposes only this 15 day of
November, 19 95.
1.1 Rent Payment: The Peregrine Real Estate
c/o United Property Services, Inc.
P.O. Box 661300
Sacramento, California 95866-1300
1.2 Parties and Lessor: THE PEREGRINE REAL ESTATE TRUST
Notice 1300 Ethan Way, Suite 200
Addresses: Sacramento, CA 95425
(916) 929-8244
Fax No. (916) 929-1122
Lessee: ThermoGenesis Corporation
2893 Sunrise Blvd., Suite 206-208
Rancho Cordova, Ca 95742
(If more than one, then the obligations hereunder
shall be joint and several.)
(Section 48.12)
1.3 Premises: (A) Name and Location of Complex:
Bank Of Commerce Center
(B) Leased Premises: 2893 Sunrise Blvd.,
Suite 206-208
Rancho Cordova, Ca. 95742
(C) Approximately 3,645 Square Feet
(Section 3.2)
1.4 Term: (A) Estimated Delivery Date: December 15, 1995
(B) Twenty-five (25) - Months
December 15, 1995 to January 14, 1998
(Section 4.1)
1.5 Rent: (A) Minimum Rent: $ see Addendum
(Section 7.1)
(B) Advance Rent: $4,009.50
(Section 7.2)
1.6 Initial $4,410.00
Security (Section 10.1)
Deposit:
1.7 Use: Premises used solely for General Office
(Section 11.1)
1.8 Initial
Pro Rata 1.48%
Percent:
(Section 2.1(m))
1.9 Base Operating
Cost for the $ 1996 Base year per year.
Complex:
(Section 8.2)
1.10 Declaration of Date of Recordation -N/A
Restrictions: Book Page
Document Number
(Section 3.5)
1.11 Contents: This Lease consists of:
Pages 1 through 19
Sections 1 through 46.8
Addenda: One
Exhibits:
A - List of Excluded Operating Costs
B - Plan of the Complex
C - Floor Plan of the Leased Premises
D - Construction Floor Plan
E - Acknowledgment of Commencement
F - Rules & Regulations
Lessor's
Lessee's
Initials
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PRET-FSOS.45
<PAGE>
ARTICLE 2. DEFINITIONS
2.1 The terms defined in this Article 2 shall, for all purposes of this
Lease and all agreements supplemental hereto, have the meanings herein
specified unless expressly stated otherwise.
(a) "Base Operating Cost" means the sum set forth in Section 1.9
hereof.
(b) "Building" shall mean the structure which contains the Leased
Premises.
(c) "Building Standard Work" shall mean the typical interior
improvements constructed or to be constructed by Lessor, which are of the
nature and quality required by specifications developed for the Complex by
Lessor's architect.
(d) "Commencement Date" shall mean the earlier of the following
dates:
(i) The day upon which Lessee takes possession of the Leased
Premises; or
(ii) The date upon which the Leasehold Improvements have been
substantially completed as determined by Lessor's project architect, except in
the event completion of the Leasehold Improvements is delayed by design
decisions, revisions or additional work or preparation of plans of Lessee or
its agents ("Lessee Delay"), such delay shall thereupon effect a postponement
of the date at which Lessor is obliged to deliver the Leased Premises to
Lessee, by the number of days of Lessee Delay. However, the Commencement Date
as would otherwise be established had Lessee Delay not occurred shall not be
postponed by the number of days of Lessee Delay. Thus, the date for
commencement of Rent shall not be delayed by Lessee Delay. Lessor estimates
such completion will be made on or before the date specified in Section 1.4(A).
(e) "Common Areas" shall mean all areas and facilities outside the
Leased Premises within the exterior boundaries of the Complex of which the
Leased Premises form a part, that are provided and designated by Lessor from
time to time for the general use and convenience of Lessee and of other tenants
of Lessor having the common use of such areas, and their respective
authorized representatives and invitees. common Areas include, without
limitation, corridors, stairways, elevator shafts, janitor rooms, driveways,
parking areas, and landscaped areas all as generally described on Exhibit B
attached hereto. Exhibit B is tentative and Lessor reserves the right to make
alterations thereto from time to time.
(f) "Complex" is that parcel of real property of which the Leased
Premises forms a part, together with the parcels in common ownership therewith,
and contiguous thereto, which property is described with particularity in
Exhibit A attached hereto and made a part hereof by reference.
(g) "Lease Year" means any calendar year, or portion thereof,
following the commencement hereof, the whole or any part of which period is
included within the Term.
(h) "Leased Premises" shall mean the portion of space leased to
Lessee hereunder.
(i) "Leasehold Improvements" shall mean the aggregate of the
Building Standard Work and the Building nonstandard work done in accordance
with the work letter agreement, which agreement is attached hereto as Exhibit
D.
(j) "Lines" shall mean communications, computer, audio and video,
security and electrical (other than electrical wiring terminating at or
connected to Building standard electrical outlets), cables, wires, lines, duct
work, sensors, switching equipment, control boxes and related improvements at
the Complex, Building or the Leased Premises.
(k) "Major Vertical Penetrations" shall mean stairs, elevator
shafts, flues, pipe shafts, vertical ducts, and the like, and their enclosing
walls, which serve more than one floor of the Building, but shall not include
stairs, dumbwaiters, lifts, and the like, exclusively serving a tenant
occupying offices on more than one floor.
(l) "Occupied Floor Area" means that portion of the Rentable Area of
the Complex which is leased and occupied.
(m) "Operating costs" means the total amounts paid or payable,
whether by Lessor or others on behalf of Lessor, in connection with the
ownership, maintenance, repair, replacement and operations of the Complex
(including, without limitation, all areas and facilities within the exterior
boundaries of the Complex) as determined by standard accounting procedures.
Operating Costs shall include, but not be limited to, the aggregate of the
amount paid for all fuel used in heating and air conditioning of the Building;
the amount paid or payable for all electricity furnished by Lessor to the
Complex (other than electricity furnished to and paid for by other lessees by
reason of their extraordinary consumption of electricity); the cost of periodic
relamping and reballasting of lighting fixtures; the amount paid or
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Lessor's Lessee's
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PRET-FSOS.45
payable for all hot and cold water (other than that chargeable to lessees by
reason of their extraordinary consumption of water); the amount paid or payable
for all labor and/or wages and other payments including cost to Lessor of
workers' compensation and disability insurance, payroll taxes, welfare and
fringe benefits made to janitors, caretakers, and other employees,
contractors and subcontractors of Lessor (including wages of the Building
manager) involved in the operation, maintenance and repair of the Complex;
painting for exterior walls of the buildings in the Complex; managerial and
administrative expenses; the total charges of any independent contractors
employed in the repair, care, operation, maintenance, and cleaning of the
Complex; the amount paid or payable for all supplies occasioned by everyday
wear and wear; the costs of climate control, window and exterior wall cleaning,
telephone and utility costs; the cost of accounting services necessary to
compute the rents and charges payable by Lessees and keep the books of the
Complex; fees for management, legal, accounting, inspection and consulting
services; the cost of operating,repairing and maintaining the Building
elevators and the utility systems, including Lines, of the Complex; the cost of
porters, guards and other protection services; the cost of establishing and
maintaining the Building's directory board; payments for general
maintenance and repairs to the plant and equipment supplying climate
control; the cost of supplying all services pursuant to Article 13
hereof to the extent such services are not paid by individual lessees;
amortization of the costs, including repair and replacement, of all
maintenance and cleaning equipment and master utility meters and of the
costs incurred for repairing or replacing all other fixtures, equipment
and facilities serving or comprising the Complex which by their nature
require periodic or substantial repair or replacement, and which are
not charged fully in the year in which they are incurred, at rates on
the various items determined from time to time by Lessor in accordance
with sound accounting principles; the net cost and expenses for
insurance for which Lessor is responsible hereunder or which Lessor
reasonably deems necessary in connection with the operation of the
Complex (including, without limitation, self-insurance and the payment
of deductible amounts under insurance policies); community association
dues or assessments and property owners' association dues and
assessments which may be imposed upon Lessor by virtue of any recorded
instrument affecting title to the Complex; and costs of complying with
all governmental regulations, rules, laws, ordinances and codes. In
addition, Operating Costs shall include any Real Estate Taxes as
defined in Paragraph 2.1(n) hereof. Operating Costs shall also
include, without limitation, the repair and replacement, resurfacing
and repaving of any paved areas, curbs, gutters or other surfaces or
areas within the Complex, the repair and replacement of any equipment
or facilities located within or serving the Complex, and the cost of
any capital repairs, replacements or improvements made by Lessor to the
Complex ("Capital Costs"). Operating Costs shall not include legal or
accounting expenses incurred expressly for negotiating a lease with a
particular tenant, or as a result of a default of a specific tenant,
which negotiation or default does not affect the operation of the
Complex (See Exhibit "A").
(n) "Proportionate Share" or "Pro Rata Percent" shall be that
fraction (converted to a percentage) the numerator of which is the Usable Area
of the Leased Premises and the denominator of which is the number of square
feet of Usable Floor Area of all floors (or leased premises if the Complex is
on a single floor) rentable to tenants in the Complex. Lessee's Proportionate
Share as of the commencement of the Term hereof is specified in Section 1.8.
Said Proportionate Share shall be recalculated as may be required effective as
at the commencement of any period to which the calculation is applicable in
this Lease. Notwithstanding the preceding provisions of this Section 2.1(m),
Lessee's Proportionate Share as to certain expenses may be calculated
differently to yield a higher percentage share for Lessee as to certain
expenses in the event Lessor permits other tenants in the Complex to
directly incur such expenses rather than have Lessor incur the expense
in common for the Complex (such as, by way of illustration, wherein a
tenant performs its own janitorial services). In such case Lessee's
proportionate share of the applicable expense shall be calculated as
having as its denominator the Occupied Floor Area of all floors (or leased
premises if the Complex is on a single floor) rentable to tenants in the
Complex less the Rentable Area of tenants who have incurred such expense
directly. Furthermore, in the event Lessee consumes extraordinary amounts of
any provided utility or other service as determined in Lessor's good faith
judgment, Lessee's Proportionate Share for such utility or service may, at
Lessor's election, be based on usage as opposed to occupied Floor Area, that
is, Lessee's Proportionate Share of such a utility or service would be
calculated as having as its denominator the total usage of such utility or
service in the Complex (or Building as the case may be), and having as its
numerator Lessee's usage of such utility or service, as determined by Lessor in
its sole good faith judgment. In any case in which Lessee, with Lessor's
consent, incurs such expenses directly, Lessee's proportionate share will be
calculated specially so that expenses of the same character which are incurred
by Lessor for the benefit of other tenants in the Complex shall not be prorated
to Lessee. If repairs are required for systems exclusively serving the Leased
Premises (whether within or outside of said Leased Premises), Lessee shall pay
one hundred percent (100%) of such repair costs. Nothing herein shall imply
that Lessor will permit Lessee or any other tenant of the Complex to incur any
Common Area Costs or Operating Costs. Any such permission shall be in the sole
discretion of the Lessor, which Lessor may grant or withhold in its arbitrary
judgment.
(o) Text deleted.
