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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-20805
APACHE MEDICAL SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 23-2476415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1650 TYSONS BOULEVARD, 22102
MCLEAN, VIRGINIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (703) 847-1400
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
TITLE OF CLASS
COMMON STOCK $.01 PAR VALUE PER SHARE
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting common equity held by
non-affiliates of the registrant as of March 1, 2000 was approximately
$25,425,000. The number of outstanding shares of the registrant's Common Stock
as of that date was 7,392,850.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the registrant's Proxy Statement for the Annual Meeting of
Stockholders to be held on May 31, 2000 are incorporated herein by reference
into Part III of this Form 10-K.
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1
<PAGE>
PART I
ITEM 1. BUSINESS
OVERVIEW
APACHE Medical Systems, Inc. ("APACHE" or the "Company") provides
clinically based decision support information systems, research and consulting
services to the healthcare industry. The Company provides hospitals and
physicians with patient-specific, concurrent and predictive outcomes information
at the point of care that can be used to assist them in making clinical and
resource utilization decisions. APACHE's products and services address the
information needs of both healthcare practitioners and administrators by
enabling joint access to clinical and utilization information, which facilitates
the containment of costs, and the delivery of more consistent, high-quality
care, including the potential reduction of medical errors. APACHE's products and
services are focused on high-risk, high-cost patients, such as critical care,
acute care, cardiovascular care, HIV/AIDS and certain chronically-ill patients,
who typically account for a disproportionately large share of healthcare
expenditures.
THE APACHE(R) SOLUTIONS
APACHE believes that its products and services address the healthcare
industry's need for sophisticated outcomes-based clinical decision support
information. The APACHE solutions bridge the gap between the information needs
of healthcare practitioners and those of hospital administrators by enabling
joint access to clinical and cost information, which facilitates the containment
of cost, improvement in quality outcomes and the consistent delivery of high
quality care.
The Company's primary decision support system is focused on critical care
and targets hospitals and health systems with over 200 beds. For this market, in
1998 the Company introduced a new product line, the APACHE Critical Care Series
("CCS"), and a companion set of clinical consulting services marketed under the
APACHE Best Care (TM) Services label. These replaced the Company's previous
Medical Cost Management Program ("MCMP") and related Critical Care System
offerings. The CCS is compromised of two major modules, Voyager+ and Discover+,
which are described below.
Generally, the Company's systems, which incorporate software and related
consulting services, generate information to assist providers concurrently in
making informed clinical resource utilization and patient care decisions. These
clinical decision support systems are designed to enable providers to:
- Determine appropriate cost-effective treatment plans for individual
patients.
- Compare actual individual patient outcomes with both predicted patient
outcomes and statistically relevant similar hospital, regional and national
norms to identify areas for improvement.
- Analyze the performance of physicians by using clinically based,
peer-reviewed, severity-adjustment methods.
- Analyze and measure quantifiable improvements in the clinical and cost
outcomes of specified groups of patients.
- Plan staffing, number of beds and bed mix given the severity-adjusted mix
of patients in an intensive care unit.
APACHE's products and services are differentiated from many other
healthcare decision support systems in the following important ways:
- Detailed Clinical Data. APACHE's products and services utilize detailed
clinical data on a variety of health parameters and outcomes data. In addition,
APACHE's products and services utilize administrative and utilization data.
- Patient-specific, Severity-adjusted Data. APACHE's products and services
utilize clinical, demographic and financial data for individual patients, in
addition to patient groups. APACHE's methodologies are designed to
severity-adjust these data to enable the assessment of the overall health status
of the patient. Severity adjustment is a technique for weighting the relative
factors affecting the degree of illness of a patient. Physicians use APACHE's
patient-specific clinical decision support systems to develop individual patient
care plans incorporating APACHE's severity-adjusted outcomes predictions.
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- Concurrent, Predictive Outcomes Information. APACHE's systems support
physician decision making by providing outcomes information in three timeframes:
(i) predictions of the patient's outcomes (e.g., mortality, adverse occurrences
and length of stay); (ii) current information, such as the patient's daily
health status; and (iii) historical or retrospective information about the
patient or groups of similar patients. In contrast to retrospective systems,
APACHE's ability to provide concurrent information permits the generation of
predictive information during the course of a patient's care, thereby enhancing
a physician's ability to direct treatment resources as the patient's health
status changes.
- High-risk, High-cost Patient Focus. Unlike decision support systems that
focus primarily on general hospital patients, APACHE's systems are specifically
designed to help predict outcomes for high-risk, high-cost patients, such as
critical care patients. These patients typically represent a disproportionately
large share of hospital costs.
APACHE's solutions are derived from the Company's clinical outcomes
methodologies and proprietary databases.
Clinical Outcomes Methodologies. APACHE's methodologies include algorithms
that apply relative weightings to selected physiological variables to define a
patient's health status. APACHE's methods of measuring variations in a patient's
health status and outcomes in critical care have been utilized in connection
with more than 1,600 peer-reviewed articles in professional journals. APACHE has
acquired rights to and refined these methodologies, which were originally
developed by leading academic medical centers such as The George Washington
University Hospital and Dartmouth-Hitchcock Medical Center.
Proprietary Databases. The Company's databases include data on a variety
of health parameters, such as vital signs, laboratory results and measures of
physiological function, as well as outcomes data, such as adverse occurrences,
morbidity and mortality. The databases contain information from more than
1,500,000 patients, most of whom are high-risk, high-cost patients. The Company
created, and continues to refine, the critical care and sub-acute care
databases. APACHE acquired rights to its cardiovascular care, acute care,
HIV/AIDS, and neonatal databases. In cardiovascular and acute care, APACHE also
acquired the rights to related methodologies. APACHE's databases are
periodically updated with patient data from customers as well as special
studies, with the goal of ensuring that the databases reflect the results of
current medical practice on a national basis.
APACHE's products and services are currently focused on coverage of
patients in the critical, acute, sub-acute, and cardiovascular care categories.
The Company also currently offers products, consulting services, and health
outcomes research in HIV/AIDS and is considering adding additional categories in
the future.
APACHE PRODUCTS AND SERVICES
The following tables summarize the major products and services currently
offered by the Company.
<TABLE>
<CAPTION>
APACHE PRIMARY INFORMATION SYSTEMS PRODUCTS:
PRODUCT PRODUCT LINE TARGET MARKET PRODUCT DESCRIPTION
- ---------------- ----------------------------- -------------------------- ------------------------
<S> <C> <C> <C>
Benchmark Study Critical care; cardiovascular Acute care hospitals with One-time comparative
care ICU's; acute care analysis and report of a
hospitals with heart provider's clinical and
centers financial performance;
used to identify and
quantify opportunities
for cost or quality
improvement.
APACHE Critical care Acute care hospitals with Point-of-care
Critical Care ICU's information system,
Series: providing daily and
Discover+ prospective outcomes
predictions, as well as,
response to treatment
trending and reporting.
These tools support the
case management of
individuals and patient
groups.
3
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APACHE Critical care Acute care hospitals with Multi-dimensional
Critical Care ICU's analytical tools
Series: Voyager+ providing severity
adjusted outcomes
compared to normative
standards, integration
of financial and
clinical outcomes and
standard reports.
APACHE Acute Acute care Acute care hospitals, Used for quality
Care Voyager+ business coalitions assurance and to
identify priorities for
clinical process
improvement and assess
results of these
initiatives. Both
Critical Care and Acute
Care Voyager+ products
include JCAHO
ORYX-certified outcomes
measures.
HIV Manager HIV/AIDS Physicians and Physicians' Physician practice
Groups management tool
including electronic
medical record and
outcomes comparisons to
national and group
norms.
</TABLE>
<TABLE>
<CAPTION>
APACHE HEALTH OUTCOMES RESEARCH AND DISEASE MANAGEMENT PRODUCTS SERVICES:
PRODUCT PRODUCT LINE TARGET MARKET SERVICE DESCRIPTION
- ------------------ ----------------- ---------------------------- ---------------------------
<S> <C> <C> <C>
Clinical Trial All Product Lines Pharmaceutical, Protocol/analytic study
Support biotechnology, medical design; severity adjusted
device/diagnostic companies; risk prediction modeling in
contract research support of efficacy testing
organizations and reporting.
Product Marketing All Product Lines Pharmaceutical, Outcomes research; market
Information Tools biotechnology, medical analysis; data sets; data
device/diagnostic companies; analysis; reporting and
contract research related services.
organizations
Disease Management All Product Lines Pharmaceutical, Short and long-term cost
Programs biotechnology, medical benefit analysis; risk
device/diagnostic companies; prediction
contract research models/methodologies; best
organizations; healthcare practice norms/protocols.
providers
Custom Analysis, All Product Lines Pharmaceutical, Data management, analysis
Report Cards, biotechnology, medical and reporting services
Registries device/diagnostic companies; offering comparisons to
contract research best demonstrated
organizations; healthcare practices, regional norms,
providers national norms.
</TABLE>
<TABLE>
<CAPTION>
APACHE BEST CARE CLINICAL CONSULTING SERVICES:
PRODUCT
PRODUCT LINE TARGET MARKET SERVICE DESCRIPTION
- ------------------ ------------- ------------------- ----------------------------------------
<S> <C> <C> <C>
Clinical Process Critical Care Hospitals and IDS's Assesses the organization's performance
Improvement against national norms and best
Program practices; determines organization
readiness for change, and implements one
process improvement project delivered
simultaneously with a hospital's
implementation of CCS products.
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Annual Performance Critical Care Hospitals and IDS's Assesses the organization's performance
in light of both national norms, best
practices and new medical practice and
care process developments uncovered by
APACHE database analysis and outcomes
research; can be used in conjunction
with client's budgeting process to plan
priorities, staffing and investment.
Bed Planning Study Critical Care Hospitals and IDS's Projects and plans for the hospital's
daily demand for intensive care and/or
step-down unit beds in light of planned
or potential APACHE recommended care
management changes.
Operations Hospital wide Hospitals and IDS's Rapid redesign of hospital operations
Improvement and care delivery infrastructure.
</TABLE>
<TABLE>
<CAPTION>
APACHE/NATIONAL HEALTH ADVISORS STRATEGIC CONSULTING SERVICES:
PRODUCT TARGET MARKET SERVICE DESCRIPTION
- -------------------- ------------------------- -----------------------------------------------
<S> <C> <C>
e-Health Strategies Acute Care Hospitals Development of Internet positioning strategies.
Regional Delivery Systems
Strategic Planning Acute Care Hospitals Three to five year strategic plans, vision
Studies Regional Delivery Systems development, product line analyses, and
implementation plans.
Integrated Delivery Acute Care Hospitals Partners' analyses and development and
Network (IDN) implementation of mergers/post-merger
Development & integration.
Implementation
Growth Strategies Acute Care Hospitals Development of revenue enhancing initiatives.
Regional Delivery Systems
Leadership Retreats Acute Care Hospitals Annual leadership meeting of governance,
Regional Delivery Systems medical staffs, and management which address
critical governance, management, and medical
issues.
Clinical Service Acute Care Hospitals Development of discrete, branded service lines.
Line Development . . Regional Delivery Systems
</TABLE>
CUSTOMER TRAINING AND SUPPORT
The Company provides standard and custom training programs to customers on
the use of APACHE's products. In addition to direct user training, APACHE trains
customer representatives to train their own personnel. Following initial
standard training, the Company provides customer software support, a toll-free
customer service hotline and periodic standard product upgrades. Customers pay
an annual software support service fee approximately equal to 18% of the
software license portion of the product price for ongoing software support
services.
CUSTOMERS
APACHE currently markets its products and services to three types of
customers: healthcare providers, healthcare suppliers, and government. The
Company's healthcare customers include hospital-based integrated delivery
systems, academic and teaching hospitals and individual not-for-profit hospitals
within integrated systems. In addition, APACHE's provider customers include
Vencor, Inc., a multi-facility provider of long-term healthcare and medical
coalitions. The Company's healthcare supplier customers are pharmaceutical
manufacturers, biotechnology firms, and medical device companies. The Company
also offers health outcomes research and database services to federal and state
government agencies such as The Centers for Disease Control ("CDC").
No customer accounted for more than 10% of the Company's revenue in 1999.
TECHNOLOGY AND PRODUCT DEVELOPMENT
The Company believes that the timely development of new products and the
enhancement of existing product lines are important to continue to build on its
competitive position. APACHE releases enhancements, standard upgrades, revisions
and new products on an ongoing basis.
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<PAGE>
The Company's development strategy includes products and services that: (i)
leverage APACHE's databases; (ii) increase the functionality of current
products; and (iii) expand coverage along the continuum of care to additional
disease or procedure groups. The Company's major products are based on
internally developed software and analytical studies. Late in 1998, the Company
began selling turnkey systems including computer hardware sourced from the
manufacturers. The software products are generally built on a client/ server
architecture that includes UNIX or Windows NT-based servers, Windows 95/NT-based
PCs, graphical user interfaces and other software developed by third-party
vendors. The server hosts a comprehensive data repository using relational
database management system ("RDBMS") and multidimensional database ("MDDB")
technologies. The server can interface with hospital systems, such as the
laboratory, admission and bedside charting systems, and uses an open standard
HIE, Inc. interface engine to support the current versions of the industry
standard Health Level 7 information exchange protocols.
In 1998, the Company commissioned an independent third party to undertake a
feasibility study concerning development by the Company of an architecture
pursuant to which the Company could provide its clients with Internet-based
access to certain of the Company's products. In 1999, the Company proceeded
with development of Internet based decision support products and services. The
Company has implemented a functional fault tolerant Internet architecture
Residing on computer platforms from Data General, a division of EMC Corporation
("DG"), and operating via a backbone provided by UUNET, an MCI Worldcom
Company. The Company intends to introduce the first such Internet based
decision support applications in the year 2000.
SALES AND MARKETING
The Company currently markets and sells its products and services through a
direct sales force. APACHE believes that the most effective use of its direct
sales force is in marketing the CCS and Best Care program to hospital systems
and individual hospitals with 200 or more licensed beds.
During 1999, the Company continued its marketing agreement with an
affiliate of Premier, Inc., which provides buying services to a group of
approximately 1,800 hospitals. Pursuant to the agreement, the Premier affiliate
has designated the Company as the exclusive supplier to the hospitals purchasing
through the Premier buying group of clinically-based outcomes data systems for
high-risk, high-cost patients, including critical care, cardiovascular care and
medical-surgical care patients, through December 31, 1999.
Also during 1999, the Company continued the APACHE partnership program.
This is a risk sharing system partnership, including consulting services, which
allows the client access to the APACHE Critical Care system benefits without the
need for outright purchase of the system. The Company believes that this risk
sharing approach has been well received by prospective partnership clients in
1999 resulting in several new installations based on the partnership approach.
APACHE's consulting services are marketed both as part of the Best Care
program and separately by the Company's consultants. The Company's Health
Outcomes Research and strategic consulting services are marketed by the
developers of those programs and other Company professionals directly to
suppliers and providers.
PROPRIETARY RIGHTS
The Company continues to make significant investments in the development
and maintenance of its risk-adjustment methodologies and its proprietary
clinical and financial databases and software. The clinical databases maintained
by the Company include a highly detailed level of clinical information that the
Company believes provides a key advantage over competing decision support
systems when combined with APACHE's value-added clinical software. APACHE has
multi-disciplinary clinical and database management personnel that audit, edit
and standardize data from customers and other sources to maintain statistically
relevant databases. The Company believes that the sophistication of its
risk-adjustment methodologies, the size and richness of its corresponding
proprietary databases and the usefulness of its software provide better outcomes
measurements and utilization control than competitive systems.
The Company depends upon a combination of trade secret and copyright laws,
nondisclosure and other contractual provisions and technical measures to protect
its proprietary rights in its methodologies, databases and software. The Company
has not filed any patent applications covering its methodologies and software.
The Company distributes its software products under agreements that grant
customers non-exclusive licenses and contain terms and conditions restricting
the disclosure and use of APACHE's databases or software and prohibiting the
unauthorized reproduction or transfer of its products. In addition, APACHE
attempts to protect the secrecy of its proprietary databases and other trade
secrets and proprietary information through agreements with employees and
consultants. Portions of APACHE's methodologies are, however, available in
scientific literature and bona fide researchers have been granted access to
portions of APACHE's databases for peer review and other research purposes.
6
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The Company also seeks to protect the source code of its software and its
databases as trade secrets and under copyright law. The Company has copyright
registrations for certain of its software, user manuals and databases. The
copyright protection accorded to databases, however, is fairly limited. While
the arrangement and selection of data are protectable, the actual data are not,
and others are free to attempt to create databases that perform the same
function. The Company believes, however, that the creation of competing
databases would be very time consuming and costly. In addition, the Company
expects that the pending implementation of HIPAA, as defined below, could
raise an additional barrier to entry for prospective competitors.
"APACHE" is registered as a trademark and/or service mark in connection
with certain of the Company's current products and services in the United
States, Australia, the Benelux countries, Brazil, Canada, France, Germany,
Italy, Sweden and the United Kingdom. The Company believes that it has developed
substantial goodwill in connection with its mark as an indicator of quality
products and services.
The Company believes that, aside from the various legal protections of its
proprietary information and technologies, factors such as the technological and
creative skills of its personnel and its reliable product maintenance and
support are integral to establishing and maintaining a leadership position
within the healthcare industry. In addition, although the Company believes that
its products do not infringe upon the proprietary rights of third parties, there
can be no assurance that third parties will not assert infringement claims
against the Company in the future or that a license or similar agreement will be
available on reasonable terms in the event of an unfavorable ruling on any such
claim.
COMPETITION
The market for healthcare information systems and services is highly
competitive and rapidly changing. The Company believes that the principal
competitive factors for clinical outcomes systems and services are achieving
documented success in impacting cost and quality and demonstrating an attractive
payback on the decision support system investment. Other differentiating factors
include quality and depth of the underlying clinical outcomes databases, the
proprietary nature of methodologies, databases and technical resources, customer
service and support, compatibility with the customer's existing information
systems, potential for product enhancement, vendor reputation, price and the
effectiveness of marketing and sales efforts.
The Company's competitors include other companies that collect and
distribute healthcare data, such as HCIA-Sachs Inc., MIDS, Inc., CareScience,
Inc., HBS International, The MEDSTAT Group, MEDai, Inc. and Iameter. Other
companies that provide healthcare information systems include Cerner
Corporation, McKessonHBOC, Shared Medical Systems Corporation, Eclipsys
Corporation, IDX Systems Corporation, VitalCom Inc. and Medical Information
Technology, Inc. A number of these companies both compete for the health
system's information investment dollars and represent potentially attractive
distribution channels for the Company. The Company's products and services
differ from the products and services offered by competitors by the clinically
data-based, acquity adjusted focus on both high-risk, high-cost patients for
both concurrent and predictive outcomes information. Many of the Company's
competitors and potential competitors may have greater financial, product
development, technical and marketing resources than the Company, and currently
have, or may develop or acquire, substantial installed customer bases in the
healthcare industry. The Company also faces potential competition from existing
and new industry associations, such as the Project Impact initiative, sponsored
by the Society for Critical Care Medicine, who are attempting to collect data
from their member physicians in a voluntary association effort to build registry
services and comparative reports. As the market for decision support systems
develops, additional competitors may enter the market and competition may
intensify. While the Company believes that it continues to successfully
differentiate itself from competitors, there can be no assurance that future
competition would not have a material adverse effect on the Company.
GOVERNMENT REGULATION
The confidentiality of patient records and the circumstances under which
such records may be released is subject to substantial regulation under state
and federal laws and regulations. To protect patient confidentiality, data
entries to APACHE's databases omit any patient identifiers, including name,
address, hospital and physician. The Company believes that in 1999 its
procedures complied with the then current laws and regulations regarding the
collection of patient data in substantially all jurisdictions, but regulations
governing patient confidentiality rights are evolving rapidly and are often
difficult to apply. Additional legislation governing the dissemination of
medical record information has been proposed at both the state and federal
level. This legislation may require holders of such information to implement
security measures that may be of substantial cost to the Company. There can be
no assurance that changes to state or federal laws would not materially restrict
the ability of the Company to obtain patient information originating from
records.
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Patient Data and Confidentiality: The Health Insurance Portability and
Accountability Act of 1996 ("HIPAA" or the "Act") mandates administrative
simplification by requiring certain standardized information transactions
through the use of uniform elements. To date, proposed regulations under the Act
have been issued for public comment but have not yet been finalized. The Act and
the proposed regulations would impose a number of stringent requirements on
health plans, health care providers, health care clearinghouses, and their
"business partners." In particular, the regulations mandate the use of certain
safeguards to secure the confidentiality of electronic medical records. The
regulations implement required security standards for all "health information"
pertaining to an individual that is electronically maintained or electronically
transmitted. The basic standards require entities to (1) assess their risks and
vulnerabilities, (2) maintain appropriate security measures, and (3) document
these methods. At a minimum, the methods must include administrative procedures,
physical safeguards, technical security services, and technical security
mechanisms to guard data integrity, confidentiality, and availability of
confidential patient information.
The proposed regulations also impose additional restrictions on the use of
an individual's health information. Under the regulations, health plans, health
care providers, health care clearinghouses and their business partners must:
(i) not use or disclose an individual's "protected health information" without
first obtaining an authorization from that individual, except for treatment,
payment, or health care operations, (ii) provide individuals with specific
rights relating to obtaining and correcting their protected health information,
and (iii) adhere to the administrative requirements of the regulations, which
include designating a privacy official; creating a contact person or office to
handle complaints; training employees regarding the entity's policies and
procedures; implementing appropriate administrative, technical, and physical
safeguards to protect protected health information; providing a process for
individuals to make complaints; and documenting compliance with the regulations
through policies and procedures.
The requirements of the Act and regulations will not be effective until two
years after the regulations are finalized, which is not currently expected to
occur until the summer of 2000. To the extent that uncertainty regarding the
application of the Act impacts our customers' purchasing decisions and the
Company incurs the incremental cost for system modifications required to comply
with the Act, the Act may have a material adverse effect on the Company and its
operations beginning in 2000 and continuing for the next few years. To the
extent that the Company has access to confidential patient information as
defined under the Act and regulations, it will be required to be in compliance
with such regulations if and when the Act goes into effect. The Company is
closely monitoring the status of the proposed regulations and intends be in full
compliance with them when they become final and effective. However, compliance
cannot be assured and the cost of achieving compliance is not known at this
time.
Patient Safety: In November of 1999, the Institute of Medicine (IOM) of the
National Academies issued a report compiling findings of major studies of
medical errors that pointed to high rates of medical errors resulting in
deaths, permanent disability, and unnecessary suffering. The document also laid
out suggestions for a comprehensive strategy for government, industry,
consumers, and health providers to reduce medical errors, and called on Congress
to create a national patient safety center to develop new tools and systems
needed to address these problems.
In response to this study, the Clinton Administration in February 2000,
announced several new edicts not requiring Congressional action, including:
immediate mandatory reporting requirement for the 500 Defense
Department-administered hospitals, a Health Care Financing Administration
requirement for error reduction plans in all hospitals that participate in
Medicare, and giving the Food and Drug Administration one year to develop new
standards to help prevent medical mistakes caused by sound-alike drug names or
look-alike products.
It is not known what impact, if any, final regulations or legislation may
have on the Company.
Other Government Regulation: The healthcare industry is subject to
changing political, economic and regulatory influences that may affect the
procurement practices and operations of healthcare industry participants. During
the past several years, government regulation of reimbursement rates and capital
expenditures in the United States healthcare industry has increased. Lawmakers
continue to propose programs to reform the United States healthcare system,
which may contain proposals to increase governmental involvement in healthcare,
lower reimbursement rates and otherwise change the operating environment for the
Company's customers. Healthcare industry participants may react to these
proposals by curtailing or deferring investments, including investments in the
Company's products. The Company cannot predict what impact, if any, such factors
may have on its business, financial condition and results of operations or on
the price of the Common Stock.
Certain products, including software applications, intended for use in the
diagnosis of disease or other conditions, or in the cure, treatment, mitigation
or prevention of disease, are subject to regulation by the Food and Drug
Administration ("FDA") under the Federal Food, Drug and Cosmetic Act of 1938
("FDCA"), as amended. The FDCA imposes substantial regulatory controls over the
manufacturing, testing, labeling, sale, distribution, marketing and promotion of
8
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medical devices and other related activities. These regulatory controls can
include, for example, compliance with the following: manufacturer establishment
registration and device listing; current good manufacturing practices;
completion of premarket notification or premarket approval; medical device
adverse event reporting; and general controls over misbranding and adulteration.
Violations of the FDCA can result in severe criminal and civil penalties, and
other sanctions, including, but not limited to, product seizure, recall, repair
or refund orders, withdrawal or denial of premarket notifications and approvals,
and denial or suspension of government contracts, and injunctions against
unlawful product manufacture, labeling, promotion, and distribution or other
activities.
In its 1989 Policy for the Regulation of Computer Products (the "1989
Policy Statement"), the FDA stated that it intended to exempt certain clinical
decision support software products from a number of regulatory controls. Under
the 1989 Policy Statement, the FDA stated that it intended to promulgate
regulations exempting decision support software products that are intended to
involve "competent human intervention before any impact on human health occurs
(e.g., where clinical judgment and experience can be used to check and interpret
a system's output)" from the following controls: manufacturer establishment
registration and device listing, premarket notification, and compliance with the
medical device reporting and current good manufacturing practice regulations. In
the 1989 Policy Statement, the FDA stated that until it promulgated regulations
implementing the exemptions, manufacturers of eligible decision support software
products would not be required to comply with those controls.
Since issuing the 1989 Policy Statement, the FDA has neither promulgated
the exemption regulations discussed in the 1989 Policy Statement nor actively
sought to enforce compliance with the controls discussed in such Policy
Statement. Furthermore, the FDA has referred to the 1989 Policy Statement in
official presentations regarding software regulation and in decisions and
opinions regarding the regulatory status of various products. Over the last few
years, however, the FDA has stated that it intends to revise the 1989 Policy
Statement and to base exemptions from regulatory controls, if any, upon a
product specific "risk factor" analysis. The risk factors the FDA has proposed
using include: (i) seriousness of the disease to be diagnosed or treated; (ii)
time frame for use of the information; (iii) concordance with accepted medical
practice; (iv) format of data and its presentation; (v) individualized versus
aggregate patient care recommendations; and (vi) clarity of algorithms used in
the software. Given the formative state of the FDA's evaluation and possible
revision of the 1989 Policy Statement, there can be no assurance as to the
criteria or application of such revisions, if any.
The Company's products are intended to assist healthcare providers in
analyzing economic and quality data related to patient care and expected
outcomes in order to maximize or monitor the cost-effectiveness of general
treatment plans and practice guidelines. These products are not intended to
provide specific diagnostic data or results or affect the use of specific
therapeutic interventions. As such, the Company believes that its products are
not medical devices under the FDCA and, thus, are not subject to the controls
imposed on manufacturers of medical devices. The Company further believes that
to the extent that its products are determined to be medical devices, they fall
within the exemptions for decision support systems provided by the 1989 Policy
Statement. The Company has not taken action to comply with the requirements that
would otherwise apply if the Company's products were non-exempt medical
devices.
Since 1992, the Company's products have been widely marketed and have been
reviewed or evaluated in the medical literature. The FDA has neither requested
that the Company take any action to comply with any controls under the FDCA nor
notified the Company that it is not in compliance with any such controls. The
Company is not aware of the FDA requiring other developers of similar products
to take any action to comply with any controls under the FDCA, or of the FDA
notifying such developers that they are not in compliance with any such controls
with respect to those similar products.
Nevertheless, there can be no assurance that the FDA will not make such a
request or take other action to require the Company to comply with any or all
current or future controls applicable to medical devices. There can be no
assurance that, if such a request were made or other action were taken, the
Company could comply in a timely manner, if at all, or that any failure to
comply would not have a material adverse effect on the Company's business,
financial condition, results of operations or on the price of the Common Stock,
or that the Company would not be subjected to significant penalties or other
sanctions. There can be no assurance that the FDA will continue any or all of
the exemptions provided in the 1989 Policy Statement, or in a revised policy
statement, if any, or that the FDA will promulgate regulations formally
implementing such exemptions. There can be no assurance that the FDA will not
now or in the future make determinations that the Company's current or future
products are medical devices subject to FDA regulations and are ineligible for
the exemptions from those regulations. If the FDA made such determinations, the
Company would not be able to market its products without obtaining FDA clearance
of premarket notifications, or FDA approval of premarket approval applications
submitted by the Company. The regulatory process can be lengthy, expensive, and
uncertain; securing FDA clearances or approvals may require the submission of
extensive non-clinical and clinical safety and effectiveness data together with
other supporting information to the FDA; and there could be no assurance as to
when if ever the FDA clearances or approvals would be obtained. There can be no
assurance that the Company's current or future products will qualify for future
exemptions, if any, nor can there be any assurance that any future requirements
will not have a material adverse effect on the Company's business, financial
condition and results of operations.
9
<PAGE>
EMPLOYEES
As of December 31, 1999, the Company employed a total of 69 full-time
employees. None of the Company's employees is represented by a labor union. The
Company has experienced no work stoppages and believes that its employee
relations are satisfactory and in keeping with industry norms.
ITEM 2. PROPERTIES
The Company occupies approximately 21,000 square feet of space at its
headquarters in McLean, Virginia, under a lease expiring November 2006. These
facilities are considered suitable and adequate for their intended use.
ITEM 3. LEGAL PROCEEDINGS
The Company is a defendant from time to time in lawsuits incidental to its
business. The Company is not currently subject to, and none of its properties is
subject to, any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters which required a vote of security holders during the
three months ended December 31, 1999.
EXECUTIVE OFFICERS OF THE REGISTRANT
The following persons are the executive officers of the Company who have
been elected to their respective offices by the Board of Directors of the
Company to serve until the election and qualification of their respective
successors:
NAMES AGE POSITION
- ------ ---- ---------
Peter Gladkin 52 President and Chief Executive Officer
Scott A. Mason 48 Secretary and Executive Vice President
Karen C. Miller 40 Vice President, Finance and CFO
Regina M. Campbell 49 Vice President and General Counsel
Donald W. Seymour 50 Vice President of Consulting
Sean Seerey 35 Vice President of Sales
Violet L. Shaffer 51 Vice President of Marketing
Peter Gladkin has served as President and Chief Executive Officer since
July 1998. Prior to joining the Company, Mr. Gladkin was President and Chief
Operating Officer of Health Data Sciences Corporation ("HDS") from 1994 to 1997.
Mr. Gladkin was with Hewlett Packard Company ("HP") from 1971 to 1994 during
which time he was responsible for various sales, marketing, and business
entities throughout the U.S., Europe and worldwide. From 1987 to 1994, while at
HP, he was General Manager of Healthcare Information Systems, a strategic
business unit of HP's Medical Products Group.
Scott A. Mason has served as Secretary and Executive Vice President of the
Company since June 1997. Dr. Mason served as Managing Partner and Founder of
National Health Advisors ("NHA") from 1981 through June 1997 when NHA was
acquired by the Company.
Karen C. Miller has served as Vice President of Finance and Chief Financial
Officer of the Company since October 1998. From 1997 to 1998, Ms. Miller served
as Controller of the Per-Se Technologies Division of Medaphis Corporation. Prior
to assuming this role, Ms. Miller was Chief Financial Officer, Vice President of
Finance and Controller of HDS, which she co-founded in 1983 and which was
acquired by Medaphis in 1996.
Regina M. Campbell has served as Vice President and General Counsel of the
Company since September 1998. Prior to joining the Company, Ms. Campbell was
Corporate Counsel for Medaphis Corporation from 1997 to 1998. She was director
of corporate contracting at HDS from 1995 to 1997. Ms. Campbell attended law
school from 1991 to 1995.
Donald W. Seymour has served as Vice President, Consulting of the Company
since the acquisition of NHA by the Company in June 1997. Prior to joining the
Company, Mr. Seymour served as a Partner with NHA from January 1995 through June
1997 and from 1985 to 1995 was a consultant for numerous national healthcare
consulting companies.
10
<PAGE>
Sean Seerey has served as Vice President of Sales of the Company since May
1999. Prior to assuming this position, Mr. Seerey served in various sales and
sales management roles within the Company for the past seven years. Prior to
joining the Company Mr. Seerey was District Sales Manager at Oracle from 1989 to
1991.
Violet L. Shaffer has served as Vice President of Marketing for the
Company since September 1997. Prior to joining the Company, from January 1997
Through September 1997, Ms. Shaffer served as President and Chief Executive
Officer of Competitive Advantage Services, Inc. Ms. Shaffer served as Vice
President of Business Development for Nichols Research Corporation and of
HealthGate Data Corporation, an entity partially owned by Nichols, from
September 1995 through December 1996. Ms. Shaffer served as Corporate Vice
President of The MEDSTAT Group from November 1993 through August 1995.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is traded on the Nasdaq SmallCap Market under
the symbol "AMSI." The following table sets forth, for the periods indicated,
the range of high and low sale prices for the Common Stock as reported by the
Nasdaq SmallCap Market.
HIGH LOW
------ ------
Year Ended December 31, 1999
First Quarter $ 7.94 $ 0.38
Second Quarter 1.63 0.94
Third Quarter 2.00 1.00
Fourth Quarter 2.13 0.88
Year Ended December 31, 1998
First Quarter $ 4.38 $ 0.94
Second Quarter 3.50 1.86
Third Quarter 2.75 0.88
Fourth Quarter 2.13 0.38
As of March 1, 2000, the Company had approximately 3,412 holders of record
of its Common Stock.
The Company has never paid or declared any cash dividends and does not
anticipate paying cash dividends on its Common Stock in the foreseeable future.
The Company currently intends to retain its future earnings, if any, to fund the
development and finance the growth of its business. The amount and timing of any
future dividends will depend on improvements in Company operations as well as
general business conditions encountered by the Company, as well as the financial
condition, earnings and capital requirements of the Company and such other
factors as the Company's Board of Directors may deem relevant.