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(p) "Real Estate Taxes" or "Taxes" shall mean and include all
general and special taxes, assessments, fees of every kind and nature, duties
and levies, charged and levied upon or assessed by any governmental authority
against the Complex including the land, the Building, any other improvements
situated on the land other than the Building, the various estates in the land
and the Building, any Leasehold Improvements, fixtures, installations,
additions and equipment, whether owned by Lessor or Lessee; except that it
shall exclude any taxes of the kind covered by Section 8.1 hereof to the extent
Lessor is reimbursed therefor by any tenant in the Building. Real Estate
Taxes shall also include the reasonable cost to Lessor of contesting the
amount, validity, or the applicability of any Taxes mentioned in this Section.
Further included in the definition of Taxes herein shall be general and special
assessments, license fees, commercial rental tax, levy, penalty or tax (other
than inheritance or estate taxes) imposed by any authority having the direct or
indirect power to tax, as against any legal or equitable interest of Lessor in
the Leased Premises or in the Complex or on the act of entering into this Lease
or, as against Lessor's right to rent or other income therefrom, or as against
Lessor's business of leasing the Leased Premises or the Complex, any tax, fee,
or charge with respect to the possession, leasing, transfer of interest,
operation, management, maintenance, alteration, repair, use, or occupancy by
Lessee, of the Leased Premises or any portion thereof or the Complex, or any
tax imposed in substitution, partially or totally, for any tax previously
included within the definition of Taxes herein, or any additional tax, the
nature of which may or may not have been previously included within the
definition of Taxes. Further, if at any time during the Term the method of
taxation or assessment of real estate or the income therefrom prevailing at the
time of execution hereof shall be, or has been altered so as to cause the whole
or any part of the Taxes now or hereafter levied, assessed or imposed on real
estate to be levied, assessed or imposed upon Lessor, wholly or partially, as a
capital levy, business tax, fee, permit or other charge, or on or measured by
the Rents received therefrom, then such new or altered taxes, regardless of
their nature, which are attributable to the land, the Building or to other
improvements on the land shall be deemed to be included within the term "Real
Estate Taxes" for purposes of this Section, whether in substitution for, or in
addition to any other Real Estate Taxes, save and except that such shall not be
deemed to include any enhancement of said tax attributable to other income of
Lessor.
(q) "Rent," "rent" or "rental" means Minimum Rent and all
other sums required to be paid by Lessee pursuant to the terms of this Lease.
(r) "Rentable Area." The Rentable Area of a floor shall mean all
areas available or held for the exclusive use and occupancy of occupants or
future occupants of the Complex, measured from the inside finished surface of
the dominant portion of the permanent outer Building walls, excluding any Major
Vertical Penetrations of the floor. No deductions shall be made for columns
and projections necessary to the Building.
(s) "Structural" as herein used shall mean any portion of the
Leased Premises or Complex which provides bearing support to any other
integral member of the Complex such as, by limitation, the roof structure
(trusses, joists, beams), posts, load bearing walls, foundations, girders,
floor joists, footings, and other load bearing members constructed by Lessor.
(t) "Term" shall mean the Term of the Lease as specified in
Article 4 hereof, including any partial month at the commencement of the Term.
(u) "Total Building Area', is the total gross leasable area
of the Building.
(v) "Usable Area." The Usable Area of an office shall be the
number of square feet computed by measuring to the finished surface of the
office side of corridor and other permanent walls, to the center of partitions
that separate the office from adjoining Usable Areas, and to the inside
finished surface of the permanent outer Building walls. No deductions shall be
made for the columns and projections necessary to the Building. The Usable
Area of a floor shall be equal to the sum of all Usable Areas on that floor.
ARTICLE 3. PREMISES
3.1 Demising Clause. Lessor hereby leases to Lessee, and Lessee
hires from Lessor a portion of the Complex as hereinafter defined.
3.2 Description. The "Complex" as defined in Section 2.1 (f),
is described generally in Section 1.3(A) hereof. The premises leased herein
are described in Section 1.3(B) and delineated on Exhibit C. The term
"Building" shall refer to the Building in which the Leased Premises are
located. The portion leased herein to Lessee is hereinafter referred to as the
"Leased Premises." Lessee acknowledges that Lessor may change the shape, size,
location, number and extent of the improvements to any portion of the Complex
without consent of Lessee and without affecting Lessee's obligations hereunder.
Lessor reserves the area beneath and above the Building as well as the exterior
thereof together with the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires, and structural elements leading through the
Leased Premises serving other parts of the Complex, so
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long as such items are concealed by walls, flooring or ceilings. Such
reservation in no way affects any of Lessee's responsibilities and obligations
set forth in this Lease.
3.3 Covenants, Conditions and Restrictions. The parties agree
that this Lease is subject and subordinate to the effect of the following and
any amendments thereto: (a) any covenants, conditions, restrictions,
easements, mortgages or deeds of trust, ground leases, rights of way of record,
and any other matters or documents of record, including that document
referenced in Section 1.10; (b) any zoning laws of the city, county and state
where the Complex is situated; and (c) general and special taxes not
delinquent.
ARTICLE 4. TERM
4.1 Commencement Date. The Term of this Lease shall commence
on the date specified in Section 1.4(A) hereof and shall be for the term
specified in Section 1.4(B) hereof, plus any partial month at the commencement
of the Term.
4.2 Acknowledgment of Commencement. After delivery of the Leased
Premises to Lessee, Lessee shall execute a written acknowledgment of the date
of commencement in the form attached hereto as Exhibit E.
ARTICLE 5. RULES AND REGULATIONS
5.1 Delay. Lessee agrees to comply with all reasonable rules and
regulations adopted and promulgated by Lessor for the Complex. Lessor shall
have no liability for violation by any other lessee in the Complex of any rules
or regulations, nor shall such violation or waiver thereof excuse Lessee from
compliance. The initial rules and regulations concerning the Complex are
attached hereto as Exhibit F. Lessor reserves the right to make additional
rules affecting the Complex throughout the Term hereof.
ARTICLE 6. DELAY IN DELIVERY OF POSSESSION
6.1 Delay. If Lessor, for any reason whatsoever, cannot deliver
possession of the Leased Premises to Lessee at the Estimated Delivery Date,
this Lease shall not be void or voidable, nor shall Lessor be liable for any
loss or damage resulting therefrom, but in that event, there shall be no
accrual of Rent for the period between the Estimated Delivery Date and the
Commencement Date. In the event Lessor cannot deliver the Leased Premises to
Lessee by February 1, 1996, then Lessee may elect to terminate this lease,
unless such delay is caused by Lessee.
ARTICLE 7. MINIMUM RENT
7.1 Payment. Lessee shall pay to Lessor at the address specified
in Section 1.1, or at such other place as Lessor may otherwise designate, as
"Minimum Rent" for the Leased Premises the amount specified in Section 1.5(A)
hereof, payable in advance on the first day of each month during the Term. If
the Term commences on other than the first day of a calendar month, the rent
for the first partial month shall be prorated accordingly.
All payments of Minimum Rent (including sums defined as rent in
Section 2.1(p)) shall be in lawful money of the United States, and payable
without deduction, setoff, offset, counterclaim, recoupment, notice or demand.
7.2 Advance Rent. The amount specified in Section 1.5(B) hereof
is paid herewith to Lessor upon execution of this Lease as advance rent,
receipt of which is hereby acknowledged, provided, however, that such amount
shall be held by Lessor as a "Security Deposit" pursuant to Section 10.1 hereof
until it is applied by Lessor to the first Minimum Rent due hereunder.
ARTICLE 8. ADDITIONAL RENT
8.1 Personal Property, Gross Receipts, Leasing Taxes. In addition
to the Minimum Rent and additional charges to be paid by Lessee hereunder,
Lessee shall reimburse Lessor upon demand for any and all taxes required to be
paid by Lessor (excluding state, local or federal personal and corporate income
taxes measured by the income of Lessor from all sources, and estate and
inheritance taxes) whether or not now customary or within the contemplation of
the parties hereto:
(a) upon, measured by, or reasonably attributable to the
cost or value of Lessee's equipment, furniture, fixtures and other personal
property located in the Leased Premises or by the cost or value of any
Leasehold Improvements made in or to the Leased Premises by or for Lessee,
other than Building Standard Work, regardless of whether title to such
improvements shall be in Lessee or Lessor;
(b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Lessee of the Leased Premises or any portion thereof to the extent such taxes
are not included as Real Estate Taxes as defined in Section 2.1(p);
(c) upon this transaction or any document to which Lessee is a
party creating or transferring an interest or an estate in the Leased
Premises; and
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(d) in connection with any testing, investigation, abatement,
remediation, removal, transportation and/or disposal of any Hazardous
Materials by Lessee (or by Lessor, pursuant to any provision of this Lease
granting to Lessor the right to do any of the foregoing and to bill Lessee
therefor).
For purposes of this Section 8.1, the term "taxes" shall include, but not
be limited to, any fees, charges, fines, penalties and costs (including,
without limitation, permit, approval or licensing fees, charges or costs). All
Taxes payable by Lessee under this Section shall be deemed to be, and shall be
paid as, additional Rent.
8.2 Operating Costs.
(a) If the Operating Costs for any Lease Year, calculated on
the basis of the greater of (i) actual Operating Costs; or (ii) as if the
Complex were at least ninety-five percent (95%) occupied and operational for
the whole of such Lease Year, are more than the Base Operating Cost for the
Complex, as such Base operating Cost is adjusted to reflect the Complex being
95% occupied and operational for the whole of such 1996 Base Year, Lessee shall
pay to Lessor its Proportionate Share of any such increase as additional Rent
in accordance with Section 8.3 hereof.
(b) If any Lease Year of less than twelve (12) months is included
within the Term, the amount payable by Lessee for such period shall be prorated
on a per diem basis (utilizing a three hundred sixty (360) day year).
8.3 Method of Payment. Any additional Rent payable by Lessee under
Sections 8.1 and 8.2 hereof shall be paid as follows, unless otherwise
provided:
(a) During the Term, Lessee shall pay to Lessor monthly in advance
with its payment of Minimum Rent, one-twelfth (1/12th) of the amount of such
additional Rent as estimated by Lessor in advance, in good faith, to be due
from Lessee.
(b) Annually, as soon as is reasonably possible after the
expiration of each Lease Year, Lessor shall prepare in good faith and deliver
to Lessee comparative statement, setting forth (1) the operating Costs for
such Lease Year, and (2) the amount of additional Rent as determined in
accordance with the provisions of this Article 8.
If the aggregate amount of such estimated additional Rent
payments made by Lessee in any Lease Year should be less than the additional
Rent due for such year, then Lessee shall pay to Lessor as additional Rent upon
demand the amount of such deficiency. If the aggregate amount of such
additional Rent payments made by Lessee in any Lease Year of the Term should be
greater than the additional Rent due for such year, the amount of such excess
will be applied by Lessor to the next succeeding installments of minimum rent
and such additional Rent due hereunder; and if there is any such excess for the
last year of the Term, the amount thereof will be refunded by Lessor to Lessee,
provided Lessee is not otherwise in default under the terms of this Lease.
ARTICLE 9. TRANSFER OF SECURITY
9.1 Transfer of Purchaser. If any security be given by Lessee to secure
the faithful performance of all or any of the covenants of this Lease on the
part of Lessee, Lessor may, transfer and/or deliver the security, as such, to
the purchaser of the reversion, in the event that the reversion be sold, and
thereupon Lessor shall be discharged from any further liability in reference
thereto.
ARTICLE 10. SECURITY DEPOSIT
10.1 Payment on Lease Execution. Lessee shall pay Lessor upon execution
hereof the sum specified in Section 1.6. This sum is designated as a Security
Deposit and shall remain the sole and separate property of Lessor until
actually repaid to Lessee (or at Lessor's option the last assignee, if any, of
Lessee's interest hereunder), said sum not being earned by Lessee until all
conditions precedent for its payment to Lessee have been fulfilled. As this sum
both in equity and at law is Lessor's separate property, Lessor shall not be
required to (1) keep said deposit separate from its general accounts, or (2)
pay interest, or other increment for its use. If Lessee fails to pay rent or
other charges when due hereunder, or otherwise defaults with respect to any
provision of this Lease, including and not limited to Lessee's obligation to
restore or clean the Leased Premises following vacation thereof, Lessee, at
Lessor's election, shall be deemed not to have earned the right to repayment of
the Security Deposit, or those portions thereof used or applied by Lessor for
the payment of any rent or other charges in default, or for the payment of any
other sum to which Lessor may become obligated by reason of Lessee's default,
or to compensate Lessor for any loss or damage which Lessor may suffer thereby.
Lessor may retain such portion of the Security Deposit ,as it reasonably deems
necessary to restore or clean the Leased Premises following vacation by Lessee.
The Security Deposit is not to be characterized as rent until and unless so
applied in respect of a default by Lessee.
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10.2 Restoration of Deposit. If Lessor elects to use or apply all or
any portion of the Security Deposit as provided in Section 10.1, Lessee shall
within ten (10) days after written demand therefor pay to Lessor in cash, an
amount equal to that portion of the Security Deposit used or applied by Lessor,
and Lessee's failure to so do shall be a material breach of this Lease.
ARTICLE 11. USE
11.1 Permitted Use. The Leased Premises may be used and occupied only for the
purposes specified in Section 1.7 hereof, and for no other purpose or purposes.
11.2 Safes, Heavy Equipment. Lessee shall not place a load upon any floor of
the Leased Premises which exceeds fifty (50) pounds per square foot live load.
Lessor reserves the right to prescribe the weight and position of all safe and
heavy installations which Lessee wishes to place in the Leased Premises.
11.3 Machinery. Business machines and mechanical equipment belonging
to Lessee which cause noise and/or vibration that may be transmitted to the
structure of the Building or to any other leased space to such a degree as to
be objectionable to Lessor or to any Lessees in the Complex shall be placed and
maintained by the party possessing the machines or equipment, at such party's
expense, in settings of cork, rubber or spring type noise and/or vibration
eliminators, and Lessee shall take such other measures as needed to eliminate
vibration and/or noise. If the noise or vibrations cannot be eliminated,
Lessee must remove such equipment within ten (10) days following written notice
from Lessor.
11.4 Hazardous Activities. Lessee shall not engage in any activities
or permit to be kept, used, or sold in or about the Leased Premises, any
article which may be prohibited by the standard form of fire insurance
policies.
ARTICLE 12. COMPLIANCE WITH LAWS AND REGULATIONS
12.1 Lessee's obligations. Lessee, shall, at its sole cost and expense, comply
with all of the requirements of all municipal, state and federal authorities
now in force, or which may hereafter be in force, pertaining to the Leased
Premises, and shall faithfully observe in the use of the Leased Premises all
municipal ordinances and state and federal statutes and regulations now in
force or which may hereafter be in force, including, without limitation,
"Environmental Laws" and "Wetlands Laws" (as hereinafter defined), and the
Americans with Disabilities Act, 42 U.S.C. SS 12101-12213 (and any rules,
regulations, restrictions, guidelines, requirements or publications promulgated
or published pursuant thereto, collectively herein referred to as the "ADA"),
whether or not any of the foregoing were foreseeable or unforeseeable at the
time of the execution of this Lease. Within five (5) days after receipt of
notice or knowledge of any violation or alleged violation of any Environmental
Law(s), Wetlands Law(s) and/or the ADA pertaining to the Complex, any
governmental or regulatory proceedings, investigations, sanctions and/or
actions threatened or commenced with respect to any such violation or alleged
violation, and any claim made or commenced with respect to such violation or
alleged violation, Lessee shall notify Lessor thereof and provide Lessor with
copies of any written notices or information in Lessee's possession.
12.2 Condition of Leased Premises. Subject to Lessor's work, if any, as
referred to in Exhibit D to this Lease, Lessee hereby accepts the Leased
Premises in the condition existing as of the date of occupancy, subject to all
applicable zoning, municipal, county and state laws, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the Term or any part of the Term hereof regulating the Leased Premises, and
without representation, warranty or covenant by Lessor, express or implied, as
to the condition, habitability or safety of the Leased Premises, the
suitability or fitness thereof for their intended purposes, or any other
matter. Lessee's acceptance of the Premises shall not waive any rights of
Lessee to have any latent defects repaired by Lessor.
12.3 Hazardous Materials.
(a) Hazardous Materials Defined. As used herein, the term "Hazardous
Materials" shall mean any wastes, materials or substances (whether in the form
of liquids, solids or gases, and whether or not air-borne), which are or are
deemed to be pollutants or contaminants, or which are or are deemed to be
hazardous, toxic, ignitable, reactive, corrosive, dangerous, harmful or
injurious, or which present a risk, to public health or to the environment, or
which are or may become regulated by or under the authority of any applicable
local, state or federal laws, judgments, ordinances, orders, rules,
regulations, codes or other governmental restrictions, guidelines or
requirements, any amendments or successor(s) thereto, replacements thereof or
publications promulgated pursuant thereto (collectively "Environmental Laws").
In addition to the foregoing, the term "Environmental Laws" shall
be deemed to include, without limitation, local, state and federal laws,
judgments, ordinances, orders, rules, regulations, codes and other governmental
restrictions, guidelines and requirements, any amendments and successors
thereto, replacements thereof and publications promulgated pursuant thereto,
which deal with or otherwise in any manner relate to, air or water quality, air
emissions, soil or ground conditions or other environmental matters of any
kind.
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(b) Use, etc., of Hazardous Materials. Lessee agrees that during the
Term of this Lease, there shall be no use, presence, disposal, storage,
generation, leakage, treatment, manufacture, import, handling, processing,
release or threatened release of Hazardous Materials on, from or under the
Leased Premises except to the extent that, and in accordance with such
conditions as, Lessor may have previously approved in writing. The use,
presence, disposal, storage, generation, leakage, treatment, manufacture,
import, handling, processing, release or threatened release of Hazardous
Materials are sometimes hereinafter individually or collectively referred to as
"Hazardous Use." It is further agreed that Lessee shall be entitled to use and
store only those Hazardous Materials which are necessary for Lessee's business,
provided that such usage and storage is in full compliance with Environmental
Laws, and all judicial and administrative decisions pertaining thereto.
12.4 Indemnity. Deleted Text.
12.5 Indoor Air Quality. To prevent the generation, growth or deposit of any
mold, mildew, bacillus, virus, pollen or other microorganism (collectively,
"Biologicals") and the deposit, release or circulation of any indoor
contaminants, including, but not limited to, emissions from paint, carpet and
drapery treatments, cleaning, maintenance and construction materials and
supplies, pesticides, pressed wood products, insulation, tobacco and other
materials and products (collectively with Biologicals, "Contaminants"), that
could adversely affect the health, safety or welfare of any tenant, employee,
or other occupant of the Complex or their invitees (each, an "Occupant"),
Lessee shall, at Lessee's sole cost and expense, at all times during the Term
(i) maintain, operate and repair the HVAC system servicing the Leased Premises
(to the extent that Lessee is otherwise obligated to perform such maintenance,
operation and repair pursuant to this Lease) in a manner consistent with
preventing or minimizing the generation, growth, circulation, release or
deposit of any Contaminants, (ii) maintain the humidity level and the air
exchange rate within the Leased Premises (to the extent that Lessee has control
thereof) at a level recommended to prevent or minimize the growth of any
Biologicals and the circulation of any other Contaminants, (iii) maintain,
operate and repair the Leased Premises in such a manner to prevent or minimize
the accumulation of stagnant water and moisture in planters, kitchen appliances
and vessels, carpeting, insulation, water coolers and any other locations where
stagnant water and moisture could accumulate, and (iv) otherwise maintain,
operate and repair the Leased Premises to prevent the generation, growth,
deposit, release or circulation of any Contaminants. If any governmental
entity or any Occupant alleges that health, safety or welfare has been or could
be adversely affected by any such Contaminants, Lessee shall notify Lessor in
writing within twenty-four (24) hours of the time the allegation is made.
Lessor may then elect to engage the services of an industrial hygiene testing
laboratory (or alternatively or concurrently require Lessee to do the same) to
determine whether the cause of any alleged adverse health effect is or could be
attributable to any Contaminants present within the Leased Premises. Lessee
shall be responsible for all such testing costs and for any consequential
damages and costs (including, without limitation, any third-party claims, loss
of rental, remediation, removal and/or abatement costs, and increases in
insurance premiums) resulting from Lessee's failure to comply in whole or in
part with the terms of this Section 12.5. The indemnity set forth in Section
12.5 above shall apply to Lessee's failure to comply with any of the terms of
this Section.
ARTICLE 13. SERVICE AND EQUIPMENT
13.1 Climate Control. So long as Lessee is not in default under any
of the covenants of this Lease, Lessor shall provide climate control to the
Leased Premises from 7:00 a.m. to 6:00 p.m. (the "Climate Control Hours") on
weekdays (Saturdays, Sundays and holidays excepted) to maintain a temperature
adequate for comfortable occupancy, provided that Lessor shall have no
responsibility or liability for failure
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to supply climate control service when making repairs, alterations or
improvements or when prevented from so doing by strikes or any cause beyond
Lessor's reasonable control. Any climate control furnished for periods not
within the Climate Control Hours pursuant to Lessee's request shall be at
Lessee's sole cost and expense at Lessor's cost of service. Lessee acknowledges
that Lessor has installed in the Building a system for the purpose of climate
control. Any use of the Leased Premises not in accordance with the design
standards or any arrangement of partitioning which interferes with the normal
operation of such system may require changes or alterations in the system or
ducts through which the climate control system operates. Any changes or
alterations so occasioned, if such changes can be accommodated by Lessor's
equipment, shall be made by Lessee at its cost and expense but only with the
written consent of Lessor first had and obtained, and in accordance with
drawings and specifications and by a contractor first approved in writing by
Lessor. If installation of partitions, equipment or fixtures by Lessee
necessitates the re-balancing of the climate control equipment in the Leased
Premises, the same will be performed by Lessor at Lessee's expense. Lessee
acknowledges that up to one (1) year may be required after Lessee has fully
occupied the Leased Premises in order to adjust and balance the climate control
systems. Any charges to be paid by Lessee hereunder shall be due within ten
(10) days of receipt of an invoice from Lessor, which invoice may precede
Lessor's expenditure for the benefit of Lessee.