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
SELECTED CONSOLIDATED FINANCIAL DATA
YEAR ENDED DECEMBER 31,
-------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- --------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
<S> <C> <C> <C> <C> <C>
Revenue:
Systems. . . . . . . . . . . . . . . . . . . . $ 5,046 $ 2,384 $ 935 $ 4,459 $ 2,865
Support. . . . . . . . . . . . . . . . . . . . 2,330 2,117 1,961 1,486 1,352
Professional services. . . . . . . . . . . . . 4,647 5,705 5,732 5,649 5,548
-------- -------- --------- -------- --------
Total revenue . . . . . . . . . . . . . . 12,023 10,206 8,628 11,594 9,765
Expenses:
Cost of operations . . . . . . . . . . . . . . $ 3,142 $ 4,378 $ 5,404 $ 4,159 $ 3,638
Research and development . . . . . . . . . . . 701 1,317 2,704 1,723 1,919
Selling, general and
administrative . . . . . . . . . . . . . . . 7,125 8,145 14,028 9,704 7,518
Restructuring Charge . . . . . . . . . . . . . - - 1,623 - -
Write-off of acquired in-process
research and development costs . . . . . . . - - 1,612 853 -
Write-off of product development and
related costs. . . . . . . . . . . . . . . . - - - 1,100 -
-------- -------- --------- -------- --------
Total expenses. . . . . . . . . . . . . . 10,968 13,840 25,371 17,539 13,075
-------- -------- --------- -------- --------
11
<PAGE>
Income (loss) from operations . . . . . . . . . . . 1,055 (3,634) (16,743) (5,945) (3,310)
Other income (expense):
Interest income. . . . . . . . . . . . . . . . 321 477 859 717 81
Interest expense . . . . . . . . . . . . . . . (30) (38) (44) (370) (486)
Other, net . . . . . . . . . . . . . . . . . . 5 2 10 1 9
-------- -------- --------- -------- --------
Total other income (expense). . . . . . . 296 441 825 348 (396)
Net Income (loss) . . . . . . . . . . . . . . . . . $ 1,351 $(3,193) $(15,918) $(5,597) $(3,706)
======== ======== ========= ======== ========
Basic and diluted net income (loss) per share. . . $ 0.18 $ (0.44) $ (2.20) $ (0.87) $ (0.72)
======== ======== ========= ======== ========
Weighted average number of shares used for
calculation of basic net income (loss) per share. 7,356 7,301 7,251 6,074 4,905
======== ======== ========= ======== ========
Weighted average number of shares used for
Calculation of diluted net income (loss) per share. 7,597 7,301 7,251 6,074 4,905
======== ======== ========= ======== ========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------------------------
1999 1998 1997 1996 1995
------------- ------- ------- ------- ---------
(IN THOUSANDS)
BALANCE SHEET DATA:
<S> <C> <C> <C> <C> <C>
Cash and short-term investments. . . $ 6,242 $ 6,532 $11,317 $21,987 $ 4,370
Working capital. . . . . . . . . . . 3,448 2,119 5,134 20,332 1,958
Total assets . . . . . . . . . . . . 11,466 12,142 14,936 29,137 9,113
Long-term obligations, less current
maturities . . . . . . . . . . . . 43 206 79 231 1,079
Redeemable convertible preferred
stock. . . . . . . . . . . . . . . - - - - 20,732
Total stockholders' equity
(deficit). . . . . . . . . . . . . 5,113 3,740 6,866 22,405 (17,794)
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
Consistent with the change in business strategy developed during the third
quarter of 1997, throughout 1999 the Company continued to manage and contain
costs, conserve cash and further intensified the Company's focus on the
high-risk, high-cost patient market particularly in critical care medicine.
During the year, the Company launched its Internet healthcare initiative,
APACHE 2000. The initiative is designed to position the Company as an
application service provider ("ASP") in the field of Internet-based healthcare
decision support. The Company will develop Internet versions of both new
decision support applications as well as selected existing applications on DG
platforms. The roll out of these Internet products is expected to begin
in 2000. The Company estimates the cost of the development of APACHE 2000
to be in excess of $1.5 million. The Company is now in the product introduction
phases of development and is not currently in a position to fully assess the
financial or other impacton the Company's operations.
During 1999 the Company's Internet project and accompanying partnership
discussions have remained on budget and on schedule resulting in a functional
fault tolerant Internet architecture running on DG computer platforms and
currently serving as a test bed for further development of various critical and
acute care, neonatal and cardiovascular decision support applications.
The Company is a Value Added Reseller of both DG and Sun Microsystems
computer hardware related to its CCS product. In 1999 the sale of turnkey
systems provided the company with incremental sources of revenue from
hardware sales and, accordingly, incremental sources of contribution margin.
The sales of this computer hardware had a material affect on the Company's
order rates throughout 1999.
12
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth certain operating data as a percentage of
revenue for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
--------------------------------------
1999 1998 1997
------------- ---------------- -----
<S> <C> <C> <C>
Revenue:
Systems . . . . . . . . . . . . . . . . . . . . . . 42% 23% 11%
Support . . . . . . . . . . . . . . . . . . . . . . 19 21 23
Professional services . . . . . . . . . . . . . . . 39 56 66
------------- ---------------- -----
Total revenue. . . . . . . . . . . . . . . . . 100 100 100
Expenses:
Cost of operations. . . . . . . . . . . . . . . . . 26 43 63
Research and development. . . . . . . . . . . . . . 6 13 31
Selling, general and administrative . . . . . . . . 59 80 162
Restructuring Charge. . . . . . . . . . . . . . . . - - 19
Write-off of acquired in-process research and
development costs. . . . . . . . . . . . . . . . . - - 19
Write-off of product development and related costs. - - -
------------- ---------------- -----
Total expenses . . . . . . . . . . . . . . . . 91 136 294
------------- ---------------- -----
Income (loss) from operations. . . . . . . . . . . . . . 9 (36) (194)
Other income (expense):
Interest income . . . . . . . . . . . . . . . . . . 2 5 10
Interest expense. . . . . . . . . . . . . . . . . . - - -
Other, net. . . . . . . . . . . . . . . . . . . . . - - -
------------- ---------------- -----
Total other income (expense) . . . . . . . . . 2 5 10
Net income (loss). . . . . . . . . . . . . . . . . . . . 11% (31)% (184)%
------------- ---------------- -----
</TABLE>
1999 Compared to 1998
Revenue. Revenue for 1999 increased 18% to $12 million from $10.2 million
in the prior year period. Systems revenue for 1999 increased 112% to $5.0
million from $2.4 in the prior year period. Increased Systems revenue was
primarily related to the delivery and implementation of the new CCS to new
customers and the sale of this system to existing customers. Systems revenue
included revenue related to the accompanying sales of associated third party
hardware and software. Support revenue for 1999 increased 9% to $2.3 million
from $2.1 million in the prior year period, due to contractual price increases
and an increase in the number of clients utilizing the Company's systems.
Professional services revenue for 1999 declined 19% to $4.7 million from $5.7;
the decline was due, in part, to a decrease in Health Outcomes Research
revenues following the bankruptcy of one of the Company's largest customers.
Consulting Services revenue also declined; this was primarily attributed to
customers' concerns over addressing their own Y2K issues and the impact of
the Balanced Budget Act on their operations.
Cost of Operations. Cost of operations for 1999 decreased 28% to $3.1
million from $4.4 million in the prior year period. This decrease was due
to the Company's continued corporate reorganization resulting in productivity
improvements and related decreases in costs associated with the delivery of
systems, support and professional services. Cost of operations for 1999
decreased to 26% of revenue from 43% in the prior year period, due to the
reasons mentioned here and the increase in revenue during the same period. Cost
of operations consists primarily of personnel costs, costs of media, production
manuals, telephone support, third party equipment, licenses sold, and other
direct costs related to providing systems, support and professional services.
Research and Development. Research and development expenses for 1999
decreased 47% to $701,000 from $1.3 million in the prior year period, due
primarily to a decrease in staffing requirements related to the development of
new, non-core, peripheral products and services that the Company had previously
discontinued. During 1999, $501,000 of software development costs were
capitalized, compared to $556,000 in the prior year period. Research and
development expenses for 1999 decreased to 6% of revenue from 13% in the prior
year period, due to decreased staffing and other costs as well as the increase
in revenue during the same period.
Selling, General and Administrative. Selling, general and administrative
expenses for 1999 decreased 13% to $7.1 million from $8.1 million in the prior
year period. This decrease was due primarily to a decrease in overall general
and administrative expenses including decreases in staffing and consulting
expenses. The reduction in general and administrative expenses were partially
offset by increases in costs associated with sales and marketing.
Selling, general and administrative expenses for 1999 decreased to 59% of
revenue from 80% for the prior year period, due primarily to the increase in
revenue during the same period.
Other Income (Expense). Other income decreased from $441,000 in 1998 to
$296,000 in 1999. This decrease was attributable to a decrease in interest
income related to the decrease in the amount of short-term investments.
Taxes. The Company has not incurred income taxes as a result of generating
net operating losses in prior years for tax purposes.
13
<PAGE>
1998 Compared to 1997
Revenue. Revenue for 1998 increased 18% to $10.2 million from $8.6 million
in the prior year period. Systems revenue for 1998 increased 155% to $2.4
million from $935,000 in the prior year period. Increased Systems revenue was
primarily related to the delivery of the CCS in early 1998. Support revenue for
1998 increased 8% to $2.1 million from $2.0 million in the prior year period,
due to contractual price increases and an increase in the number of clients
utilizing the Company's systems. Professional services revenue for 1998 remained
constant at $5.7 million.
Cost of Operations. Cost of operations for 1998 decreased 19% to $4.4
million from $5.4 million in the prior year period. This decrease was due to
process improvements relating to systems implementations, support, and software
engineering and resulting decreases in staffing requirements, third party
licenses fees for systems and related products, services that the Company has
discontinued or postponed, the development of certain other products, and the
decision to focus primarily on products for critical care patients, which
resulted in the Company's restructuring charge of $1.6 million during the third
quarter of 1997. Cost of operations for 1998 decreased to 43% of revenue from
63% in the prior year period, due to the reasons mentioned here and the increase
in revenue. Cost of operations consists primarily of personnel costs, costs of
media, production manuals, telephone support, third party equipment, licenses
sold, and other direct costs related to providing systems, support and
professional services.
Research and Development. Research and development expenses for 1998
decreased 51% to $1.3 million from $2.7 million in the prior year period, due
primarily to a decrease in staffing requirements related to the development of
new products and services that the Company has discontinued or postponed as a
result of the Company's restructuring during third quarter of 1997. During 1998,
$556,000 of product development costs were capitalized, compared to $308,000 in
the prior year period. Research and development expenses for 1998 decreased to
13% of revenue from 31% in the prior year period, due to decreased staffing as
well as the increase in revenue from 1997 to 1998.
Selling, General and Administrative. Selling, general and administrative
expenses for 1998 decreased 42% to $8.1 million from $14 million in the prior
year period. This decrease was due primarily to a decrease in overhead costs
associated with the Company's restructuring during the third quarter of 1997,
the elimination of a number of outside consulting relationships and the
implementation of enhanced expense controls. Selling, general and administrative
expenses for 1998 decreased to 80% of revenue from 162% for the prior year
period, due primarily to the same factors as noted above.
Other Income (Expense). Other income decreased from $825,000 in 1997 to
$441,000 for 1998. This decrease was attributable to a decrease in interest
income related to the decrease in the amount of short-term investments.
Taxes. The Company has not incurred income taxes as a result of generating
net operating losses for tax purposes.
QUARTERLY RESULTS
The following tables set forth certain unaudited quarterly financial data,
for fiscal 1999 and 1998. In the opinion of the Company's management, this
unaudited information has been prepared on the same basis as the audited
information included elsewhere in this annual report and includes all
adjustments necessary to present fairly the information set forth therein. The
operating results for any quarter are not necessarily indicative of results for
any future period:
<TABLE>
<CAPTION>
FISCAL YEAR 1999 FISCAL YEAR 1998
-------------------------------------- ------------------------------------
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
-------- -------- -------- -------- ------- ------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue. . . . . . . . . . . . 3,309 3,629 2,972 2,113 3,472 2,278 2,153 2,303
Expenses:
Cost of operations . . . . 261 1,220 927 734 909 976 1,081 1,412
Research and
development. . . . . . . 251 200 131 119 428 223 384 282
Selling, general and
administrative . . . . . 2,426 1,819 1,630 1,250 2,285 2,020 2,308 1,532
-------- ------- --------- -------- ------- -------- -------- --------
Total expenses. . . . 2,938 3,239 2,688 2,103 3,622 3,219 3,773 3,226
-------- ------- --------- -------- ------- -------- -------- --------
Income (loss) from operations. 371 390 284 10 (150) (941) (1,620) (923)
Total other income
(expense) . . . . . 85 81 65 65 145 124 101 71
-------- ------- --------- -------- -------- ------- -------- --------
Net income (loss). . . . . . . $ 456 $ 471 $ 349 $ 75 $ (5) $ (817) $(1,519) $ (852)
======== ======= ========= ======== ======== ======= ======== ========
</TABLE>
14
<PAGE>
In addition, the Company's quarterly results have been, and may continue to
be, affected by supplier and provider budgeting practices that cause many
discretionary purchase decisions to be made before certain quarter and year
ends. The timing of quarterly revenue is also affected by the ability of the
Company to perform on its contracts, which is subject to the availability of the
client personnel as well as the availability of the Company's personnel.
Although the Company has not historically experienced any material seasonality
in its operating results, the Company could experience such seasonality in the
future, which could cause fluctuations in the Company's quarterly results.
LIQUIDITY AND CAPITAL RESOURCES
Until 1999 the Company had funded its operations primarily through its
initial public offering of the Company's Common Stock in July 1996. During 1999
the Company's operating activities generated a positive cash flow. At December
31, 1999, the Company had cash and cash equivalents and short-term investments
of $6,242,000 representing a decrease of $290,000 from the total of $6,532,000
at December 31, 1998.
During 1999, the Company's operating activities generated approximately
$413,000 in cash. Net cash generated in 1999 was composed primarily of net
income, increased by depreciation and amortization, decreases in accounts
receivable and accrued expenses and increases in deferred revenues.
The Company's investing activities used cash of $621,000 in 1999. The
primary use of cash for investing activities was due to an increase in software
development costs.
Net cash used by financing activities during 1999 was $130,000 and was primarily
related to the repayment of notes payable and capital leases.
During 1999 the Company made capital expenditures totaling $72,000. As of
December 31, 1999, the Company had net working capital of $3.4 million including
cash and short-term investments in the amount of $6.2 million.
The Company anticipates that funds generated from operations will be
sufficient to meet its planned ongoing operating and working capital
requirements and to finance planned product development, sales and marketing
activities and capital acquisitions for the next twelve months. Through December
31, 1999, the Company has incurred cumulative net operating losses of
approximately $40.8 million. There can be no assurance that the Company will be
profitable in the future or that present capital will be sufficient to fund the
Company's ongoing operations. If additional financing is required to fund
operations, there can be no assurance that such financing can be obtained or
obtained on terms acceptable to the Company.
The Company does not believe the impact of inflation has significantly
affected the Company's operations.
YEAR 2000 COMPLIANCE
During 1999 the Company completed required modifications to its critical
systems and applications relating to year 2000 issues. The majority of the
Company's efforts regarding Year 2000 readiness focused on the Company's
products, including software applications, operating systems, relational
database management systems, tools and utilities sold to clients. The
assessments indicated that the version of the Company's Medical Cost Management
Program ("MCMP") product, an application using UNIX based terminals/clients and
UNIX based servers requiring stand alone equipment, its operating systems,
database releases and relational database management systems, that was sold to
customers prior to 1998, was not Year 2000 ready. The Company accordingly,
focused its attention on developing and ensuring Y2K compliance of its next
generation CCS product. As a result, the CCS application, hardware, operating
systems and relational database management system release, tools and utilities
are Year 2000 ready. The CCS product also includes significant new features and
enhancements. The CCS product utilizes industry standard operating systems,
tools and utilities and operates on a PC based client/UNIX server platform,
supporting Windows 95/NT/98.
As the existing MCMP product operating system and relational database
management system releases could not be confirmed Year 2000 ready, the Company
discontinued support of the MCMP product beyond December 1999. The Company
offered existing customers the ability to migrate to the new CCS product on
favorable terms. A majority of the clients using the old UNIX version of the
MCMP product have migrated to the new CCS product. The remainder have
discontinued use of the existing product. The favorable terms and migration
services offered to existing customers to encourage migration to the new CCS
product did not have a material negative impact on the Company's future
operating results or financial position. The fact that a majority of the
Company's existing customers made the decision to move on to the new CCS has a
positive material impact on the Company's 1999 operating results and financial
position.
15
<PAGE>
The renovation and implementation is complete for two other software
applications, the Acute Care Voyager+ and the HIV Manager products, that the
Company sold to its clients. Other software applications products sold by the
Company have been renovated and where necessary, the changes have been
implemented to delivery Year 2000 ready products.
The Company also completed its survey of its significant suppliers to
assess its vulnerability if these companies were to fail to remediate their year
2000 issues. The responses received indicated that these suppliers were aware
of the year 2000 issue and were implementing the necessary changes prior to the
end of calendar year 1999. The Company also formulated contingency plans to
ensure that business-critical processes were protected from disruption and would
continue to function during and after the year 2000 and to ensure that the
ability to produce an acceptable level of products and services was safeguarded
in the event of failures of external systems and services. The Company incurred
approximately $990,000 of incremental costs in connection with identifying,
evaluating and remediating year 2000 issues. These costs were expensed as
incurred.
The Company experienced no material or adverse effects from the calendar
change to the year 2000 or from the leap year that occurred in 2000. The
Company has not been notified of any disruptions to or failures in the systems
of any of its suppliers.
The Company will continue to monitor the information and non-information
technology systems and those of third parties with whom the Company conducts
business throughout the year 2000 to ensure that any latent year 2000 issues
that may arise are addressed promptly. Although we do not anticipate any
additional expenditures relating to year 2000 compliance, we cannot provide any
assurance as to the magnitude of any future costs until significant time has
passed.
This section captioned "Year 2000 Compliance," as well as other statements
herein or otherwise relating to the Year 2000 issues, are "Year 2000 Readiness
Disclosures" pursuant to the "Year 2000 Information and Readiness Disclosure
Act."
NEW ACCOUNTING PRONOUNCEMENTS
The American Institute of Certified Public Accountants has issued Statement
of Position 97-2 "Software Revenue Recognition," ("SOP 97-2") that supersedes
Statement of Position 91-1. SOP 97-2 is effective for revenue transactions
entered into by the Company in fiscal years beginning after December 31, 1997.
The Company has adopted SOP 97-2 and it did not have a material impact on the
financial statements of the Company. In March 1998, AcSEC issued SOP 98-4, which
defers for one year the implementation of certain provision of SOP 97-2. The
issuance of SOP 98-4 had no effect on the Company. In December 1998, the AICPA
issued SOP 98-9, which extends the deferral date of implementation of certain
provisions of SOP 97-2 to 2000 and amends the method of revenue recognition in
some circumstances. The adoption of this SOP did not have a significant effect
on its results of operations or financial position.
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS
Statements in this filing which are not historical facts are
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including,
without limitation, statements regarding our expectations, beliefs, intentions
or future strategies that are signified by the words "expects,""anticipates,"
believes" or similar language. All forward-looking statements involve risks and
uncertainties. The Company wishes to caution readers that the following
important factors, among others, in some cases have affected, and in the future
could affect, the Company's actual results and could cause its actual results in
fiscal 1999 and beyond to differ materially from those expressed in any
forward-looking statements made by, or on behalf of, the Company.
Important factors that could cause actual results to differ materially
include but are not limited to the Company's: having sufficient sales and timely
collections to meet cash requirements and achieve profitability; ability to
attract and retain key employees ; success of concentrating its product
offerings on high-risk, high-cost patients; ability to timely develop new
products and enhance existing products; ability to compete in the competitive
and rapidly evolving healthcare information technology industry; success of its
marketing and consulting efforts and ability to effectively utilize its direct
sales force; ability to protect proprietary information and to obtain necessary
licenses on commercially reasonable terms; ability to comply with and adopt
products and services to potential regulatory changes, including HIPAA, and
ability to adapt to economic, political and regulatory conditions affecting the
healthcare industry.
16
<PAGE>
The Company's quarterly revenues and operating results have varied
significantly in the past and are likely to continue to vary from quarter to
quarter in the future. Quarterly revenues and operating results may fluctuate as
a result of a variety of factors, including: the Company's relatively long sales
cycle; variable customer demand for its products and services; changes in the
Company's product mix and the timing and relative prices of product sales; the
loss of customers due to consolidation in the healthcare industry; changes in
customer budgets; investments by the Company in marketing or other corporate
resources; acquisitions of other companies or assets; the timing of new product
introductions and enhancements by the Company and its competitors; changes in
distribution channels; sales and marketing promotional activities and trade
shows; and general economic conditions. Further, due to the relatively fixed
nature of most of the Company's costs, which primarily include personnel costs,
as well as facilities costs, any unanticipated shortfall in revenue in any
fiscal quarter would have an adverse effect on the Company's results of
operations in that quarter. Accordingly, the Company's operating results for any
particular quarterly period may not necessarily be indicative of results for
future periods.
ITEM 7A.-QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to certain financial market risks, the most
predominate being fluctuations in interest rates; however, the Company does not
believe that it is currently exposed to material financial market risks.
17
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<CAPTION>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES
PAGE
----------
<S> <C>
Report of Independent Public Accountants, Ernst & Young
LLP. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Report of Independent Public Accountants, Arthur Andersen
LLP. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Consolidated Statements of Operations for the Years Ended
December 31, 1999, 1998 and 1997 . . . . . . . . . . . . . 21
Consolidated Balance Sheets for the Years Ended December 31,
1999 and 1998. . . . . . . . . . . . . . . . . . . . . . . 22
Consolidated Statements of Changes in Stockholders' Equity
(Deficit) for the Years Ended December 31, 1999, 1998 and
1997 23
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1999, 1998 and 1997 . . . . . . . . . . . . . 24
Notes to Consolidated Financial Statements . . . . . . . . . 25
Financial Statement Schedule:
Report of Independent Public Accountants, Arthur Andersen
LLP, on Financial Statement Schedule. . . . . . . . . . 36
Schedule II - Valuation and Qualifying Accounts for the
Years Ended December 31, 1999, 1998 and 1997. . . . . . 37
</TABLE>
All other financial statement schedules not included have been omitted
because they are not applicable or because the required information is otherwise
furnished.
18
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Directors
APACHE Medical Systems, Inc.
We have audited the accompanying consolidated balance sheets of APACHE
Medical Systems, Inc. as of December 31, 1999 and 1998, and the related
consolidated statements of operations, stockholders' equity and cash flows for
the years then ended. Our audits also included the financial statement schedule
listed in the Index at Item 14(a) as of December 31, 1999 and 1998. These
financial statements and schedule are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements and schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of APACHE Medical
Systems, Inc., at December 31, 1999 and 1998, and the consolidated results of
their operations and their cash flows for the years then ended, in conformity
with accounting principles generally accepted in the United States. Also, in our
opinion, the related financial statement schedule, when considered in relation
to the basic financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
/s/ ERNST & YOUNG LLP
McLean, Virginia
February 28, 2000
19
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To APACHE Medical Systems, Inc.:
We have audited the accompanying consolidated statements of operations,
changes in stockholders' equity and cash flows of APACHE Medical Systems, Inc.
(the "Company") for the year ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the results of operations and
cash flows of APACHE Medical Systems, Inc. for the year ended December
31, 1997 in conformity with accounting principles generally accepted in the
United States.
ARTHUR ANDERSEN LLP
Vienna, VA
March 27, 1998
20
<PAGE>
<TABLE>
<CAPTION>
APACHE MEDICAL SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31,
------------------------------
1999 1998 1997
--------- -------- ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Revenue:
<S> <C> <C> <C>
Systems . . . . . . . . . . . . . . . . . . . . . . . $ 5,046 $ 2,384 $ 935
Support . . . . . . . . . . . . . . . . . . . . . . . 2,330 2,117 1,961
Professional services . . . . . . . . . . . . . . . . 4,647 5,705 5,732
--------- -------- ---------
Total revenue. . . . . . . . . . . . . . . . . . 12,023 10,206 8,628
Expenses:
Cost of operations. . . . . . . . . . . . . . . . . . 3,142 4,378 5,404
Research and development. . . . . . . . . . . . . . . 701 1,317 2,704
Selling, general and administrative . . . . . . . . . 7,125 8,145 14,028
Restructuring charge. . . . . . . . . . . . . . . . . - - 1,623
Write-off of acquired in-process research and
development costs . . . . . . . . . . . . . . . . . - - 1,612
--------- -------- ---------
Total expenses . . . . . . . . . . . . . . . . . 10,968 13,840 25,371
--------- -------- ---------
Income (loss) from operations. . . . . . . . . . . . . . . 1,055 (3,634) (16,743)
Other income (expense):
Interest income . . . . . . . . . . . . . . . . . . . 321 477 859
Interest expense. . . . . . . . . . . . . . . . . . . ( 30) (38) (44)
Other, net. . . . . . . . . . . . . . . . . . . . . . 5 2 10
--------- -------- ---------
Total other income (expense) . . . . . . . . . . 296 441 825
--------- -------- ---------
Net income (loss). . . . . . . . . . . . . . . . . . . . . $ 1,351 $(3,193) $(15,918)
========= ======== =========
Basic and diluted net income (loss) per share. . . . . . . $ 0.18 $ (0.44) $ (2.20)
========= ======== =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
21
<PAGE>
<TABLE>
<CAPTION>
APACHE MEDICAL SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31,
-------------------------
1999 1998
-------------- ---------
(IN THOUSANDS,
EXCEPT SHARE DATA)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,194 $ 5,532
Short-term investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,048 1,000
Accounts receivable, net of allowance for doubtful accounts of $531
in 1999 and $514 in 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,012 2,972
Prepaid expenses and other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 749
-------------- ---------
TOTAL CURRENT ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,753 10,253
Furniture and equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,661 3,589
Less accumulated depreciation and amortization. . . . . . . . . . . . . . . . . . . (3,222) (2,704)
-------------- ---------
439 885
Other trade receivables, net of current maturities. . . . . . . . . . . . . . . . . 104 4
Capitalized software development costs, net . . . . . . . . . . . . . . . . . . . . 793 506
Intangible assets, net. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 494
-------------- ---------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 11,466 $ 12,142
============== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,142 $ 1,129
Accrued expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,780 3,667
Current maturities of long term obligations . . . . . . . . . . . . . . . . . . . . 163 180
Deferred revenue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,220 3,158
-------------- ---------
TOTAL CURRENT LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 6,305 8,134
Deferred rent benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 62
Maturities of long term obligations, net of current maturities. . . . . . . . . . . 43 206
-------------- ---------
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,353 8,402
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value, authorized shares, 30,000,000 at
December 31, 1999 and December 31, 1998: issued and outstanding
shares, 7,381,985 at December 31, 1999 and 7,330,473 at December 31, 1998 . . . . 74 73
Additional capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,818 45,770
Accumulated comprehensive income--unrealized loss on available-for-sale securities. (27) -
Accumulated deficit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (40,752) (42,103)
-------------- ---------
TOTAL STOCKHOLDERS' EQUITY . . . . . . . . . . . . . . . . . . . . . . . . . . 5,113 3,740
-------------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY . . . . . . . . . . . . . . . . . . $ 11,466 $ 12,142
============== =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
22
<PAGE>
<TABLE>
<CAPTION>
APACHE MEDICAL SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
Years ended December 31, 1999, 1998 and 1997
COMMON STOCK ACCUMULATED
------------------------- ADDITIONAL COMPREHENSIVE ACCUMULATED COMPREHENSIVE
SHARES AMOUNT CAPITAL INCOME (LOSS) DEFICIT TOTAL INCOME (LOSS)
------------ ----------- -------------- -------------- --------------- --------- --------------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT
DECEMBER 31, 1996. . . . 7,238,922 $ 72 $ 45,325 $ - $ (22,992) $ 22,405 $ -
Issuance of common
stock options . . . . . - - 291 - - 291 -
Exercise of common
stock options. . . . . . 10,490 - 30 - - 30 -
Issuance of common stock
under Employee
Stock Purchase Plan. . . 18,344 1 57 - - 58 -
Net loss . . . . . . . . - - - - (15,918) (15,918) (15,918)
------------ ----------- -------------- -------------- --------------- --------- --------------
BALANCE AT
DECEMBER 31, 1997. . . . 7,267,756 73 45,703 - (38,910) 6,866 $ (15,918)
Issuance of common stock ==============
under Employee
Stock Purchase Plan 62,717 - 67 - - 67 -
Net loss . . . . . . . . - - - - (3,193) ( 3,193) (3,193)
------------ ----------- -------------- -------------- --------------- --------- --------------
BALANCE AT
DECEMBER 31, 1998. . . . 7,330,473 73 45,770 - (42,103) 3,740 $ (3,193)
Exercise of common ==============
stock options. . . . . . 12,600 - 12 - - 12 -
Issuance of common stock
under Employee
Stock Purchase Plan . . 38,912 1 36 - - 37 -
Unrealized loss on
available for-sale securities - - - (27) - (27) (27)
Net income . . . . . . . - - - - 1,351 1,351 1,351
------------ ----------- -------------- -------------- --------------- --------- --------------
BALANCE AT
DECEMBER 31, 1999. . . . 7,381,985 $ 74 $ 45,818 $ (27) $ (40,752) $ 5,113 $ 1,324
============= =========== ============== ============== ================ ========= ==============
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
23
<PAGE>
<TABLE>
<CAPTION>
APACHE MEDICAL SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31,
-----------------------------
1999 1998 1997
-------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,351 $(3,193) $(15,918)
Adjustments to reconcile net income (loss) to net cash from (used
in) operating activities:
Depreciation . . . . . . . . . . . . . . . . . . . . . . . . . 490 611 595
Amortization . . . . . . . . . . . . . . . . . . . . . . . . . 331 167 563
Provision for doubtful accounts. . . . . . . . . . . . . . . . 17 30 611
Expense for nonemployee stock options issued . . . . . . . . . - - 67
Write-off of product development and related costs . . . . . . - - 620
Write-off of acquired in-process research and
development costs. . . . . . . . . . . . . . . . . . . . . . - - 1,612
Write-off of intangible assets . . . . . . . . . . . . . . . . - - 436
Changes in operating assets and liabilities:
Accounts receivable . . . . . . . . . . . . . . . . . . . (57) (1,766) 1,970
Other trade receivables . . . . . . . . . . . . . . . . . (100) 51 236
Other current assets. . . . . . . . . . . . . . . . . . . 250 (293) (103)
Accounts payable and accrued expenses . . . . . . . . . . (1,874) (1,337) 2,168
Deferred rent . . . . . . . . . . . . . . . . . . . . . . (57) (55) (42)
Deferred revenue. . . . . . . . . . . . . . . . . . . . . 62 1,528 490
-------- -------- ---------
NET CASH FROM (USED IN) OPERATING ACTIVITIES . . . . . . . . . 413 (4,257) (6,695)
CASH FLOWS FROM INVESTING ACTIVITIES:
Capitalized software development costs. . . . . . . . . . . . . . . (501) (556) (308)
Purchase of furniture and equipment, net of disposals . . . . . . . (72) (235) (555)
Purchase acquisitions . . . . . . . . . . . . . . . . . . . . . . . - - (2,915)
Redemption (Purchase) of short-term investments . . . . . . . . . . ( 48) 4,683 (4,624)
-------- -------- ---------
NET CASH (USED IN) FROM INVESTING ACTIVITIES . . . . . . . . . (621) 3,892 (8,402)
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on capital lease obligations . . . . . . . . . . (18) (16) (68)
Principal payments on borrowings. . . . . . . . . . . . . . . . . . (161) (179) (237)
Proceeds from issuance of notes payable . . . . . . . . . . . . . . - 391 20
Proceeds from issuance of common stock upon exercise of options . . 12 - 30
Proceeds from issuance of stock under employee stock purchase plan. 37 67 58
-------- -------- ---------
NET CASH (USED IN) FROM FINANCING ACTIVITIES . . . . . . . . . (130) 263 (197)
NET DECREASE IN CASH AND CASH EQUIVALENTS. . . . . . . . . . . . . . . . (338) (102) (15,294)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR . . . . . . . . . . . . . 5,532 5,634 20,928
-------- -------- ---------
CASH AND CASH EQUIVALENTS AT END OF YEAR . . . . . . . . . . . . . . . . $ 5,194 $ 5,532 $ 5,634
======== ======== =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
24
<PAGE>
APACHE MEDICAL SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999 AND 1998
(1) NATURE OF THE BUSINESS
APACHE Medical Systems, Inc. (the "Company"), a Delaware corporation, was
incorporated on September 1, 1987. The Company is a leading provider of
clinically based decision support information systems and consulting services to
the healthcare industry. The Company offers healthcare providers and suppliers a
comprehensive line of outcomes-based products and services, encompassing
software, hardware, and related consulting and disease management services.
Operations of the Company are subject to certain risks and uncertainties
including, among others, uncertainties relating to product development,
significant operating losses, competition and market acceptance of its products.
The market for the Company's healthcare information systems and services is
highly competitive and characterized by continued and rapid technological
advances and substantial changes. The Company's success is dependent upon market
acceptance of its products in preference to competing products and products that
may be developed by others. The healthcare industry is subject to changing
political, economic and regulatory influences that may affect the procurement
practices and operations of the Company's customers. There can be no assurance
that the Company's products and services will achieve a sufficient level of
market acceptance to result in profitable operations.
Through December 31, 1999, the Company has incurred cumulative net
operating losses of approximately $40.8 million. There can be no assurance that
the Company will be profitable in the future or that present capital will be
sufficient to fund the Company's ongoing operations. The Company believes that
its current operating funds will be sufficient to meet its planned ongoing
operating and working capital requirements and to finance planned product
development, sales and marketing activities through the first quarter of year
2001. If additional financing is required to fund operations, there can be no
assurance that such financing can be obtained or obtained on terms acceptable to
the Company.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business combinations
On June 2, 1997, the Company acquired all the common stock of National
Health Advisors, Ltd. ("NHA") in exchange for 367,569 shares of the Company's
Common Stock. NHA is a healthcare management consulting firm focused on strategy
and management support services for progressive healthcare organizations and
networks. The merger was accounted for as a pooling-of-interests. Accordingly,
the Company's financial statements have been restated to include the results of
NHA for all periods presented.
Principles of Consolidation and Use of Estimates
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiary. All significant intercompany accounts and
transactions have been eliminated in consolidation. The preparation of
consolidated financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results inevitably will differ from those estimates.
Revenue Recognition
Revenues for sales of systems and products are recognized at delivery. For
systems where services are critical to the functionality of the system, revenue
is recognized using contract accounting. Systems support fees are recognized
ratably over the period of performance. Professional services revenue is
recognized as these services are provided and is generally billed on a time and
material basis. Professional services do not involve significant customization,
modification or production of the licensed software. Amounts received prior to
the performance of service or completion of a milestone are deferred. Revenue
recognized for work performed for which billings have not been presented to
customers is recorded as unbilled.
25
<PAGE>
Cost of Operations
Cost of operations consists primarily of personnel costs, costs of media,
production manuals, telephone support, third party equipment, licenses, software
and other direct costs related to providing systems, support, and professional
services.
Furniture and Equipment
Furniture and equipment are stated at cost. Furniture and equipment under
capital leases are stated at the present value of minimum lease payments.
Depreciation and amortization are calculated on the straight-line basis over the
estimated useful lives of the assets ranging from 3 to 7 years. Amortization of
equipment held under capital leases is provided on the straight-line basis over
the shorter of the estimated useful life of the assets or the life of the lease.