13.2 Elevator Service. Lessor shall provide elevator service (which
may be with or without operator at Lessor's option) during normal business
hours provided that Lessee, its employees, and all other persons using such
services shall do so at their own risk.
13.3 Cleaning Public Areas. Lessor shall maintain and keep clean the
street level lobbies, sidewalks, truck dock, public corridors and other public
portions of the Building.
13.4 Refuse Disposal. Lessee shall pay Lessor, within ten (10) days of being
billed therefor, for the removal from the Leased Premises and the Building of
such refuse and rubbish of Lessee as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy.
13.5 Janitorial Service. Lessor shall provide cleaning and Janitorial service
in and about the Complex and Leased Premises from time to time on weekdays
(Saturdays, Sundays and holidays excepted) in accordance with standards in
first-class office buildings in the city in which the Building is located.
To the extent that Lessee shall require special or more frequent
cleaning and/or Janitorial service (hereinafter referred to as "Special
Cleaning Service") Lessor may, upon reasonable advance notice from Lessee,
elect to furnish such special Cleaning Service and Lessee agrees to pay Lessor,
within ten (10) days of being billed therefor, Lessor's charge for providing
such additional service.
Special Cleaning Service shall include but shall not be limited to
the following:
(a) The cleaning and maintenance of Lessee eating facilities
including the removal of refuse and garbage therefrom.
(b) The cleaning and maintenance of Lessee computer centers,
including peripheral areas, and removal of waste paper therefrom.
(c) The cleaning and maintenance of special equipment areas,
kitchen areas, private toilets and locker rooms, medical centers and large
scale duplicating rooms.
(d) The cleaning and maintenance in areas of special security
such as storage units.
(e) The provision of consumable supplies for private toilet
rooms.
13.6 Interruptions. Lessor does not warrant that any of the services
referred to above or any other services and/or utilities which Lessor may
supply or are supplied will be free from interruption and/or the need for
maintenance and repairs or replacement. in addition, Lessor shall have no
liability for damages arising from, and Lessor does not warrant that Lessee's
use of any Lines will be free from, (a) any eavesdropping or wire-tapping by
unauthorized parties, (b) any failure of any Lines to satisfy Lessee's
requirements, or any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by installation, maintenance,
replacement, use or removal of Lines by or for other occupants of the Complex,
by any failure of the environmental conditions or the power supply for the
Building to conform to any requirements for the Lines or any associated
equipment or any other problems associated with any Lines by any other cause.
Any such interruption or suspension of services shall not be deemed an eviction
or disturbance of Lessee's use and possession of the Leased Premises or any
part thereof, nor render Lessor liable to Lessee for damages by abatement of
Rent or otherwise, nor relieve Lessee of performance of Lessee's obligations
under this Lease.
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ARTICLE 14. WASTE
14.1 Waste or Nuisance. Lessee shall not commit, or suffer to be committed,
any waste upon the Leased Premises, or any nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant or occupant of the
Complex in which the Leased Premises are located.
ARTICLE 15. ALTERATIONS
15.1 Consent of Lessor; ownership. Lessee shall not make, or suffer
to be made, any alterations to the Leased Premises, the Building, or the
Complex, and/or Lines, systems and facilities therein, or any part thereof,
without the written consent of Lessor first had and obtained, which consent may
be withheld in Lessor's sole and absolute discretion. Except as otherwise
provided in this Lease, Lessee shall have the right to remove its trade
fixtures placed upon the Leased Premises provided that Lessee restores the
Leased Premises as indicated below.
15.2 Liens. Lessee shall keep the Leased Premises and the Complex
in which the Leased Premises are situated free from any liens arising out of
any work performed, materials furnished or obligations incurred by Lessee. In
the event a mechanic's or other lien is filed against the Leased Premises or
the Complex of which the Leased Premises form a part as a result of a claim
arising through Lessee, Lessor may demand that Lessee furnish to Lessor a
surety bond satisfactory to Lessor in an amount equal to at least one hundred
fifty percent (150%) of the amount of the contested lien claim or demand,
indemnifying Lessor against liability for the same and holding the Leased
Premises free from the effect of such lien or claim. Such bond must be posted
within ten (10) days following notice from Lessor. In addition, Lessor may
require Lessee to pay Lessor's attorneys' fees and costs in participating in
any action to foreclose such lien if Lessor shall decide it is to its best
interest to do so. Lessor may pay the claim prior to the enforcement thereof,
in which event Lessee shall reimburse Lessor in full, including attorneys'
fees, for any such expense, as additional rent, with the next due rental.
15.3 Restoration. Lessee shall return the Leased Premises to Lessor at the
expiration or earlier termination of this Lease in good and sanitary order,
condition and repair, free of rubble and debris, broom clean, reasonable wear
and tear excepted.
ARTICLE 16. PROPERTY INSURANCE
16.1 Use of Premises. No use shall be made or permitted to be made on the
Leased Premises, nor acts done, which will cause the cancellation of any
insurance policy covering the Building, or any part thereof, nor shall Lessee
sell, or permit to be kept, used or sold, in or about the Leased Premises, any
article which may be prohibited by the standard form of "All Risk" fire
insurance policies.
16.2 Personal Property Insurance. Lessee shall maintain in full force and
effect on all of its fixtures, furniture, equipment and other business personal
property in the Leased Premises a policy or policies providing protection
against any peril included within the classification "All Risk" to the extent
of at least ninety percent (90%) of their replacement cost, or that percentage
of the replacement cost required to negate the effect of a coinsurance
provision, whichever is greater. No such policy shall have a deductible in a
greater amount than ONE THOUSAND DOLLARS ($1,000.00).
ARTICLE 17. INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION
17.1 Intent and Purpose. This Article 17 is written and agreed to in respect
of the intent of the parties to assign the risk of loss, whether resulting from
negligence of the parties or otherwise, to the party who is obligated hereunder
to cover the risk of such loss with insurance.
17.2 Waiver of Subrogation. Lessor and Lessee release each other, and their
respective authorized representatives, from any claims for damage to the Leased
Premises and the Building and other improvements in which the Leased Premises
are located, and to the furniture, fixtures, and other business personal
property, Lessee's improvements and alterations of either Lessor or Lessee, in
or on the Leased Premises and the Building and other improvements in which the
Leased Premises are located, including loss of income, that are caused by or
result from risks insured or required under the terms of this Lease to be
insured against under any property insurance policies carried or to be carried
by either of the parties.
17.3 Form of Policy. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waives all rights of
recovery by way of subrogation against either party in connection with any
damage covered by such policy.
17.4 Lessee's Indemnification of Lessor. Lessee shall indemnify,
hold harmless, protect and defend Lessor and Lessor's officers, directors,
shareholders, trustees, partners, employees, contractors and agents
(collectively, ("indemnified parties"), from and against any and all demands,
claims, causes of action, fines, penalties, damages (whether direct or
indirect, known or unknown, foreseen of unforeseen, including consequential
damages), actions, judgments, expenses (including, without
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limitation, attorney's fees and court costs), liabilities and losses of
every kind and nature (including those caused by the negligence of Lessor,
except as otherwise provided below; collectively "Claims"), incurred in
connection with or arising from: (a) the use or occupancy of the Leased
Premises by Lessee or any person claiming under Lessee; (b) any acts,
omissions, or negligence of Lessee or any person claiming under Lessee, or the
contractors, agents, employees, invitees, or visitors of Lessee or any such
person; or any breach, violation, or nonperformance by Lessee or any person
claiming under Lessee or the employees, agents, contractors, invitees, or
visitors of Lessee or any such person of any term, covenant, or provision of
this Lease; provided, however, that Lessee shall not be required so to
indemnify any indemnified party to the extent that the Claim is (x) caused by
the negligence or willful misconduct of the indemnified party and (y) not
covered by any insurance carries by Lessee or required under this Lease to be
carried by Lessee. If any Claim is brought against an indemnified party,
Lessee, upon notice from Lessor, will defend the Claim is brought against an
indemnified party, Lessee, upon notice from Lessor, will defend the Claim at
Lessee's expense with counsel reasonably satisfactory to Lessor.
17.5 Lessor's Indemnification of Lessee, Except as otherwise provided in this
Lease, Lessor shall indemnify, hold harmless, protect and defend Lessee and
Lessee's officers, directors, shareholders, trustees, partners, employees,
contractors and agents (collectively, "indemnified parties"), from and against
any and all demands, claims, causes of action, fines, penalties, damages
(whether direct or indirect, known or unknown, foreseen or unforeseen,
including consequential damages), actions, judgements, expenses (including,
without limitation, attorney's fees and court costs), liabilities and losses of
every kind and nature (including those caused by the negligence of Lessor,
except as otherwise provided below; collectively "Claims"), incurred in
connection with or arising from: (a) occurrences in the common areas of the
Complex; or (b) any breach, violation, or nonperformance by Lessor or any
person claiming under Lessor or the employees, agents, contractors, invitees,
or visitors, of Lessor or any such person of any term, covenant, or provision
of this Lease; provided, however, that Lessor shall not be required so to
indemnify any such indemnified party to the extent that such Claim is (x)
caused by the negligence or willful misconduct of the indemnified party and (y)
not covered by any insurance carried by Lessor or required under this Lease to
be carried by Lessor. If any such Claim is brought against such an indemnified
party, Lessor, upon notice from Lessee, will defend the Claim at Lessor's
expense with council reasonably satisfactory to Lessee.
17.6 Waiver of Claims. Lessee, as a material part of the consideration to be
rendered to Lessor, hereby waives all claims against Lessor for damages or
injury, as described below, "(except only for bodily injury or damage to
tangible personal property, to the extent such injury or damage is both [x]
caused by the negligence of Lessor and [y] not covered by any insurance carried
by Lessee or required under this Lease to be carried by Lessee)."
(a) damages to goods, wares, merchandise and loss of business
in, upon or about the Leased Premises and injury to Lessee, its agents,
employees, invites or third persons, in, upon or about the Leased Premises; and
(b) (notwithstanding anything to the contrary contained in
this Lease, including, without limitation, the definition of "Operating Costs"
in Section 2. 1 (1), which includes "policing") damages to goods, wares,
merchandise and loss of business, in, upon or about the Leased Premises or the
Complex, and injury to Lessee, its agents, employees, invites or third persons
in, upon or about the Leased Premises or the Complex, where such damage or
injury results from Lessor's failure to police or provide security for the
Complex or Lessor's negligence in connection therewith.
Lessee expressly acknowledges and agrees that the provisions of Section
12.6(b) above apply fully with respect to the matters waived pursuant to this
Section 17.6, and, for such purpose, the term "Released Matters," as used in
Section 12.6(b), shall be deemed to include the matters waived pursuant to this
Section 17.6.
17.7 References. Wherever in this Article the term Lessor or Lessee
is used and such party is to receive the benefit of a provision contained in
this Article, such term shall refer not only to that party but also to its
officers, directors, shareholders, employees, contractors, partners, agents and
mortgagees or other lien holders.