Cash Equivalents and Short-term Investments
The Company considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents. As of December 31,
1999, cash equivalents and short-term investments consisted of money market
instruments, commercial paper and government agency securities. Cash equivalents
are carried at lower of cost or market. In accordance with the requirements of
Statement of Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities," the Company has classified its
short-term investments as "available-for-sale". Such investments are recorded at
fair value, with unrealized gains and losses, deemed by the Company as temporary
in nature, reported as a separate component of stockholders' equity. At December
31, 1999 there were $27,000 in unrealized losses; at December 31, 1998 there
were no unrealized gains or losses.
Included in Cash and Cash Equivalents at December 31, 1999, is
approximately $123,000, for a security deposit controlled by the lessor of the
office building that the Company currently occupies.
Software Capitalization
The Company accounts for software development costs in accordance with
Statement of Financial Accounting Standards ("SFAS") No. 86 "Accounting for the
Costs of Computer Software to be Sold, Leased, or Otherwise Marketed." The
Company capitalizes certain software development costs subsequent to the
establishment of technological feasibility of its products. Technological
feasibility is established generally upon completion of a working model of a
product. Costs incurred prior to technological feasibility are expensed and are
included as research and development costs in the accompanying consolidated
financial statements. Amortization of capitalized costs begins when products are
available for general release to customers and is computed on a
product-by-product basis in the amount which is the greater of (a) the ratio
that current revenues bear to the total of the current and future anticipated
revenues, or (b) the straight-line method over the remaining estimated economic
life of the product, not to exceed five years. Such costs are reflected in Cost
of Operations in the Company's consolidated statement of operations.
The Company capitalized approximately $501,000, $556,000, and $308,000 in
software development costs during 1999, 1998 and 1997, respectively.
Amortization of software development costs approximated $214,000, $51,000 and
$82,000 in 1999, 1998 and 1997, respectively. During the third quarter of 1997,
the Company recorded a non-recurring charge totaling approximately $600,000
relating to the write-off of certain capitalized software products related to
discontinued products. No additional costs were capitalized during 1997, as
technological feasibility had not been reached on the Company's new Critical
Care Series product.
Income Taxes
The Company accounts for income taxes using the asset and liability method.
Under this method, deferred tax assets and liabilities are recognized for the
future tax consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax basis. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or settled. The effect
on deferred tax assets and liabilities of a change in tax rates is recognized in
income in the period that includes the enactment date.
Current Vulnerability Due to Certain Concentrations
The Company currently depends on certain suppliers for the provision of
computer hardware to its customers. The Company has not experienced and does not
expect any disruption of such services and the Company believes that
functionally equivalent computer hardware is available from other sources.
26
<PAGE>
Concentration of Credit Risk
Financial instruments that potentially subject the Company to
concentrations of credit risk consist principally of cash, cash equivalents,
short term investments, and trade receivables. Concentrations of credit risk
with respect to trade receivables result from the Company's customer base,
comprising primarily hospitals and other healthcare industry companies.
Management regularly monitors the creditworthiness of its customers and believes
that it has adequately provided for any exposure to potential credit losses.
Impairment of Long-Lived Assets
The Company complies with Statement of Financial Accounting Standards
("SFAS") No. 121 "Accounting for the Impairment of Long-Lived Assets and
Long-Lived Assets to be Disposed of." The Company reviews its long-lived assets,
including intangible assets and property plant and equipment, for impairment
whenever events or changes in circumstances indicate that the carrying amount of
the assets may not be fully recoverable. To determine recoverability of its
long-lived assets, the Company evaluates whether future undiscounted net cash
flows will be less than the carrying amount of the assets and adjusts the
carrying amount of its assets to fair value.
Reclassification
Certain amounts have been reclassified from prior years to conform to the
current year presentation.
(3) RESTRUCTURING CHARGE
During the third quarter of 1997, the Company recorded a restructuring
charge of $1.6 million related primarily to the Company's decision to revise its
business strategy for the remainder of 1997 and 1998. The Company has decided to
focus on products for high-cost, high-risk patients, APACHE's core strength, and
to discontinue or postpone the development of certain products (including
certain cardiovascular products), resulting in the reduction of the current
workforce. The main components of the charge are as follows: write- off of
capitalized product development costs related to discontinued products,
write-off of intangible assets related to the CardioMac acquisition in January
1997 and termination costs, including severance pay and related benefits. As of
December 31, 1998, substantially all the costs associated with the restructuring
charge had been paid.
(4) ACCOUNTS RECEIVABLE
Accounts receivable are comprised of the following (in thousands):
DECEMBER 31,
----------------------
1999 1998
--------- ---------
Billed accounts $ 2,895 $ 3,059
Unbilled accounts 648 427
--------- ---------
3,543 3,486
Less allowance for doubtful accounts (531) (514)
--------- ---------
$ 3,012 $ 2,972
========= ==========
Unbilled accounts represent revenue that has been recognized for work performed
for which billings had not been presented to customers, as such accounts were
not billable under contract terms at the balance sheet date. It is anticipated
that substantially all of these accounts will be billed and collected within one
year of the respective balance sheet date.
(5) ACCRUED EXPENSES
Accrued expenses consist of the following (in thousands):
DECEMBER 31,
-------------------------
1999 1998
---------- ----------
Accrued salaries, bonuses and benefits $ 133 $ 554
Discontinued product reserve 266 472
Accrued commissions 16 66
Accrued severance costs 0 294
Accrued pension costs 0 82
Other accrued license fees 64 351
QIMC licensing and marketing fees 0 88
Other accrued expenses 1,301 1,760
---------- ----------
$ 1,780 $ 3,667
========== ==========
27
<PAGE>
(6) NOTES PAYABLE
<TABLE>
<CAPTION>
DECEMBER 31,
---------------
1999 1998
------- ------
(in thousands)
<S> <C> <C>
Note payable, prime plus 2% interest (9.75% at December 31, 1998),
payable in monthly installments of principal plus interest through
November 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 19
Note payable, 7.58% interest payable in monthly installment of
principal and interest through March 2001 . . . . . . . . . . . . . 177 319
------- ------
$ 177 $ 338
------- ------
Less current maturities . . . . . . . . . . . . . . . . . . . . . . . (142) (161)
------- ------
$ 35 $ 177
======= ======
</TABLE>
Scheduled maturities of notes payable are as follows (in thousands):
YEAR
-----
2000 142
2001 35
-------
$ 177
=======
(7) INTANGIBLE ASSETS
In December 1996, the Company completed the acquisition of the assets and
certain liabilities of Health Research Network ("HRN") for $1.57 million in
cash. The acquisition has been accounted for using the purchase method of
accounting and resulted in intangible assets totaling $728,000. These assets are
being amortized under the straight line method over 5 to 15 years.
The components of intangibles are as follows (in thousands):
DECEMBER 31,
---------------------------
1999 1998
----------- -----------
Goodwill $ 138 $ 138
Assembled Workforce 102 102
Database 488 488
----------- -----------
728 728
Accumulated Amortization (351) (234)
----------- -----------
$ 377 $ 494
=========== ===========
Amortization of $117,000 was charged to expense in 1999.
28
<PAGE>
8) LEASE COMMITMENTS
Future minimum lease payments at December 31, 1999, under non-cancelable
operating and capital leases are as follows (in thousands):
CAPITAL OPERATING
YEAR ENDING DECEMBER 31, LEASES LEASES
- ---------------------------- ------- --------
2000 . . . . . . . . . . . . 23 652
2001 . . . . . . . . . . . . 8 672
2002 . . . . . . . . . . . . 692
2003 . . . . . . . . . . . . 713
2004 and after . . . . . . 2,203
--------
Total . . . . . . $ 31 $ 4,932
Less interest at 12.75% . (2)
-------
Present value of net
minimum lease payments . 29
Less current maturities. . (21)
-------
$ 8
=======
OPERATING LEASES
In November 1999 the company renewed the lease for their current office
space for an additional 7 years. The previous leased was signed in 1994 and
expired in November 1999. The new lease expires in November 2006. Rent expense
is recorded on a straight-line basis over the term of the lease. The difference
between rent payments and rent expense resulted in a deferred rent benefit.
Total rent expense under all operating leases was approximately $452,000,
$474,000 and $497,000 for the years ended December 31, 1999, 1998 and 1997,
respectively.
CAPITAL LEASES
In 1997, the Company negotiated a new capital lease for certain office
equipment. The resulting capital lease will expire in 2001.
Office equipment and related accumulated amortization under capital leases
included in furniture and equipment on the accompanying balance sheet at
December 31, 1999 is as follows (in thousands):
Office equipment $ 73
Less accumulated amortization (50)
------
$ 23
======
(9) INCOME TAXES
The Company had no provision for income taxes in 1999, 1998 or 1997 as a
result of its net losses for income tax purposes. The difference between the
tax provision and the amount that would be computed by applying the statutory
federal income tax rate to income before taxes is attributable to the following:
<TABLE>
<CAPTION>
1999 1998
------ --------
(in thousands)
<S> <C> <C>
Federal tax at 34% statutory rate. . $ 459 $(1,086)
Permanent items. . . . . . . . . . . 10 29
State taxes, net of federal benefit. 64 (124)
Change in valuation allowance. . . . (520) 1,179
Other. . . . . . . . . . . . . . . . (13) 2
------ --------
Total. . . . . . . . . . . . . . . . $ - $ -
====== ========
</TABLE>
29
<PAGE>
The approximate tax effects of temporary differences that give rise to
significant portions of the deferred tax assets and deferred tax liabilities at
December 31, 1999 and 1998 are as follows (in thousands):
<TABLE>
<CAPTION>
1999 1998
--------- ---------
Deferred tax liabilities:
<S> <C> <C>
Accrual to cash adjustment . . . . . . . . . . $ (57) $ (115)
Capitalized software development costs . . . . (301) (192)
--------- ---------
Gross deferred tax liabilities . . . . . . . . (358) (307)
Deferred tax assets:
Accrued vacation . . . . . . . . . . . . . . . 51 46
Accrued bonuses. . . . . . . . . . . . . . . . 78 --
Accrued commissions. . . . . . . . . . . . . . 6 25
Allowance for doubtful accounts. . . . . . . . 201 195
Accrued licensing fees . . . . . . . . . . . . -- 33
Deferred rent benefit. . . . . . . . . . . . . 2 24
Excess of tax over book revenue recognized . . -- 481
Accrued independent contractors fee. . . . . . -- 19
Tax basis of equipment in excess of book value 6 --
Intangible assets. . . . . . . . . . . . . . . 824 931
Other accruals . . . . . . . . . . . . . . . . 329 781
Net operating loss carryforwards . . . . . . . 13,119 12,077
--------- ---------
Gross deferred tax assets . . . . . . . . . . . . . 14,616 14,612
--------- ---------
Net deferred tax assets before valuation allowance. 14,258 14,305
--------- ---------
Less valuation allowance. . . . . . . . . . . . . . (14,258) (14,305)
--------- ---------
Net deferred tax assets . . . . . . . . . . . . . . $ - $ -
========= =========
</TABLE>
The Company has a net operating loss carryforward for income tax reporting
purposes at December 31, 1999 of approximately $34,500,000, which expires
beginning in 2003. The Company's ability to use the carryforwards is subject to
limitations resulting from changes in ownership, as defined by the Internal
Revenue Code. Lack of future earnings, a change in the ownership of the Company,
or the application of the alternative minimum tax rules could adversely affect
the Company's ability to utilize the net operating loss carryforwards.
(10) STOCKHOLDERS' EQUITY
Stock Options
The Company has an Employee Stock Option Plan (the "Plan") that provides up
to 2,700,000 options to be issued to employees and Directors (prior to the
adoption of the Non-Employee Director Stock Option Plan in April 1996) of the
Company. The Plan was amended in March 1999 to increase the number of shares
reserved for issuance under the plan from 2,200,000 to 2,700,000. All options
are subject to forfeiture until vested, and unexercised options expire on the
tenth anniversary of the year granted. Vesting periods are from one to five
years. All employee stock options issued by the Company have been granted with
exercise prices equal to or greater than the fair market value of the Common
Stock on the date of grant; accordingly, the Company has recorded no
compensation expense related to such grants.
In June 1996, the Company entered into a marketing agreement with an
affiliate of Premier Inc. ("Premier"), which provides buying services to a group
of approximately 1,800 hospitals. Pursuant to the agreement, the Premier
affiliate has designated the Company as the exclusive supplier to the hospitals
purchasing through the Premier buying group of clinically-based outcomes data
systems for high-risk, high-cost patients, including critical care,
cardiovascular care and medical-surgical care patients, through December 31,
1999. In return, the Company agreed to provide certain discounts to these
hospitals and, granted to the Premier affiliate in June 1996, three options to
purchase up to a total of 366,294 shares of Common Stock. Each of the options
have a ten-year term. One of the options vested upon grant and permits the
Premier affiliate to purchase 65,488 shares of Common Stock at an exercise price
of $8.18 per share. The Company valued these options at $369,000, which is being
amortized over the life of the Premier contract. The other two options vested,
if at all, based on the volume of products and services sold to Premier
hospitals and allowed the Premier affiliate to purchase up to 300,806 shares of
Common Stock at an exercise price of $13.00 per share. Performance options
earned through December 31, 1999 totaled 45,695 shares. Valuation of the related
stock options was calculated utilizing the Black-Scholes option pricing model.
Expenses related to the performance options are recorded when earned. Expense
for options earned was $0 in 1999 and 1998 and $67,000 in 1997.
In January 1997, the Company acquired the assets of CardioMac, including a
point-of-care data collection and reporting tool for the cardiac catheterization
laboratory and cardiovascular operating room from Mercy Hospital Medical Center,
Iowa Health Centers, the Iowa Heart Institute and Mark Tannenbaum, MD (its
primary developer) for a payment of $1.35 million in cash and options to
purchase up to 150,000 shares of APACHE Common Stock at an exercise price of
$7.75 per share. The options were valued at approximately $224,000 and vested
immediately.
30
<PAGE>
On January 2, 1998, the Board of Directors authorized a repricing program
which allowed active current employees to reprice all their outstanding options
to purchase Common Stock of the Company for a like number of shares at an
exercise price of $2.00 per share. Options to purchase approximately 480,044
shares of Common Stock were repriced. The vesting schedule is as follows: 20%
would vest immediately for employees with the Company for at least one year; 20%
would vest on each anniversary over the next five years; and employees with the
Company less than one year, options will vest ratably over five years from the
date of grant. The options granted to employees as performance-based options are
excluded from this action.
On January 2, 1998, the Board of Directors authorized a repricing of stock
options to a consultant to the Company. Options to purchase approximately 22,029
shares of Common Stock granted were cancelled and newly issued at $2.00 per
share and vest immediately as of January 2, 1998. Effective November 18, 1998,
the Board of Directors granted an aggregate of 30,000 options to three
non-employee consultants to the Company. The exercise price of these options is
equal to the fair market value of the Company's Common Stock on November 18,
1998 or $.94. These options have been accounted for in accordance with SFAS 123.
On November 18, 1998, the Board of Directors authorized a repricing program
which allowed active current employees to reprice all their outstanding options
to purchase Common Stock of the Company for a like number of shares at an
exercise price of $.94 per share. Options to purchase approximately 845,566
shares of Common Stock were repriced. The vesting schedule remained the same.
The following is a summary of the Company's option transactions for the
years ending December 31, 1997, 1998 and 1999:
<TABLE>
<CAPTION>
WTD. AVG.
SHARES EX. PRICE
---------- ----------
<S> <C> <C>
Outstanding, December 31, 1996 1,632,383 $ 7.90
Granted . . . . . . . . . 873,434 5.57
Forfeited . . . . . . . . (685,160) 9.47
Exercised . . . . . . . . (10,490) 2.86
---------- ----------
Outstanding, December 31, 1997 1,810,167 $ 6.21
---------- ----------
Granted . . . . . . . . . 1,117,844 1.78
Forfeited . . . . . . . . (503,333) 5.72
Exercised . . . . . . . . - -
---------- ----------
Outstanding, December 31, 1998 2,424,678 $ 3.11
---------- ----------
Granted . . . . . . . . . 687,100 1.03
Forfeited . . . . . . . . (105,230) 1.70
Exercised . . . . . . . . (12,600) .94
---------- ----------
Outstanding, December 31, 1999 2,993,948 $ 2.62
========== ==========
</TABLE>
Options outstanding at December 31, 1999 have exercise prices between $0.59
and $13.00, with a weighted average exercise price of $2.62 and a weighted
average remaining contractual life of 7.0 years. At December 31, 1999, 1,435,141
options were exercisable with a weighted average exercise price of $4.04.
At December 31, 1999, options for 347,215 shares were available for grant
under the Plan.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
In April 1996, the Company adopted its Non-Employee Director Option Plan
(the "Director Option Plan"), pursuant to which non-employee directors of the
Company will be granted an option to purchase 2,500 shares of Common Stock on
January 1, of each calendar year for each year of service. The exercise price of
such options shall be at the fair market value of the Company's Common Stock on
the date of grant. Stock options granted under the Director Option Plan may not
be transferred other than by will or by the laws of descent and distribution.
The Company has reserved 70,000 shares of Common Stock for issuance under the
Director Option Plan. The Director Option Plan may be terminated by the Board of
Directors at any time. Upon the occurrence of a Change of Control, as defined in
the Director Option Plan, all outstanding unvested options under the Director
Option Plan immediately vest. As of December 31, 1999, 42,500 shares were
granted under the Director Option Plan.
At December 31, 1999 options for 27,500 shares were available for grant
under the Director Option Plan.
NON-EMPLOYEE DIRECTOR SUPPLEMENTAL STOCK OPTION PLAN
In May 1999, the Company adopted its Non-Employee Director Supplemental
Stock Option Plan (the "Director Supplemental Option Plan"), that provides up to
120,000 options to be issued to the Directors of the Company. The exercise
price of such options shall not be less than the fair market value of the
Company's Common Stock on the date of grant. The Director Supplemental Option
Plan may be terminated by the Board of Directors at any time. Upon occurrence
of a Change in Control as defined in the Director Supplemental Option Plan, all
outstanding unvested options under the Director Supplemental Option Plan vest
immediately. As of December 31, 1999, options for 115,200 were granted under
the Director Supplemental Option Plan.
31
<PAGE>
At December 31, 1999, options for 4,800 shares were available for grant
under the Director Supplemental Option Plan.
EMPLOYEE STOCK PURCHASE PLAN
Effective May 1, 1996, the Company adopted an Employee Stock Purchase Plan
(the "Purchase Plan"). A total of 210,000 shares of Common Stock are available
for purchase under the Purchase Plan. The Purchase Plan permits eligible
employees to purchase Common Stock through payroll deductions, which may not
exceed 8% of an employee's base compensation, including commissions, bonuses and
overtime, at a price equal to 85% of the fair market value of the Common Stock
at the beginning of each offering period or the end of a three month purchase
period, whichever is lower. The Board of Directors has the authority to amend or
terminate the Purchase Plan provided no such action may adversely affect the
rights of any participant.
At December 31, 1999, 90,027 shares were available for purchase under the
Employee Stock Purchase Plan.
STOCK OPTION PLANS
The Company applies APB Opinion No. 25 in accounting for its Stock based
compensation plans and, accordingly, no compensation cost has been recognized
for its stock option plans and employee stock purchase plan in the financial
statements. Had the Company determined compensation cost based on the fair value
at the grant date for these plans under SFAS No. 123 "Accounting for Stock Based
Compensation," the Company's net income would have been reduced to the pro forma
amounts indicated below (in thousands):
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following weighted-average
assumptions: January 1, 1999 through December 31, 1999 - expected dividend yield
of 0%, risk-free interest rate of 5.86%, expected volatility factor of 202.34%,
and an expected life of 6 years; January 1, 1998 through December 31, 1998 -
expected dividend yield of 0%, risk-free interest rate of 4.5%, expected
volatility factor of 228.70%, and an expected life of 6 years; January 1, 1997
through December 31, 1997 - expected dividend yield of 0%, risk-free interest
rate of 5.71%, expected volatility factor of 105.35%, and an expected life of 6
years.
<TABLE>
<CAPTION>
1999 1998 1997
------ -------- ---------
<S> <C> <C> <C>
Net income (loss)
As reported . . . . . . $1,351 $(3,193) $(15,918)
Pro forma . . . . . . . 667 (4,317) (17,075)
Net income (loss) per share
As reported . . . . . . $ .18 $ (.44) $ (2.20)
Pro forma . . . . . . . .09 (.59) (2.35)
</TABLE>
Pro forma net loss reflects only options granted in 1996 through 1999.
Therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net loss amounts presented
above because compensation cost is reflected over the options' vesting period of
5 years and compensation cost for options granted prior to January 1, 1995 is
not considered.
STOCK WARRANTS
The Company has 17,483 outstanding warrants issued to a stockholder in 1991
with an exercise price of $2.86 per share that expire in 2001; 349,653
outstanding warrants issued to stockholders in 1995 with an exercise price of
$1.43 per share that expire in 2000; and 110,069 outstanding warrants issued to
stockholders in 1995 with an exercise price of $8.18 per share that expire in
2000.
32
<PAGE>
(11) EARNINGS (LOSS) PER SHARE (EPS)
The following table sets forth the computation of basic and diluted
earnings (loss) per share for the years ended December 31, 1999, 1998, and 1997:
<TABLE>
<CAPTION>
1999 1998 1997
------ -------- ---------
<S> <C> <C> <C>
Basic earnings per share:
- --------------------------------------------------
Net income (loss) available to common shareholders $1,351 $(3,193) $(15,918)
------ -------- ---------
Weighted average shares outstanding .. . . . . 7,356 7,301 7,251
Basic earnings (loss) per share. . . . . . . . . . $ 0.18 $ (0.44) $ (2.20)
------ -------- ---------
Diluted earnings per share:
- --------------------------------------------------
Net income (loss) available to common shareholders $1,351 $(3,193) (15,918)
------ -------- ---------
Weighted average shares outstanding. . . . . . . . 7,356 7,301 7,251
Effect of dilutive securities:
Employee stock options. . . . . . . . . . . . . 241 - -
------ -------- ---------
Adjusted weighted average shares . . . . . . . . . 7,597 7,301 7,251
------ -------- ---------
Diluted earnings (loss) per share. . . . . . . . . $ 0.18 $ (0.44) $ (2.20)
------ -------- ---------
</TABLE>
Options to purchase 2,405,041 shares of common stock were outstanding at
December 31, 1999 but were not included in the computation of diluted EPS
because the options' weighted average exercise price was greater than the
average market price of the common shares and the affect of including such
shares would be anti-dilutive to the per share amount.
The Company has 477,205 warrants outstanding at December 31, 1999 that were
not included in the computation of diluted EPS because the warrants' weighted
average exercise price was greater than the average market price of the common
shares and the affect of including such shares would be anti-dilutive to the per
share amount.
(12) WRITE-OFF OF PRODUCT DEVELOPMENT AND RELATED COSTS
During the fourth quarter of 1996, the Company recorded a non-recurring
charge totaling $1.1 million relating to the write-off of capitalized product
development costs totaling $375,000 and fees totaling $725,000 arising from an
earlier agreement with QIMC, a healthcare focused, business-led coalition
located in Cleveland. During 1994, the Company entered into an exclusive 10-year
licensing agreement with QIMC for its database and methodologies. As of December
31, 1997, the Company was committed to pay an aggregate of $406,000 through
March 1999 for the license and marketing services fees associated with the sale
of the Company's product related to these methodologies. The Company recorded
this charge because the joint marketing arrangement has not met management's
expectations, resulting in limited sales of the related product during 1996.
This trend was expected to continue through 1999 and, therefore, the projected
sales for the related product and support revenue earned from existing clients
are not considered adequate to support the related expenses associated with the
QIMC agreement and the capitalized product development costs. The remaining
commitment totaling $87,500 was included in other accruals as of December 31,
1998. At December 31, 1999 that commitment had been satisfied.
(13) COST OF OPERATIONS AND GROSS MARGIN BY PRIMARY REVENUE SOURCES
The following represents revenues and cost of operations by primary revenue
sources for the year ended December 31, 1999, 1998 and 1997 (in thousands):
33
<PAGE>
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997
------------- ------------- -------------
Revenue:
<S> <C> <C> <C>
Systems . . . . . . . . . . . $ 5,046 $ 2,384 $ 935
Support . . . . . . . . . . . 2,330 2,117 1,961
Professional services . . . . 4,647 5,705 5,732
------------- ------------- -------------
Total revenue. . . . . . 12,023 10,206 8,628
Cost of operations:
Systems . . . . . . . . . . . 727 1,493 1,206
Support . . . . . . . . . . . 555 686 638
Professional services . . . . 1,860 2,199 3,560
------------- ------------- -------------
Total cost of operations 3,142 4,378 5,404
------------- ------------- -------------
Gross margin . . . . . . . . . . . $ 8,881 $ 5,828 $ 3,224
============= ============= =============
</TABLE>
(14) RELATED PARTY TRANSACTION
The Company entered into a license agreement with a stockholder in February
1995. The agreement was amended in December 1996. Under the amended agreement,
the stockholder is licensed to sell a product of the Company for which the
stockholder will pay a royalty after a set number of sales. No sales of the
product have been made since 1995. The Company entered into a reseller agreement
with this stockholder in March 1998. Under the agreement, the stockholder may
resell certain products of the Company to a named hospital system.
(15) EMPLOYEE BENEFIT PLANS
The Company sponsors a profit sharing plan (the "Plan") intended to qualify
under Section 401(k) of the Internal Revenue Code. All employees are eligible to
participate in the Plan after three months of service. Employees may contribute
a portion of their salary to the Plan, subject to annual limitations imposed by
the Internal Revenue Code. The Company may make matching or discretionary
contributions to the Plan at the discretion of the Board of Directors, but has
made no such contribution to date. Employer contributions generally vest over
seven years.
The Company sponsors a defined benefit pension plan (the "pension plan")
covering all former employees of National Health Advisors. The pension plan was
amended to freeze benefit accruals and the entry of new participants effective
October 31, 1997. Because the expected future service of participants under the
pension plan was eliminated during 1997, this constitutes a curtailment under
the provisions of SFAS No. 88, "Employers Accounting for Settlements and
Curtailments of Defined Benefit Pension Plans and for Termination Benefits".
The benefits are based on final average compensation and are offset by each
employee's interest in the Company's profit sharing plan. The Company's funding
policy is to contribute annually an amount that can be deducted for federal
income tax purposes and meets minimum funding standards, using an actuarial cost
method and assumptions which are different from those used for financial
reporting.
<TABLE>
<CAPTION>
DEFINED BENEFIT
PENSION PLAN
-----------------------------
1999 1998
----------------- ----------
<S> <C> <C>
CHANGE IN BENEFIT OBLIGATION
Benefit obligation at beginning of year. . . . . . $ 173,512 $ 293,744
Service cost . . . . . . . . . . . . . . . . . . . 8,581 149,570
Interest cost. . . . . . . . . . . . . . . . . . . 13,013 22,031
Plan participants' contributions . . . . . . . . . - -
Actuarial gain/loss. . . . . . . . . . . . . . . . (21,567) (310,634)
Benefits paid. . . . . . . . . . . . . . . . . . . - -
Amendments . . . . . . . . . . . . . . . . . . . . - -
Business combinations. . . . . . . . . . . . . . . - -
Divestitures . . . . . . . . . . . . . . . . . . . - -
Curtailments . . . . . . . . . . . . . . . . . . . - -
Settlements. . . . . . . . . . . . . . . . . . . . - -
----------------- ----------
Benefit obligation at end of year. . . . . . . . . $ (173,539) $(154,711)
----------------- ----------
CHANGES IN PLAN ASSETS
Fair value of plan assets at beginning of year . . 210,923 186,540
Actual return on plan assets . . . . . . . . . . . 41,336 (71,161)
Employer contribution. . . . . . . . . . . . . . . 2,009 95,544
Plan participants' contributions . . . . . . . . . - -
Benefits paid. . . . . . . . . . . . . . . . . . . - -
34
<PAGE>
Business combinations. . . . . . . . . . . . . . . - -
Divestitures . . . . . . . . . . . . . . . . . . . - -
Settlements. . . . . . . . . . . . . . . . . . . . - -
Fair value of plan assets at end of year . . . . . $ 254,268 $ 210,923
----------------- ----------
FUNDED STATUS
Unrecognized net actuarial gain/loss . . . . . . . (244,389) (225,482)
----------------- ----------
Unrecognized prior service cost. . . . . . . . . . - -
Unrecognized net obligation. . . . . . . . . . . . 43,126 37,411
Intangible asset . . . . . . . . . . . . . . . . . - -
----------------- ----------
Prepaid (accrued) benefit cost . . . . . . . . . . $ (201,263) $(188,071)
WEIGHTED-AVERAGE ASSUMPTIONS AS OF DECEMBER 31
Discount rate. . . . . . . . . . . . . . . . . . . 7.50% 7.50%
Expected return on plan assets . . . . . . . . . . 7.50% 7.50%
Rate of compensation increase. . . . . . . . . . . 5.00% 5.00%
COMPONENTS OF NET PERIODIC BENEFIT COST
Service cost . . . . . . . . . . . . . . . . . . . 8,581 149,570
Interest cost. . . . . . . . . . . . . . . . . . . 13,013 22,031
Expected return on plan assets . . . . . . . . . . (16,779) (13,991)
Asset loss deferred. . . . . . . . . . . . . . . . - -
Amortization of unrecognized transition obligation - -
Amortization of recognized gain/loss . . . . . . . (8,415) -
Amortization of prior service cost . . . . . . . . 18,801 18,801
Settlement or curtailment recognized gain/loss . . - -
----------------- ----------
Net periodic benefit cost. . . . . . . . . . . . . $ 15,201 $ 176,411
----------------- ----------
</TABLE>
(16) SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest was $ 30,000, $38,000 and $46,000 for the years
ended December 31, 1999, 1998 and 1997, respectively.
(17) FAIR VALUE OF FINANCIAL INSTRUMENTS
Financial instruments included in current assets and current liabilities,
which include cash and cash equivalents, accounts and trade receivables,
accounts payable and accrued expenses, approximate fair value.
Obligations under capital leases have carrying values that approximate fair
values as the significant notes are carried net of imputed interest calculated
at approximate current market rates.
35
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
TO APACHE MEDICAL SYSTEMS, INC.:
We have audited in accordance with generally accepted auditing standards
the December 31, 1997 consolidated financial statements of APACHE Medical
Systems, Inc. included in this Form 10-K and have issued our report thereon
dated March 27, 1998. Our audit was made for the purpose of forming an opinion
on the basic financial statements taken as a whole. The schedule listed in the
index is the responsibility of the Company's management and is presented for
purposes of complying with the Securities and Exchange Commission's rules and is
not a part of the basic financial statements. The information as of and for the
year ended December 31, 1997 included in the schedule has been subjected to the
auditing procedures applied in the audit of the basic financial statements and,
in our opinion, fairly states, in all material respects, the financial data
required to be set forth therein in relation to the basic financial statements
taken as a whole.
ARTHUR ANDERSEN LLP
Vienna, VA
March 27, 1998
36
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
ADDITIONS
BALANCE AT CHARGED TO
BEGINNING OF COSTS AND BALANCE AT END
DESCRIPTION PERIOD EXPENSES DEDUCTIONS OF PERIOD
- ------------------------------------------ ------------ ---------- -------------- ---------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts receivable
1997. . . . . . . . . . . . . . . . . 102,292 611,222 228,503 485,011
1998. . . . . . . . . . . . . . . . . 485,011 60,021 30,739 514,293
1999. . . . . . . . . . . . . . . . . 514,293 91,708 75,311 530,690
</TABLE>
37
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning the directors and executive officers of the Company
is incorporated herein by reference from the Company's Proxy Statement for the
2000 Annual Meeting of Stockholders to be filed with the Securities and Exchange
Commission by April 29, 2000.
ITEM 11. EXECUTIVE COMPENSATION
Information concerning management compensation is incorporated herein by
reference from the Company's Proxy Statement for the 2000 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission by April
29, 2000.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information concerning security ownership of certain beneficial owners and
management is incorporated herein by reference from the Company's Proxy
Statement for the 2000 Annual Meeting of Stockholders to be filed with the
Securities and Exchange Commission by April 29, 2000.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information concerning certain relationships and related transactions is
incorporated herein by reference from the Company's Proxy Statement for the 2000
Annual Meeting of Stockholders to be filed with the Securities and Exchange
Commission by April 29, 2000.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) List of documents filed as part of this report.
1. The consolidated financial statements required by Part IV, Item 14 are
included in Part II, Item 8.
2. The financial statement schedules required by Part IV, Item 14 are
included in Part II, Item 8.
(b) Reports on Form 8-K.
The Company has not filed any Reports on Form 8-K for the quarterly period
ended December 31, 1999.
(c) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------ ---------------------------------------------------------------
<C> <S>
2.1 Asset Purchase Agreement by and among the Company and Dun &
Bradstreet HealthCare Information, Inc. and Cognizant
Corporation dated as of December 30, 1996 (1)
2.2 Asset Purchase Agreement by and among the Company and Iowa
Health Centers, P.C. d/b/a Iowa Heart Center, P.C., Mercy
Hospital Medical Center, Mark A. Tannenbaum, M.D. and Iowa
Heart Institute dated as of January 7, 1997 (1)
2.3 Agreement and Plan of Merger among the Company, NHA
Acquisition Corporation, National Health Advisors, Ltd.,
Scott A. Mason and Donald W. Seymour dated as of June 2,
1997 (5)
3.1 Amended and Restated Certificate of Incorporation (5)
3.2 By-Laws (2)
4.1 Specimen Common Stock Certificate (2)
38
<PAGE>
4.2 Rights Agreement between the Company and First Chicago Trust
Company of New York, dated as of May 6, 1997 (3)
10.1 APACHE Medical Systems, Inc. Employee Stock Option Plan * (5)
10.2 APACHE Medical Systems, Inc. Non-Employee Director Option Plan * (5)
10.3 Sublease Agreement between the Company and First Union
National Bank of Virginia, dated March 17, 1994 (2)
10.4 Registration Agreement between the Company and Certain
Stockholders, dated December 28, 1995 (2)
10.5 Form of Warrant Agreement relating to warrants issued in
1995 (2)
10.6 Warrant Agreement between the Company and Venture Fund of
Washington, dated May 13, 1991 (2)
10.7 Licensing Agreement between the Company and Cerner
Corporation, dated February 2, 1995 (2)
10.8 Nonqualified Stock Option Agreement between the Company and
The Cleveland Clinic Foundation, dated August 19, 1994 (2)
10.9 Agreement between the Company and The George Washington
University, dated August 19, 1994 (2)
10.10 Letter Agreement between the Company and the Northern New
England Cardiovascular Disease Study Group, dated March 13,
1995 (2)
10.11 Licensing Agreement between the Company and Quality
Information Management Corporation, dated March 24, 1994 (2)
10.12 Marketing Agreement between the Company and American
Healthcare Systems Purchasing Partners, L.P., dated as of
June 3, 1996 (2)
10.13 Registration Agreement between the Company and each of Iowa
Health Centers, P.C. d/b/a Iowa Heart Center, P.C., Mercy
Hospital Medical Center, Mark A. Tannenbaum, M.D. and Iowa
Heart Institute dated January 7, 1997 (1)
10.14 Nonqualified Stock Option Agreements between the Company and
each of Iowa Health Centers, P.C. d/b/a Iowa Heart Center,
P.C., Mercy Hospital Medical Center and Mark A. Tannenbaum,
M.D., dated January 7, 1997 (4)
10.15 Security Agreement dated February 11, 1997 made by the
Company for the use and benefit of Crestar Bank and
corresponding Commercial Note (5)
10.16 License Agreement between the Company and Vermont Oxford
Network, Inc., Related Services Agreement between the
Company and Vermont Oxford Network, Inc. and Consulting
Agreement between the Company and Clinimetrics, Inc. each
effective as of June 24, 1997 ** (5)
10.17 Employment Agreement by and between the Company and Gerald
E. Bisbee, Jr., Ph.D., dated May 5, 1997 * (5)
10.18 Employment Agreement by and between the Company and Scott A.
Mason, dated June 2, 1997 * (5)
10.19 Nonqualified Stock Option Agreement between the Company and
William A. Knaus, M.D. dated May 29, 1997 * (5)
10.20 APACHE Medical Systems, Inc. Employee Stock Option Plan,
Amended and Restated February 23, 1998, including forms of
Incentive Stock Option Agreement and Nonqualified Stock
Option Agreement * (6)
10.21 Form of 1998 Employment Agreement * (6)
10.22 Form of Nonqualified Director Stock Option Agreement * (6)
10.23 Employment Agreement by and between Peter Gladkin and the
Company, dated May 30, 1998 * (7)
10.24 Employment Agreement by and between Gina Campbell and the
Company, dated August 24, 1998 * (8)
10.25 Employment Agreement by and between Karen Miller and the
Company, dated September 30, 1998 * (8)
10.26 Lease between Tysons II Development Co. Limited Partnership
and the Company, dated August 16, 1999
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
27.1 Financial Data Schedule
<FN>
* Reflects management contract or other compensatory arrangement required to
be filed as an exhibit pursuant to Item 14(c) of this Form 10-K
** Confidential portions omitted and supplied separately to the Securities and
Exchange Commission staff.