ARTICLE 18. LIABILITY INSURANCE
18.1 Lessee's Insurance. Lessee shall, at Lessee's expense, obtain
and keep in force during the Term, a commercial general liability insurance
policy insuring Lessee against the risks of, bodily injury and property damage,
personal injury, contractual liability, completed operations, products
liability, host liquor liability, owned and non-owned automobile liability
arising out of the ownership, use, occupancy or maintenance of the Leased
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than ONE MILLION DOLLARS
($1,000,000.00) per occurrence with a TWO MILLION DOLLAR ($2,000,000.00) annual
aggregate; and an umbrella policy of THREE MILLION
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interest designated by Lessor shall be named as additional insured(s). The
policy shall contain cross liability endorsements and shall insure performance
by Lessee of the indemnity provisions of this Lease; shall be primary, not
contributing with, and not in excess of coverage which Lessor may carry; shall
provide for severability of interest; shall provide that an act or omission of
one of the insured or additional insureds which would void or otherwise reduce
coverage shall not void or reduce coverages as to the other insured or
additional insured; and shall afford coverage after the Term (by separate
policy or extension if necessary) for all claims based on acts, omissions,
injury or damage which occurred or arose (or the onset of which occurred or
arose) in whole or in part during the Term. The limits of said insurance
shall not limit any liability of Lessee hereunder.
ARTICLE 19. INSURANCE POLICY REQUIREMENTS
19.1 General Requirements. All insurance policies required to be
carried by Lessee (except Lessee's business personal property insurance)
hereunder shall conform to the following requirements:
(a) The insurer in each case shall carry a designation in "Best's
Insurance Reports" as issued from time to time throughout the Term as
follows: Policyholders, rating of A; financial rating of not less than VII;
(b) The insurer shall be qualified to do business in the state
in which the Leased Premises are located;
(c) The policy shall be in a form and include such endorsements
as are acceptable to Lessor;
(d) Certificates of insurance shall be delivered to Lessor at
commencement of the Term and certificates of renewal at least thirty (30) days
prior to the expiration of each policy;
(e) Each policy shall require that Lessor be notified in
writing by the insurer at least thirty (30) days prior to any cancellation or
expiration of such policy, or any reduction in the amounts of insurance
carried.
ARTICLE 20. LESSEE INSURANCE DEFAULT
20.1 Rights of Lessor. In the event that Lessee fails to obtain any
insurance required of it under the terms of this Lease, Lessor may, at its
option, but is not obligated to, obtain such insurance on behalf of Lessee and
bill Lessee, as additional rent, for the cost thereof. Payment shall be due
within ten (10) days of receipt of the billing therefor by Lessee.
ARTICLE 21. FORFEITURE OF PROPERTY
21.1 Removal of Personal Property. Lessee agrees that as at the date
of termination of this Lease or repossession of the Leased Premises by Lessor,
by way of default or otherwise, it shall remove all personal property to which
it has the right to ownership pursuant to the terms of this Lease. Any and all
such property of Lessee not removed by such date shall, at the option of
Lessor, irrevocably become the sole property of Lessor. Lessee waives all
rights to notice and all common law and statutory claims and causes of action
which it may have against Lessor subsequent to such date as regards the
storage, destruction, damage, loss of use and ownership of the personal
property affected by the terms of this Article.
ARTICLE 22. MAINTENANCE AND REPAIRS
22.1 Lessor's obligations. Subject to the other provisions of this
Lease imposing obligations in this respect upon Lessee, Lessor shall repair,
replace and maintain the external and Structural parts of the Complex which do
not comprise a part of the Leased Premises and are not leased to others,
janitor and equipment closets and shafts within the Leased Premises designated
by Lessor for use by it in connection with the operation and maintenance of the
Complex, and all Common Areas. Lessor shall perform such repairs, replacements
and maintenance with reasonable dispatch, in a good and workmanlike manner; but
Lessor shall not be liable for any damages, direct, indirect or consequential,
or for damages for personal discomfort, illness or inconvenience of Lessee by
reason of failure of equipment, Lines, facilities or systems or reasonable
delays in the performance of such repairs, replacements and maintenance, unless
caused by the deliberate act or omission of Lessor, its servants,
agents, or employees. The cost for such repairs, maintenance and replacement
shall be included in Operating Costs in accordance with Section 2.1(1)
hereof.
22.2 Negligence of Lessee. If the Building, the elevators, boilers,
engines, pipes or apparatus used for the purpose of climate control of the
Building or operating the elevators, or if the water pipes, drainage pipes,
electric lighting or other equipment, Lines, systems and/or facilities of the
Building or the Complex, or the roof or the outside walls of the Building, fall
into a state of disrepair or become damaged or destroyed through the
negligence, carelessness or misuse of Lessee, its agents, employees or anyone
permitted by it to be in the Complex, or through it in any way, the cost of the
necessary repairs, replacements or alterations shall be
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borne by Lessee who shall pay the same to Lessor as additional charges
forthwith on demand.
22.3 Lessee's obligations. Lessee shall repair the Leased Premises,
including without limiting the generality of the foregoing, all interior
partitions and walls, fixtures, Leasehold Improvements and alterations in the
Leased Premises and all electrical and telephone outlets and conduits, fixtures
and shelving, and special mechanical and electrical equipment which equipment
is not a normal part of the Leased Premises installed by or for Lessee,
reasonable wear and tear, damage with respect to which Lessor has an obligation
to repair as provided in Section 22.1 and Section 23 hereof only excepted.
Prior to commencement of any repairs, Lessee shall give Lessor at least ten
(10) days' prior written notice thereof so that Lessor may post notices of
non-responsibility in or upon the Leased Premises as provided by law. Lessee
must obtain the prior written approval from Lessor for Lessee's contractor
before the commencement of the repair. Lessor may require that Lessee use a
specific contractor for certain types of repairs. Lessor may enter and view
the state of repair and Lessee will repair in a good and workmanlike manner
according to notice in writing. Notwithstanding the foregoing, Lessee shall
not make any repairs to the equipment, Lines, facilities or systems of the
Building or Complex which are outside of the Leased Premises or which do not
exclusively serve the Leased Premises.
22.4 Cleaning. Lessee agrees at the end of each business day to
leave the Leased Premises in a reasonably clean condition for the purpose of
the performance of Lessor's cleaning services referred to herein. Lessee shall
maintain the appearance of the Leased Premises in a manner consistent with the
character, use and appearance of the Complex.
22.5 Waiver. Text Deleted.
22.6 Acceptance. Text Deleted.
ARTICLE 23. DESTRUCTION
23.1 Rights of Termination. Lessor may elect to terminate this Lease
by and upon written notice to Lessee following damage by fire or other casualty
under the following circumstances:
(a) If Landlord determines in good faith that the damage
cannot be substantially repaired and restored under applicable laws within one
hundred twenty (120) days from the date of the casualty;
(b) If Landlord determines in good faith that repair and
restoration of the damage cannot be substantially completed at least four (4)
months prior to expiration of the term of this Lease;
(c) If, in the reasonable judgement of Lessor, adequate proceeds
for any reason will not be made available to Lessor from Lessor's insurance
policies to make the required repairs (provided, however, that in such event,
Lessor shall give Lessee notice of the percentage of the total estimated cost
of repair not covered by available insurance proceeds (the "Not Covered
Percentage"] and the total estimated cost of repairing the Leased Premises, and
Tenant shall be entitled to override Landlord's election to terminate by paying
to Landlord, within ten (10) days after receipt of such notice from Lessor, an
amount equal to the Not Covered Percentage of the estimated cost of repairing
the Leased Premises); or
(d) If the building in which the Leased Premises are located
is damaged or destroyed to the extent that, in the reasonable judgment of
Lessor, the cost to repair and restore the building would exceed twenty-five
percent (25%) of the full replacement cost of the building, whether or not the
Lease Premises are at all damaged or destroyed.
If all or a substantial part of the Leased Premises are rendered
untenantable or inaccessible by damage from fire or other casualty, and
Landlord does not substantially complete the required repairs within one
hundred eighty (180) days after the date of the casualty, Lessee may elect to
terminate this Lease by and upon written notice to Lessor given within ten (10)
days after the end of such one hundred eighty (180)-day period.
23.2 Repairs. In the event Lessor or Lessee do not elect to terminate this
Lease under the terms of Section 23.1 above, then this Lease shall continue in
full force and effect and Lessor shall forthwith undertake to make such repairs
to reconstitute the Leased Premises to as near the condition as existed prior
to the property loss as practicable. Such partial destruction shall in no way
annul or void this Lease except that Lessee shall be entitled to a
proportionate reduction of Minimum Rent following the property loss and until.
the time the Leased Premises are restored.
Such reduction shall be an amount which reflects the degree of
interference with Lessee's business. So long as Lessee conducts its business
in the Leased Premises, there shall be no abatement of Minimum Rent, and Lessor
shall not be obligated to
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commence any repairs, until the parties agree on the amount thereof.
23.3 Repair Costs. The cost of any repairs to be made by Lessor,
pursuant to Section 23.2 of this Lease, shall be paid by Lessor utilizing
available insurance proceeds.
23.4 Waiver. Deleted Text.
23.5 Lessor's Election. In the event that the Complex or Building in
which the Leased Premises are situated be destroyed to the extent of not less
than twenty-five percent (25%) of the replacement cost thereof, Lessor may
elect to terminate this Lease, whether the Leased Premises be injured or not,
in the same manner as in Section 23.1 above.
ARTICLE 24. CONDEMNATION
24.1 Definitions.
(a) "Condemnation" means (I) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a condemnor and/or (ii)
a voluntary sale or transfer by Lessor to any condemnor, either under threat
of condemnation or while legal proceedings for condemnation are pending.
(b) "Date of taking" means the date the condemnor has the
right to possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial condemnation.
(d) "Condemnor" means any public or quasi-public authority,
or private corporation or individual, having the power of condemnation.
24.2 Taking. If the Leased Premises are totally or partially taken
by condemnation, this Lease shall terminate on the date of taking.
24.3 Common Areas; Building.
(a) If any portion of the Common Areas of the Complex is
taken by condemnation, this Lease shall remain in full force and effect so long
as there is no material interference with the access to the Leased Premises,
except that if thirty percent (30%) or more of the Common Areas is taken by
condemnation, Lessor shall have the election to terminate this Lease pursuant
to this Section.
(b) If any portion of the Building in which the Leased
Premises are located is taken, Lessor shall have the election to terminate this
Lease in the manner prescribed herein.
24.4 Termination or Abatement. If Lessor terminates this Lease,
Lessor must terminate by giving notice to Lessee within thirty (30) days after
the nature and extent of the taking have been finally determined (the "Decision
Period"). Lessor shall notify Lessee of the date of termination, which date
shall not be earlier than sixty (60) days after Lessor has notified Lessee of
its election to terminate not later than the date of taking. If the Lease is
not terminated, Minimum Rent shall be reduced by subtracting therefrom an
amount calculated by multiplying the Minimum Rent in effect prior to the taking
by a fraction the numerator of which is the number of square feet taken from
the Leased Premises and the denominator of which is the number of square feet
in the Leased Premises prior to the taking.
24.5 Award. Any award arising from the condemnation or the settlement thereof
shall belong to and be paid to Lessor except that Lessee shall receive
from the award compensation for the following if specified in the award by the
condemning authority, so long as it does not reduce Lessor's award in respect
of the real property: Lessee's trade fixtures, tangible personal property, loss
of business and relocation expenses. At all events, Lessor shall be solely
entitled to all award in respect of the real property, including the bonus
value of the leasehold. Lessee shall not be entitled to any award until Lessor
has received the above sum in full.