39
<PAGE>
(1) Incorporated herein by reference to the Company's Report on Form 8-K
filed on January 14, 1997 (File No. 0-20805)
(2) Incorporated herein by reference to the Company's Registration Statement
on Form S-1 (File No. 333-04106)
(3) Incorporated herein by reference to the Company's Current Report on Form
8-K filed on June 4, 1997 (File No. 0-20805)
(4) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended March 31, 1997 (File No. 0-20805)
(5) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended June 30, 1997 (File No. 0-20805)
(6) Incorporated herein by reference to the Company's Report on Form 10-K
for the year ended December 31, 1997 (File No. 0-20805)
(7) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended June 30, 1998 (File No. 0-20805)
(8) Incorporatd herein by reference to the Company's Report on Form 10-K for
the year ended December 31, 1998 (File No. 0-20805)
</TABLE>
(d) Financial Statement Schedules
The financial statement schedules required by Part IV, Item 14 are
included in Part II, Item 8.
40
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, on March 30, 2000.
APACHE MEDICAL SYSTEMS, INC.
By: /s/ PETER GLADKIN
------------------------------
Peter Gladkin
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below on March 30, 2000 by the following persons on
behalf of the Registrant in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- -------------------------------- -------------------------
<S> <C>
/s/ PETER GLADKIN President and Chief
- -------------------------------- Executive Officer
Peter Gladkin
/s/ KAREN C. MILLER Vice President, Finance and Chief Financial Officer
- -------------------------------- (Princial Finance and Accounting Officer)
Karen C. Miller
/s/ EDWARD J. CONNORS Director
- --------------------------------
Edward J. Connors
/s/ THOMAS W. HODSON Director
- --------------------------------
Thomas W. Hodson
/s/ WILLIAM A. KNAUS, M.D. Director
- --------------------------------
William A. Knaus, M.D.
/s/ LAWRENCE S. LEWIN Director
- --------------------------------
Lawrence S. Lewin
/s/ RICHARD E. DESSIMOZ Director
- --------------------------------
Richard E. Dessimoz
/s/ GERALD E. BISBEE, JR., PH.D. Director
- --------------------------------
Gerald E. Bisbee, Jr., Ph.D.
</TABLE>
41
<PAGE>
APACHE MEDICAL SYSTEMS, INC.
BOARD OF DIRECTORS
Gerald E. Bisbee, Jr., Ph.D.
President, Chairman &
Chief Executive Officer
ReGen Biologics, Inc.
Edward J. Connors
President
Connors/Roberts & Associates
Richard Dessimoz
Vice President & Chief Executive Officer
Wabash National Finance Corporation
Peter Gladkin
President & Chief Executive Officer
APACHE Medical Systems, Inc.
Thomas W. Hodson
Vice Chairman & Chief Executive Officer
NeuroSource, Inc.
William A. Knaus, M.D.
University of Virginia School of Medicine,
Chairman of the Department of Health Evaluation Sciences
Chief Scientific Advisor,
APACHE Medical Systems, Inc.
Lawrence S. Lewin
Chief Executive Officer
Lewin Group
To obtain additional copies of the Company's
Annual Report on Form 10-K, contact
the Investor Relations Department at
the Company's corporate headquarters.
42
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ------------ ---------------------------------------------------------------
<C> <S>
2.1 Asset Purchase Agreement by and among the Company and Dun &
Bradstreet HealthCare Information, Inc. and Cognizant
Corporation dated as of December 30, 1996 (1)
2.2 Asset Purchase Agreement by and among the Company and Iowa
Health Centers, P.C. d/b/a Iowa Heart Center, P.C., Mercy
Hospital Medical Center, Mark A. Tannenbaum, M.D. and Iowa
Heart Institute dated as of January 7, 1997 (1)
2.3 Agreement and Plan of Merger among the Company, NHA
Acquisition Corporation, National Health Advisors, Ltd.,
Scott A. Mason and Donald W. Seymour dated as of June 2,
1997 (5)
3.1 Amended and Restated Certificate of Incorporation (5)
3.2 By-Laws (2)
4.1 Specimen Common Stock Certificate (2)
4.2 Rights Agreement between the Company and First Chicago Trust
Company of New York, dated as of May 6, 1997 (3)
10.1 APACHE Medical Systems, Inc. Employee Stock Option Plan * (5)
10.2 APACHE Medical Systems, Inc. Non-Employee Director Option Plan * (5)
10.3 Sublease Agreement between the Company and First Union
National Bank of Virginia, dated March 17, 1994 (2)
10.4 Registration Agreement between the Company and Certain
Stockholders, dated December 28, 1995 (2)
10.5 Form of Warrant Agreement relating to warrants issued in
1995 (2)
10.6 Warrant Agreement between the Company and Venture Fund of
Washington, dated May 13, 1991 (2)
10.7 Licensing Agreement between the Company and Cerner
Corporation, dated February 2, 1995 (2)
10.8 Nonqualified Stock Option Agreement between the Company and
The Cleveland Clinic Foundation, dated August 19, 1994 (2)
10.9 Agreement between the Company and The George Washington
University, dated August 19, 1994 (2)
10.10 Letter Agreement between the Company and the Northern New
England Cardiovascular Disease Study Group, dated March 13,
1995 (2)
10.11 Licensing Agreement between the Company and Quality
Information Management Corporation, dated March 24, 1994 (2)
10.12 Marketing Agreement between the Company and American
Healthcare Systems Purchasing Partners, L.P., dated as of
June 3, 1996 (2)
10.13 Registration Agreement between the Company and each of Iowa
Health Centers, P.C. d/b/a Iowa Heart Center, P.C., Mercy
Hospital Medical Center, Mark A. Tannenbaum, M.D. and Iowa
Heart Institute dated January 7, 1997 (1)
10.14 Nonqualified Stock Option Agreements between the Company and
each of Iowa Health Centers, P.C. d/b/a Iowa Heart Center,
P.C., Mercy Hospital Medical Center and Mark A. Tannenbaum,
M.D., dated January 7, 1997 (4)
10.15 Security Agreement dated February 11, 1997 made by the
Company for the use and benefit of Crestar Bank and
corresponding Commercial Note (5)
10.16 License Agreement between the Company and Vermont Oxford
Network, Inc., Related Services Agreement between the
Company and Vermont Oxford Network, Inc. and Consulting
Agreement between the Company and Clinimetrics, Inc. each
effective as of June 24, 1997 ** (5)
10.17 Employment Agreement by and between the Company and Gerald
E. Bisbee, Jr., Ph.D., dated May 5, 1997 * (5)
10.18 Employment Agreement by and between the Company and Scott A.
Mason, dated June 2, 1997 * (5)
10.19 Nonqualified Stock Option Agreement between the Company and
William A. Knaus, M.D. dated May 29, 1997 * (5)
10.20 APACHE Medical Systems, Inc. Employee Stock Option Plan,
Amended and Restated February 23, 1998, including forms of
Incentive Stock Option Agreement and Nonqualified Stock
Option Agreement * (6)
10.21 Form of 1998 Employment Agreement * (6)
10.22 Form of Nonqualified Director Stock Option Agreement * (6)
43
<PAGE>
10.23 Employment Agreement by and between Peter Gladkin and the
Company, dated May 30, 1998 * (7)
10.24 Employment Agreement by and between Gina Campbell and the
Company, dated August 24, 1998 * (8)
10.25 Employment Agreement by and between Karen Miller and the
Company, dated September 30, 1998 * (8)
10.26 Lease between Tysons II Development Co. Limited Partnership
and the Company, dated August 16, 1999
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
27.1 Financial Data Schedule
- -------------
<FN>
* Reflects management contract or other compensatory arrangement required to
be filed as an exhibit pursuant to Item 14(c) of this Form 10-K
** Confidential portions omitted and supplied separately to the Securities and
Exchange Commission staff.
(1) Incorporated herein by reference to the Company's Report on Form 8-K
filed on January 14, 1997 (File No. 0-20805)
(2) Incorporated herein by reference to the Company's Registration Statement
on Form S-1 (File No. 333-04106)
(3) Incorporated herein by reference to the Company's Current Report on Form
8-K filed on June 4, 1997 (File No. 0-20805)
(4) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended March 31, 1997 (File No. 0-20805)
(5) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended June 30, 1997 (File No. 0-20805)
(6) Incorporated herein by reference to the Company's Report on Form 10-K
for the year ended December 31, 1997 (File No. 0-20805)
(7) Incorporated herein by reference to the Company's Report on Form 10-Q
for the quarter ended June 30, 1998 (File No. 0-20805)
(8) Incorporatd herein by reference to the Company's Report on Form 10-K for
the year ended December 31, 1998 (File No. 0-20805)
</TABLE>
44
EXHIBIT 10.26
THE CORPORATE OFFICE CENTRE
AT TYSONS II
1650 Tysons Boulevard
McLean, Virginia 22102
DEED OF LEASE
BY AND BETWEEN
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
and
APACHE MEDICAL SYSTEMS, INC.
dated
August 16, 1999
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<C> <S> <C>
1. Definition, Terms and Conditions. . . . . . . . . . . . . . . . 1
a. Special Definitions, Terms and Conditions. . . . . . . . 1
2. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Term and Commencement Date . . . . . . . . . . . . . . . 7
b. Delay in Possession. . . . . . . . . . . . . . . . . . . 7
c. Delays Caused by Tenant. . . . . . . . . . . . . . . . . 7
d. Tender of Possession . . . . . . . . . . . . . . . . . . 7
e. Early Possession . . . . . . . . . . . . . . . . . . . . 7
3. Rent and Additional Charges; Computation. . . . . . . . . . . . 8
a. Payment of Rent and Additional Charges . . . . . . . . . 8
b. Computation of Operating Expense . . . . . . . . . . . . 9
c Interest . . . . . . . . . . . . . . . . . . . . . . . . 10
d. Accord and Satisfaction. . . . . . . . . . . . . . . . . 10
e. Late Payment Charge. . . . . . . . . . . . . . . . . . . 10
f. Right to Audit . . . . . . . . . . . . . . . . . . . . . 10
4. Services and Utilities. . . . . . . . . . . . . . . . . . . . 10
a. Types. . . . . . . . . . . . . . . . . . . . . . . . . . 10
b. Access . . . . . . . . . . . . . . . . . . . . . . . . . 11
c. Interruption in Services . . . . . . . . . . . . . . . . 12
5. Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . 12
6. Use of Leased Premises. . . . . . . . . . . . . . . . . . . . . 12
a. General Offices. . . . . . . . . . . . . . . . . . . . . 12
b. Covenants. . . . . . . . . . . . . . . . . . . . . . . . 12
c. Compliance . . . . . . . . . . . . . . . . . . . . . . . 13
d. Rules and Regulations. . . . . . . . . . . . . . . . . . 13
7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
a. Tenant . . . . . . . . . . . . . . . . . . . . . . . . . 14
b. Landlord . . . . . . . . . . . . . . . . . . . . . . . . 15
c. Waiver of Subrogation. . . . . . . . . . . . . . . . . . 15
8. Damage by Fire or Other Casualty. . . . . . . . . . . . . . . . 16
9. Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . 16
10. Assignment and Subletting . . . . . . . . . . . . . . . . . . . 16
a. Landlord's Consent Required. . . . . . . . . . . . . . . 16
b. Leveraged Buy-Out. . . . . . . . . . . . . . . . . . . . 17
c. Standard for Approval. . . . . . . . . . . . . . . . . . 17
d. Additional Terms and Conditions. . . . . . . . . . . . . 18
e. Additional Terms and Conditions Applicable to Subletting 19
f. Transfer Premium from Assignment or Subletting . . . . . 20
g. Landlord's Option to Recapture . . . . . . . . . . . . . 20
h. Landlord's Expenses. . . . . . . . . . . . . . . . . . . 20
i. Permitted Transactions . . . . . . . . . . . . . . . . . 21
11. Default Provisions. . . . . . . . . . . . . . . . . . . . . . . 21
a. Events of Default. . . . . . . . . . . . . . . . . . . . 21
b. Remedies . . . . . . . . . . . . . . . . . . . . . . . . 21
c. Damages. . . . . . . . . . . . . . . . . . . . . . . . . 22
d. Basic Rent and Additional Charges. . . . . . . . . . . . 22
12. Bankruptcy Termination Provision. . . . . . . . . . . . . . . . 23
13. Landlord May Perform Tenant's Obligations . . . . . . . . . . . 23
14. Security Deposit. . . . . . . . . . . . . . . . . . . . . . . . 23
15. Subordination; Attornment . . . . . . . . . . . . . . . . . . . 24
a. Subordination. . . . . . . . . . . . . . . . . . . . . . 24
b. Modification . . . . . . . . . . . . . . . . . . . . . . 24
c. Attornment . . . . . . . . . . . . . . . . . . . . . . . 25
d. Non-disturbance. . . . . . . . . . . . . . . . . . . . . 25
16. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . 26
<PAGE>
17. Landlord's Right of Access. . . . . . . . . . . . . . . . . . . 26
18. Limitation on Landlord's Liability. . . . . . . . . . . . . . . 26
a. Limitation . . . . . . . . . . . . . . . . . . . . . . . 26
b. Force Majeure. . . . . . . . . . . . . . . . . . . . . . 26
19. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . 27
a. Definition and Consent . . . . . . . . . . . . . . . . . 27
b. Duty to Inform Landlord. . . . . . . . . . . . . . . . . 27
c. Inspection; Compliance . . . . . . . . . . . . . . . . . 27
20. Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 28
21. Surrender of Leased Premises. . . . . . . . . . . . . . . . . . 28
22. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23. Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . 30
24. Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
25. Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
a. Definition . . . . . . . . . . . . . . . . . . . . . . . 31
b. Options Personal . . . . . . . . . . . . . . . . . . . . 31
c. Multiple Options . . . . . . . . . . . . . . . . . . . . 31
d. Effect of Default on Options . . . . . . . . . . . . . . 31
e. Limitations on Options . . . . . . . . . . . . . . . . . 31
f. Notice of Exercise of Option . . . . . . . . . . . . . . 31
26. Leasing Commission. . . . . . . . . . . . . . . . . . . . . . . 32
27. General Provisions. . . . . . . . . . . . . . . . . . . . . . . 32
a. Binding Effect . . . . . . . . . . . . . . . . . . . . . 32
b. Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 32
c. Attorney's Fees. . . . . . . . . . . . . . . . . . . . . 32
d. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 32
e. Security Interest. . . . . . . . . . . . . . . . . . . . 32
f. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 33
g. Entirety . . . . . . . . . . . . . . . . . . . . . . . . 33
h. Waiver of Jury . . . . . . . . . . . . . . . . . . . . . 33
i. Waiver of Venue. . . . . . . . . . . . . . . . . . . . . 33
j. Confidentiality. . . . . . . . . . . . . . . . . . . . . 33
k. Tenant Entity. . . . . . . . . . . . . . . . . . . . . . 33
l. Time of Essence. . . . . . . . . . . . . . . . . . . . . 34
m. Words and Phrases. . . . . . . . . . . . . . . . . . . . 34
n. Limit on Landlord's Liability. . . . . . . . . . . . . . 34
o. Counterparts . . . . . . . . . . . . . . . . . . . . . . 34
p. Exhibits and Addendum. . . . . . . . . . . . . . . . . . 34
</TABLE>
Addendum
Exhibit A
Exhibit A-1
Exhibit C
Exhibit D
Exhibit E
Exhibit F
EXHIBIT G
<PAGE>
This page was intensionly left blank.
<PAGE>
THE CORPORATE OFFICE CENTRE AT TYSONS II
DEED OF LEASE
This DEED OF LEASE (hereinafter, this "Lease") dated as of the 16th day
of August, 1999, is by and between TYSONS II DEVELOPMENT CO. LIMITED
PARTNERSHIP, a Maryland limited partnership (hereinafter, "Landlord"), and
APACHE MEDICAL SYSTEMS, INC., a Delaware corporation (hereinafter,
"Tenant").
WITNESS, subject to the terms of this Lease, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the Leased Premises (as defined
below), for the Term (as defined below).
1. Definitions, Terms, and Conditions.
----------------------------------
(a) Special Definitions, Terms, and Conditions. Throughout this Lease,
------------------------------------------
the following words and phrases shall have the meanings indicated and obligate
the parties as stated:
(1) Advance Deposit. $54,221.38 [an amount equal to one (1)
----------------
month's Basic Rent]. Such Advance Deposit shall be paid by Tenant to Landlord
upon Tenant's execution hereof and held by Landlord as temporary security for
the performance of Tenant's obligations hereunder. Such Advance Deposit shall be
applied to Basic Rent for the first full month of the Term for which Basic Rent
is actually payable.
(2) Rent.
----
(A) Basic Rent.
----------
During the Initial Term hereof, Tenant shall pay Basic
Rent for the Leased Premises (as defined in Section 1(a)(5) below) in accordance
with the following schedule:
Initial Term Basic Rent Per Rentable Square Foot
------------- ----------------------------------------
(In Full Calendar Months)
----------------------------
Lease Commencement Date -
End of First 12 Full Calendar Months $30.50
13-24 $31.42
25-36 $32.36
37-48 $33.33
49-60 $34.33
61-72 $35.36
73-84 $36.42
(B) Parking Rent. $70.00 per month, per permit for each
------------
of the seventy-seven (77) parking permits (the "Initial Permits") (3.6 PERMITS
PER 1,000 SQUARE FEET OF THE LEASED PREMISES) during the first Lease Year (as
defined in Section 1(b)(6) below). At the beginning of each Lease Year
thereafter during the Term, the Parking Rent shall be an amount equal to the
Parking Rent applicable during the immediately preceding Lease Year increased by
three percent (3%). Of the seventy-seven (77) Initial Permits, Tenant shall be
permitted eight (8) of such Initial Permits to be for reserved spaces in the
location designated on Exhibit A-1 attached hereto. Tenant shall be entitled to
-----------
the use of and shall be obligated to lease and pay for all of the Initial
Permits throughout the entire Term of the Lease. In the event Tenant requests
additional spaces in addition to the Initial Permits, such parking spaces shall
be made available to Tenant, to the extent available, and on terms then being
made available to the general public for off-street parking in the parking
garage.
<PAGE>
(3) Initial Term. The period commencing on the Lease Commencement
------------
Date and ending on the last day of the calendar month which completes
eighty-four (84) full calendar months thereafter, unless sooner terminated in
accordance with the provisions hereof.
(4) Lease Commencement Date. December 1, 1999, subject to
-------------------------
adjustment in accordance with Section 2 below.
(5) Leased Premises. The entire third (3rd) floor of the Building
---------------
designated as Suite 300 and as outlined on the floor plan attached hereto as
Exhibit A (exclusive of any Building mechanical, electrical, telephone or
similar rooms, janitor closets, elevator, pipe and other vertical shafts, ducts
and stairwells); the agreed upon rentable square footage of the Leased Premises,
including core space, is 21,333 square feet.
(6) (I) Proportionate Share for Operating Expenses. The
------------------------------------------------
percentage that the rentable square footage of the Leased Premises bears to the
total rentable square footage of all office space in the Building, except as
provided in Section 1(b)(8) hereof.
(ii) Proportionate Share for Real Estate Taxes. 5.9% which
-----------------------------------------
is the percentage that the rentable square footage of the Leased Premises bears
to the total rentable square footage of the Building.
(7) Operating Expense Increases. Tenant agrees to pay the
-----------------------------
Proportionate Share of Operating Expenses (as defined below) for a given Lease
Year in excess of Operating Expenses for the calendar year 2000 (the "Base
Year"), as more fully provided in Section 3.
(8) Security Deposit. $122,540.31, held subject to Section 14
-----------------
below.
(9) Tenant's Notice Address. To the Leased Premises, ATTENTION:
-----------------------
PETER GLADKIN, PRESIDENT AND CEO.
(10) Leasing Broker(s). Landlord's Leasing Broker (Diamond
------------------
Property Company) and Tenant's Leasing Broker (GSHH/LBG, L.L.C. T/A ADVANTIS).
(b) General Definitions, Terms, and Conditions. As used in this Lease,
------------------------------------------
the following words and phrases shall have the meanings indicated and obligate
the parties as stated:
(1) Additional Charges. All amounts payable by Tenant to Landlord
------------------
under this Lease other than the Basic Rent. All Additional Charges shall be
deemed to be additional rent and all remedies applicable to non-payment of Basic
Rent shall be applicable thereto. Herein, Basic Rent and Additional Charges may
be referred to in combination as "Rent."
(2) Building. The existing office building located at 1650 Tysons
--------
Boulevard, McLean, Virginia 22102, consisting of 363,764 rentable square feet,
including the underlying lot, the Common Areas (as defined below), along with
portions of the adjacent parking structure allocated to the Building by
Landlord, except that Landlord reserves and Tenant shall have no right in and to
(i) the ownership and use of the exterior faces of all perimeter walls of the
Building, (ii) the ownership and use of the roof of the Building, or (iii) the
ownership and use of the air space above the Building.
(3) Common Areas. All areas and facilities of the Building for
-------------
the common use and/or benefit of tenants of the Building as allocated by
Landlord, including the exterior of the Building and areas and facilities shared
with buildings adjacent to the Building, and including, without limitation, the
public lobbies, elevators, corridors, stairways, toilet rooms, parking areas,
motor court plaza, loading and unloading areas, roadways and sidewalks. Except
as provided herein, throughout the Term, Tenant, its agents, employees and
business invitees shall have the non-exclusive right, in common with others, to
use the Common Areas of the Building. Provided reasonable access to and from the
Leased Premises is maintained, Landlord shall have the right at any time,
without Tenant's consent, to change the arrangement or location of entrances,
passageways, doors, doorways, corridors, stairs, toilet rooms or other elements
2
<PAGE>
of the Common Areas of the Building, or to change the name, number or
designation by which the Building is known; provided that Landlord shall
reimburse Tenant the reasonable third party out-of-pocket costs incurred by
Tenant in connection with such change in name, number or designation. Landlord
may also designate other land and improvements outside the boundaries of the
Building to be a part of the Common Areas, provided that such other land and
improvements have a reasonable, direct and functional relationship to the
Building. Landlord reserves unto itself the full and complete ownership of all
tangible personal property installed by Landlord in the Building.
(4) Event of Default. Any of the events set forth in Section 11
-----------------
hereof, or any default at law, the same sometimes herein being referred to as a
"default" by Tenant.
(5) Landlord's Notice Address.
-------------------------
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Legal Department
All rental payments shall be forwarded to:
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Accounts Receivable
1650 Tysons Boulevard
(6) Lease Year. The period commencing on the Lease Commencement
----------
Date and ending on the last day of the calendar year in which said Lease
Commencement Date occurs shall constitute the first "Lease Year" as such term is
used herein. Each successive full calendar year during the Term thereafter shall
constitute a "Lease Year" and any portion of the Term remaining after the last
full calendar year shall constitute the last "Lease Year" for the purposes of
this Lease.
(7) Mortgage. Any mortgage or deed of trust which affects any
--------
interest in the Building or Landlord, and the word "mortgagee" shall mean the
---------
holder of any such mortgage or the beneficiary of any such deed of trust.
(8) Operating Expenses. All COMMERCIALLY REASONABLE costs,
-------------------
expenses and fees, incurred or accrued each Lease Year, including the Base Year,
by Landlord in connection with the ownership, management, operation, servicing
and maintenance of the Building including, but not limited to, any COMMERCIALLY
REASONABLE costs incurred in keeping the Building in compliance with code;
repairs, maintenance, additions, replacements and improvements to the Building
(excluding capital improvements unless the same are reasonably intended by
Landlord to reduce Operating Expenses), including all parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, stairways, landscaped areas,
motor court plaza and fountains, striping, bumpers, irrigation systems, lighting
facilities, building exteriors and roofs, fences and gates related solely to the
Building; building, janitorial and cleaning supplies; uniforms and dry cleaning
services; window cleaning services, plumbing, mechanical, electrical systems,
life safety systems and equipment, telecommunication equipment, elevators,
escalators, tenant directories, fire detection systems, including sprinkler
system maintenance and repair; the cost of trash disposal, janitorial services
and security services and systems; service contracts for the maintenance and
operation of elevators, boilers, HVAC, mechanical equipment and exercise
equipment; employees' wages, salaries and fringe benefits; payroll taxes;
business and franchise taxes; Real Estate Taxes (as defined in subsection 11
below); any expenses reasonably incurred by Landlord in attempting to protest,
reduce or minimize Real Estate Taxes; electricity, gas, oil and other fuels,
solid waste and utility charges; sewer and water charges; premiums for fire and
casualty, liability, workmen's compensation and other insurance, including any
deductibles; telephone and facsimile services and other communications costs;
common transportation services; any costs in connection with equipping,
maintaining and operating the health club in the Building; any property owners
3
<PAGE>
association dues including the Tysons II Property Owners Association, Inc.; any
parking management fee; the cost of all business licenses, including Business
Professional and Occupational License Tax and Business Improvements Districts
Tax, any gross receipt taxes based on rental income or other payments received
by Landlord, commercial rental taxes or any similar taxes or fees; the cost of
installing intra-building network cabling ("INC") and maintaining, repairing,
securing and replacing existing INC; administrative costs and overhead expenses;
miscellaneous management-related expenses; and management fees. For purposes of
determining Tenant's Proportionate Share of Operating Expenses which are not
fixed and which vary depending upon Building occupancy levels, such as
janitorial services, electricity, and management fees based upon rental, the
Proportionate Share of such expenses shall be adjusted utilizing as the
numerator the rentable square footage of the Leased Premises and as the
denominator the rentable square footage of office tenants in occupancy of the
Building each Lease Year. For purposes of determining Tenant's Proportionate
Share of Operating Expenses which in certain instances have been contracted for
separately by other tenants of the Building, such as electricity and janitorial
services, the Proportionate Share of such expenses shall be adjusted utilizing
as the numerator the rentable square footage of the Leased Premises and as the
denominator the rentable square footage of all remaining office tenants of the
Building which do not contract separately for such services. If the cost
incurred in making an improvement or replacing any equipment is not fully
deductible as an expense in the year incurred in accordance with generally
accepted accounting principles or income tax rules, the cost shall be amortized
over the useful life of the improvement or equipment, as reasonably determined
by Landlord, together with an interest factor on the unamortized cost of such
item equal to the lesser of (i) twelve percent (12%) per annum, or (ii) the
maximum rate of interest permitted by applicable law.
In addition, notwithstanding anything to the contrary contained in the
definition of Operating Expenses set forth in this Section 1(b)(8), Operating
Expenses shall not include the following:
(i) Ground rent.
(ii) Salaries, benefits, wages or fees for employees above the
grade of property manager or for officers or partners of
Landlord.
(iii)Costs and expenses which would otherwise be included in
Operating Expenses but which are in excess of the
competitive rates for similar services of comparable
quality, rendered by persons or entities of similar skill,
competence and experience, provided however that a
management fee of four percent (4%) of gross revenues shall
be deemed not to exceed the competitive rate and shall be
included in the Base Year Operating Expenses and each
comparative year. Management fees for the Base Year and each
comparative year shall be computed as if the vacant areas of
the Building were fully rented at ninety-five percent (95%)
of the average rents being charged in the Building during
the applicable Lease Year.
(iv) To the extent that employees are not employed exclusively at
the Building, the costs and expenses with respect to such
employees should be prorated.
(v) Federal, state, county or municipal taxes, RECORDATION
TAXES, death taxes, GIFT TAXES, excess profit taxes,
franchise or any taxes imposed or measured on or by the
income or revenue of Landlord from the operation of the
Building.
(vi) Any expense for which Landlord is reimbursed from any tenant
or other third party, or under the terms of any insurance
policy, warranty or condemnation award.
(vii)Leasing commissions, MARKETING COSTS, attorneys' fees,
costs, disbursements and other expenses incurred in
connection with solicitation of and negotiation of leases
with tenants, other occupants or prospective tenants or
other occupants of the Building.
4
<PAGE>
(viii) All "tenant allowances", "tenant concessions" and other
costs or expenses incurred in completing, fixturing,
furnishing, renovating or otherwise improving, decorating or
redecorating space for tenants of the Building, or vacant
lease space in the Building including space planning fees.
(ix) All items, utilities and services for which Tenant or any
other tenant or occupant of the Building specifically
reimburses Landlord or for which Tenant or any other tenant
or occupant of the Building pays third parties.
(x) All costs or expenses (including fines, penalties, interest
and legal fees) incurred due to the violation by Landlord,
its employees, agents or contractors, or any tenant (other
than Tenant) or other occupant of the Building, of the terms
and conditions of any lease or other occupancy agreement
pertaining to the Building.
(xi) Payment of principal, finance charges or interest on debt or
amortization on any mortgage or other debt or any penalties
assessed as a result of Landlord's late payments of such
amounts.
(xii)Any costs of Landlord's general overhead, including general
and administrative expenses, which costs would not be
chargeable to Operating Expenses of the Building, in
accordance with generally accepted accounting principles,
consistently applied.
(xiii) Any costs or expenses for the acquisition of sculpture,
paintings, or other works of fine art.
(xiv)Any otherwise includible costs of correcting defects in the
Building and/or any associated garage facilities and/or
equipment or replacing defective equipment to the extent
such costs are covered by warranties of manufacturers,
suppliers or contractors.
(xv) All expenses directly resulting from the gross negligence or
willful misconduct of the Landlord, its agents or employees.
(xvi)All costs and expenses associated with the operation of the
business of the entity which constitutes Landlord as the
same are distinguished from the costs of operation of the
Building, including accounting and legal matters, costs of
defending any lawsuits with any Landlord's Mortgagee, costs
of selling, syndicating, financing, mortgaging or
hypothecating any of the Landlord's interest in the
Building, or costs of any disputes between Landlord and its
employees (if any) not engaged in Building operation.
(xvii) Rent for space which is not actually used by Landlord in
connection with the management or operation of the Building.
(xviii) Costs of correcting any violations under the Americans
with Disabilities Act existing as of the Lease Commencement
Date.
(XIX)All costs and expenses associated with causing the Building
and Building systems to not be impacted by the problem which
is commonly known as the "year 2000 problem" (i.e., the
inability of certain computer applications to recognize
correctly and perform date sensitive functions involving
certain dates prior to and after December 31, 1999).
(xx) OPERATING EXPENSES ATTRIBUTABLE TO THE PARKING GARAGE
ADJACENT TO THE BUILDING SHALL BE REDUCED BY THE AMOUNT OF
RECEIPTS DERIVED FROM THE PARKING GARAGE.
5
<PAGE>
(9) Person. A natural person, partnership, corporation or any
------
other form of business or legal association or entity.
(10) Prime Rate. The prime rate of interest charged from time to
----------
time by Bank of America or its successor to its most favored customers on
commercial loans having a 90-day duration.
(11) Real Estate Taxes. All taxes, assessments, water and sewer
-----------------
rents, if any, and other charges, if any, general, special or otherwise,
including all assessments for schools, public betterments and general or local
improvements, levied or assessed upon or with respect to the ownership of and/or
all other taxable interests in the Building imposed by any public or
quasi-public authority having jurisdiction. Except for taxes, fees, charges and
impositions described in the next succeeding sentence, Real Estate Taxes shall
not include any income inheritance, estate, succession, transfer, gift, profit
tax or capital levy. If at any time during the Term the methods of taxation
shall be altered so that in addition to or in lieu of or as a substitute for the
whole or any part of any Real Estate Taxes levied, assessed or imposed there
shall be levied, assessed or imposed against the Building (i) a tax, license
fee, excise or other charge on the rents received by Landlord, or (ii) any other
type of tax or other imposition in lieu of, or as a substitute for, or in
addition to, the whole or any portion of any Real Estate Taxes, then the same
shall be included as Real Estate Taxes. A tax bill or true copy thereof,
together with any explanatory or detailed statement of the area or property
covered thereby, submitted by Landlord to Tenant shall be prima facie evidence
----- -----
of the amount of taxes assessed or levied, as well as of the items taxed. In the
event any building or land adjacent to the Building in which Landlord has an
interest is not separately assessed and taxed, Landlord shall allocate a
proportionate share to each such building. If any real property tax or
assessment levied against the land, buildings or improvements covered hereby or
the rents reserved therefrom, shall be evidenced by improvement or other bonds,
or in other form, which may be paid in annual installments, only the amount paid
or accrued in any Lease Year shall be included as Real Estates Taxes for such
Lease Year as if Landlord paid in the maximum number of installments.
(12) Requirements. All laws, statutes, ordinances, codes, orders,
------------
rules, regulations, requirements and safety recommendations of all federal,
state and municipal governments, and the appropriate agencies, offices,
departments, boards and commissions thereof, Landlord's insurer(s), the board of
fire underwriters and/or the fire insurance rating organization or similar
organization performing the same or similar functions, whether now or hereafter
in force, applicable to the Building or any part thereof and/or the Leased
Premises, and notices from Landlord's mortgagee with respect to compliance with
its loan documents with Landlord, as to the manner of use or occupancy or the
maintenance, repair or condition of the Leased Premises and/or the Building, and
the requirements of the carriers of all fire insurance policies maintained by
Landlord on or with regard to the Building.
(13) Tenant Improvements. TENANT HEREBY ACCEPTS THE LEASED
--------------------
PREMISES IN ITS "AS-IS" CONDITION EXISTING ON THE LEASE COMMENCEMENT DATE.
LANDLORD SHALL HAVE NO OBLIGATION TO CONSTRUCT ANY TENANT IMPROVEMENTS TO THE
LEASED PREMISES ON BEHALF OF TENANT.
(14) Term. The Initial Term and the extended term(s), if any, as
----
to which Tenant shall have effectively exercised any right to extend, but in any
event the Term shall end on any date when this Lease is sooner terminated in
accordance with the provisions hereof.
2. Term.
----
(a) Term and Commencement Date. The Initial Term, Lease Commencement
---------------------------
Date and Term of this Lease are as specified in Sections 1(a)(3), 1(a)(4) and
1(b)(14), respectively. Tenant shall, within thirty (30) days after Landlord's
6
<PAGE>
request, complete and execute the letter attached hereto as Exhibit C and
---------
deliver it to Landlord. Tenant's failure to execute the letter attached hereto
as Exhibit C within said thirty (30) day period shall be a material default
hereunder and shall constitute Tenant's acknowledgement of the truth of the
facts contained in the letter delivered by Landlord to Tenant.
7
<PAGE>
3. Rent and Additional Charges; Computation of Operating Expense
----------------------------------------------------------------------
Increases.
---------
(a) Payment of Basic Rent and Additional Charges. Tenant shall pay the
--------------------------------------------
Basic Rent and Parking Rent in equal monthly installments in advance on the
first day of each month during the Term commencing on the Lease Commencement
Date; provided, however, if the Lease Commencement Date is not the first day of
a month, Basic Rent and Parking Rent for the period commencing on the Lease
Commencement Date and ending on the last day of the month in which the Lease
Commencement Date occurs shall be pro-rated for each day at the rate of
one-thirtieth (1/30) or one-thirty-first (1/31) of the full monthly installment
of Basic Rent and Parking Rent and paid on the Lease Commencement Date. If any
due and owing Basic Rent or Parking Rent is underpaid as a result of failure to
make any required adjustment thereto or other cause, after such required
adjustment thereto or other cause, Tenant shall pay such deficiency in its
entirety along with the next monthly payment of Basic Rent or Parking Rent.
Tenant shall also pay the Proportionate Share of Operating Expense Increases as
provided in Sections 1(a)(7) and 3(b) hereof. The Basic Rent and all Additional
Charges shall be paid promptly when due, in lawful money of the United States,
without notice or demand and without deduction, diminution, abatement,
counterclaim or set-off of any amount or for any reason whatsoever, EXCEPT AS
OTHERWISE PROVIDED HEREIN, to Landlord at Landlord's Notice Address or at such
other address or to such other person as Landlord may from time to time
designate. If Tenant makes any payment to Landlord by check, the same shall be
by check of Tenant or an affiliated entity of Tenant only, and Landlord shall
not be required to accept the check of any other person, and any check received
by Landlord shall be deemed received subject to collection. If any check is
mailed by Tenant, it should mailed to Landlord's Notice Address and Tenant shall
post such check in sufficient time prior to the date when payment is due so that
such check will be received by Landlord on or before the date when payment is
due. Tenant shall assume the risk of lateness or failure of delivery of the
mails. If, during the Term, Landlord receives two or more checks from Tenant
which are returned by Tenant's bank for insufficient funds or are otherwise
returned unpaid, Tenant agrees that all checks thereafter shall be either bank
certified or bank cashier's checks. All bank service charges resulting from any
bad checks shall be borne by Tenant. Notwithstanding the foregoing, UPON ONE
HUNDRED EIGHTY (180) DAYS PRIOR WRITTEN NOTICE TO TENANT, AND TO THE EXTENT THE
USE OF AN ACH, AS HEREINAFTER DEFINED, IS FEASIBLE FOR TENANT, Landlord shall
have the option of requiring Tenant to make all payments of Basic Rent by use of
an Automated Clearing House ("ACH") debit or credit, at the option of the
Tenant. The Rent reserved under this Lease shall be the total of all Basic Rent
and Additional Charges, increased and adjusted as elsewhere herein provided,
payable during the entire Term and, accordingly, the methods of payment provided
for herein, namely, annual and monthly rental payments, are for convenience only
and are made on account of the total Rent reserved hereunder, provided, however,
that unless this Lease has been terminated as a result of an Event of Default,
Landlord cannot demand payment of the Total Rent reserved hereunder in anything
but monthly rental payments.
(b) Computation of Operating Expenses.
---------------------------------
(1) Following the expiration of each Lease Year, Landlord shall
submit to Tenant a statement setting forth in reasonable detail the Operating
Expenses for the preceding Lease Year and the amount, if any, due to Landlord
from Tenant pursuant to Section 1(a)(7) for such Lease Year on account of such
Operating Expenses (the "Statement"). In addition, following the expiration of
the Base Year, Landlord shall submit to Tenant a Statement setting forth in
reasonable detail the Operating Expenses for the Base Year. Such Statement shall
constitute a final determination between the parties for the period represented
thereby, subject only to proper adjustments subsequently made by Landlord and
Tenant's right to dispute such determination and any such adjustment. Prior to
the rendition of any such Statement, Tenant shall continue to pay to Landlord,
on the first day of each month, the installments of the Operating Expenses due
from Tenant during the preceding Lease Year. If any such Statement shows any
8
<PAGE>
Operating Expenses due from Tenant with respect to such preceding Lease Year,
then Tenant shall make payment of any unpaid portion thereof within THIRTY (30)
days after receipt of such Statement. Tenant shall also pay to Landlord as
Additional Charges, commencing as of the first day of the month immediately
following the rendition of such Statement and on the first day of each month
thereafter until a new statement is rendered, 1/12th of the Operating Expenses
reasonably estimated by Landlord to be due from Tenant for the current Lease
Year (WHICH ESTIMATE SHALL NOT EXCEED FIVE PERCENT (5%) MORE THAN THE PRIOR
LEASE YEAR'S OPERATING EXPENSES); and, Tenant shall also pay to Landlord, as
Additional Charges, within THIRTY (30) days after receipt of such Statement, an
amount equal to the difference between (a) the product obtained by multiplying
the estimated Operating Expenses for the current Lease Year by a fraction, the
denominator of which shall be twelve (12) and the numerator of which shall be
the number of months of the current Lease Year which shall have elapsed prior to
the first day of the month immediately following the rendition of such
Statement, and (b) the sum of all previous Operating Expense payments (if any)
made by Tenant with respect to such prior months in the current Lease Year.
Payments based on the estimated Operating Expenses for the current Lease Year
shall be credited toward the actual Operating Expenses due from Tenant for the
current Lease Year, subject to adjustment as and when the Statement for such
current Lease Year is rendered by Landlord.
(2) Operating Expenses are included in the Basic Rent payable by
Tenant during the first twelve (12) months of the Initial Term. Tenant shall
commence paying the Proportionate Share of Operating Expense Increases on the
first anniversary of the Lease Commencement Date. Upon the date of expiration or
termination of this Lease, whether the same be the date hereinabove set forth
for the expiration of the Term, or any prior or subsequent date, a prorated
share of said Operating Expenses for the Lease Year during which such expiration
or termination occurs shall become due and payable by Tenant to Landlord WITHIN
TEN (10) DAYS OF LANDLORD'S NOTICE THEREOF TO TENANT, if it was not theretofore
already billed and paid. The said prorated share shall be based upon the length
of time that the Term shall have been in existence during such Lease Year.
Landlord shall, as soon as reasonably practicable, cause statements of the
Operating Expenses for that Lease Year to be prepared and furnished to Tenant.
Landlord and Tenant shall thereupon make appropriate adjustments of amounts then
owing. Landlord's and Tenant's obligation to make the adjustments referred to in
subparagraphs (1) and (2) of this Section 3(b) shall survive any expiration or
termination of this Lease AND ANY OVERPAYMENT OR UNDERPAYMENT OF OPERATING
EXPENSES SHALL BE PROMPTLY REMITTED. Any delay or failure of Landlord in billing
any Operating Expenses hereinabove provided shall not constitute a waiver of or
in any way impair the continuing obligation of Tenant to pay such Operating
Expenses.
(i) The Operating Expenses for the Base Year shall be
adjusted, if necessary, to a level of that of a 95% occupied and fully
operational office building at cost levels prevailing in the geographic market
in which the Building is located for an entire Lease Year. This APPROPRIATELY
DOCUMENTED adjustment shall include (a) when Building systems are under warranty
during the Base Year, an adjustment for the cost of service contracts and other
expenses that would have been incurred in the absence of such warranties; (b) an
adjustment for all other expenses that are not incurred if the Building is new
and start-up discounts or similar savings have been achieved; and (c)
adjustments for all other atypical costs that occur or do not occur during the
Base Year other than those costs which would occur in the Base Year in the
ordinary course of business. The purpose of these adjustments is to include in
the Building Operating Expenses for the Base Year all reasonable cost components
that occur or are likely to occur in later years and would be reasonable cost
components in the Base Year but for the fact that it is the Base Year.
(ii) If a new category of expense is incurred after the Base
Year, the first full year's expense for such item shall be added to the Building
Operating Expenses for the Base Year commencing with the first full calendar
year that such expense is incurred, so that Tenant shall only be required to pay
subsequent increases in such expense. The expense incurred for such item during
the first year shall be subject to the adjustments described in the immediately
preceding paragraph.
9
<PAGE>
(c) Interest. If Tenant fails to pay any Basic Rent or Additional
--------
Charges within five (5) days after the same becomes due and payable, interest
shall, at Landlord's option, accrue from the date due on the unpaid portion
thereof at the rate of one percent (1%) per month or five (5) percentage points
above the Prime Rate in effect on such due date, whichever is higher, but in no
event at a rate higher than the maximum rate allowed by law. Such interest shall
be deemed additional rent hereunder and shall be collectible as such.
NOTWITHSTANDING THE FOREGOING, LANDLORD AGREES TO WAIVE THE IMPOSITION OF SUCH
INTEREST ON THE FIRST TWO (2) OCCASIONS IN ANY TWELVE (12) MONTH PERIOD,
PROVIDED THE OVERDUE PAYMENT IS MADE WITHIN FIVE (5) DAYS AFTER LANDLORD GIVES
TENANT WRITTEN NOTICE THAT PAYMENT WAS NOT MADE WHEN DUE.
(d) Accord and Satisfaction. No payment by Tenant or receipt by
-------------------------
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Basic Rent or
Additional Charges; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Landlord may accept any check
or payment without prejudice to Landlord's right to recover the balance due or
to pursue any other remedy available to Landlord.
(e) Late Payment Charge. If Tenant fails to pay any Basic Rent or
---------------------
Additional Charges within ten (10) days after the same become due and payable,
Tenant shall also pay to Landlord a late payment service charge (to cover
Landlord's administrative and overhead expenses of processing late payments)
equal to the greater of Five Hundred ($500.00) or Five Percent (5%) of such
unpaid sum. Such payment shall be deemed liquidated damages and not a penalty,
but shall not excuse the timely payment of Rent. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder including the assessment of interest
under Section 3(c). NOTWITHSTANDING THE FOREGOING, LANDLORD AGREES TO WAIVE THE
IMPOSITION OF SUCH LATE CHARGES ON THE FIRST TWO (2) OCCASIONS IN ANY TWELVE
(12) MONTH PERIOD, PROVIDED THE OVERDUE PAYMENT IS MADE WITHIN FIVE (5) DAYS
AFTER LANDLORD GIVES TENANT WRITTEN NOTICE THAT PAYMENT WAS NOT MADE WHEN DUE.
(f) Right to Audit. Within ninety (90) days after receipt of the
--------------
Operating Expenses Statement, Tenant shall have the right, at its expense, to
inspect Landlord's Operating Expenses records relating to the Lease Year covered
by the Statement, including the Statement covering the Base Year, except that
any inspection that discloses that Tenant's Proportionate Share of Operating
Expenses has been overstated by more than seven percent (7%) shall be at
Landlord's expense. The inspection must be completed within thirty (30) days of
commencement. Before conducting any inspection, Tenant must pay the full amount
of Operating Expenses billed and there must not be an Event of Default of any
other Lease provisions. Tenant may review only those records of Landlord that
are specifically related to Operating Expenses. The audit shall be conducted in
a location IN THE NORTHERN VIRGINIA, WASHINGTON, D.C. METROPOLITAN AREA and at a
time reasonably determined by Landlord. If Landlord unreasonably delays in
allowing Tenant access to its records, the time periods provided herein shall be
extended to account for such unreasonable delay. Upon receipt thereof, Tenant
will deliver to Landlord a copy of any report procured as a result of the
inspection and all accompanying data. Tenant's Proportionate Share of Operating
Expense Increases shall be appropriately adjusted based upon the results of such
audit. Tenant will keep confidential any information gained through and the
result of any inspection. Tenant may not conduct an inspection more often than
once each Lease Year. Tenant may audit records only with respect to the Lease
Year in question; PROVIDED, HOWEVER, THAT TENANT SHALL HAVE A ONE (1) TIME ONLY
RIGHT TO AUDIT THE BASE YEAR..
4. Services and Utilities.
----------------------
(a) Types. Throughout the Term, Landlord agrees that, without
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additional charge except as set forth (i) in the pass-through provisions of this
Lease, (ii) the Parking Rent provisions, and (iii) as otherwise expressly set
forth below, it will furnish to Tenant the following services:
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(1) Electricity for normal lighting purposes and the operation of
ordinary office equipment, in accordance with Section 6(b) hereof;
(2) Adequate supplies for toilet rooms;
(3) Normal and usual cleaning and char services after business
hours each day as more fully described in Exhibit D attached hereto and
----------
incorporated herein by reference thereto except on Saturdays, Sundays and legal
holidays recognized for government employees by the United States Government;
(4) Hot and cold running water in the bathrooms;
(5) Air cooling/heating, when required, between the hours of 7:00
A.M. and 7:00 P.M. Mondays through Fridays and between 8:00 A.M. and 1:00 P.M.
on Saturdays, except on legal holidays recognized for government employees by
the United States Government. Landlord shall provide Tenant upon request, and
reserves the right to establish and collect a charge for air cooling/heating
utilized by Tenant during hours and/or days other than those set forth above,
but Landlord's failure to establish and/or collect such charge shall not be
deemed a waiver of Landlord's right to include all costs for air cooling in the
computation of Operating Expenses for purposes of Section 1(b)(8) hereof. Air
cooling/heating shall be available at all other times subject to the payment by
Tenant to Landlord of a charge for air cooling/heating utilized by Tenant during
hours and/or days other than those set forth above in the amount of $35.00 per
hour per floor (which amount shall be increased annually by the same percentage
of the increase in electrical charges), but Landlord's failure to establish
and/or collect such charge shall not be deemed a waiver of Landlord's right to
include all costs for air cooling in the computation of Operating Expenses for
purposes of Section 1(b)(8) hereof;
(6) Automatically operated passenger and freight elevator
service;
(7) All electric bulbs, ballasts and fluorescent tubes in
standard light fixtures in the Leased Premises and the Common Areas;
(8) Facilities for parking as specified herein;
(9) Seventy-seven (77) keys and security access cards to the
Leased Premises at no cost to Tenant, all additional keys at the cost of Tenant,
WHICH SUCH COST SHALL BE COMMERCIALLY REASONABLE;
(10) Lamping of all Building standard ceiling lighting fixtures
in the Leased Premises;
(11) An electronic card-key building access system which will
provide Tenant with twenty-four (24) hours per day, seven (7) days per week
access to the Leased Premises and parking garage, provided, however, that Tenant
acknowledges and agrees that repairs, hazardous conditions and circumstances
beyond Landlord's reasonable control may prevent access to the Leased Premises
or parking garage from time to time;
(12) A health club will be located in the concourse level of the
Building, including locker and shower facilities and will be available for use
by Tenant and its employees free of charge through the Term of the Lease AS THE
SAME MAY BE EXTENDED; and
(13) Subject to the provisions contained in Section 24, initial
Building directory signage strips, elevator lobby signage on each floor of the
Leased Premises and suite entry signage. Tenant shall receive Tenant's
Proportionate Share of the Building directory signage strips. The design, size,
location and materials of such signage shall be in accordance with Landlord's
standard Building signage package.
(b) Access. Landlord shall have reasonable access UPON TWENTY-FOUR
------
(24) HOURS PRIOR NOTICE TO TENANT (EXCEPT IN EMERGENCIES) to and reserves the
right to inspect, erect, use, connect to, maintain and repair pipes, ducts,
conduits, cables, plumbing, vents and wires, and other facilities in, to and
through the Leased Premises as and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
11
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maintenance of the Building (including the servicing of other occupants of the
Building) and the right at all times to transmit water, heat, air conditioning
and electric current through such pipes, conduits, cables, plumbing, vents and
wires and the right to interrupt the same in suspected emergencies without
eviction of Tenant or abatement of Rent. All repairs and maintenance required
by Landlord pursuant to this Section 4(b) shall be performed in a good and
workmanlike manner and with due diligence to minimize any unreasonable
disruption to Tenant's business. NO WORK PERFORMED BY LANDLORD IN ACCORDANCE
WITH THIS SECTION SHALL RESULT IN A PERMANENT REDUCTION OF TENANT'S USABLE AREA.
(c) Interruption in Services. Tenant agrees that Landlord shall not be
------------------------
liable to Tenant for its failure to furnish gas, electricity, telephone service,
water, HVAC or any other utility services or building services when such failure
is occasioned, in whole or in part, by repairs, replacements, or improvements,
by any strike, lockout or other labor trouble, by inability to secure
electricity, gas, water, telephone service or other utility at the Building, by
any accident, casualty or event arising from any cause whatsoever, including the
negligence of Landlord, its employees, agents and contractors, by act,
negligence or default of Tenant or any other person or entity, or by any other
cause including bomb scares, and such failures shall never be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Leased Premises or relieve Tenant from the obligation of paying rent or
performing any of its obligations under this Lease. Furthermore, subject to the
provisions contained in the last sentence of this Section 4(c) Landlord shall
not be liable under any circumstances for loss of property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any such services or utilities. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease. Notwithstanding the foregoing, if any
interruption of service shall continue for more than five (5) consecutive
business days and shall render all or any portion of the Leased Premises
unusable or inaccessible for the normal conduct of Tenant's business, and if
Tenant does not in fact use or occupy such portion of the Leased Premises, then
all Basic Rent and Additional Charges payable hereunder with respect to such
portion of the Leased Premises which Tenant does not occupy shall be abated from
the date of such interruption until full use of such portion of the Leased
Premises is restored to Tenant. Nothing in the Lease shall be deemed to release
Landlord from liability for damages arising from the gross negligence or willful
misconduct of Landlord, or its employees, agents and contractors.
5. Maintenance and Repairs.
-----------------------
Subject to the provisions of Section 8 below and subject to
reimbursement by Tenant, where applicable, in accordance with the provisions of
Sections 1(b)(8) and 3 herein, Landlord agrees to maintain the structural
portions of the Building and central Building mechanical, electrical and
plumbing systems, FIRE AND LIFE SAFETY SYSTEMS IN THE COMMON AREAS, RESTROOMS IN
THE COMMON AREAS, the Common Areas, and Building standard items in the Leased
Premises but only those behind walls or at or above finished ceilings, in good
order and repair throughout the Term AND LANDLORD SHALL OTHERWISE MANAGE, LEASE
AND OPERATE THE BUILDING IN A "FIRST-CLASS" MANNER THROUGHOUT THE TERM. Tenant,
and not Landlord, shall be responsible for (i) maintaining all other
improvements to the Leased Premises including Building standard items which are
not behind walls or at or above finished ceilings and any Special Items in the
Leased Premises, and (ii) SUBJECT TO SECTION 7(C) AND TO THE EXTENT SUCH REPAIRS
ARE NOT COVERED BY INSURANCE REQUIRED UNDER THIS LEASE, reimbursing Landlord for
the full cost of any repairs to the Leased Premises or to any part of the
Building caused by the unreasonable wear and tear by or negligence of Tenant or
its agent or employees, such reimbursement to be collectible as Additional
Charges hereunder WITHIN THIRTY (30) DAYS AFTER DEMAND FROM LANDLORD, WHICH
DEMAND SHALL BE APPROPRIATELY DOCUMENTED . Any contractors performing repairs
which are the responsibility of Tenant hereunder must receive the prior written
approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed.
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6. Use of Leased Premises.
----------------------
(a) General Offices. Tenant shall use and occupy the Leased Premises
----------------
solely for general office purposes, and shall not use or permit or suffer the
use of the Leased Premises for any other purpose whatsoever. Notwithstanding the
foregoing, Tenant shall be prohibited from using the Leased Premises for (i) the
business of providing retail banking services, and (ii) the conduct of a
mortgage banking business. Also, in any public announcement or other advertising
of Tenant making reference to entering into this Lease, Tenant shall also make
reference to "The Corporate Office Centre at Tysons II".
(b) Covenants. Throughout the Term, Tenant covenants and agrees to:
---------
(i) keep the Leased Premises in a neat and clean condition; (ii) pay before
delinquency any and all taxes, assessments and public charges levied, assessed
or imposed upon Tenant's business, upon the leasehold estate created by this
Lease or upon Tenant's fixtures, furnishings or equipment in the Leased
Premises; (iii) not use or permit or suffer the use of any portion of the Leased
Premises for any immoral or unlawful purpose, for any purpose which would injure
the reputation of the Building, or in any manner which might be hazardous or
might jeopardize Landlord's insurance coverage or increase Landlord's insurance
premium; (iv) not use the plumbing facilities for any purpose other than that
for which they were constructed, or dispose of any foreign substances therein;
(v) not place a load on any floor exceeding the floor load per square foot which
such floor was designed to carry in accordance with the plans and specifications
of the Building, and not install, operate or maintain in the Leased Premises any
heavy item of equipment except in such manner as to achieve a proper
distribution of weight; (vi) not to strip, overload, damage or deface the Leased
Premises, the floors, or the hallways, stairways, elevators, parking facilities
or other Common Areas of the Building, or the fixtures therein or used
therewith, nor to permit any hole to be made in any of the same; (vii) not to
move any furniture or equipment into or out of the Leased Premises except at
such times and in such manner as Landlord may from time to time reasonably agree
to; (viii) not to install or operate in the Leased Premises any electrical,
heating and cooling, or refrigeration equipment, computer equipment, electronic
data processing equipment, punch card machines or other equipment using electric
current in excess of standard voltage or amperage, or in excess of that to be
provided by Landlord pursuant to this Section 6(b), or requiring non-standard
electrical wiring outlets, circuits or panels (other than ordinary office
equipment such as electric typewriters, adding machines, MICROWAVE OVENS,
REFRIGERATORS, television sets, video and telephone conferencing equipment,
computers and peripheral equipment, telecopiers, photocopiers, radios, clocks
and lamps), without first obtaining the written consent of Landlord, who may
condition such consent upon Tenant's agreement to make direct payment to the
local utility company or the payment by Tenant of an Additional Charge to
Landlord, for Tenant's excessive consumption of electricity and for the cost of
additional wiring or metering which may be required for the operation of such
equipment and machinery; (ix) not to install any other equipment of any kind or
nature which will or may overheat, exceed the capacity, or otherwise necessitate
any repairs, changes, replacements or additions to, or in the use of, the water
system, heating system, plumbing system, air conditioning system or electrical
system of the Leased Premises or the Building, without first obtaining the
written consent of Landlord (provided that Tenant, at Tenant's sole cost and
expense, may install such supplemental heating and cooling and other systems as
may be required to correct or avoid such problems. Any work described herein
shall be done in accordance with the provisions of Section 22 of the Lease; and
(x) at all times to comply with the Requirements. Throughout the Term, Landlord
agrees that it will make available to Tenant five (5) watts per rentable square
foot connected load of the Leased Premises of electric current for convenience
outlets which such five (5) watts connected load shall be exclusive of lighting
and Landlord's Building heating/air conditioning and ventilation services.
(c) Compliance. Tenant will not use or occupy the Leased Premises in
----------
violation of any Requirement. If any governmental authority, after the
commencement of the Term, shall contend or declare that the Leased Premises are
being used for a purpose which is in violation of any Requirement, then Tenant
shall, immediately upon demand from Landlord, discontinue such use of the Leased
Premises. If thereafter the governmental authority asserting such violation
threatens, commences or continues criminal or civil proceedings against Landlord
for Tenant's failure to discontinue such use, in addition to any and all rights,
privileges and remedies given to Landlord under this Lease for default therein,
Landlord shall have the right to terminate this Lease forthwith. Tenant shall
indemnify and hold Landlord harmless of and from any and all liability for any
such violation or violations.
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(d) Rules and Regulations. Tenant and its agents and employees shall
---------------------
comply with and observe all rules and regulations concerning the use,
management, operation, safety and good order of the Leased Premises and the
Building which may from time to time hereafter be promulgated by Landlord.
Initial rules and regulations, which shall be effective until amended by
Landlord, are attached hereto as Exhibit E. Tenant shall be deemed to have
---------
received notice of any amendment to the rules and regulations when a copy of
such amendment has been delivered to Tenant at the Leased Premises or has been
mailed to Tenant in the manner prescribed for the giving of notices. Tenant
shall comply with all fire protective rules and regulations promulgated by the
Landlord for the safety of the Building and its occupants, including rules
prescribing certain types of materials and prohibiting other types of materials
in the Building. Landlord shall not be responsible to Tenant for any violation
of the rules and regulations, or the covenants or agreements contained in any
other lease, by any other tenant of the Building, or its agents or employees,
and Landlord may waive any or all of the rules or regulations in respect of any
one or more tenants for good cause so long as such rules and regulations are
otherwise non-discriminatorily enforced, and such waiver does not change
Tenant's obligations or rights under this Lease. IN THE EVENT OF ANY
INCONSISTENCY BETWEEN ANY PROVISION OF THIS LEASE AND THE RULES AND REGULATIONS,
THE APPLICABLE LEASE PROVISION SHALL CONTROL.
7. Insurance.
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(a) Tenant
(1) Types; Limits. Tenant, at Tenant's sole cost and expense,
--------------
shall obtain and maintain in effect at all times during the Term, a policy of
commercial general liability insurance with broad form property damage
endorsement, naming Landlord, Tysons II Land Company, L.L.C., Lerner Enterprises
Limited Partnership, Lerner Corporation, and (at Landlord's request) any
mortgagee of the Building, any ground landlord and any other agent as additional
named insured(s), protecting such parties against any liability for bodily
injury, death or property damage caused by Tenant or Tenant's agents or
employees occurring upon, in or about any part of the Building, the Leased
Premises or any Common Areas thereto, with such policies to afford protection to
the limit of not less than Two Million Dollars ($2,000,000) with respect to
bodily injury or death to any one person, to the limit of not less than Two
Million Dollars ($2,000,000) with respect to bodily injury or death to any
number or persons in any one accident, and to the limit of not less than Two
Million Dollars ($2,000,000) with respect to damage to the property of any one
owner, and with a deductible no greater than One Thousand Dollars ($1,000.00)
for any single occurrence.
(2) Policies. The insurance policy required to be obtained by
--------
Tenant under this Lease (i) shall be issued by an insurance company of
recognized responsibility licensed to do business in the jurisdiction in which
the Building is located, and (ii) shall be written as primary policy coverage
and not contributing with or in excess of any coverage which Landlord may carry.
Neither the issuance of any insurance policy required under this Lease, nor the
minimum limits specified herein with respect to Tenant's insurance coverage,
shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease. With respect to each insurance policy required to be
obtained by Tenant under this Section, on or before the Lease Commencement Date,
and at least thirty (30) days before the expiration of any expiring policy or
certificate previously furnished, Tenant shall deliver to Landlord a certificate
of insurance therefor, together with evidence of payment of all applicable
premiums. Each insurance policy required to be carried hereunder by or on behalf
of Tenant shall provide (and any certificate evidencing the existence of each
such insurance policy shall certify) that such insurance policy shall not be
canceled unless Landlord shall have received thirty (30) days' prior written
notice of such cancellation.
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(3) Prohibitions. Tenant shall not do, permit or suffer to be
------------
done any act, matter, thing or failure to act in respect of the Leased Premises
and/or the Building that will invalidate or be in conflict with insurance
policies covering the Building or any part thereof, and shall not do, or permit
anything to be done, in or upon the Leased Premises and/or the Building, or
bring or keep anything therein, which shall increase the rate of insurance on or
related to the Building or on any property located therein. If, by reason of the
failure of Tenant to comply with the provisions of this subsection, the
insurance rate shall at any time be higher than it otherwise would be, then
Tenant shall reimburse Landlord on demand, for that part of all premiums for any
insurance coverage that shall have been charged because of such violation by
Tenant and which Landlord shall have paid on account of an increase in the rate
or rates in its own policies of insurance.
(4) Hold Harmless; Indemnification; Waiver of Subrogation. Tenant
-----------------------------------------------------
hereby agrees to indemnify and hold harmless Landlord, Tysons II Land Company,
L.L.C., Lerner Enterprises Limited Partnership, Lerner Corporation, Landlord's
employees, agents, mortgagees and ground lessors (collectively, "Landlord's
Indemnities") from and against any and all claims, losses, actions, damages,
liabilities and expenses (including attorneys' fees) (collectively, "Claims")
that (i) arise from or are in connection with Tenant's possession, use,
occupation, management, repair, maintenance or control of the Leased Premises or
the Building, or any portion thereof, or (ii) arise from or are in connection
with any act or omission of Tenant or Tenant's agents, or employees, or (iii)
result from any default, breach, violation or non-performance of this Lease or
any provision herein by Tenant, or (iv) result from injury or death to persons
or damage to property sustained in or about the Leased Premises; provided,
however, Tenant shall not be required to indemnify any of Landlord's Indemnities
from any Claims arising from the gross negligence or willful misconduct of any
of such Landlord's Indemnities. Tenant shall, at its own cost and expense,
defend any and all actions, suits and proceedings which may be brought against
the aforesaid parties with respect to the foregoing or in which the aforesaid
parties may be impleaded. Tenant shall pay, satisfy and discharge any and all
judgments, orders and decrees which may be recovered against the aforesaid
parties in connection with the foregoing. The aforesaid parties shall not be
liable or responsible for, and Tenant hereby releases the aforesaid parties from
all liability or responsibility to Tenant or any person claiming by, through or
under Tenant, by way of subrogation or otherwise, any injury, loss or damage to
any property in or around the Leased Premises or to Tenant's business
irrespective of the cause of such injury, loss or damage, except to the extent
caused by the gross negligence or intentional wrongful acts of Landlord or
Landlord's employees, agents, officers, members, managers or contractors, and
Tenant shall require its insurer(s) to include in all of Tenant's insurance
policies which could give rise to a right of subrogation against the aforesaid
parties a clause or endorsement whereby the insurer(s) shall waive any rights of
subrogation against the aforesaid parties as well as other tenants or occupants
of the Building. Tenant hereby makes such waiver on behalf of its insurer, which
insurer, by insuring Tenant as contemplated under this Lease, shall be deemed to
have acknowledged the provisions hereof. UNLESS CAUSED BY THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF TENANT OR ITS AGENTS, EMPLOYEES OR INVITEES, LANDLORD
HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS TENANT AND ITS AGENTS, OFFICERS,
EMPLOYEES AND BUSINESS INVITEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
ACTIONS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES) THAT (I) ARISE FROM OR ARE IN CONNECTION WITH LANDLORD'S
POSSESSION, USE, OCCUPATION, MANAGEMENT, REPAIR, MAINTENANCE OR CONTROL OF THE
BUILDING, THE COMMON AREAS, THE PARKING AREAS, OR ANY PORTION THEREOF, OR (II)
ARISE FROM OR ARE IN CONNECTION WITH ANY ACT OR OMISSION OF LANDLORD OR
LANDLORD'S AGENTS, CONTRACTORS, EMPLOYEES OR INVITEES, OR (III) RESULT FROM ANY
DEFAULT, BREACH, VIOLATION OR NON-PERFORMANCE OF THIS LEASE OR ANY PROVISION
HEREIN BY LANDLORD, OR (IV) RESULT FROM ANY INJURY OR DEATH TO PERSONS OR DAMAGE
TO PROPERTY SUSTAINED IN OR ABOUT THE COMMON AREAS, THE PARKING AREAS OR THE
DEMISED PREMISES OF OTHER TENANTS. THE SCOPE OF THE FOREGOING INDEMNIFICATION
OBLIGATION SHALL BE SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO TENANT IN
THE SECOND AND THIRD SENTENCES OF THIS SUBSECTION.
(5) Coverage. Landlord makes no representation to Tenant that the
--------
limits or forms of coverage specified above or approved by Landlord are adequate
to insure Tenant's property or Tenant's obligations under this Lease, and the
limits of any insurance carried by Tenant shall not limit Tenant's obligations
or liability under any indemnity provision included in this Lease or under any
other provision of this Lease.
(b) Landlord. Landlord shall obtain and keep in force a policy of
--------
comprehensive general liability insurance with coverage against such risks and
in such amounts as Landlord deems reasonably advisable insuring Landlord against
liability arising out of the ownership, operation and management of the
15
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Building. Landlord shall also obtain and keep in force during the Term of this
Lease a policy or policies of "all risk" insurance covering loss or damage to
the Building in the amount of not less than the full replacement cost thereof,
as determined by Landlord from time to time. The terms and conditions of said
policies and the perils and risks covered thereby shall be determined by
Landlord, from time to time, in Landlord's sole but reasonable discretion. In
addition, at Landlord's option, Landlord shall obtain and keep in force, during
the Term of this Lease, a policy of rental interruption insurance, with loss
payable to Landlord, which insurance shall, at Landlord's option, also cover all
Operating Expenses. Tenant will not be named as an additional insured in any
insurance policies carried by Landlord and shall have no right to any proceeds
therefrom. At Landlord's option, Landlord may obtain insurance coverages and/or
bonds related to the operation of the parking areas. In addition, Landlord
shall have the right to obtain such additional insurance as is customarily
carried by owners or operators of other comparable office buildings in the
geographical area of the Building. The policies purchased by the Landlord shall
contain such deductibles as Landlord may determine. In addition to amounts
payable by Tenant in accordance with Section 1(b)(9), Tenant shall pay any
increase in the property insurance premiums for the Building over what was
payable immediately prior to the increase to the extent the increase is
specified by Landlord's insurance carrier as being caused by the nature of
Tenant's occupancy of the Leased Premises, or any act or omission of Tenant, or
Tenant shall cease the activity giving rise to such increase.
(c) Waiver of Subrogation. Landlord waives any and all rights or
----------------------
recovery against Tenant for or arising out of damage to, or destruction of, the
Building. Landlord shall require its insurer(s) to include in all of Landlord's
insurance policies which could give rise to a right of subrogation against the
aforesaid parties a clause or endorsement whereby the insurer(s) shall waive any
rights of subrogation against the aforesaid as well as other tenants or
occupants of the Building. Landlord hereby makes such waiver on behalf of its
insurer, which insurer, by insuring Landlord as contemplated under this Lease,
shall be deemed to have acknowledged the provisions hereof. Neither Landlord's
nor Tenant's waiver shall relieve the other from liability under Section 18
below except to the extent such waiving party's insurance company actually
satisfies the other party's obligations under Section 18 in accordance with the
requirements of Section 18.