ARTICLE 25. ASSIGNMENT AND SUBLETTING
25.1 "Transfer of the Leased Premises" Defined. The terms "Transfer
of the Leased Premises" or "Transfer" as used herein shall include any
assignment of all or any part of this Lease (including assignment by operation
of law and/or change in the form of Lessee such as conversion from a
partnership to a limited liability company), subletting of all or any part of
the Leased Premises or transfer of possession, or granting of the right of
possession or contingent right of possession of all or any
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portion of the Leased Premises including, without limitation, license,
concession, mortgage, devise, hypothecation, agency, franchise or management
agreement, or suffering any other person (the agents and servants of Lessee
excepted) to occupy or use the Leased Premises or any portion thereof. If
Lessee is a corporation which is not deemed a public corporation, or is an
unincorporated association or partnership, or Lessee consists of more than one
party, the transfer, assignment or hypothecation of any stock or interest in
such corporation, association, partnership or ownership interest, in the
aggregate in excess of twenty-five percent (25%), shall be deemed a Transfer of
the Leased Premises.
25.2 No Transfer Without Consent. Lessee shall not suffer a Transfer of the
Leased Premises or any interest therein, or any part thereof, or any right or
privilege appurtenant thereto without the prior written consent of Lessor which
shall not be unreasonably withheld.
ARTICLE 26. ABANDONMENT
26.1 Lessee to occupy. Lessee shall not abandon the Leased Premises
at any time during the Term, nor permit the Leased Premises to remain
unoccupied for a period longer than ten (10) consecutive days during the Term,
and if Losses shall abandon, vacate or surrender the Leased Premises, or be
dispossessed by process of law, or otherwise, any personal property belonging
to Lessee and remaining on the Leased Premises after such ten (10) day period
shall, at the option of Lessor, be deemed abandoned.
ARTICLE 27. ENTRY BY LESSOR
27.1 Rights of Lessor. Lessee shall permit Lessor and Lessor's
agents to enter the Leased Premises at all reasonable times, with 24 hours
prior written notice (except in cases of emergency), for the purpose of
inspecting the same or for the purpose of maintaining the Building and the
Lines, Systems and facilities therein, or for the purpose of making repairs,
replacements, alterations or additions to any portion of the Building and the
Lines, systems and facilities therein, including the erection and maintenance
of such scaffolding, canopies, fences and props as may be required, or for the
purpose of posting notices of non-responsibility for alterations, additions or
repairs, or for the purpose of placing upon the Building any usual or ordinary
"for sale" signs, without any rebate of Rent and without any liability to
Lessee for any loss of occupation or quiet enjoyment of the Leased Premises
thereby occasioned, and shall permit Lessor, at any time within ninety (90)
days prior to the expiration of this Lease, to place upon the Leased Premises
any usual or ordinary "to let" or "to lease" signs. This Section in no way
affects the maintenance obligations of the parties hereto.
ARTICLE 28. SIGNS
28.1 Approval, Installation and Maintenance. Lessee shall not place
on the Leased Premises or on the Complex, any exterior signs or advertisements
nor any interior signs or advertisements that are visible from the exterior of
the Leased Premises, without Lessor's prior written consent, which Lessor
reserves the right to withhold for any aesthetic reason in its sole judgment.
The cost of installation and regular maintenance of any such signs approved by
Lessor shall be at the sole expense of Lessee. At the termination of this
Lease, or any extension thereof, Lessee shall remove all Its signs, and all
damage caused by such removal shall be repaired at Lessee's expense.
ARTICLE 29. DEFAULT
29.1 Definition. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee:
(a) Any failure by Lessee to pay the rent or to make any other
payment required to be made by Lessee hereunder when due; if such failure is
not fully cured within five (5) days after written notice thereof by Lessor to
Lessee;"
(b) The abandonment of the Leased Premises by Lessee in
violation of Section 26.1 hereof;
(c) Any failure by Lessee to provide executed documents as and
when required under the provisions of Section 36.2 and/or Article 37;
(d) A failure by Lessee to observe and perform any other
provision of this Lease to be observed or performed by Lessee, where such
failure continues for twenty (20) days after written notice thereof by Lessor
to Lessee; provided, however, that if the nature of the default is such that
the same cannot reasonably be cured within the twenty (20) day period allowed,
Lessee shall not be deemed to be in default if Lessee shall, within such twenty
(20) day period, commence to cure and thereafter diligently prosecute the same
to completion;
(e) Either (1) the appointment of a receiver (except a
receiver appointed at the instance or request of Lessor) to take possession of
all or substantially all of the assets of Lessee, or (2) a general assignment
by Lessee for the benefit of creditors, or (3) any action taken or suffered by
Lessee under any insolvency or bankruptcy act shall constitute a breach of this
Lease by Lessee. In
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such event, Lessor may, at its option, declare this Lease terminated
and forfeited by Lessee, and Lessor shall be entitled to immediate possession
of the Leased Premises. Upon such notice of termination, this Lease shall
terminate immediately and automatically by its own limitation;
(f) Any two (2) failures by Lessee to observe and perform any
provision of this Lease during any twelve (12) month period of the Term, as
such may be extended, shall constitute, at the option of Lessor, a separate and
noncurable default.
ARTICLE 30. REMEDIES UPON DEFAULT
30.1 Termination and Damages. In the event of any default by Lessee, then in
addition to any other remedies available to Lessor herein or at law or in
equity, Lessor shall have the immediate option to terminate this Lease and all
rights of Lessee hereunder by giving written notice of such intention to
terminate. In the event that Lessor shall elect to so terminate this Lease,
then Lessor may recover from Lessee:
(a) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(b) The worth at the time of 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 such rental loss Lessee proves could have been
reasonably avoided; plus
(c) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Term after the time of award exceeds the
amount of such rental loss that Lessee proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Lessor for all
the detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of events would be likely to
result therefrom; and
(e) At Lessor's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by the
applicable law in the state in which the Leased Premises are located.
30.2 Definition. As used in subsections 30.1(a) and (b) above, the
"worth at the time of award" is computed by allowing interest at the rate of
ten percent (10%) per annum. As used in subsection 30.1 above, the "worth at
the time of award" is computed by discounting such amount at the discount rate
of the Federal Reserve Bank for the region in which the Complex is located at
the time of award plus one percent (1%).
30.3 Personal Property. In the event of any default by Lessee, Lessor shall
also have the right, with or without terminating this Lease, to reenter the
Leased Premises and remove all persons and property from the Leased Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee.
30.4 Recovery of Rent; Reletting.
(a) In the event of the vacation or abandonment of the Leased
Premises by Lessee or in the event that Lessor shall elect to reenter as
provided in Section 30.3 above, or shall take possession of the Leased Premises
pursuant to legal proceeding or pursuant to any notice provided by law, then if
Lessor does not elect to terminate this Lease as provided in Section 30.1
above, this Lease shall continue in effect for so long as Lessor does not
terminate Lessee's right to possession, and Lessor may enforce all its rights
and remedies under this Lease, including, without limitation, Lessor's right
from, time to time, without terminating this Lease, to either recover all
rental as it becomes due or relet the Leased Premises or any part thereof for
such term or terms and at such rental or rentals and upon such other terms and
conditions as Lessor, in its sole discretion, may deem advisable, with the
right to make alterations and repairs to the Leased Premises. Acts of
maintenance or preservation or efforts to relet the Leased Premises or the
appointment of a receiver upon initiation of Lessor or other legal proceeding
granting Lessor or its agent possession to protect Lessor's interest under this
Lease shall not constitute a termination of Lessee's right to possession.
(b) In the event that Lessor shall elect to so relet, then
rentals received by Lessor from such reletting shall be applied: first, to the
payment of any indebtedness other than rent due hereunder from Lessee to
Lessor; second, to the payment of any cost of such reletting third, to the
payment of the cost of any alterations and repairs to the Leased Premises ;
fourth, to the payment of rent due and unpaid hereunder; and the residue, if
any, shall be held by Lessor and applied in payment of future rent as the same
may become due and payable hereunder. Should that portion of such rentals
received from such reletting during any month, which is applied by the payment
of rent hereunder, be less than the rent payable during that month by Lessee
hereunder, then Lessee shall pay such deficiency to Lessor immediately upon
demand therefor by Lessor. Such deficiency shall be calculated and paid
monthly. Lessee shall also pay to Lessor, as soon as ascertained, any costs
and
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expenses incurred by Lessor in such reletting or in making such alterations and
repairs not covered by the rentals received from such reletting.
(c) No reentry or taking possession of the Leased Premises or any
other action under this Section shall be construed as an election to terminate
this Lease unless a written notice of such intention be given to Lessee or
unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by Lessor
because of any default by Lessee, Lessor may at any time after such reletting
elect to terminate this Lease for any such default.
(d) Lessor has the remedy described in California Civil Code
Section 1951.4 (Lessor may continue Lease in effect after Lessee's breach and
abandonment and recover rent as it becomes due, if Lessee has right to sublet
or assign, subject only to reasonable limitations).
30.5 No Waiver. Efforts by Lessor to mitigate the damages caused
by Lessee's default in this Lease shall not constitute a waiver of Lessor's
right to recover damages hereunder, nor shall Lessor have any obligation to
mitigate damages hereunder.
30.6 Curing Defaults. Should Lessee fail to repair, maintain, keep
clean, and/or service the Leased Premises, or any part or contents thereof at
any time or times, or perform any other obligations imposed by this Lease or
otherwise, then after having given Lessee reasonable notice of the failure or
failures and a reasonable opportunity which in no case shall exceed ten (10)
days, to remedy the failure, Lessor may enter upon the Leased Premises and
perform or contract for the performance of the repair, maintenance, or other
Lessee obligation, and Lessee shall pay Lessor for all direct and indirect
costs incurred in connection therewith within ten (10) days of receiving a
bill therefor from Lessor.
30.7 Cumulative Remedies. The various rights, options, election powers, and
remedies of Lessor contained in this Article and elsewhere in this Lease shall
be construed as cumulative and no one of them exclusive of any others or of
any legal or equitable remedy which Lessor might otherwise have in the event
of breach or default, and the exercise of one right or remedy by Lessor shall
not in any way impair its right to any other right or remedy.
ARTICLE 31. WAIVER OF CALIFORNIA CODE SECTIONS
31.1 Waiver by Lessee. Deleted Text.
ARTICLE 32. MORTGAGEE PROTECTION
32.1 Notice and Right to Cure Default. Lessee agrees to give any mortgagee(s)
and/or trust deed holders, by registered mail, a copy of any notice of default
served upon Lessor, provided that prior to such notice Lessee has been
notified, in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise), of the address of such mortgagees and/or trust deed holders.
Lessee further agrees that if Lessor shall have failed to cure such default
within the time provided for in this Lease, then the mortgagees and/or trust
deed holders shall have an additional thirty (30) days within which to cure
such default or, if such default cannot be cured within that time, then such
additional time as may be necessary if, within such thirty (30) days, any
mortgagee and/or trust deed holder has commenced and is diligently pursuing
the remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being
so diligently pursued.