8. Damage by Fire or Other Casualty.
--------------------------------
Tenant shall give prompt notice to Landlord in case of any fire or
other damage to the Leased Premises. If the Leased Premises or the Building are
damaged by fire or other casualty, Landlord shall diligently and as soon as
practicable after such damage occurs (taking into account the time necessary to
effectuate a satisfactory settlement with Landlord's insurance company) repair
such damage at its own expense, and until such repairs have been completed the
Basic Rent and Additional Charges shall be abated in proportion to the part of
the Leased Premises which is rendered untenantable or unusable in the ordinary
course of Tenant's business (in no event shall damage to any parking areas be
deemed to render the Leased Premises untenantable). However, if available
insurance proceeds are insufficient or if the Leased Premises or the Building
are damaged by fire or other casualty to such an extent that the damage, in
Landlord's reasonable opinion, cannot be fully repaired within one hundred
eighty (180) days from the date such damage occurs, Landlord shall have the
right, in its sole and absolute discretion, to terminate this Lease. Landlord
shall use reasonable efforts within sixty (60) days (but in no event later than
ninety (90) days) after the occurrence of such damage to notify Tenant in
writing of the estimated length of time to repair or to rebuild and whether
Landlord shall terminate this Lease. Notwithstanding the foregoing, if Landlord
shall elect or be obligated to rebuild or repair the Leased Premises or the
Building, but in good faith determines that the Leased Premises or the Building
cannot be rebuilt or repaired within two hundred ten (210) days after the date
of the occurrence of the damage, without payment of overtime or other premiums,
and the damage to the Building has rendered the Leased Premises wholly or
partially unusable or inaccessible, Landlord shall notify Tenant thereof in
writing at the time of Landlord's election to rebuild or repair and Tenant shall
thereafter have a period of fifteen (15) business days within which Tenant may
elect to terminate this Lease, upon written notice to Landlord. Failure of
Tenant to exercise said election within said fifteen (15) business day period
shall constitute Tenant's agreement to accept delivery of the Leased Premises
under this Lease whenever tendered by Landlord, provided Landlord thereafter
16
<PAGE>
pursues reconstruction or restoration diligently to completion, subject to
delays beyond Landlord's reasonable control. Notwithstanding the foregoing, if
the fire or other casualty shall be caused by the GROSS negligence or WILLFUL
MISCONDUCT of Tenant or its agents or employees, Tenant shall remain liable for
the full amount of the Basic Rent and Additional Charges during the period of
restoration or until termination of this Lease, and all required repairs shall
be made at Tenant's expense to the extent not covered by insurance.
9. Condemnation.
------------
If a substantial portion of the Leased Premises, or all or
substantially all of the Building (or the use or possession thereof), shall be
taken in condemnation proceedings or by exercise of any right of eminent domain,
or by a private purchase in lieu thereof, then this Lease shall terminate and
expire on the date of such taking or purchase and Tenant shall, in all other
respects, keep, observe and perform all the other terms, covenants and
conditions of this Lease up to the date of such taking. The net proceeds of any
award or other compensation payable in connection with such taking or purchase
shall be paid to Landlord, and Tenant hereby assigns to Landlord all of its
right, title and interest in and to such award or other compensation except to
the extent it is related to Tenant's personal property, to improvements made to
the Leased Premises or to Tenant's moving expenses or other relocation costs.
Tenant shall have no claim against Landlord for the value (if any) of personal
property in the Leased Premises or the unexpired Term. Tenant shall be entitled
to any separate award for loss of or damage to Tenant's removable personal
property and for moving expenses.
10. Assignment and Subletting.
-------------------------
(a) Landlord's Consent Required. Tenant shall not voluntarily or by
-----------------------------
operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Leased Premises (hereinafter collectively a "Transfer"), without Landlord's
prior written consent, which shall not be unreasonably delayed, conditioned or
withheld. Landlord shall respond to Tenant's written request for consent
hereunder within twenty (20) days after Landlord's receipt of the written
request from Tenant. Any attempted Transfer without such consent shall be void
and shall constitute a material default and breach of this Lease. Tenant's
written request for Landlord's consent shall include, and Landlord's twenty (20)
day response period referred to above shall not commence, unless and until
Landlord has received from Tenant, all of the following information: (i)
financial statements for the proposed assignee or subtenant for the past three
(3) years, if available, (ii) federal tax returns for the proposed assignee or
subtenant for the past three (3) years, if available, (iii) a TRW credit report
or similar report on the proposed assignee or subtenant, (iv) a detailed
description of the business the assignee or subtenant intends to operate at the
Leased Premises, (v) the proposed effective date of the assignment or sublease,
(vi) a copy of the proposed sublease or assignment agreement which includes all
of the terms and conditions of the proposed assignment or sublease, (vii) a
detailed description of any ownership or commercial relationship between Tenant
and the proposed assignee or subtenant, and (viii) a detailed description of any
Alterations the proposed assignee or subtenant desires to initially make to the
Leased Premises. If the obligations of the proposed assignee or subtenant will
be guaranteed by any person or entity, Tenant's written request shall not be
considered complete until the information described in (i), (ii) and (iii) of
the previous sentence has been provided with respect to each proposed guarantor.
"Transfer" shall also include the transfer (i) if Tenant is a corporation, other
than a professional corporation, and Tenant's stock is not publicly traded over
a recognized securities exchange, of more than fifty percent (50%) of the voting
stock of such corporation during the Term of this Lease (whether or not in one
or more transfers) or the dissolution, merger or liquidation of the corporation,
or (ii) if Tenant is a partnership or other entity of more than fifty percent
(50%) of the profit and loss participation in such partnership or entity during
the Term of this Lease (whether or not in one or more transfers) or the
dissolution, merger or liquidation of the partnership or entity. If Tenant is a
limited or general partnership (or is comprised of two or more persons,
individually or as co-partners), Tenant shall not be entitled to change or
convert to (i) a limited liability company, (ii) a limited liability partnership
or (iii) any other entity which possesses the characteristics of limited
liability without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, it being deemed reasonable for Landlord to withhold
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its consent to any such conversion if in Landlord's determination the financial
condition of the new entity is such that it will not reasonably be likely to
fulfill the Tenant's remaining obligations under the Lease. Tenant's sole
remedy in the event that Landlord shall wrongfully withhold consent to or
disapprove any assignment or sublease shall be (i) to obtain an order by a court
of competent jurisdiction that Landlord grant such consent, or (ii) to submit
such dispute to arbitration as provided below; in no event shall Landlord be
liable for damages with respect to its granting or withholding consent to any
proposed assignment or sublease. Tenant shall have the right to submit a
dispute relating to whether Landlord shall have been reasonable in withholding,
conditioning or delaying its consent to any proposed assignment or subleasing by
Tenant (an "Assignment/Subletting Dispute") to binding expedited arbitration
------------------------------
under the Commercial Arbitration Rules (the "AAA Rules") of the AAA, and in
particular, the Expedited Procedures provisions (Rules 53 through 57 in the
January 1, 1993 edition) of such Commercial Arbitration Rules. If Landlord
shall exercise any option to recapture the Leased Premises, or shall deny a
request for consent to a proposed assignment or sublease, Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
losses, liabilities, damages, costs and claims that may be made against Landlord
by the proposed assignee or subtenant, or by any brokers or other persons
claiming a commission or similar compensation in connection with the proposed
assignment or sublease.
(b) Leveraged Buy-Out. The involvement by Tenant or its assets in any
-----------------
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not
a formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result in a reduction of the "Net Worth" of Tenant as
hereinafter defined, by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Tenant as it is represented to Landlord at the time
of the execution by Landlord of this Lease, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Tenant was or is greater, shall be considered to be an
assignment of this Lease by Tenant to which Landlord may reasonably withhold its
consent. "Net Worth" of Tenant for purposes of this Section 9(b) shall be the
net worth of Tenant (excluding any guarantors) established under generally
accepted accounting principles consistently applied.
(c) Standard For Approval. Landlord shall not unreasonably withhold
---------------------
its consent to a Transfer provided that Tenant has complied with each and every
requirement, term and condition of this Section 10. Tenant acknowledges and
agrees that each requirement, term and condition in this Section 10 is a
reasonable requirement, term or condition. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement, term or
condition of this Section 10 is not complied with or: (i) the Transfer would
cause Landlord to be in violation of its obligations under another lease or
agreement to which Landlord is a party; (ii) in Landlord's reasonable judgment,
a proposed assignee has a smaller net worth than Tenant had on the date this
Lease was entered into with Tenant or is less able financially to pay the rents
due under this Lease as and when they are due and payable; (iii) a proposed
assignee's or subtenant's business will impose an unreasonable burden on the
Building's parking facilities, elevators, Common Areas or utilities that is
greater than the burden imposed by Tenant, in Landlord's reasonable judgment;
(iv) the terms of a proposed assignment or subletting will allow the proposed
assignee or subtenant to exercise a right of renewal, right of expansion, right
of first offer, right of first refusal or similar right held by Tenant; (v) a
proposed assignee or subtenant refuses to enter into a written assignment
agreement or sublease, reasonably satisfactory to Landlord, which provides that
it will abide by and assume all of the applicable terms and conditions of this
Lease for the term of any assignment or sublease and containing such other terms
and conditions as Landlord reasonably deems necessary; (vi) the use of the
Leased Premises by the proposed assignee or subtenant will not be for the use
permitted by this Lease; (vii) any guarantor of this Lease refuses to consent to
the Transfer or to execute a written agreement reaffirming the guaranty; (viii)
Tenant is in default as defined in Section 11 at the time of the request; (ix)
if requested by Landlord, the assignee or subtenant refuses to sign a
non-disturbance and attornment agreement in favor of Landlord's lender in form
and substance substantially similar to that signed by Tenant; (x) Landlord has
sued or been sued by the proposed assignee or subtenant or has otherwise been
involved in a legal dispute with the proposed assignee or subtenant; (xi) the
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assignee or subtenant is involved in a business which is not in keeping with the
then current standards of the Building; (xii) the proposed assignee or subtenant
is an existing tenant of the Building which Landlord has the capacity to, and
desires to, expand or relocate in the Building or is a person or entity then
negotiating with Landlord for the lease of space in the Building; (xiii) the
assignment or sublease will result in the Leased Premises being used as an
executive suite; or (xiv) the assignee or subtenant is a governmental or
quasi-governmental entity or an agency, department or instrumentality of a
governmental or quasi-governmental agency.
(d) Additional Terms and Conditions. The following terms and
-----------------------------------
conditions shall be applicable to any Transfer:
(1) Regardless of Landlord's consent, no Transfer shall release
Tenant from Tenant's obligations hereunder or alter the primary liability of
Tenant to pay the rent and other sums due Landlord hereunder and to perform all
other obligations to be performed by Tenant hereunder or release any guarantor
from its obligations under its guaranty.
(2) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting.
(3) Neither a delay in the approval or disapproval of a Transfer,
nor the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this Section 10.
(4) The consent by Landlord to any Transfer shall not constitute
a consent to any subsequent Transfer by Tenant or to any subsequent or
successive Transfer by an assignee or subtenant. However, Landlord may consent
to subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease.
(5) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible for
the performance of this Lease, including any subtenant or assignee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord.
(6) Landlord's written consent to any Transfer by Tenant shall
not constitute an acknowledgment that no default then exists under this Lease
nor shall such consent be deemed a waiver of any then existing default.
(7) The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was, to
Tenant's actual knowledge, materially false shall, at Landlord's election,
render Landlord's consent null and void.
(8) Landlord shall not be liable to any subtenant under this
Lease or under any sublease.
(9) No assignment or sublease may be modified or amended without
Landlord's prior written consent, such consent not to be unreasonably withheld,
conditioned or delayed.
(10) The occurrence of a transaction described in Section 10(b)
shall give Landlord the right (but not the obligation) to require that Tenant
immediately provide Landlord with an additional Security Deposit in an amount
reasonably determined by Landlord to protect Landlord's interests hereunder, and
Landlord may make its receipt of such amount a condition to Landlord's consent
to such transaction.
(11) Any assignee of, or subtenant under, this Lease shall, by
reason of accepting such assignment or entering into such sublease (with respect
to the sublet space), be deemed, for the benefit of Landlord, to have assumed
and
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agreed to conform and comply with each and every term, covenant, condition and
obligation herein to be observed or performed by Tenant during the term of said
assignment or sublease, other than such obligations as are contrary or
inconsistent with provisions of an assignment or sublease to which Landlord has
specifically consented in writing.
(e) Additional Terms and Conditions Applicable to Subletting. The
-----------------------------------------------------------
following terms and conditions shall apply to any subletting by Tenant of all or
any part of the Leased Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(1) Tenant hereby absolutely and unconditionally assigns and
transfers to Landlord all of Tenant's interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until an Event of Default shall occur under this Lease, Tenant may
receive, collect and enjoy the rents accruing under such sublease. Landlord
shall not, by reason of this or any other assignment of such rents to Landlord
nor by reason of the collection of the rents from a subtenant, be deemed to have
assumed or recognized any sublease or to be liable to the subtenant for any
failure of Tenant to perform and comply with any of Tenant's obligations to such
subtenant under such sublease, including, but not limited to, Tenant's
obligation to return any Security Deposit. Tenant hereby irrevocably authorizes
and directs any such subtenant, upon receipt of a written notice from Landlord
stating that an Event of Default exists under this Lease, to pay to Landlord the
rents due as they become due under the sublease. Tenant agrees that such
subtenant shall have the right to rely upon any such statement and request from
Landlord, and that such subtenant shall pay such rents to Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary.
(2) In the event Tenant shall default beyond any applicable
notice and cure periods in the performance of its obligations under this Lease,
Landlord at its option and without any obligation to do so, may require any
subtenant to attorn to Landlord, in which event Landlord shall undertake the
obligations of Tenant under such sublease from the time of the exercise of said
option to the termination of such sublease; provided, however, Landlord shall
not be liable for any prepaid rents or Security Deposit paid by such subtenant
to Tenant not delivered to Landlord or for any other prior defaults of Tenant
under such sublease.
(f) Transfer Premium from Assignment or Subletting. Landlord shall be
-----------------------------------------------
entitled to receive from Tenant (as and when received by Tenant) as an item of
additional rent fifty percent (50%) of all amounts received by Tenant from any
subtenant or assignee in excess of the amounts payable by Tenant to Landlord
hereunder (hereinafter the "Transfer Premium"). Landlord shall not have the
right to receive the Transfer Premium in the event of a sublease or assignment
to a Permitted Transferee, as defined in Section 10(i) AND PROVIDED FURTHER,
THAT LANDLORD SHALL NOT HAVE THE RIGHT TO RECEIVE THE TRANSFER PREMIUM IN THE
EVENT OF A SUBLEASE OF LESS THAN TWENTY-FIVE PERCENT (25%) OF THE LEASED
PREMISES FOR FURNISHED OFFICE SPACE TO A SUBTENANT THAT RECEIVES SECRETARIAL
SUPPORT SERVICES FROM TENANT AS PART OF THE SUBLEASE AGREEMENT (HEREINAFTER
REFERRED TO AS A "PERMITTED SUBLEASE"). The Transfer Premium shall be reduced
by the reasonable and customary costs incurred by Tenant to effect such
assignment or subletting, to include brokerage fees and commissions, tenant
improvement costs, marketing costs, tenant allowances and legal fees actually
paid by Tenant in order to assign the Lease or to sublet a portion of the Leased
Premises. For purposes of calculating the Transfer Premium, all expenses will
be amortized over the life of such sublease. "Transfer Premium" shall mean all
Basic Rent, Additional Charges or other consideration of any type whatsoever
payable by the assignee or subtenant in excess of the Basic Rent and Additional
Charges payable by Tenant under this Lease. If less than all of the Leased
Premises is transferred, the Basic Rent and the Additional Charges shall be
determined on a per rentable square foot basis. Transfer Premium shall also
include, but not be limited to, key money and bonus money paid by the assignee
or subtenant to Tenant in connection with such Transfer, and any payment in
excess of fair market value for services rendered by Tenant to the assignee or
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subtenant or for assets, fixtures, inventory, equipment, or furniture
transferred by Tenant to the assignee or subtenant in connection with such
Transfer. For purposes of calculating the Transfer Premium, expenses will be
amortized over the life of the sublease.
(g) Landlord's Option to Recapture Space. Notwithstanding anything to
------------------------------------
the contrary contained in this Section 10, Landlord shall have the option, by
giving written notice to Tenant within twenty (20) days after receipt of any
request by Tenant to either (i) assign this Lease to any person or entity other
than a Permitted Transferee, or (ii) sublease space in the Leased Premises to
any person or entity other than a Permitted Transferee, to terminate this Lease
with respect to all but not less than all of said space effective as of the
proposed transfer date but in no event earlier than thirty (30) days after
Landlord's election; PROVIDED, HOWEVER, THAT TENANT SHALL HAVE THREE (3)
BUSINESS DAYS FOLLOWING NOTICE BY LANDLORD OF ITS ELECTION TO RECAPTURE SAID
SPACE TO RESCIND ITS REQUEST TO ASSIGN OR SUBLEASE. In the event of a recapture
by Landlord, if this Lease shall be canceled with respect to less than the
entire Leased Premises, the Tenant shall be released from this Lease with
respect to the space recaptured by Landlord (except to the extent any such
obligations by their terms survive termination of this Lease), the Basic Rent,
Tenant's Proportionate Share of Operating Expense increases and the number of
parking spaces Tenant may use shall be adjusted on the basis of the number of
rentable square feet retained by Tenant in proportion to the number of rentable
square feet contained in the original Leased Premises, and this Lease as so
amended shall continue thereafter in full force and effect with respect to that
portion of the Leased Premises retained by Tenant, and upon request of either
party, the parties shall execute written confirmation of same. If Landlord
recaptures only a portion of the Leased Premises, it shall construct and erect
at its sole cost such partitions as may be required to demise and sever the
space to be retained by Tenant from the space recaptured by Landlord. Landlord
may, at its option, lease any recaptured portion of the Leased Premises to the
proposed subtenant or assignee or to any other person or entity without
liability to Tenant. Tenant shall not be entitled to any portion of the profit,
if any, Landlord may realize on account of such termination and reletting.
Tenant acknowledges that the purpose of this Section 10(g) is to enable Landlord
to receive profit in the form of higher rent or other consideration to be
received from an assignee or sublessee, to give Landlord the ability to meet
additional space requirements of other tenants of the Building and to permit
Landlord to control the leasing of space in the Building. Tenant acknowledges
and agrees that the requirements of this Section 10(g) are commercially
reasonable and are consistent with the intentions of Landlord and Tenant.
NOTWITHSTANDING THE FOREGOING, LANDLORD'S RIGHT TO RECAPTURE SHALL NOT APPLY TO
ANY PERMITTED SUBLEASE AS THAT TERM IS DEFINED IN SECTION 10(F) HEREINABOVE.
(h) Landlord's Expenses. In the event Tenant shall assign this Lease
--------------------
or sublet the Leased Premises or request the consent of Landlord to any
Transfer, then Tenant shall pay Landlord's reasonable costs and expenses
incurred in connection therewith, including, but not limited to, attorneys',
architects', accountants', engineers' or other consultants' fees. SUCH EXPENSES
SHALL NOT EXCEED ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00) PER
TRANSFER OR REQUEST TO TRANSFER.
(i) Permitted Transactions. NOTWITHSTANDING ANYTHING TO THE CONTRARY
----------------------
CONTAINED IN THIS SECTION 10, TENANT SHALL HAVE THE RIGHT, WITHOUT LANDLORD'S
CONSENT, UPON THIRTY (30) DAYS ADVANCE WRITTEN NOTICE TO LANDLORD, TO ASSIGN THE
LEASE OR SUBLET THE WHOLE OR ANY PART OF THE LEASED PREMISES TO ANY ENTITY THAT
CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH TENANT OR IN
CONNECTION WITH ANY CONSOLIDATION OR REORGANIZATION OF TENANT OR THE MERGER OF
TENANT WITH ANY OTHER ENTITY OR THE SALE OF ALL OR SUBSTANTIALLY ALL OF TENANT'S
ASSETS OR OF ALL OR SUBSTANTIALLY ALL OF THE INTERESTS (PARTNERSHIP, STOCK, OR
OTHERWISE) IN TENANT (EACH OF THE TRANSACTIONS REFERENCED ABOVE IN THIS
SUBPARAGRAPH (I) ARE HEREINAFTER REFERRED TO AS A "PERMITTED TRANSFER" AND EACH
SURVIVING ENTITY SHALL HEREINAFTER BE REFERRED TO AS A "PERMITTED TRANSFEREE");
PROVIDED THAT SUCH PERMITTED TRANSFER IS SUBJECT TO THE FOLLOWING CONDITIONS:
(i) TENANT, TO THE EXTENT TENANT SURVIVES SUCH TRANSACTION, SHALL
REMAIN FULLY LIABLE UNDER THE TERMS AND CONDITIONS OF THE LEASE;
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(ii) ANY SUCH PERMITTED TRANSFEREE SHALL BE SUBJECT TO ALL OF THE
TERMS, COVENANTS, AND CONDITIONS OF THE LEASE EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THIS LEASE;
(iii) ANY SUCH PERMITTED TRANSFEREE EXPRESSLY ASSUMES THE
OBLIGATIONS OF TENANT UNDER THE LEASE;
(iv) SUCH PERMITTED TRANSFEREE HAS A NET WORTH AT LEAST EQUAL TO
THE NET WORTH OF TENANT AS OF THE DATE OF THIS LEASE.
11. Default Provisions.
------------------
(a) Events of Default. Each of the following events shall be deemed to
-----------------
be a default under this Lease, and is referred to in this Lease as an "Event of
Default":
(1) A default by Tenant in the due and punctual payment of any
Basic Rent or Additional Charges (other than those Additional Charges for which
Landlord must give Tenant notice in which case subparagraph (2) below shall
apply) which continues for more than five (5) business days after LANDLORD
DELIVERS WRITTEN NOTICE THAT such Basic Rent or Additional Charges IS PAST due
and payable; PROVIDED, HOWEVER, IT SHALL BE AN EVENT OF DEFAULT HEREUNDER
WITHOUT ANY OBLIGATION OF LANDLORD TO GIVE ANY NOTICE TO TENANT IF LANDLORD HAS
PREVIOUSLY GIVEN TENANT TWO (2) NOTICES PURSUANT TO THIS SECTION 11(A)(1) DURING
THE EIGHTEEN (18) MONTH PERIOD PRECEDING SUCH DEFAULT; or
(2) A default by Tenant in the due and punctual payment of
Additional Charges which continues for more than five (5) business days after
the payment date set forth in the notice of payment, where required, by Landlord
to Tenant; or
(3) The neglect or failure of Tenant to perform or observe any of
the terms, covenants or conditions contained in this Lease on Tenant's part to
be performed or observed other than those referred to above in subsection (1)
which is not remedied by Tenant within twenty (20) days after Landlord shall
have given to Tenant written notice specifying such neglect or failure or a
reasonable time after written notice if such failure is incapable of cure within
twenty (20) days, so long as Tenant pursues the cure with due diligence; or
(4) The assignment, transfer, mortgaging or encumbering of this
Lease or the subletting of the Leased Premises in a manner not permitted by
Section 10 hereof; or
(5) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant, or
upon or
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subject to any attachment at the insistence of any creditor of or claimant
against Tenant, which execution or attachment shall not be discharged or
disposed of within thirty (30) days after the levy thereof, or the occurrence of
any of the events listed in Section 12 hereof; or
(6) ANY abandonment of the Leased Premises by Tenant.
(b) Remedies. Upon five (5) calendar days notice from Landlord to
--------
Tenant of an Event of Default under Section 11(a)(1) above, or the occurrence of
any other Event of Default, Landlord shall have the right, at its election, then
or at any time thereafter while such Event of Default shall continue, either:
(1) To give Tenant written notice that this Lease will terminate
on a date to be specified in such notice, which date shall not be less than
three (3) days after such notice, and on the date specified in such notice
Tenant's right to possession of the Leased Premises shall cease and this Lease
shall thereupon be terminated, but Tenant shall remain liable as provided below
in subsection (c); or,
(2) Without demand or notice, to re-enter and take possession of
the Leased Premises, or any part thereof, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its or their effects, either by summary proceedings or by
action at law or in equity or by self-help (if necessary) or otherwise, without
being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenant. If Landlord elects
to re-enter under this subsection (2), Landlord may terminate this Lease, or,
from time to time, without terminating this Lease but terminating Tenant's right
to occupy the Leased Premises, may relet the Leased Premises, or any part
thereof, as agent for Tenant for such term or terms and at such rental or
rentals and upon such other terms and conditions as Landlord may deem advisable,
with the right to make reasonable alterations and repairs to the Leased
Premises. No such re-entry or taking of possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention is given to Tenant under above
subsection (1) or unless the termination thereof be decreed by a court of
competent jurisdiction. Tenant waives any right to the service of any notice of
Landlord's intention to re-enter provided for by any present or future law.
(c) Damages. If Landlord terminates this Lease or Tenant's right to
-------
occupy the Leased Premises pursuant to above subsection (b), subject to
Landlord's obligation to expend commercially reasonable efforts to relet the
Leased Premises and mitigate its damages, (however Landlord shall have no
obligation to relet the Leased Premises if other vacant space is available in
the Building) Tenant shall remain liable (in addition to accrued liabilities) to
the extent legally permissible for (i) (A) all Basic Rent and Additional Charges
provided for in this Lease until the date this Lease would have expired had such
termination not occurred, discounted to present value at the discount rate of
the Federal Reserve Bank of Baltimore at the time of such termination plus one
percent (1%), all accelerated to the date of any such termination ("NPV"), and
(B) any and all reasonable expenses incurred by Landlord in re-entering the
Leased Premises, repossessing the same, making good any default of Tenant,
remodeling, altering or dividing the Leased Premises for relet, combining the
same with any adjacent space for any new tenants, putting the same in proper
repair, establishing signage for, reletting the same (including any and all
reasonable attorneys fees and disbursements and reasonable brokerage fees
incurred in so doing), and any and all expenses which Landlord may incur in
reletting the Leased Premises; less (ii) the net proceeds of any reletting of
the Leased Premises discounted to NPV. Tenant agrees to pay to Landlord the
difference between items (i) and (ii) above, within ten (10) days after notice,
upon any termination or subletting, in full or, at Landlord's option, with
respect to each month during the Term, at the end of such month. Any suit
brought by Landlord to enforce collection of such difference for any one month
shall not prejudice Landlord's right to enforce the collection of any difference
for any other month. In addition to the foregoing, Tenant shall pay to Landlord
such sums as the court which has jurisdiction thereover may adjudge reasonable
as attorneys fees with respect to any successful law suit or action instituted
by Landlord to enforce the provisions of this Lease. Landlord shall have the
right, at its sole option, to relet the whole or any part of the Leased Premises
23
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for the whole of the unexpired Term, or longer, or from time to time for shorter
periods, for any rental then obtainable, giving such concessions of rent and
making such special repairs, alterations, decorations and painting for any new
tenant as Landlord, in its sole and absolute discretion, may deem advisable.
Landlord shall be under no obligation to relet the Leased Premises. Tenant's
liability as aforesaid shall survive the institution of summary proceedings and
the issuance of any warrant thereunder unless waived.
(d) Basic Rent and Additional Charges. If Tenant fails to pay Basic
-----------------------------------
Rent or any Additional Charges due hereunder on the date it is due, then after
Tenant's second failure to pay any such monetary obligation on the date it is
due (after expiration of any applicable notice and grace period) in any twelve
(12) month period, and at Landlord's option, Landlord may require Tenant to pay
six (6) months of Basic Rent and Additional Charges in advance.
12. Bankruptcy Termination Provision.
--------------------------------
This Lease shall, at Landlord's option, terminate and expire, without the
performance of any act or the giving of any notice by Landlord, upon the
occurrence of any of the following events: (1) Tenant's inability to pay its
debts generally as they become due, or (2) the commencement by Tenant of a
voluntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or (3) the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of Tenant in an
involuntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, and the continuance of any such decree or order
unstayed and in effect for a period of sixty (60) consecutive days, or (4)
Tenant's making an assignment of all or a substantial part of its property for
the benefit of its creditors, or (5) Tenant's seeking or consenting to or
acquiescing in the appointment of, or the taking of possession by, a receiver,
trustee or custodian for all or a substantial part of its property, or (6) the
entry of a court order without Tenant's consent, which order shall not be
vacated, set aside or stayed within sixty (60) days from the date of entry,
appointing a receiver, trustee or custodian for all or a substantial part of its
property, (7) the sale of all or substantially all of Tenant's assets OTHER THAN
PURSUANT TO A PERMITTED TRANSFER, or (8) any of the foregoing events by or as
against any Guarantor. In the event of termination of the Lease as a result of
any of the foregoing events, Landlord shall be entitled to damages as set forth
in Section 11(c) hereof. The provisions of this Section 12 shall be construed
with due recognition for the provisions of the federal bankruptcy laws, where
applicable, but shall be interpreted in a manner which results in a termination
of this Lease in each and every instance, and to the fullest extent and at the
earliest moment, that such termination is permitted under the federal bankruptcy
laws, it being of prime importance to the Landlord to deal only with Tenants who
have, and continue to have, a strong degree of financial strength and financial
stability.
13. Landlord May Perform Tenant's Obligations.
-----------------------------------------
If Tenant shall fail to keep or perform any of its obligations as provided
in this Lease in respect to (a) maintenance of insurance, (b) repairs and
maintenance of the Leased Premises, (c) compliance with the Requirements, or (d)
the making of any other payment or performance of any other obligation, then
Landlord may (but shall not be obligated to do so) upon the continuance of such
failure on Tenant's part for twenty (20) days after written notice to Tenant (or
after such additional period, if any, as Tenant may reasonably require to cure
such failure if of a nature which cannot be cured within said twenty (20) day
period) and without waiving or releasing Tenant from any obligation, and as an
additional but not exclusive remedy, make any such payment or perform any such
obligation, and all sums so paid by Landlord and all necessary incidental costs
and expenses, including attorneys fees, incurred by Landlord in making such
payment or performing such obligation, together with interest thereon at the
rate specified in Section 3(c) hereof from the date of payment, shall be deemed
an Additional Charge and shall be paid to Landlord on demand, or at Landlord's
option may be added to any installment of rent thereafter falling due, and if
not so paid by Tenant, Landlord shall have the same rights and remedies as in
the case of a default by Tenant in the payment of Rent.
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14. Security Deposit.
----------------
(a) Tenant shall deposit with Landlord the Security Deposit, as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant hereunder. The
Security Deposit shall be in the form of cash or, at Tenant's option, an
irrevocable letter of credit (the "Security Deposit L/C"). If the Security
Deposit is in the form of a letter of credit, the Security Deposit L/C shall be
delivered to Landlord at Tenant's sole cost and expense. The Security Deposit
L/C shall be issued by and drawn on a bank reasonably acceptable to Landlord, in
Landlord's sole but reasonable discretion, and shall name Landlord as
Beneficiary. If the maturity date of the Security Deposit L/C is prior to the
end of the Term of the Lease, Tenant shall renew the Security Deposit L/C as
often as is necessary with the same bank or financial institution (or a similar
bank or financial institution reasonably acceptable to Landlord) and upon the
same terms and conditions, not less than thirty (30) days prior to the purported
expiration date of the Security Deposit L/C. In the event that Tenant fails to
timely renew the Security Deposit L/C as aforesaid, Landlord shall be entitled
to draw against the entire amount of the Security Deposit L/C. The Security
Deposit L/C shall be assignable by Landlord and upon such assignment to any
party assuming in writing the landlord interest and obligations under this
Lease, and this Landlord shall be relieved from all liability to Tenant
therefor. If an Event of Default occurs, Landlord may use, apply or retain the
whole or any part of the Security Deposit for the payment of (i) any Basic Rent
or Additional Charges which Tenant shall not have paid or which may become due
after the occurrence of such Event of Default, (ii) any sum expended by Landlord
on Tenant's behalf in accordance with the provisions of this Lease or (iii) any
other sum which Landlord may expend or be required to expend by reason of
Tenant's default, including damages or deficiency in the reletting of the Leased
Premises as provided in Section 11 hereof. The use, application or retention of
the Security Deposit, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease or by
law and shall not operate as a limitation on any recovery to which Landlord may
otherwise be entitled. If any portion of the Security Deposit is used, applied
or retained by Landlord for the purposes set forth above, Tenant agrees, within
ten (10) days after a written demand therefor is made by Landlord, to deposit
cash or a new Security Deposit L/C meeting the criteria referenced in this
Section 14, with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. If Tenant shall fully and faithfully comply with
all of the provisions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant within ten (10) business days after the
expiration of the Term, with interest. In the absence of evidence satisfactory
to Landlord of any permitted assignment of the right to receive the Security
Deposit, or the remaining balance thereof, Landlord may return the same to
Tenant, regardless of one or more assignments of Tenant's interest in this Lease
or the Security Deposit. In such event, upon the return of the Security Deposit
(or balance thereof) to Tenant, Landlord shall be completely relieved of
liability under this Section 14. In the event of a transfer of Landlord's
interest in the Leased Premises, Landlord shall have the right to transfer the
Security Deposit to the transferee thereof. In such event, upon the delivery by
Landlord to Tenant of such transferee's written acknowledgment of its receipt of
such Security Deposit and its agreement to comply with the provisions of this
Lease, Landlord shall be deemed to have been released by Tenant from all
liability or obligation for the return of such Security Deposit, and Tenant
agrees to look solely to such transferee for the return of the Security Deposit
and the transferee shall be bound by all provisions of this Lease relating to
the return of the Security Deposit. The Security Deposit shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant without the prior
written consent of Landlord.
(b) Notwithstanding anything to the contrary in this Section 14, and
provided that Tenant is not in monetary default beyond any applicable notice and
cure periods under the Lease at the time of each reduction, the amount of the
Security Deposit L/C OR THE CASH SECURITY DEPOSIT, AS APPLICABLE, shall be
reduced by Seventeen Thousand Five Hundred Five and 76/100 Dollars ($17,505.76))
on each anniversary of the Lease Commencement Date.
15. Subordination; Attornment.
--------------------------
(a) Subordination. Subject to the provisions contained in Section
-------------
15(d), this Lease and Tenant's interest hereunder shall be subject and
subordinate to each and every ground or underlying lease now existing or
hereafter made of the entire Building and/or underlying land and to all
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renewals, modifications, replacements and extensions thereof, and to the lien of
any mortgage now or hereafter placed upon the Building, and to all renewals,
modifications, replacements, consolidations and extensions thereof and to any
and all advances made thereunder and the interest thereon. Tenant agrees that
within fifteen (15) days after written request therefor from Landlord, it will,
from time to time, execute and deliver any instrument or other document required
by any such landlord or mortgagee to subordinate this Lease and its interest in
the Leased Premises to such lease or the lien of any such mortgage. Tenant will
also upon request submit current financial statements and financial statements
covering the two (2) immediately preceding years, and Tenant will upon request,
at Landlord's cost, record this Lease or a short form thereof if required by
Landlord's mortgagee or other lending institution but, otherwise, Tenant shall
not record this Lease or a short form thereof.
(b) Modifications. In the event that any bank, insurance company,
-------------
university, pension or welfare fund, savings and loan association, real estate
investment trust, business trust, or other financial institution providing
financing for the Building requires, as a condition of such financing, that
modifications to this Lease be obtained, and provided that such modifications
(i) are reasonable, (ii) do not materially adversely affect Tenant's use of the
Leased Premises as herein permitted, (iii) do not materially adversely change
Tenant's rights or obligations under this Lease, and (iv) do not increase the
rentals and other sums required to be paid by Tenant hereunder, Landlord shall
submit such required modifications to Tenant, and Tenant shall enter into and
execute a written amendment hereto incorporating such required modifications
within twenty (20) days after the same have been submitted to Tenant by
Landlord. If Tenant shall fail to so enter into and execute such a written
amendment, then Landlord shall thereafter have the right, at its sole option, to
submit such matter to binding expedited arbitration under the Commercial
Arbitration Rules of the AAA by giving Tenant written notice thereof.
(c) Attornment. Subject to the provisions contained in this Section
----------
15, in the event of (a) a transfer of Landlord's interest in the Leased
Premises, (b) the termination of any ground or underlying lease of the entire
Building and/or underlying land, or (c) the purchase of the Building or
Landlord's interest therein at a foreclosure sale or by deed in lieu of
foreclosure under any mortgage or pursuant to a power of sale contained in any
mortgage, then in any of such events, Tenant shall, at Landlord's request,
attorn to and recognize the transferee or purchaser of Landlord's interest or
the landlord under the terminated ground or underlying lease, as the case may
be, as landlord under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct lease between such person, as
"Landlord", and Tenant, as "Tenant", but such landlord, transferee or purchaser,
unless an express assumption of this Lease is made by such landlord, transferee
or purchaser, in which case Landlord shall be released from liability, shall not
be liable for any act or omission of Landlord prior to such lease termination or
prior to such person's succession to title, nor be subject to any offset,
defense or counterclaim accruing prior to such lease termination or prior to
such person's succession to title, nor be bound by any payment of Basic Rent or
Additional Charges prior to such lease termination or prior to such person's
succession to title for more than one month in advance. Tenant agrees that,
within twenty (20) days after written request therefor from Landlord, it will,
from time to time, execute and deliver any instrument or other document required
by any mortgagee, transferee, purchaser or other interested person to confirm
such attornment and/or such obligation to attorn.
(d) Nondisturbance. Notwithstanding anything contained in Section 15
--------------
of this Lease to the contrary:
a) If this Lease is subordinate to any existing fee or
leasehold mortgages or ground or air space leases covering the underlying land,
Building or Common Areas, Landlord, prior to the Lease Commencement Date, shall
obtain, have executed and shall deliver to Tenant, a Subordination,
Nondisturbance and Attornment Agreement by and between the Tenant and such prior
party, in the form of Exhibit F attached to this Lease.
---------
b) Subject to the provision of subsection (i) below, this
Lease shall be subordinate and subject to any future fee or leasehold Mortgages
and ground or air space leases covering the underlying land, Building or Common
Areas.
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<PAGE>
(i) If any Mortgage is foreclosed or ground lease or air
space lease is terminated, then:
(1) This Lease shall continue in full force and effect,
and
(2) Tenant's quiet enjoyment shall not be disturbed
if Tenant is not in default of this Lease beyond
any applicable grace and notice period provided
herein for the cure thereof, and
(3) Tenant shall attorn to and recognize the
mortgagee, purchaser at a foreclosure sale or
ground or other lessor ("Successor Landlord") as
Tenant's landlord for the remaining Lease Term; and
(ii) This subsection shall be self-operative; however,
Landlord shall use commercially reasonable efforts to cause
a future lender to enter into an agreement confirming such
subordination, attornment and non-disturbance if either
party so requests.
16. Quiet Enjoyment.
---------------
Landlord covenants that Tenant, upon paying the Basic Rent and the
Additional Charges provided for in this Lease, and upon performing and observing
all of the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be kept, observed and performed, shall quietly hold, occupy and enjoy
the Leased Premises during the Term without hindrance, ejection or molestation
by Landlord or any party lawfully claiming through or under Landlord, subject to
the terms of this Lease.
17. Landlord's Right of Access.
--------------------------
Landlord may, SUBJECT TO GOVERNMENTAL AND TENANT'S REASONABLE
REQUIREMENTS WITH RESPECT TO CONFIDENTIALITY AND SECURITY, during any reasonable
time or times AND UPON TWENTY-FOUR (24) HOURS PRIOR NOTICE TO TENANT (unless a
suspected emergency), before and after the Lease Commencement Date, enter upon
the Leased Premises, any portion thereof and any appurtenance thereto (with
laborers and materials, if required) for the purpose of: (i) inspecting the
same; (ii) making such repairs, replacements or alterations which it may be
required to perform under the provisions of this Lease or which it may deem
desirable for the Leased Premises or the Building, including but not limited to
repairs and improvements to space above, below and/or on the same floor as the
Leased Premises; and (iii) DURING THE LAST NINE (9) MONTHS OF THE TERM OF THIS
LEASE, showing the Leased Premises to prospective purchasers or tenants.
Landlord agrees to give reasonable notice prior to any such entry except that
Landlord may enter without notice in the case of a suspected emergency. In
making such an entry, Landlord agrees to use reasonable efforts to avoid
interfering with the regular and usual conduct of the Tenant's business. If
Tenant shall carpet over the floor of the Leased Premises, Landlord shall have
the right to cut such carpeting in order to make or install any necessary
electrical or telephone equipment or wiring to service other parts of the
Building, without being held liable therefor, provided Landlord shall have the
carpeting restored in a workmanlike manner and to Tenant's reasonable
satisfaction.
18. Limitation on Landlord's Liability.
----------------------------------
(a) Limitation. Landlord, its affiliates and their agents and
----------
employees shall not be liable to Tenant, its employees, agents, business
invitees, licensees, customers, guests or trespassers for any damage or loss to
the property of Tenant or others located on the Leased Premises or for any
accident or injury to persons in the Leased Premises or the Building resulting
from: the necessity of repairing any portion of the Building; the use or
operation (by Tenant or any other person or persons whatsoever) of any
elevators, or heating, cooling, electrical or plumbing equipment or apparatus;
the termination of this Lease by reason of the destruction of the Building or
the Leased Premises; any fire, robbery, theft and/or any other casualty; any
27
<PAGE>
leaking in any part or portion of the Leased Premises or the Building; any
water, wind, rain or snow that may leak into, or flow from, any part of the
Leased Premises or the Building; any acts or omissions of any occupant of any
space adjacent to or adjoining all or any part of the Leased Premises; any
water, gas, steam, fire, explosion, electricity or falling plaster; the
bursting, stoppage or leakage of any pipes, sewer pipes, drains, conduits,
ducts, appliances or plumbing works; the functioning or malfunctioning of the
fire sprinkler system; the functioning or malfunctioning of any security system
installed in the Building or any part thereof; or any other cause whatsoever;
provided, however, that Landlord shall be liable for any such damage or loss
resulting from the gross negligence or willful misconduct of Landlord, its
affiliates and their agents and employees. NOTHING IN THIS SECTION 18(A) SHALL
BE DEEMED TO BE A WAIVER OF TENANT'S RIGHT TO A CLAIM OF CONSTRUCTIVE EVICTION
OR SPECIFIC PERFORMANCE.
(b) Force Majeure. LANDLORD'S AND TENANT'S TIME TO PERFORM THEIR
--------------
RESPECTIVE OBLIGATIONS UNDER THIS LEASE BECAUSE OF, FROM OR THROUGH ACTS OF GOD,
STRIKES, LOCKOUTS, LABOR DIFFICULTIES, EXPLOSIONS, SABOTAGE, ACCIDENTS, RIOTS,
CIVIL COMMOTIONS, ACTS OF WAR, RESULTS OF ANY WARFARE OR WARLIKE CONDITIONS IN
THIS OR ANY FOREIGN COUNTRY, FIRE AND CASUALTY, REQUIREMENTS OR OTHER SIMILAR
CAUSES BEYOND THE REASONABLE CONTROL OF LANDLORD OR TENANT, AS THE CASE MAY BE
(HEREINAFTER A "FORCE MAJEURE EVENT"), SHALL EXTEND SUCH PARTY'S TIME TO PERFORM
BY THE PERIOD OF SUCH DELAY OR SUCH PREVENTION WHICH SHALL BE DEEMED ADDED TO
THE TIME HEREIN PROVIDED FOR THE PERFORMANCE OF ANY SUCH OBLIGATION PROVIDED,
HOWEVER, NOTHING HEREIN SHALL REDUCE LANDLORD'S OBLIGATIONS TO PROVIDE SERVICES
OR REPAIRS. NOTWITHSTANDING THE FOREGOING, TENANT'S FAILURE TO PAY RENT SHALL
NOT BE EXCUSED BY ANY FORCE MAJEURE EVENT.
19. Hazardous Material.
------------------
For purposes of this Lease, the term "Hazardous Material" means any
hazardous substance, hazardous waste, infectious waste, or toxic substance,
material, or waste which becomes regulated or is defined as such by any local,
state or federal governmental authority. Landlord covenants that, to its actual
knowledge, there is no Hazardous Material located in, on or under the Building
as of the date of this Lease in violation of any federal or state law. Landlord
hereby agrees to indemnify Tenant from and against any claims, damages, losses
or liabilities (including reasonable attorney's fees) incurred by Tenant and
arising from (i) any breach of the foregoing representation and warranty, and
(ii) any Hazardous Material brought into the Leased Premises or the Building by
Landlord or another tenant. Except for small quantities of ordinary office
supplies such as copier toners, liquid paper, glue, ink and common household
cleaning materials, Tenant shall not cause or permit any Hazardous Material to
be brought, kept or used in or about the Leased Premises or the Building by
Tenant, its agents, employees, contractors, or invitees. Tenant hereby agrees to
indemnify Landlord from and against any breach by Tenant of the obligations
stated in the preceding sentence, and agrees to defend and hold Landlord
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Building, damages for the loss or restriction or use of rentable
space or of any amenity of the Building, damages arising from any adverse impact
on marketing of space in the Building, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Term of this Lease as result of such breach. This indemnification of
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<PAGE>
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions and any cleanup, remedial removal, or
restoration work required due to the presence of Hazardous Material. Tenant
shall promptly notify Landlord of any release of a Hazardous Material in the
Leased Premises or at the Building of which Tenant becomes aware, whether caused
by Tenant or any other person or entity. The provisions of this Section 19
shall survive the termination of the Lease.
(a) Definition and Consent. The term "Hazardous Substance" as used in
----------------------
this Lease shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or affect, either by itself or in
combination with other materials expected to be on the Leased Premises, is
either: (a) potentially injurious to the public health, safety or welfare, the
environment or the Leased Premises, (b) regulated or monitored by any
governmental entity, (c) a basis for liability of Landlord to any governmental
entity or third party under any federal, state or local statute or common law
theory or (d) defined as a hazardous material or substance by any federal, state
or local law or regulation. Except for small quantities of ordinary office
supplies such as copier toner, liquid paper, glue, ink and common household
cleaning materials, Tenant shall not cause or permit any Hazardous Substance to
be brought, kept, or used in or about the Leased Premises or the Building by
Tenant, its agents, employees, contractors or invitees.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable cause
-----------------------
to believe, that a Hazardous Substance, or a condition involving or resulting
from same, has come to be located in, on or under or about the Leased Premises
or the Building, Tenant shall immediately give written notice of such fact to
Landlord. Tenant shall also immediately give Landlord (without demand by
Landlord) a copy of any statement, report, notice, registration, application,
permit, license, given to or received from, any governmental authority or
private party, or persons entering or occupying the Leased Premises, concerning
the presence, spill, release, discharge of or exposure to, any Hazardous
Substance or contamination in, on or about the Leased Premises or the Building.
(c) Inspection; Compliance. Landlord and Landlord's employees, agents,
----------------------
contractors and lenders shall have the right to enter the Leased Premises at any
time in the case of an emergency, and otherwise at reasonable times upon
reasonable advance notice, for the purpose of inspecting the condition of the
Leased Premises and for verifying compliance by Tenant with this Section 19.
Landlord shall have the right to employ experts and/or consultants in connection
with its examination of the Leased Premises and with respect to the
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Leased Premises. The costs and expenses of
any such inspections shall be paid by the party requesting same, unless a
contamination, caused or materially contributed to by Tenant, is found to exist
or be imminent, or unless the inspection is requested or ordered by governmental
authority as the result of any such existing or imminent violation or
contamination. In any such case, Tenant shall upon THIRTY (30) DAYS PRIOR
WRITTEN NOTICE, WHICH NOTICE SHALL INCLUDE SUPPORTING DOCUMENTATION FOR THE COST
OF SUCH REPAIRS, reimburse Landlord for the cost and expenses of such
inspection.
20. Certificates.
------------
Tenant shall, without charge therefor, at any time and from time to
time, within twenty (20) days after request therefor by Landlord, execute,
acknowledge and deliver to Landlord a written estoppel certificate certifying to
Landlord, any mortgagee, assignee of a mortgagee, or any purchaser of the
Building, or any other person designated by Landlord, as of the date of such
estoppel certificate, (i) that Tenant is in possession of the Leased Premises
(if accurate), (ii) that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the Lease is in full force and effect
as modified and setting forth such modification); (iii) whether or not, to the
best of Tenant's knowledge, there are then existing any set-offs or defenses
against the enforcement of any right or remedy of Landlord, or any duty or
obligation of Tenant hereunder (and, if so, specifying the same in detail); (iv)
the dates through which Basic Rent and Additional Charges have been paid; (v)
that Tenant has no knowledge of any then uncured defaults on the part of
Landlord under this
29
<PAGE>
Lease (or if Tenant has knowledge of any such uncured defaults, specifying the
same in detail); (vi) that Tenant has no knowledge of any event having occurred
that authorizes the termination of this Lease by Tenant (or if Tenant has such
knowledge, specifying the same in detail); (vii) the amount of any Security
Deposit held by Landlord; (viii) other matters reasonably requested by Landlord
and (ix) such other matters as to material facts as Tenant deems necessary to
make the certificate accurate. Tenant shall be in material default of this
Lease if Tenant shall fail to so execute and deliver such a written estoppel
certificate.
21. Surrender of Leased Premises.
----------------------------
Tenant shall, on or before the last day of the Term, or upon earlier
termination hereof or of Tenant's right to occupy the Leased Premises in
accordance with the terms hereof, (i) peaceably and quietly leave, surrender and
yield up to Landlord the Leased Premises, free of subtenancies, broom clean and,
subject to the provisions of Section 13 hereof, in good order and condition
except for reasonable wear and tear AND DAMAGE DUE TO CASUALTY OR THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD (OR LANDLORD'S EMPLOYEES,
CONTRACTORS, OR AGENTS), and (ii) at its expense, remove from the Leased
Premises all movable trade fixtures, furniture, equipment, and other personal
property, provided that Tenant shall promptly repair any damage caused by such
removal. Any of such property not so removed may, at Landlord's election and
without limiting Landlord's right to compel removal thereof, be deemed abandoned
and either may be retained by Landlord as its property or be disposed of,
without accountability, in such manner as Landlord may see fit. EXCEPT AS
OTHERWISE LISTED ON EXHIBIT G ATTACHED HERETO, ALL affixed installations,
alterations, additions, betterments and improvements to the Leased Premises made
by either Landlord or Tenant, whether at Landlord's or Tenant's expense,
including, without limitation, all wiring, paneling, partitions, floor
coverings, lighting fixtures, built-in cabinets, bookshelves affixed to walls,
and the like, unless designated in writing by agreement of the parties upon
installation, shall become the property of Landlord when installed and shall
remain with the Leased Premises at the expiration or sooner termination of the
Term, except that Landlord shall have the right, by notice to Tenant at the time
of approving Tenant's plans for such improvements, to require Tenant, at its
expense, to remove any of such property installed by or at the sole expense of
Tenant or other remaining property objectionable to Landlord and to repair any
damage caused by such removal. In the event Tenant fails to perform such removal
and repair, as aforesaid, Landlord may remove any property of Tenant from the
Leased Premises and store the same elsewhere at the expense and risk of Tenant.
The provisions of this Section shall survive any expiration or termination of
this Lease.
22. Alterations and Additions.
-------------------------
(a) Tenant will not make or permit anyone to make any alterations,
additions or improvements, structural or otherwise ("Alterations"), in or to the
Leased Premises or the Building, without first obtaining the written consent of
Landlord which consent may be granted or withheld by Landlord as provided below.
Alterations shall include, but shall not be limited to, the installation or
alteration of security or fire protection systems, communication systems,
millwork, shelving, file retrieval or storage systems, carpeting or other floor
covering, window and wall coverings, electrical distribution systems, lighting
fixtures, telephone or computer system wiring, HVAC and plumbing. At the
expiration of the Term, Landlord may require the removal of any Alterations
installed by Tenant which Landlord has identified at the time Landlord approves
the plans therefore and the restoration of the Leased Premises and the Building
to their prior condition, at Tenant's expense. If, as a result of any Alteration
made by Tenant, Landlord is obligated to comply with the Americans With
Disabilities Act or any other law or regulation and such compliance requires
Landlord to make any improvement or Alteration to any portion of the Building,
as a condition to Landlord's consent, Landlord shall have the right to require
Tenant to pay to Landlord prior to the construction of any Alteration by Tenant,
the entire cost of any improvement or Alteration Landlord is obligated to
complete by such law or regulation. Should Landlord permit Tenant to make its
own Alterations, Tenant shall use only such contractor as has been expressly
approved by Landlord, and Landlord may require Tenant to provide to Landlord, at
Tenant's sole cost and expense, a lien and completion bond in an amount equal to
ONE HUNDRED TWENTY-FIVE PERCENT (125%) the estimated cost of such Alterations,
to insure Landlord against any liability for mechanic's and materialmen's liens
and to insure completion of the work. Landlord may withhold its consent in its
sole and absolute discretion with respect to any Alterations which are visible
30
<PAGE>
from the outside of the Leased Premises or adversely effect the structural
integrity of the Building or any of the Main Building Systems, as hereinafter
defined. Landlord will not unreasonably withhold, condition or delay its
consent to any Alterations provided that Tenant otherwise complies with the
provisions of this Section 22 and that the same (i) are not visible from the
outside of the Leased Premises, and (ii) do not adversely effect the structural
integrity of the Building or any of the Building systems which are not located
within the Leased Premises and which provide services to other occupants of the
Building in addition to Tenant, including the structural, electrical, plumbing
and HVAC systems ("Main Building Systems"). In the event Landlord consents to
any such Alterations, the same shall be performed in accordance with plans and
specifications reasonably approved in writing by Landlord, which approval shall
not be deemed to assure compliance with Laws. WITH RESPECT TO ALTERATIONS FOR
WHICH LANDLORD'S CONSENT IS REQUIRED , Tenant shall pay to Landlord a fee equal
to ten percent (10%) of the cost of the Alterations to compensate Landlord for
the overhead and other costs it incurs in reviewing the plans for the
Alterations and in monitoring the construction of the Alterations and five
percent (5%) for profit. In the event Landlord grants such consent and permits
Tenant to contract out such work, which permission Landlord will not
unreasonably withhold condition or delay, such Alterations shall be performed by
adequately insured contractors reasonably approved by Landlord (or in the case
of an Alteration to the Main Building Systems approved by Landlord, the
contractor designated by Landlord (provided such contractor agrees to perform
such Alterations at a commercially competitive cost)) and in a good and
workmanlike manner in accordance with all applicable Laws with which Tenant is
required to comply pursuant to the terms of this Lease and Requirements of which
Tenant has prior written knowledge. Landlord may inspect such work, in
progress. In any event, Tenant shall indemnify and hold harmless Landlord from
and against any and all reasonable costs, expenses, claims, liens and damages to
person or property resulting from the making of any such Alterations in or to
the Leased Premises or the Building by Tenant. In the event Tenant makes any
Alterations, Tenant agrees to obtain or cause its contractor to obtain, prior to
the commencement of any work, "builders all risk" insurance in an amount
approved by Landlord and workers compensation insurance. Except as provided
below, if any Alterations are made without the prior written consent of
Landlord, Landlord may correct or remove the same UPON NOTICE TO TENANT, WHO
SHALL HAVE A REASONABLE OPPORTUNITY TO MITIGATE ANY DAMAGES, and Tenant shall be
liable for any and all costs and expenses incurred by Landlord in such removal.
Tenant shall have the right to make cosmetic, non-structural Alterations to the
Leased Premises without obtaining Landlord's prior written consent, but
otherwise in accordance with the provisions of this Section 22, provided that
Tenant provides Landlord with written notice of its intention to make such
Alterations together with the plans and specifications for the same. For
purposes of this Section 22 "cosmetic, non-structural Alterations" shall be
deemed to mean paint, carpet and wallcovering. For purposes of the Lease, its
shall be deemed reasonable for Landlord to require Tenant to perform any
Alterations during non-business hours if such Alterations will create
unreasonable noise, noxious fumes or otherwise interfere with the quiet
enjoyment of the other tenants in the Building. In addition, Landlord shall
have the right to reasonably approve the vendor who shall perform said
Alterations. To the extent the Landlord's consent is required pursuant to this
Section 22, at the written request of Tenant, Landlord agrees to notify Tenant
concurrently with Landlord's consent of any such Alterations whether Landlord
will require Tenant to remove such Alterations at the end of the Lease Term if
such Alterations are required to be removed in accordance with Section 21
hereof.
(b) Any Alterations in or about the Leased Premises that Tenant shall
desire to make shall be presented to Landlord in written form, with plans and
specifications which are sufficiently detailed to obtain a building permit, if
required. If Landlord consents to an Alteration, the consent shall be deemed
conditioned upon Tenant acquiring a building permit (if required) from the
applicable governmental agencies, furnishing a copy thereof to Landlord prior to
the commencement of the work, and compliance by Tenant with all conditions of
said permit in a prompt and expeditious manner. Tenant shall provide Landlord
with as-built plans and specifications for any Alterations made to the Leased
Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Leased Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Leased Premises or the Building, or any interest
therein. If
31
<PAGE>
Tenant shall, in good faith, contest the validity of any such lien, Tenant shall
furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to
not less than ONE HUNDRED TWENTY-FIVE PERCENT (125%) OF the amount of such
contested lien or claim indemnifying Landlord against liability arising out of
such lien or claim. Such bond shall be sufficient in form and amount to free
the Building from the effect of such lien. In addition, Landlord may require
Tenant to pay Landlord's reasonable attorneys' fees and costs in connection with
defending any such claims.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Leased Premises by
Tenant, and Landlord shall have the right to post notices of non-responsibility
in or on the Leased Premises or the Building.
(e) All Alterations (whether or not such Alterations constitute trade
fixtures of Tenant) which may be made to the Leased Premises by Tenant shall be
paid for by Tenant, at Tenant's sole expense, and shall be made and done in a
good and workmanlike manner and with new materials satisfactory to Landlord and
such Alterations shall be the property of Landlord and remain upon and be
surrendered with the Leased Premises at the expiration of the Term of the Lease.
Provided no Event of Default exists, Tenant's personal property and equipment,
other than that which is affixed to the Leased Premises so that it cannot be
removed without material damage to the Leased Premises or the Building, shall
remain the property of Tenant and may be removed by Tenant subject to the
provisions of Section 21 above.
23. Holding Over.
------------
If Tenant remains in possession of the Leased Premises or any part
thereof after the expiration or earlier termination of the term hereof with
Landlord's consent, such occupancy shall be a tenancy from month to month upon
all the terms and conditions of this Lease pertaining to the obligations of
Tenant, except that the Basic Rent payable shall be the greater of (a) one
hundred fifty percent (150%) of the Basic Rent payable immediately preceding the
termination date of this Lease or (b) one hundred twenty-five percent (125%) of
the fair market base rent for the Leased Premises as of the date Tenant holds
over, and all Options, if any, shall be deemed terminated and be of no further
effect. If Tenant remains in possession of the Leased Premises or any part
thereof after the expiration of the Term hereof without Landlord's consent,
Tenant shall, at Landlord's option, be treated as a tenant at sufferance or a
trespasser. Nothing contained herein shall be construed to constitute Landlord's
consent to Tenant holding over at the expiration or earlier termination of the
Term. Tenant hereby agrees to indemnify, hold harmless and defend Landlord from
any cost, loss, claim or liability (including reasonable attorneys' fees)
Landlord may incur as a result of Tenant's failure to surrender possession of
the Leased Premises to Landlord upon the termination of this Lease.
24. Signs.
-----
Tenant shall not inscribe, paint, affix, or otherwise display any
sign, advertisement or notice on any part of the outside or inside of the
Building without Landlord's consent. Landlord shall provide at no cost to Tenant
a standard suite identification sign to be affixed by Landlord at the exterior
entrance to the Leased Premises in the standard size, color and style selected
by Landlord for the Building. Landlord shall also prepare and install at no cost
to Tenant a reasonable quantity of standard name plates as designated by Tenant
on written notice to Landlord for the lobby directory of the Building, but not
more than one (1) plate per Two Thousand Five Hundred (2,500) square feet of the
Leased Premises. If any other signs advertisements or notices are painted,
affixed, or otherwise displayed without the prior approval of Landlord, Landlord
shall have the right to remove the same UPON TWENTY-FOUR (24) HOURS PRIOR NOTICE
TO TENANT WHO SHALL HAVE A REASONABLE OPPORTUNITY TO MITIGATE ANY DAMAGES, and
Tenant shall be liable for any and all costs and expenses incurred by Landlord
in such removal.
25. Options.
-------
(a) Definition. As used in this Lease, the word "Option" has the
----------
following meaning: (1) the right or option to extend the Term of this Lease or
to renew this Lease, and (2) the option or right of first refusal to lease the
32
<PAGE>
Leased Premises or the right of first offer to lease the Leased Premises or the
right of first refusal to lease other space within the Building or the right of
first offer to lease other space within the Building, and (3) the right or
option to terminate this Lease prior to its expiration date or to reduce the
size of the Leased Premises. Any Option granted to Tenant by Landlord must be
evidenced by a written option agreement attached to this Lease as a rider or
addendum or said option shall be of no force or effect.
(b) Options Personal. Each Option granted to Tenant in this Lease, if
----------------
any, is personal to the original Tenant and any Permitted Transferee under
Section 10(i) above and may be exercised only by the original Tenant and any
Permitted Transferee while occupying not less than seventy-five percent (75%) of
the entire Leased Premises and may not be exercised or be assigned, voluntarily
or involuntarily, by or to any person or entity other than Tenant or such
Permitted Transferee. The Options, if any, herein granted to Tenant are not
assignable separate and apart from this Lease, nor may any Option be separated
from this Lease in any manner, either by reservation or otherwise. If at any
time an Option is exercisable by Tenant, the Lease has been assigned, or a
sublease exists as to any portion of the Leased Premises, the Option shall be
deemed null and void and neither Tenant nor any assignee or subtenant shall have
the right to exercise the Option.
(c) Multiple Options. In the event that Tenant has multiple Options to
----------------
extend or renew this Lease a later Option cannot be exercised unless the prior
Option to extend or renew this Lease has been so exercised.
(d) Effect of Default on Options. Tenant shall have no right to
-------------------------------
exercise an Option during the time that an Event of Default exists. The period
of time within which an Option may be exercised shall not be extended or
enlarged by reason of Tenant's inability to exercise an Option because of the
provisions of this Section 25(d).
(e) Notice of Exercise of Option. Notwithstanding anything to the
------------------------------
contrary contained in Section 27(f), Tenant may only exercise an option by
delivering its written notice of exercise to Landlord by certified mail, return
receipt and date of delivery requested. It shall be Tenant's obligation to prove
that such notice was so sent in a timely manner and was delivered to Landlord by
the U.S. Postal Service.
26. Leasing Commission.
------------------
Tenant represents and warrants that, except for Tenant's Leasing
Broker it has not employed or had contact with any broker relative to this
Lease. Tenant shall indemnify and hold harmless Landlord from and against any
other claim or claims for brokerage or other fees or commissions arising from or
out of any breach of the foregoing representation and warranty. LANDLORD SHALL
BE RESPONSIBLE FOR PAYMENT OF THE BROKERS' FEES TO TENANT'S LEASING BROKER AND
LANDLORD'S LEASING BROKER PURSUANT TO SEPARATE AGREEMENTS BETWEEN LANDLORD AND
SUCH PARTIES.
27. General Provisions.
------------------
(a) Binding Effect. The covenants, conditions, agreements, terms and
--------------
provisions of this Lease shall be binding upon and shall inure to the benefit of
the parties hereof and, subject to the provisions of Section 10 hereof, each of
their respective personal representatives, successors and assigns.
(b) Laws. It is the intention of the parties hereto that this Lease
----
(and the terms and provisions hereof) shall be construed and enforced in
accordance with the laws of the jurisdiction in which the Building is located.
(c) Attorneys' Fees. If Landlord or Tenant brings an action to enforce
---------------
the terms hereof or declare rights hereunder, the prevailing party in any such
action, or appeal thereon, shall be entitled to its reasonable attorneys' fees
and court costs to be paid by the losing party as fixed by the court in the same
or separate suit, and whether or not such action is pursued to decision or
judgment. The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
and court costs reasonably incurred in good faith. Landlord shall be entitled to
33
<PAGE>
reasonable attorneys' fees and all other costs and expenses incurred in the
preparation and service of notices of default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in connection
with such default. Landlord and Tenant agree that attorneys' fees incurred with
respect to defaults and bankruptcy are actual pecuniary losses within the
meaning of Section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.
(d) Waiver. No failure by Landlord OR TENANT to insist upon the strict
------
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by the Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term, covenant, agreement, provision, condition or limitation. No
term, covenant, agreement, provision, condition or limitation of this Lease to
be kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease, but each and every term, covenant, agreement, provision,
condition and limitation of this Lease shall continue in full force and effect
with respect to any other existing or subsequent breach thereof. No failure by
Landlord to insist upon the strict performance of any term, covenant, agreement,
provision, condition or limitation of a lease with any other tenant or to
exercise any right or remedy consequent thereof shall constitute a waiver of any
similar term, covenant, agreement, provision, condition or limitation contained
in this Lease unless the same be incorporated in a written instrument signed by
Landlord and making specific reference to this Lease and to the Tenant's
obligations hereunder.
(e) Security Interest. In consideration of the covenants and
-------------------
agreements contained herein, and as a material consideration to Landlord for
entering into this Lease, Tenant hereby unconditionally grants to Landlord a
continuing security interest in and to all personal property owned (not leased)
by Tenant and located or left at the Leased Premises and the Security Deposit,
if any, and any advance rent payment or other deposit, now in or hereafter
delivered to or coming into the possession, custody or control of Landlord, by
or for the account of Tenant, together with any increase in profits or proceeds
from such property. The security interest granted to Landlord hereunder secures
payment and performance of all obligations of Tenant under this Lease now or
hereafter arising or existing, whether direct or indirect, absolute or
contingent, or due or to become due. In the event of a default under this Lease
which is not cured within the applicable grace period, if any, Landlord is and
shall be entitled to all the rights, powers and remedies granted a secured party
under the Commonwealth of Virginia Uniform Commercial Code and otherwise
available at law or in equity, including, but not limited to, the right to
retain as damages the personal property, Security Deposit and other funds held
by Landlord, without additional notice or demand regarding this security
interest. Tenant agrees that it will execute such other documents or instruments
as may be reasonably necessary to carry out and effectuate the purpose and terms
of this Section, or as otherwise reasonably requested by Landlord, including
without limitation, execution of a UCC-1 financing statement. Tenant's failure
to execute such documents within ten (10) business days after written demand
shall constitute a material default by Tenant hereunder. Tenant hereby waives
any rights it may have under the Commonwealth of Virginia Uniform Commercial
Code which are inconsistent with Landlord's rights under this Section.
Landlord's rights under this Section are in addition to Landlord's rights under
Sections 11 and 14. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
SECTION 27(E), THE SECURITY INTEREST GRANTED BY TENANT TO LANDLORD SHALL BE
SUBORDINATE TO THE SECURITY INTEREST, IF ANY, GRANTED TO TENANT'S LENDERS IN THE
ORDINARY COURSE OF TENANT'S BUSINESS. AT TENANT'S REQUEST, LANDLORD SHALL,
WITHIN TEN (10) DAYS OF RECEIPT OF ANY SUCH LIEN WAIVER FROM TENANT, EXECUTE A
LIEN WAIVER, THE FORM OF WHICH SHALL BE REASONABLY SATISFACTORY TO LANDLORD,
WAIVING LANDLORD'S SECURITY INTEREST IN THE COLLATERAL DESCRIBED IN ANY SUCH
LIEN WAIVER.
(f) Notices. No notice, request, consent, approval, waiver or other
-------
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested,
first-class postage prepaid, (1) if to Landlord, at Landlord's Notice Address,
or (2) if to Tenant, at Tenant's Notice Address, or at any new address that may
be given by one party to the other by notice pursuant to this subsection. Such
notices, if sent by registered or certified mail, shall be deemed to have been
given ON THE DATE RECEIVED OR REFUSED AT THE APPROPRIATE PARTY'S ADDRESS FOR
NOTICE PURPOSES.
34
<PAGE>
(g) Entirety. It is understood and agreed by and between the parties
--------
hereto that this Lease contains the final and entire agreement between said
parties relative to the subject matter hereof, and that they shall not be bound
by any terms, statements, conditions or representations relative to the subject
matter hereof, oral or written, express or implied, not herein contained. It is
understood and agreed, however, that, subject to the terms of Section 15(b)
hereof, the terms hereof shall be modified, if so required, for the purpose of
complying with or fulfilling the requirements of any mortgagee secured by a
mortgage that may now be or hereafter become a lien on the Building, provided,
however, that such modification shall not be in substantial derogation or
diminution of any of the rights of the parties hereunder, nor increase any of
the obligations or liabilities of the parties hereunder.
(h) Waiver of Jury. Landlord and Tenant each hereby waives all right
--------------
to trial by jury in any claim, action, proceeding or counterclaim by either
Landlord or Tenant relating to this Lease and/or Tenant's use or occupancy of
the Leased Premises.
(i) Waiver of Venue. Tenant hereby waives any objection to the venue
---------------
of any action filed by Landlord against Tenant in any state or federal court of
the jurisdiction in which the Building is located, and Tenant further waives any
right, claim or power, under the doctrine of forum non conveniens or otherwise,
----- --- ----------
to transfer any such action filed by Landlord to any other court.