ARTICLE 33. LESSOR'S EXCULPATION
33.1 Limited Liability. In the event of default, breach, or violation by
Lessor (which term includes Lessor's partners, co-venturers, co-tenants,
officers, directors, trustees, employees, agents, or representatives) of any of
Lessor's obligations under this Lease, Lessor's liability to Lessee shall be
limited to its
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ownership interest in the Leased Premises (or its interest in the Complex, if
applicable) or the proceeds of a public sale of such interest pursuant to
foreclosure of a judgment against Lessor.
33.2 No Recourse. Lessor (as defined in Section 33.1) shall not be
personally liable for any deficiency beyond its interest in the Leased
Premises. All personal liability of the trustees or any of them, or their
employees, agents or representatives, is expressly waived by Lessee.
ARTICLE 34. ATTORNEYS' FEES
34.1 Attorneys' Fees. In the event that any litigation is undertaken
to enforce or interpret any one or more of the provisions of this Lease or to
obtain any remedy for breach of this Lease, the prevailing party in any such
litigation as determined by the Court shall be awarded reasonable attorneys'
fees, expert and other witness fees and court costs incurred in connection with
such litigation is prosecuted to judgment. Any judgment or order entered in
such litigation shall contain a specific provision providing for the recovery
of attorneys' fees and costs incurred in enforcing such judgment. For the
purpose of this Article 34, attorney's fees shall include, without limitation,
fees incurred in the following: (i) post-judgment motions; (ii) contempt
proceedings; (iii) garnishment, levy, debtor and third party examination
proceedings; (iv) discovery; and (v) bankruptcy litigation.
ARTICLE 35. NOTICES
35.1 Writing. All notices, demands and requests required or permitted to be
given or made under any provision of this Lease shall be in writing and shall
be given or made by personal service, or by telephone facsimile to the number
indicated in Section 1.2, or by mailing same by registered or certified mail,
return receipt requested, postage prepaid, or by reputable courier which
provides written evidence of delivery, addressed to the respective party at the
address set forth in Section 1.2 of this Lease or at such other address as the
party may from time to time designate, by a written notice sent to the other in
the manner aforesaid.
35.2 Effective Date. Any such notice, demand or request ("notice")
shall be deemed given or made on the third day after the date so mailed.
Notwithstanding the foregoing, notice given by personal delivery to the party
at its address as aforesaid shall be deemed given on the day on which delivery
is made. Notice given by a reputable courier service which provides written
evidence of delivery shall be deemed given on the business day immediately
following deposit with the courier service.
ARTICLE 36. SUBORDINATION
36.1 Priority of Encumbrances. This Lease, at Lessor's option, shall
be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the real property of
which the Leased Premises are a part and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Leased Premises shall not be
disturbed if Lessee is not in default and so long as Lessee shall pay the rent
and observe and perform all the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any mortgagee, trustee or
ground lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to Lessee,
this Lease shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease is dated prior or subsequent to the date of said
mortgage, deed of trust or ground lease or the date of recording thereof.
36.2 Execution of Documents. Lessee agrees to execute any documents
required to effectuate such subordination or to make this Lease prior to the
lien of any mortgage, deed of trust or ground lease, as the case may be.
36.3 Attornment. Lessee shall attorn to any purchaser at any foreclosure sale,
or to any grantee or transferee designated in any Deed given in lieu of
foreclosure.
ARTICLE 37. ESTOPPEL CERTIFICATES
37.1 Execution by Lessee. Within ten (10) days of request therefor
by Lessor, Lessee shall execute a written statement acknowledging the
commencement and termination dates of this Lease, that it is in full force and
effect, has not been modified (or if it has, stating such modifications) and
providing any other pertinent information as Lessor or its agent might
reasonably request.
37.2 Financing, Sale or Transfer. If Lessor desires to finance, refinance,
sell, ground lease or otherwise transfer the Leased Premises, or any part
thereof, or the Building, Lessee hereby agrees, within ten (10) days of request
therefor by Lessor, to deliver to any lender or to any prospective buyer,
ground lessor or other transferee designated by Lessor such financial
statements of Lessee, its Guarantor and its parent company, if any, as may be
reasonably required by such party. Such statements shall include the past
three (3) years, financial statements of Lessee. All such financial statements
shall be received by Lessor in confidence and shall be used only for the
purposes herein set forth.
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ARTICLE 38. WAIVER
38.1 Effect of Waiver. The waiver by Lessor of any breach of any Lease
provision shall not be deemed to be a waiver of such Lease provision or any
subsequent breach of the same or any other term, covenant or condition therein
contained. The subsequent acceptance of rent hereunder by Lessor shall not
be deemed to be a waiver of any preceding breach by Lessee of any provision of
this Lease, other than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
ARTICLE 39. HOLDING OVER
39.1 Month-to-Month Tenancy on Acceptance. If Lessee should remain
in possession of the Leased Premises after the expiration of the Term and
without executing a new Lease, then, upon acceptance of rent by Lessor, such
holding over shall be construed as a tenancy from month-to-month, subject to
all the conditions, provisions and obligations of this Lease as existed during
the last month of the Term hereof, so far as applicable to a month to month
tenancy, except that the Minimum Rent shall be equal to twice the Minimum Rent
payable immediately prior to the expiration or sooner termination of the Lease.
ARTICLE 40. SUCCESSORS AND ASSIGNS
40.1 Binding Effect. The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
ARTICLE 41. TIME
41.1 Time of the Essence. Time is of the essence of this Lease with respect to
each and every article, section and subsection hereof.
ARTICLE 42. EFFECT OF LESSOR'S CONVEYANCE
42.1 Release of Lessor. If, during the Term, Lessor shall sell its interest in
the Building or Complex of which the Leased Premises form a part, or the Leased
Premises, then from and after the effective date of the sale or conveyance,
Lessor shall be released and discharged from any and all obligations and
responsibilities under this Lease, except those already accrued.
ARTICLE 43. COMMON AREAS
43.1 Lessor shall, in Lessor's sole discretion, maintain the Common Areas
(subject to reimbursement pursuant to Article 8 hereof), establish and enforce
reasonable rules and regulations concerning such areas, close any of the Common
Areas to whatever extent required in the opinion of Lessor's counsel to prevent
a dedication of any of the Common Areas or the accrual of any rights of any
person or of the public to the Common Areas, close temporarily any of the
Common Areas for maintenance purposes, and make changes to the Common Areas
including, without limitation, changes in the location of driveways, corridors,
entrances, exits, vehicular parking spaces, parking area, the designation of
areas for the exclusive use of others, the direction of the flow of traffic or
construction of additional buildings thereupon. Lessor may provide security
for the Common Areas but is not obligated to do so.
ARTICLE 44. LATE CHARGES
44.1 Late Payment by Lessee. If any installment of rent, or any other
payment due hereunder from Lessee is not received by Lessor within ten (10)
days of the date when due, Lessee shall pay to Lessor an additional sum of ten
percent (10%) of such rent or other charge as a late charge. The parties agree
that this late charge represents a fair and reasonable estimate of the cost
that Lessor will incur by reason of late payment by Lessee. Acceptance of any
late charge shall not constitute a waiver of Lessee default with respect to the
overdue amount, or prevent Lessor from exercising any other rights or remedies
available to Lessor.
ARTICLE 45. CORPORATE AUTHORITY
45.1 Authorization to Execute. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
ARTICLE 46. MISCELLANEOUS PROVISIONS
46.1 Captions. The captions of this Lease are for convenience only and are not
a part of this Lease and do not in any way limit or amplify the terms and
provisions of this Lease.
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46.2 Number and Gender. Whenever the singular number is used in this Lease and
when required by the context, the same shall include the plural, the plural
shall include the singular, and the masculine gender shall include the
feminine and neuter genders, and the word "person" shall include corporation,
firm or association. If there be more than one Lessee, the obligations
imposed under this Lease upon Lessee shall be joint and several.
46.3 Modifications. This instrument contains all of the agreements, conditions
and representations made between the parties to this Lease and may not be
modified orally or in any other manner than by an agreement in writing signed
by all of the parties to this Lease.
46.4 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
46.5 Joint and Several Liability. Should Lessee consist of more than one
person or entity, they shall be jointly and severally liable on this Lease.
46.6 Survival of Obligations. All obligations of Lessee which may accrue or
arise during the Term or as a result of any act or omission of Lessee during
said Term shall, to the extent they have not been fully performed, satisfied
or discharged, survive the expiration or termination of this Lease.
46.7 Real Estate Brokers. Lessor and Lessee each represents and warrants to
the other party that it has not authorized or employed, or acted by
implication to authorize or employ, any real estate broker or salesman to act
for it in connection with this Lease other than Grubb & Ellis (Representing
Lessee) and United Property Services (Representing Lessor). Brokers shall be
compensated solely by Landlord in accordance with separate agreements. Lessor
and Lessee shall each indemnify, defend and hold the other party harmless from
and against any and all claims by any real estate broker or salesman whom the
indemnifying party authorized or employed, or acted by implication to
authorize or employ, to act for the indemnifying party in connection with this
Lease.
46.8 Interest on Past Due Amounts. If any sum due Lessor from Lessee is not
received by Lessor within five (5) calendar days after the date such sum is due
and payable, if such sum remains unpaid then, ten (10) days after receipt of
written notice by Lessee such sum shall bear interest from the due date until
paid by Lessee at the rate of two percent (2%) above the Prime Rate (as herein
defined), not to exceed the maximum rate of interest allowed by law in the
state where the Leased Premises are located, and such interest shall be deemed
to be additional rent. "Prime Rate" means the highest rate charged by Bank of
America NT&SA, San Francisco Main Office, on short-term unsecured loans to its
most creditworthy corporate borrowers.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the day
and year first written above.
LESSOR LESSEE
PEREGRINE REAL ESTATE TRUST THERMOGENESIS CORPORATION
By: By:
Print: William Hugran Print: Walter Ludt
Its: Its: Chief Operating Officer
Date: 12/12/95 Date: 12/7/95
By: By:
Print: Print: Charles Griffiths
Its: Its: Vice President, Marketing
Date: Date: 12/7/95
FOR OFFICE USE ONLY:
PREPARED BY:
REVIEWED BY:
APPROVED BY:
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ADDENDUM TO LEASE
This Addendum, dated this 15th day of November, 1995, to that certain Lease
dated December 6, 1995, by The Peregrine Real Estate Trust as "Landlord, and
ThermoGenesis Corporation as "Tenant", for the premises known at 2893 Sunrise
Blvd., Suite 206-208, Rancho Cordova, California, comprising approximately
3,645 square feet, is as follows:
1. BASE RENT: Tenant shall pay base rent per the following
schedule:
December 15, 1995 - January 14, 1996 $0.00
January 15, 1996 - January 14, 1997 $4,009.50
January 15, 1997 - January 14, 1998 $4,191.75
2. TENANT IMPROVEMENTS: Landlord, at Landlord's sole expense,
shall provide Tenant Improvements including new carpet and
paint in accordance with the attached Construction Floor Plan,
Exhibit "A".
If the Tenant elects to lower the height of the centrally
located partitions then the Tenant shall approve the cost for
such work in advance and the agreed upon amount shall be
charged during the' free rent period (December 15 through
January 14, 1996).
3. COVERED PARKING: Tenant shall be assigned one (1) covered
parking space at no charge.
LANDLORD: TENANT:
THE PEREGRINE REAL ESTATE TRUST THERMOGENESIS CORPORATION
By: By:
Print: William Hugran Print: Walter Ludt
Its: Its: Chief Operating Officer
Date: 12/12/95 Date: 12/7/95
By: By:
Print: Print: Charles Griffiths
Its: Its: Vice President, Marketing
Date: Date: 12/7/95
<PAGE>
ADDENDUM TO THE LEASE
"Notwithstanding anything to the contrary in this Lease, Lessee
shall be entitled to an abatement or reduction in rent (both monthly Minimum
Rent and Lessee's share of Operating Costs) in the event it is unable to use
the Premises for its business purposes for a period of two (2) consecutive
business days or more as a result of an interruption, reduction or cessation of
any Building services or utilities, or any repair being made to the Premises
or Building, or for any other reason, so long as Lessee did not cause such
event to occur, notwithstanding whether or not such interruption is within the
control of the Lessor."
LANDLORD: TENANT:
THE PEREGRINE REAL ESTATE TRUST THERMOGENESIS
CORPORATION
BY: BY:
PRINT: PRINT: Walter Ludt
ITS: ITS: Chief Operating Officer
DATE: DATE: 12/7/95
BY: BY:
PRINT: PRINT: Charles Griffiths
ITS: ITS: Vice President, Marketing
& Sales
DATE: DATE: 12/7/95
<PAGE>
EXHIBIT "A"
LIST OF COSTS
THAT SHALL NOT
BE INCLUDED AS OPERATING COSTS
(1) Repairs or other work occasioned by fire, wind storm or other
casualty to the extent Lessor is reimbursed by insurance;
(2) Leasing commissions, attorney's fees and other costs expenses incurred
in connection with negotiations or disputes with present or perspective tenants
or other occupants of the Building or Project;
(3) Costs (including permit, license and inspection costs) incurred in
renovating or otherwise improving or decorating, painting or redecorating space
for tenants or occupants of vacant space;
(4) Lessor's cost of services sold to Lessee and provided or sold to
others, and for which Lessor is entitled to reimbursement other than through
payment of rent;
(5) Costs incurred by Lessor for alterations which are considered capital
improvements and replacements under generally accepted accounting principals,
consistently applied, provided, however, that Operating Costs shall include the
annual amortization of costs, including financing costs, in any, incurred by
Lessor for any capital improvements installed or paid for by Lessor and
required by any change in laws, rules or regulations of governmental or
quasi-governmental authority having jurisdiction (other than changes requested
by Lessor), which costs are amortised over the useful life of such capital
improvements, unless attributable to the activities of, or made primarily for
the benefit of, a particular tenant ("Permitted Amortization Costs");
(6) Depreciation and amortization except for "Permitted Amortization
Costs" and except on materials, tools, supplies and vendor-type equipment
purchased by Lessor to enable Lessor to supply services Lessor might otherwise
contract for with a third party where such depreciation and amortization would
otherwise have been included in the charge for such third party services, all
as determined in accordance with generally accepted accounting principals,
consistently applied;
(7) Except for "Permitted Amortization Costs", costs of a capital
nature including capital improvements, capital repairs, capital equipment, and
capital tools, all as determined in accordance with generally accepted
accounting principals consistently applied;
(8) Expenses in connection with services or other benefits which are
not provided to Lessee but which are provided to another tenant or occupant of
the Building or Project;
(9) Costs incurred due to violation by Lessor or any tenant of the
terms or conditions of any lease of this space in the Building or Project;
(10) Overhead and profit increments paid to Lessor or its subsidiaries
or affiliates of Lessor for services provided with respect to the management,
operation, maintenance and repair of the Building or the Project to the extent
the same exceeds the costs of such services render by unaffiliated third
parties on a competitive basis;
(11) Lessor's general overhead and administrative expenses;
(12) Any compensation paid to clerk's, attendants, or other persons in
commercial concessions operated by Lessor;
(13) All items and services for which Lessee or any other tenant in the
Building or the Project reimburses Lessor or which Lessor provided selectively
to one or more tenants (other than Lessee) without reimbursement;
(14) Advertising and promotional expenditures;
(15) Any other expense which under generally accepted accounting
principals, consistently applied, would not be considered a normal maintenance
or operating expense;
(16) Costs incurred to repair or replace mechanical equipment of
systems used in the Building to the extent such costs are reimbursed by any
warranty on such equipment or systems; and
(17) Salaries and wages of Lessor's executives at any level above the
level of on-premises manager or an equivalent.
<PAGE>
Exhibits of Schematics and Floor Plans Omitted.
<PAGE>
NOTICE OF LEASE TERM DATES
To: Date:
Re: Lease dated ____________________ 19__ Between Landlord and
_____________________________________ Tenant, concerning Suite
Located at _________________________________________________________
____________________________________________________________________
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the subject Lease, and that
there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the term
of said Lease shall commence as of ________________ for a term of ______,
ending on _______________.
3. That in accordance with the subject Lease, rental commenced to accrue
on _______________________.
4. If the commencement date of the subject Lease is other than the first
day of the month, the first billing will contain a pro rata adjustment.
Each billing thereafter shall be for the full amount of the monthly installment
as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the term of said Lease. Your rent checks should made
payable to:
__________________________________________________________________________
At________________________________________________________________________
__________________________________________________________________________
AGREED AND ACCEPTED
By:
Print Name By:
Title Its
By By
Print Name Print Name
Title Its
By
Print Name
Title
Date Date
(Tenant) (Landlord)
<PAGE>
EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the
Building, without the prior written consent of Landlord. Landlord shall have
the right to remove, at Tenant's expense and without notice, any sign installed
or displayed in violation or this rule. All approved signs or lettering on
doors and walls shall be printed, painted, affixed or inscribed at the expense
of Tenant by a person chosen by Landlord, using materials of Landlord's choice
and in a style and format approved by Landlord.
2. Tenant must use Landlord's blinds in all exterior and atrium window
offices. No awning shall be permitted on any part of the Premises.
Tenant shall no (place anything against or near glass partitions or doors or
windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Building. The
halls, passages, exits, entrances, shopping malls, elevators, escalators and
stairways are not for the general public, and Landlord shall in all Cases
retain the right to control and prevent access thereto of all persons whose
presence in the judgment of Landlord would be prejudicial to the safety,
character, reputation and interests of the Building and its tenants; however,
nothing herein contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal activities. No tenant, no employee
or invitee of any tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of Tenants only, and Landlord reserves
the right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the
Premises shall be provided exclusively through Landlord, sad except
with the written consent of Landlord, no person or persons other than those
approved by Landlord shall be employed by Tenant or permitted to enter the
Building for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by carelessness or indifference to the good order and
cleanliness or the Premises. Landlord shall not in any way be responsible to
any Tenant for any loss of property on the Premises, however it occurs, or for
any damage to any Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish Tenant, free of charge, two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door
of its Premises. Tenant, upon the termination of its tenancy, shall deliver to
landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
systems, it shall first obtain and comply with Landlord's instructions
in their installation.
8. Any freight elevator shall be available for use by all tenants in
the Building subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord.
9. 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
and which is allowed by law. Landlord shall have the right to prescribe the
weight,size and position of all equipment, materials, furniture or
other property brought into the Building. Heavy objects,if such objects are
considered necessary by Tenant, as determined by Landlord, shall stand on such
platforms as determined by Landlord to be necessary to properly distribute the
weight. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed an maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord. Landlord
will not be responsible for loss of, damage to, any such equipment or other
property from any cause, and all damage done to the Building by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
10. Tenant shall not use or keep in the Premises any kerosene,
gasoline, or inflammable or combustible fluid or material other than
those limited quantities necessary for the operation of office equipment.
Tenant shall not use or permit to be used in the Premises any foul noxious gas
or substance, or permit or allow the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors or vibrations, nor shall Tenant bring into
or keep in or about the Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has
actual notice, and shall refrain from attempting to adjust controls other than
room thermostats installed for Tenant's use. Tenant shall keep corridor doors
closed, and shall close window coverings at the end of each business day.
13. Landlord reserves the right , exercisable without notice and
without liability to Tenant, to change the name and street address of
the Building.
14. Landlord reserves the right to exclude from the building between
the hours of 6 p.m. and 7 a.m. the following day or such other hours as
may be established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building and has a pass or is properly identified. Tenant shall
be responsible for all persons for whom it requests passes and shall be liable
to Landlord for all acts of such person. Landlord shall not be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion
by closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and electricity, gas or air
outlets before Tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the Building or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking
water, food, beverage, towel or other similar services nor shall Tenant
accept barbaring or bootblacking services upon the Premises, except at such
hours and under such regulations as may be fixed by Landlord.
<PAGE>
17. The toilet rooms, toilets, urinals, wash basins and other apparatus shall
not be used for any other purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, or
newspapers, magazines, periodicals, theater tickets or any other goods
or merchandise to the general public in or on the Premises. Tenant shall not
make any room-to-room solicitation of business from other tenants in the
Building. Tenant shall not use the Premises for any business or activity other
than the specifically provided for in Tenant's Lease.
19. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the
Building. Tenant shall not interfere with radio or television broadcasting or
reception from or in the Building or elsewhere.
20. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except to install normal wall hangings. Landlord reserves the right to direct
electricians as to where and how telephone and telegraph wires are to be
introduced to the Premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of the Premises in any
manner except as approved by Landlord. Tenant shall repair any damage
resulting from noncompliance with this rule.
21. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and each tenant shall
cooperate to prevent same.
23. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
24. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
25. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the Premises
except that use by Tenant of Underwriter's Laboratory-approved equipment for
brewing coffee, tea, hot chocolate and similar beverages shall be permitted,
and the use of a microwave shall be permitted, provided that such equipment and
use is in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations.
26. Tenant shall not use in any space or in the public halls of the
building any hand trucks except those equipped with rubber tires and
side guards or such other material-handling equipment as Landlord may approve.
Tenant shall not bring any other vehicles of any kind into the Building. 27.
Without the written consent of Landlord, tenant shall not use the name of the
Building in connection with or in promoting or advertising the business of
Tenant except as Tenant's address.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping
doors locked an other means of entry to the Premises closed.
30. The requirements of Tenant will be attended to only upon
appropriate application to the office of the Building by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
31. Tenant shall not park its vehicles in any parking areas designated
by Landlord as areas for parking by visitors to the Building. Tenant
shall not leave vehicles in the Building parking areas overnight nor park any
vehicles in the Building parking areas other than automobiles, motorcycles,
motor drive or non-motor driven bicycles or four-wheeled trucks. Landlord may,
in its sole discretion, designate separate areas for bicycles and motorcycles.
32. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
33. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of premises in the
Building.
34. Landlord reserves the right to make such other and reasonable
Rules and Regulation as, in its judgment, may from time to time be
needed for safety and security, for care and cleanliness of the Building and
for the preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated any additional rules and regulations
which are adopted.
35. Tenant shall be responsible for the observance of all the
foregoing rules by Tenant's employees, agents, clients, customers,
invitees and guests.