(j) Confidentiality. Tenant acknowledges and agrees that the terms of
---------------
this Lease are confidential and constitute propriety information of Landlord.
Disclosure of the terms hereof could adversely affect the ability of Landlord to
negotiate other leases with respect to the Building and may impair Landlord's
relationship with other tenants of the Building. Tenant agrees that it and its
partners, officers, directors, employees, brokers, and attorneys, if any, shall
not disclose the terms and conditions of this Lease to any other person or
entity except its attorneys, accountants, auditors, insurance agents,
contractors and consultants, and as required by legal process or requirements,
without the prior written consent of Landlord which may be given or withheld by
Landlord, in Landlord's sole, but reasonable, discretion. It is understood and
agreed that damages alone would be an inadequate remedy for the breach of this
provision by Tenant, and Landlord shall also have the right to seek specific
performance of this provision and to seek injunctive relief to prevent its
breach or continued breach.
(k) Tenant Entity. If Tenant is a corporation, it shall, concurrently
-------------
with the signing of this Lease, furnish to Landlord certified copies of the
resolutions of its Board of Directors (or of the executive committee of its
Board of Directors) authorizing Tenant to enter into this Lease; and it shall,
if applicable, furnish to Landlord certified copies of the resolutions of the
Board of Directors (or of the executive committee of such Board of Directors) of
any corporate guarantor, authorizing such corporation to guarantee the
obligations of Tenant under this Lease; and it shall furnish to Landlord
evidence (reasonably satisfactory to Landlord and its counsel) that Tenant is a
duly organized corporation under the laws of the state of its incorporation, is
qualified to do business in the jurisdiction in which the Building is located,
is in good standing under the laws of the state of its incorporation and has the
power and authority to enter into this Lease, and that all corporate action
requisite to authorize Tenant to enter into this Lease has been duly taken. If
Tenant is a partnership, the person executing this Lease on behalf of such
partnership hereby represents and warrants on behalf of such person and the
partners of Tenant that such person is authorized by Tenant to enter into this
Lease.
(l) Time of Essence. Time is of the essence in the performance of all
---------------
of Tenant's obligations under this Lease.
(m) Words and Phrases. Wherever appropriate herein, the singular
------------------
includes the plural and the plural includes the singular and neuter gender
references shall refer to the gender of the particular party.
35
<PAGE>
(n) Limit on Landlord's Liability. Notwithstanding any provision to
------------------------------
the contrary, Tenant shall look solely to the estate and property of Landlord in
and to the Building (or the proceeds received by Landlord FROM INSURANCE OR on a
sale of such estate and property but not the proceeds of any financing or
refinancing thereof) AND TO ANY INSURANCE in the event of any claim against
Landlord arising out of or in connection with this Lease, the relationship of
Landlord and Tenant, or Tenant's use of the Leased Premises, and Tenant agrees
that the liability of Landlord and the other parties referenced in Section 7(d)
hereof arising out of or in connection with this Lease, the relationship of
Landlord and Tenant, or Tenant's use of the Leased Premises, shall be limited to
such estate and property of Landlord (or sale OR INSURANCE proceeds). No other
properties or assets of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of or
in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Leased Premises, and if Tenant shall acquire a lien on or
interest in any other properties or assets by judgment or otherwise, Tenant
shall promptly release such lien on or interest in such other properties and
assets by executing, acknowledging and delivering to Landlord an instrument to
that effect prepared by Tenant's attorneys. No partnership relation shall be
deemed created hereunder between Landlord and Tenant. The foregoing provisions
of this subsection shall run to the benefit of Landlord, its successors,
assigns, mortgagees and ground lessors.
(o) Counterparts. This Lease maybe executed in several counterparts,
------------
but all such counterparts shall constitute one and the same instrument.
(p) Exhibits and Addendum. Exhibits A (Floor Plan of Leased Premises),
---------------------
A-1 (Designation of Reserved Parking), B (Intentionally Omitted), C
(Verification Letter), D (Janitorial Services), E (Rules and Regulations), F
(Subordination, Non-Disturbance and Attornment Agreement), G (TENANT'S PERSONAL
PROPERTY), and Addendum, if any, attached hereto, are hereby incorporated
herein.
[SIGNATURES ON FOLLOWING PAGE]
36
<PAGE>
IN WITNESS WHEREOF, Tenant has caused this Lease, including the attached
Addendum, if any, to be signed and attested in its corporate name by its proper
corporate officers and its corporate seal to be affixed as of the day and year
first above written or in its partnership name, as the case may be.
LANDLORD:
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
By: Its managing agent:
Lerner Corporation
____________________________ By: /s/ Mark D. Lerner
-----------------------------------
Mark D. Lerner
Executive Vice President
TENANT:
APACHE MEDICAL SYSTEMS, INC.
ATTEST:
____________________________ By: /s/ Peter Gladkin
Secretary [corporate seal] -------------------------------------
Name: Peter Gladkin
Title: President and CEO
37
<PAGE>
EXHIBIT A
LEASED PREMISES
---------------
A-1
<PAGE>
EXHIBIT A-1
===========
RESERVED PARKING
================
[TO BE ATTACHED]
RESERVED PARKING SHALL CONSIST OF
PARKING SPACES CURRENTLY USED BY TENANT
A-1-1
<PAGE>
EXHIBIT B
=========
(INTENTIONALLY OMITTED)
=======================
B-1
<PAGE>
EXHIBIT C
=========
verification letter
APACHE MEDICAL SYSTEMS, INC., a ____________ corporation ("Tenant") hereby
certifies that it has entered into a lease with TYSONS II DEVELOPMENT CO.
LIMITED PARTNERSHIP, a Maryland limited partnership ("Landlord") and verifies
the following information as of the _____ day of ___________, 19__:
Number of Rentable Square Feet in Leased Premises:_________________
Lease Commencement Date: ______________________________________
Lease Termination Date: ______________________________________
Tenant's Proportionate Share: ______________________________________
Initial Basic Rent: ______________________________________
Billing Address for Tenant: ______________________________________
______________________________________
Attention: ______________________________________
Telephone Number: ______________________________________
Federal Tax I.D. No.: ______________________________________
Tenant acknowledges and agrees that all tenant improvements Landlord is
obligated to make to the Leased Premises, if any, have been completed and that
Tenant has accepted possession of the Leased Premises and that as of the date
hereof, there exist no offsets or defenses to the obligations of Tenant under
the Lease. Tenant acknowledges that it has inspected the Leased Premises and
found them suitable for Tenant's intended commercial purposes.
TENANT
APACHE MEDICAL SYSTEMS, INC.
By: _____________________________
Its: _____________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
ACKNOWLEDGED AND AGREED TO:
LANDLORD
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
By: Lerner Enterprises Limited Partnership,
its general partner
By: _________________________
Theodore N. Lerner
General Partner
By: _ _________________________
Mark D. Lerner
General Partner
C-1
<PAGE>
EXHIBIT D
=========
JANITORIAL SERVICES
===================
SCOPE - The Owner intends to maintain the Building as a first-class office
- -----
building and all personnel shall be of the highest quality possible. All
personnel shall be uniformed and identifiable with a security-type badge. The
cleaning contractor shall furnish all labor, supplies, materials, equipment,
supervision and perform satisfactorily the services at the frequencies and
during the times specified. The services shall include all functions normally
considered a part of workmanlike janitorial services. The Building Management
reserves the right to modify these specifications at any time. The contract for
this assignment shall include a thirty (30) day cancellation clause.
I. LOBBY:
-----
A. DAILY SERVICES (Including Loading Dock and Service Area)
--------------
1. Clean and polish all floors, door frames, thresholds, door
hardware, glass, walls and direct6ory board.
2. Empty all waste receptacles and cigarette urns (in non-combustible
containers).
3. Sweep exterior entrances.
4. Vacuum and/or sweep walkoff mats.
5. Dust window ledges.
6. High dust all ledges as necessary.
7. Clean and dust balconies.
II. OFFICE AREAS:
-------------
A. DAILY SERVICES
--------------
1, Empty all waste receptacles, clean, if necessary.
2. Empty all ashtrays (in non-combustible containers) and clean.
3. Waste paper and trash shall be removed to the main disposal area.
(Only the freight elevator shall be used for this task).
4. Dust or damp mop all non-carpeted floors.
5. All non-carpeted floors shall be maintained in a clean and polished
condition at all times and will be stripped waxed and buffed as necessary
to maintain a high-standard of appearance.
6. Vacuum carpets and spot clean including under the desks, tables,
etc. Special attention shall be given to removing paper clips, stapes,
pencil shavings, rubberbands, cigarette butts, etc.
7. Dust all furniture, files, coat racks and ledges - including the
base of chairs and other hidden areas.
8. Damp wipe desk tops, phones and tables to remove spillage, finger
marks, etc.
9. Spot clean walls.
10. Sanitize and polish all drinking fountains.
11. Remove finger marks and smudges from doors, door frames, walls,
and light switches.
12. Dust a portion of venetian blinds so that all are dusted once a
week.
13. Clean tenant kitchenettes including maintaining floors in a
polished condition and high dust.
D-1
<PAGE>
14. Clean interior glass partitions.
B. WEEKLY SERVICES
---------------
1. Dust all vertical surfaces - door frames, desks, files, window
mullions, etc.
2. Dust horizontal surfaces above 70".
3. Dust window sills.
4. Whisk or vacuum furniture.
C. SEMI-ANNUALLY
-------------
1. Clean light lenses.
2. Vacuum air vents in walls and ceilings.
3. Dust all highhat light fixtures.
III. CORRIDORS/STAIRWELLS:
--------------------
A. DAILY SERVICES
--------------
1. Vacuum and spot clean all carpeted areas.
2. Spot clean corridor walls.
3. Police and sweep all stairwell floors.
4. Spot clean all doors, light switches, push plates, handles, etc.
5. Clean and polish, including stripping, waxing and buffing, all
non-carpeted corridor floors as necessary to maintain a high-standard of
appearance.
B. WEEKLY SERVICES
---------------
1. Mop all stairs and landings.
2. Wipe down stairwell railing, piping, mechanical boxes, etc.
3. Dust.
C. SEMI-ANNUALLY SERVICES
----------------------
1. Clean light lenses.
2. Vacuum air vents in walls and ceilings.
3. Dust all pipes, fire connections, exit signs, etc.
IV. TOILET ROOMS:
------------
A. DAILY SERVICES
--------------
1. Floors to be swept and wet mopped with germicide solution.
2. Sanitize commodes, urinals and wash basins - commode seats to be
left in up position.
3. Clean and polish all glass, mirrors, shelving, dispensers chrome
fixtures (above and below the counters, pipes, sink bowels, etc.
4. Spot clean all walls and partitions.
5. Traps shall be maintained free from odor at all times.
6. Wall surfaces, tile, doors, window frames, sills and waste
receptacles shall be kept clean at all times.
D-2
<PAGE>
7. Replenish all paper towels, toilet tissues, sanitary napkins and
soap dispensers.
B. QUARTERLY
---------
1. Wash and sanitize tile walls and booth partitions.
2. Dust vents.
3. Clean light lenses.
4. Acid wash tile floors as necessary to clean grout.
V. ELEVATORS:
---------
A. DAILY SERVICES
--------------
1. Clean and polish railings, buttons, emergency telephone, ceiling,
and elevator track.
2. Vacuum carpets and spot clean.
3. Spot clean walls as necessary.
VI. DAY PORTER AND MAIDS:
--------------------
A. DAILY SERVICES
--------------
Contractor will provide day porters or maids as requested to be billed
separately from the night cleaning. Duties will include the following:
1. Keep lobby area clean.
2. Police and restock restrooms.
3. Police tenant kitchen.
4. Police exterior grounds.
5. All special assignments from the Manager of the Building.
D-3
<PAGE>
EXHIBIT E
=========
RULES AND REGULATIONS
=====================
The following rules and regulations have been formulated for the safety and
well-being of all tenants of the Building and are incorporated into and made
part of the attached Lease (hereinafter, the "Lease"). Adherence to these rules
and regulations insures that each and every tenant will enjoy a safe and
undisturbed occupancy in the Building. Any violation of these rules and
regulations by any tenant which continues after notice from Landlord shall be
sufficient cause for termination, at the option of Landlord, of any tenant's
Lease.
Landlord shall have the continuing right to amend or eliminate any of these
rules and regulations, and also to adopt additional REASONABLE rules and
regulations of like force and effect. Any such change shall be effective at the
earlier of actual notice or five (5) days after delivery of written notice
thereof to the Leased Premises by Landlord.
Landlord may, upon request by any tenant, for good cause, waive the
compliance by such tenant of any of the following rules and regulations,
provided that (a) no waiver shall be effective unless signed by Landlord or
Landlord's authorized agent, (b) any such waiver shall not relieve the tenant
from the obligation to comply with such rule or regulation in the future unless
expressly consented to by Landlord, and (c) no waiver of a rule or regulation
granted to any tenant shall relieve any other tenant from the obligation of
complying with the rule or regulation unless such other tenant has received a
similar waiver in writing from Landlord. LANDLORD SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO ENFORCE SUCH RULES AND REGULATIONS IN A REASONABLE,
UNIFORM AND NON-DISCRIMINATORY MANNER.
1. The sidewalks, entrances, passages, and the parking, loading, and
service areas, Common Areas, or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the tenant's premises.
Landlord shall have the exclusive right to control and operate the Common Areas,
and the facilities furnished for the common use of the tenants of the Building,
in such manner as Landlord deems best for the benefit of the tenants generally.
No tenant shall permit the visit to its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment by other
tenants of the Common Areas. Landlord shall in any cases retain the right to
control or prevent access by any person whose presence, in Landlord's judgment,
would be prejudicial or harmful to the safety, peace, character or reputation of
the Building or of any tenant of the Building.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of a tenant's premises, without the prior
written consent of Landlord, except the blinds CURRENTLY IN USE ON THE LEASE
COMMENCEMENT DATE. If Landlord has installed or hereafter installs any shade,
blind or curtain in any premises, no tenant shall remove it without first
obtaining Landlord's written consent thereto. Approved blinds must be kept in
the down position at all times but may be pivoted open or closed as chosen by
each tenant. Any other awnings, projections, curtains, blinds, screens or other
fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
installed, inscribed, painted or affixed by any tenant on any part of the
outside or inside of the tenant's premises or any window thereof, or any part of
the Building, including the rear entrance and loading areas, without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove same without any liability, and may
E-1
<PAGE>
charge the expense incurred by such removal to the tenant or tenants violating
this rule. All signs, including interior signs on the doors and directory
tablet shall be designed and installed by Landlord, and shall only identify each
tenant and be of a size, color and style acceptable to Landlord. Approved
vending machines must be placed so as to not be visible from outside of the
Building.
4. No fixtures, plumbing, electrical equipment, show cases or other items
not shown on approved plans shall be installed or affixed to any part of any
tenant premises or the exterior of the Building, nor placed in the Common Areas,
without the prior written consent of Landlord.
5. The toilet rooms, water and wash closets, and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
6. EXCEPT FOR THOSE ALTERATIONS FOR WHICH LANDLORD'S CONSENT IS NOT
REQUIRED PURSUANT TO SECTION 22(A) OF THE LEASE, THERE shall be no marking,
painting, drilling into or other form of defacing or damage of any part of a
tenant's premises or the Building. No boring, cutting or stringing of wires
shall be done without the consent of Landlord. If any tenant desires to install
signaling, telegraphic, telephonic, protective alarm or other wires, apparatus
or devices within its premises, Landlord shall direct where and how they are to
be installed and, except as so directed, no installation, boring or cutting
shall be permitted. Landlord shall have the right (a) to prevent or interrupt
the transmission of excessive, dangerous or annoying current of electricity or
otherwise into or through the Building or the premises, (b) to require the
changing of wiring connections or layout at such tenant's expense, to the extent
that Landlord may deem necessary, (c) to require compliance with such reasonable
rules as Landlord may establish relating thereto, and (d) in the event of
noncompliance with such requirements or rules, immediately to cut wiring or do
whatever else it considers necessary to remove the danger, annoyance or
electrical interference with apparatus in any part of the Building. Each wire
installed by any tenant must be clearly tagged at each distributing board and
junction box and elsewhere where required by Landlord, with the number of the
office to which such wire leads and the purpose for which it is used, together
with the name of such tenant or other concern, if any, operating or using it. No
tenant shall construct, maintain, use or operate within its premises or
elsewhere within or on the outside of the Building, any electrical device,
wiring or apparatus in connection with a loud speaker system or other sound
system.
7. No tenant shall make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, tape recorder, whistling, singing, or any other way. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No bicycles, vehicles or animals, birds or pets of any kinds shall be
brought into or kept in or about a tenant's premises. Except in the kitchen
and/or lounge facility shown on approved plans, AND EXCEPT FOR CATERED, IN-HOUSE
EVENTS, no cooking shall be done or permitted by any tenant on its premises and
no tenant may install and/or operate any additional lounge or coffee room or
stove, sink and refrigerator, or the like. No tenant shall cause or permit any
unusual or objectionable odors to originate from its premises. All approved
kitchen facilities must be adequately exhausted by Tenant.
9. No space in or about the Building shall be used for the sale of
merchandise, goods or property of any kind or for sleeping purposes.
E-2
<PAGE>
10. EXCEPT AS OTHERWISE PROVIDED IN THE LEASE, NO flammable, combustible or
explosive fluid, chemical or substance shall be brought or kept upon any
tenant's premises, unless approved by the appropriate local government
authority. In any event, each tenant shall hold harmless Landlord from any
damage caused by the same.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof WITHOUT LANDLORD'S PRIOR CONSENT. The doors
leading to the corridors or main halls shall be kept closed during business
hours except as they may be used for ingress and egress. Each tenant shall, upon
the termination of its tenancy, return to Landlord all keys used in connection
with its premises, including any keys to the premises, to rooms and offices
within the premises, to storage rooms and closets, to cabinets and other
built-in furniture, and to toilet rooms, whether or not such keys were furnished
by Landlord or procured by tenant, and in the event of the loss of any such
keys, such tenant shall pay to Landlord the cost of replacing the locks. On
termination of a tenant's lease, the tenant shall disclose to Landlord the
combination of all locks for safes, safe cabinets, and vault doors, if any,
remaining in the premises.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord may require. Landlord reserves the right to
inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these rules and regulations or the
Lease.
13. Any person employed by any tenant to do janitorial work within the
tenant's premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building and outside of said premises,
comply with all instructions issued by the superintendent of the Building and
must be properly identified. No tenant shall engage or pay any employees on the
tenant's premises, except those actually working for such tenant on said
premises.
14. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like merchandise or service from any company or person whose
repeated violations of Building regulations have caused, in Landlord's opinion,
a hazard or nuisance to the Building and/or its occupants.
15. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a place for offices, and upon written notice from Landlord,
such tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
Building management or its agents. Landlord may, at its option, require all
persons admitted to or leaving the Building to register. Each tenant shall be
responsible for all persons for whom it authorizes entry into the Building, and
shall be liable to Landlord for all acts of such persons. Landlord shall also
have the right to install an electronic access control system for the Building
requiring the use of pass cards, identifications cards, passwords, confidential
codes or the like as a prerequisite to admission of any person into the
Building, and tenant agrees to faithfully abide by the rules of any such system.
If cards or the like are used in any such system, each tenant shall be issued
two (2) without charge, but each additional or replacement card requested shall
be issued only upon payment of a standard service fee per card.
17. Each tenant, before closing and leaving its premises at any time, even
though the Lease may be net of utilities, should use its best efforts to see
that all lights, electrical appliances and mechanical equipment are turned off.
E-3
<PAGE>
18. The requirements of tenants will be attended to only upon application
at the management office for the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the management of the Building.
19. Canvassing, soliciting and peddling in the public Building is
prohibited and each tenant shall cooperate to prevent the same, including
notifying Landlord when and if such activity occurs.
20. There shall not be used in any space, or in any public halls of the
Building, either by a tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
21. Access plates to under-floor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. Drapes which are visible from the exterior of the Building must be
cleaned by each tenant at least once a year, without notice, at such tenant's
own expense.
24. All office equipment of any electrical of mechanical nature shall be
placed by any tenant in its premises in approved settings to absorb or prevent
any vibration, noise or annoyance.
25. Tenant shall not permit or cause to be used in any premises any device
or instrument such as a sound reproduction system, or excessively bright,
changing, flashing, flickering, moving lights or lighting devices or any similar
devices, the effect of which shall be audible or visible beyond the confines of
the demised premises, nor shall tenant permit any act or thing upon the demised
premises distributing to normal sensibilities of other tenants.
26. All moving of safes, freight, furniture or bulky matter of any
description, to or from any premises shall only take place during the hours
designated by the Landlord. Hand trucks may be used only if they are equipped
with rubber tires and side guards, and only in designated delivery areas.
Damages caused thereby shall be borne by Tenant.
27. Tenant shall not use the premises as headquarters for large scale
employment of workers for other locations.
28. The premises shall never at any time be used for any immoral or illegal
purposes.
29. Landlord shall have the right, from time to time, to designate specific
parking spaces in the parking areas for the Building as being reserved for
specific tenants or for members of the general public, or designated for trucks
only, and each tenant agrees to honor such reservations and to permit parking
for officers and employees only in those parking spaces available for such
purposes. Violators can be towed at their own expense. Landlord shall have the
further right, during holiday seasons or at other times when parking spaces may
be in short supply, to temporarily change or restrict established parking areas
in order to provide additional public parking, and tenant agrees to honor such
temporary changes and restrictions. Trucks of any tenant's vendors are not to be
left at the Building. Landlord makes no warranty as to the availability of
parking spaces for any tenant unless specific spaces have been reserved as set
forth above.
E-4
<PAGE>
30. Any utilities meters approved by Landlord shall be placed in the name
of such tenant immediately upon occupancy and, at that time, each tenant shall
provide verification of the meters being in its name to Landlord.
31. Landlord does not maintain suite finishes which are non-standard such
as kitchens, bathrooms, wallpaper, special lights, etc. However, should the need
for repairs arise, Landlord will arrange for the work to be done at tenant's
expense.
32. Nothing in these rules and regulations shall give any tenant any right
or claim against Landlord or any other person if Landlord does not enforce any
of them against any other tenant or person (whether or not Landlord has the
right to enforce them against such tenant or person), and no such
non-enforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to such tenant or any other tenant person thereafter.
33. Each tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the premises
surrounding the Building. And, Landlord shall have the right to rescind, suspend
or modify the rules and regulations and to promulgate such other rules or
regulations as, in Landlord's reasonable judgment, are from time to time needed
for the safety, care, maintenance, operation and cleanliness of the Building, or
for the preservation of good order therein. Upon any tenant's having been given
notice of the taking of any such action, the rules and regulations, as so
rescinded, suspended, modified or promulgated, shall have the same force and
effect as if in effect at the time at which such tenant's Lease was entered into
(except that nothing in these rules and regulations shall be deemed in any way
to alter or impair any provision of such Lease)
E-5
<PAGE>
EXHIBIT F
=========
SUBORDINATION, NON-DISTURBANCE
==============================
AND ATTORNMENT AGREEMENT
========================
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") is
made by and between APACHE MEDICAL SYSTEMS, INC., a corporation,
("Tenant") (as defined below), and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA, a New York corporation ("Lender").
DEFINITIONS:
- -----------
1. Borrower Tysons II Development Co. Limited Partnership
2. Tenant: APACHE MEDICAL SYSTEMS, INC.
3. Property: The real property located at 1650 Tysons Boulevard in the
County of Fairfax, Commonwealth of Virginia, as
described on Exhibit "A" and all fixtures thereon.
4. Landlord: The landlord under the Lease and its successors and assigns
from time to time except a "Successor Landlord"
(defined in Appendix I).
----------
5. Lease:
The lease, dated ____________ ___, 1999, by and between
Borrower, as landlord, and Tenant, as tenant, and any
amendments that may occur from time to time: for a term
of approximately 7 years that commences on or about
December 1, 1999.
6. Leased Space:Suite No. 300 leased to Tenant pursuant to the Lease.
7. Loan: The loan from Lender to Borrower, including any advances
and increases, secured by, among other things, a lien
on the Property.
8. Mortgage: The Deed of Trust, Assignment of Leases and Rents and
Security Agreement by Borrower in favor of Lender, as
amended or consolidated from time to time, to be
recorded in the Official Records of the County of
Fairfax, Commonwealth of Virginia (the "Land Records")
to secure the loan.
9. Assignment: The Assignment of Leases and Rents, by Borrower in favor of
Lender, as amended or consolidated from time to time,
to be recorded in the Land Records to secure the Loan.
10. Rent: Annual Office Base Rent: $650,656.50; Monthly Parking Rent
(per space): $70.00.
F-1
<PAGE>
EXHIBIT F
(CONTINUED)
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this
Agreement as of ___________ ___, 1999.
APACHE MEDICAL SYSTEMS, INC.
A______________corporation
By:___________________________
Name:____________________
Title____________________
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
By:_______________________________
Name:________________________
Title________________________
F-2
<PAGE>
EXHIBIT F
(CONTINUED)
COUNTY OF ________________________
STATE OF ________________________
I hereby certify that on this _____ day of ____________, 1999, before me,
the subscriber, a Notary Public, in and for the State and County aforesaid,
personally appeared _____________________________________________ (title) of
APACHE MEDICAL SYSTEMS, INC., a corporation, and on behalf of said
corporation did acknowledge the foregoing Subordination, Non-Disturbance and
Attornment Agreement to be act and deed of said body corporate.
Witness my hand and notarial seal.
_____________________________
Notary Public
My commission expires:_______________________________
COUNTY OF ________________________
STATE OF ________________________
I hereby certify that on this _____ day of __________, 1999, before me, the
subscriber, a Notary Public, in and for the State and County aforesaid,
personally appeared _____________________________________________ (title) of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation,
and on behalf of said corporation did acknowledge the foregoing Subordination,
Non-Disturbance and Attornment Agreement to be act and deed of said body
corporate.
Witness my hand and notarial seal.
_____________________________
Notary Public
My commission expires:_____________________________
F-3
<PAGE>
EXHIBIT F
(CONTINUED)
A P P E N D I X "I"
-------------------
RECITALS:
- --------
A. Borrower and Tenant have executed the Lease pursuant to which
Borrower leased to Tenant the Leased Space.
B. Tenant and Lender desire to agree on the relative priorities of
their interests in the Property and their rights and obligations if certain
events occur.
NOW, THEREFORE, for good and sufficient consideration, the parties agree as
set forth below.
1. Tenant and Lender agree that until the Mortgage is satisfied of
record:
(a) The Lease and all of Tenant's rights under the Lease are and
will remain subject and subordinate to the Mortgage and to all future advances
made under the Mortgage and to any other mortgage or other security instrument
on the Property now or in the future held by Lender and Tenant will not
subordinate the Lease to any other lien against the Property without Lender's
prior consent;
(b) Except for any security deposit, Tenant will not pay Rent more
than one month in advance and will not offset against Rent;
(c) Upon receipt of notice from Lender, Tenant will pay the rent
as and when due under the Lease to Lender and the payments will be credited
against the Rent due under the Lease; and
(d) Tenant does not have and will not acquire any right or option
to purchase any portion of or interest in the Property.
2. Tenant may enter into amendments of the Lease without Lender's prior
consent, except as follows:
(a) Except as permitted in the Mortgage or Assignment, Tenant will
not enter into any amendment that reduces the Rent due under the Lease without
Lender's prior consent which will not be unreasonably withheld, except Tenant
may agree to a rent reduction without Lender's prior consent in connection with
an extension or renewal of the Lease but only if the rent for the extension or
renewal period is consistent with then prevailing market terms for like space;
(b) Except as permitted in the Mortgage or Assignment, Tenant will
not amend the Lease to reduce the initial term of the Lease or any renewal term
of the Lease after the renewal has been exercised, will not terminate or cancel
the Lease and will not surrender the Leased Space without Lender's prior consent
which will not be unreasonably withheld, provided that during the last six
--------
months of the initial or any renewal term of the Lease, Tenant may terminate or
cancel the Lease or surrender the Leased Space without Lender's prior consent;
and
(c) If Tenant is a major department store or anchor tenant in a
shopping center or if the Leased Space is 50% or more of the net rentable area
of the building(s) located on the Property, Tenant will not amend the Lease in
any way without Lender's prior consent.
F-4
<PAGE>
3. If Tenant is not in default under this Agreement and is not in
default beyond any applicable grace and cure periods under the Lease, Tenant and
Lender agree as follows:
(a) If Lender commences a judicial or non-judicial foreclosure or
other proceeding to enforce the Mortgage or exercises any power of sale (an
"Action"), Lender will not name Tenant as a party to the Action unless joinder
------
is required under applicable law and in such case Lender will not seek
affirmative relief from Tenant, the Lease will not be terminated and Tenant's
possession will not be disturbed;
(b) If Lender or any other entity (a "Successor Landlord")
acquires the Property through an Action or by deed-in-lieu of foreclosure (an
"Acquisition"), Successor Landlord will not disturb Tenant's possession of the
-----------
Leased Space, the Lease will continue in full force and effect with Successor
Landlord and Tenant bound by the Lease; and
(c) If, notwithstanding the foregoing, the Lease is terminated as
a result of an Action, a lease between Successor Landlord and Tenant will be
deeded created on the same terms as the Lease except that the term of the
replacement lease will be the then unexpired term of the Lease. Successor
Landlord and Tenant will execute a replacement lease on such terms as the
request of either.
4. Upon an Acquisition Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
5. Successor Landlord will not be:
(i) liable for any act or omission of Landlord occurring prior to the
date of Acquisition except for repair and maintenance obligations
of a continuing nature imposed on the landlord under the Lease:
(ii) required to credit Tenant with any Rent for any rental period
beyond the then current rental period or for any security deposit
unless it has been received by Successor Landlord;
(iii)bound by any amendment, renewal or extension of the Lease that
is not in writing signed by both Tenant and Landlord, that is
inconsistent with the terms of this Agreement or that was made
without Lender's prior consent, if Lender's prior consent was
required under the terms of this Agreement;
(iv) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have against Landlord arising prior to
the date of Acquisitions;
(v) liable for any damages Tenant may suffer as a result of any
misrepresentation, breach of warranty or any act of or failure to
act by any party other than Successor Landlord;
(vi) obligated to make any payment or to give any credit or allowance
to Tenant including, without limitation, for any improvements,
demolition or other work in the Leased Space or the Property
(other than to reconstruct after a casualty or condemnation if
the insurance or condemnation proceeds are paid to Successor
Landlord) or to undertake or complete construction of
improvements in the Leased Space or the Property or to pay any
leasing commissions arising out of the Lease; or
F-5
<PAGE>
(vii)liable for any obligations of Landlord with respect to off-site
property or facilities for the use of Tenant (such as off-site
leased space or parking) unless Successor Landlord succeeds
through Acquisition to Landlord's right, title or interest in the
off-site property.
6. Lender will have the right, but not the obligation, to cure any
default by Borrower under the Lease. Tenant will notify Lender of any default
by Borrower that would entitle Tenant to terminate the Lease or abate the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a thirty (30) day cure
period (or such longer period as may be necessary if the default is not
susceptible to cure within thirty (30) days commencing on the latest to occur of
the date on which (i) the cure period under the Lease expires; (ii) Lender
receives the notice required by this paragraph; and (iii) Successor Landlord
obtains possession of the Property if the default is not susceptible to cure
without possession.
7. Tenant certifies that the Lease represents the entire agreement
between Borrower and Tenant regarding the Leased Space; the Lease is in full
force and effect; neither party is in default under the Lease beyond any
applicable grace and cure periods and not event has occurred which with the
giving of notice or passage of time would constitute a default under the Lease;
Tenant has entered into occupancy and is open and conducting business in the
Leased Space and all conditions to be performed to date by Landlord have been
satisfied.
8. Upon not less than twenty (20) days prior request from Lender,
Tenant will execute, acknowledge and deliver to Lender an estoppel certificate
containing the information required by the Lease and any other information
reasonably requested by Lender.
9. All notices, requests or consents required or permitted to be given
under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at its Notice Address.
10. Tenant acknowledges and agrees that this Agreement constitutes
notice to Tenant of the existence of the Mortgage and that the Lease and the
Rent have been assigned to Lender as security for the Loan.
11. Any claim by Tenant against Successor Landlord under this Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
12. This Agreement is governed by and will be construed in accordance
with the laws of the state or commonwealth in which the Property is located.
13. Lender and Tenant waive trial by jury in any proceeding brought by,
or counterclaim asserted by, Lender or Tenant relating to this Agreement.
F-6
<PAGE>
14. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail. If there is a conflict
between the terms of the Lease and the Mortgage, the terms of the Mortgage will
prevail.
15. This Agreement binds and inures to the benefit of Lender and Tenant
and their respective successors, assigns, heirs, administrators, executors,
agents and representatives.
F-7
<PAGE>
EXHIBIT G
=========
TENANT'S PERSONAL PROPERTY
==========================
Tenant's personal property shall include:
- - Reception desks
- - Shelves, credenzas and cabinets
- - Chalkboards, whiteboards, screens, partitions and presentation cases
- - Artwork
- - Furniture, systems furniture and furnishings
- - Telephone systems and computer equipment
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements
listed below of our report dated February 28, 2000, with respect to the
consolidated financial statements of Apache Medical Systems, Inc., included in
this Annual Report (Form 10-K) for the year ended December 31, 1999.
1) No. 333-88745
2) No. 333-88747
3) No. 333-36423
4) No. 333-36425
5) No. 333-23731
6) No. 333-23749
/s/ Ernst & Young LLP
McLean, Virginia
March 28, 2000
45
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
reports included in this Form 10-K, into the Company's previously filed
Registration Statement, File Nos. 333-88745, 333-88747, 333-36423, 333-36425,
333-23731, and 333-23749.
/s/ ARTHUR ANDERSEN LLP
Vienna, Virginia
March 29, 2000
46
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED STATEMENTS OF OPERATIONS AND CONSOLIDATED FINANCIAL REPORTS
FILED AS PART OF THE APACHE MEDICAL SYSTEMS, INC. FORM 10-K FOR THE ANNUAL
PERIOD ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FORM 10-K FOR THE ANNUAL PERIOD ENDED DECEMBER 31, 1999.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 5194
<SECURITIES> 1048
<RECEIVABLES> 3543
<ALLOWANCES> 531
<INVENTORY> 0
<CURRENT-ASSETS> 9753
<PP&E> 3661
<DEPRECIATION> 3222
<TOTAL-ASSETS> 11466
<CURRENT-LIABILITIES> 6305
<BONDS> 0
0
0
<COMMON> 74
<OTHER-SE> 5039
<TOTAL-LIABILITY-AND-EQUITY> 11466
<SALES> 12023
<TOTAL-REVENUES> 12023
<CGS> 3142
<TOTAL-COSTS> 3142
<OTHER-EXPENSES> 7826
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 30
<INCOME-PRETAX> 1351
<INCOME-TAX> 0
<INCOME-CONTINUING> 1351
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1351
<EPS-BASIC> .18
<EPS-DILUTED> .18
</TABLE>
